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[2025] NSWCCA 51
Court of Criminal Appeal (NSW)
2025-04-09
Payne JA, Fagan J, Coleman J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: MJR v R [2025] NSWCCA 51
Hearing dates: 5 February 2025
Date of orders: 9 April 2025
Decision date: 09 April 2025
Before: Payne JA; Fagan J; Coleman J
Decision: (1) Grant leave to the applicant to proceed on his application filed out of time.
(2) Grant leave to appeal against sentence.
(3) Order that the aggregate sentence imposed in the District Court on 8 April 2022 be quashed and that in lieu thereof the applicant is sentenced to imprisonment for 10 years commencing on 3 July 2019 and expiring on 2 July 2029 with a non-parole period of 7 years and 6 months expiring on 2 January 2027. The earliest date on which the applicant will be eligible to be released to parole is 2 January 2027.
Catchwords: CRIME – appeals – appeal against sentence – manifest excess – supply of firearms and prohibited weapons – possession and unlawful use of firearms – supply of illegal drugs – breaking and entering –totality and notional accumulation – where 50% discount was significantly eroded at the stage of aggregation – excessive accumulation – manifest excess established – applicant re-sentenced
Legislation Cited: Crimes Act 1900 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Firearms Act 1996 (NSW)
Weapons Prohibition Act 1998 (NSW)
Cases Cited: Chartres-Abbott v R [2021] NSWCCA 239
Davidson v R [2022] NSWCCA 153
Johnson v R [2021] NSWCCA 13
Moananu v R [2022] NSWCCA 85
Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
XY (A Pseudonym) v R [2023] NSWCCA 50
Category: Principal judgment
Parties: MJR (Applicant)
Rex (Respondent)
Representation: Counsel:
S Buchen SC with C O’Neill (Applicant)
E Nicholson (Respondent)
Solicitors:
Murphys Lawyers (Applicant)
Solicitor for Director of Public Prosecutions (Respondent)
File Number(s): 2019/206649; 2019/339115; 2019/3965595
Publication restriction: No
[This headnote is not to be read as part of the judgment]
Between 29 January 2019 and 3 July 2019, the applicant committed 15 offences which included supply of firearms and prohibited weapons, possession and unlawful use of firearms, supply of illegal drugs and breaking and entering. Most of the supply offences involved transactions between the applicant and a police undercover officer. He pleaded guilty to each offence. On 8 April 2022, the applicant was sentenced in the District Court to an aggregate term of imprisonment of 15 years with a non-parole period of 11 years. A 50% discount was applied to each indicative sentence.
The applicant sought leave to appeal against his sentence on the sole ground that the sentence was manifestly excessive.
The Court held, granting leave to appeal, allowing the appeal, quashing the sentence imposed by Baly SC DCJ and re-sentencing the applicant to an aggregate sentence of 10 years imprisonment with a non-parole period of 7 years and 6 months:
1. The applicant’s criminality in several offences overlapped significantly with his criminality in other counts of like kind. That feature called for a substantial degree of notional concurrence in fixing the aggregate sentence: at [50].
Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [64] applied.
2. The benefit to the applicant of the 50% discount to which he was entitled, as the Crown accepted, was significantly eroded at the stage of aggregation: at [59].
Johnson v R [2021] NSWCCA 13 at [73] considered.
3. Upon assessment of the degree of notional accumulation implicit in the aggregate sentence, the aggregate sentence of 15 years with a non-parole period of 11 years is manifestly excessive on the principle of totality: at [60].
THE COURT: The applicant seeks leave to appeal against an aggregate sentence imposed by her Honour Judge Baly SC in the District Court at Goulburn on 8 April 2022, for 15 separate offences to each of which he pleaded guilty. The spectrum of offending included supply of firearms and prohibited weapons, possession and unlawful use of firearms, supply of illegal drugs and breaking and entering. Those offences were committed over a period of five months between 29 January 2019 and 3 July 2019. Most of the supplies of firearms, prohibited weapons and drugs were transactions between the applicant and a police undercover operative (“UCO”).
After applying a 50% discount to arrive at indicative sentences, the learned sentencing judge ordered an aggregate sentence of 15 years imprisonment with a non-parole period of 11 years. The sentence dated from 3 July 2019 when he was arrested and remanded without bail. The sole ground of appeal is that the aggregate sentence is manifestly excessive. The applicant does not argue that any of the indicative sentences would have been appellable on the ground of manifest excess if they had been separately imposed, although he contends that a number of them were at the high end of the discretionary range. The applicant’s central argument is that the aggregate is a product of excessive notional accumulation, resulting in a penalty that is obviously unjust having regard to the total criminality, the mitigating subjective circumstances and the discount.
The applicant’s notice of intention to appeal was filed on 28 April 2022 and expired on 28 April 2023. The Notice of Appeal was not filed until 6 November 2024, more than 18 months out of time. Nevertheless, the Crown does not oppose a grant of leave for the applicant to proceed on his application and leave will be granted to that extent.
The individual charges and their particulars are listed below, together with the indicative sentences nominated by the learned judge. In overview the offending can be summarised as follows:
Supply of firearms, contrary to the Firearms Act 1996 (NSW), and prohibited weapons, contrary to the Weapons Prohibition Act 1998 (NSW): Over six separate occasions during the charge period the applicant sold nine firearms to the UCO and was paid a total of $85,000 for them. He supplied to the UCO a total of 12 prohibited weapons across five occasions, some being occasions when firearms were also supplied. The total amount paid for the weapons was $9,500.
Possession of firearms, ammunition and prohibited weapons: During the charge period the applicant frequently stayed at a house belonging to Robert Gleeson at 5 Coalmines Road, Bundanoon in the Southern Highlands. At the time of his arrest on 3 July 2019 he had possession of nine firearms at the Bundanoon property including prohibited firearms (a semi-automatic pistol and semi-automatic military style rifles). Significant quantities of ammunition and a number of prohibited weapons were also found, the charges for which were dealt with on Form 1 schedules. There was one offence of possession of one a prohibited firearm, namely, a pen gun located at his residence in Dee Why.
Unauthorised use of firearms: On three separate days in late April 2019, the applicant in company with Robert Gleeson at Merriwa, in the Upper Hunter Shire, handled and/or used firearms registered to Gleeson.
Supply of drugs contrary to the Drug Misuse and Trafficking Act 1985 (NSW) (DMT Act): The applicant pleaded guilty to three supplies of illicit drugs, the largest being 6.077 kg of gamma-butyrolactone (GBL) and 357.4 g of MDMA supplied to the UCO. The total amount paid to the applicant by the UCO for drugs was $24,500. One non-UCO drug supply was charged and a few more were dealt with on Form 1 schedules.
Break and enter, receiving: The applicant pleaded guilty to entering on a rural a property at Merriwa, on 25 April 2019, to investigate the possibility of breaking into a locked shipping container to steal firearms and other items. On 15 June 2019 the applicant and a co-offender stole four firearms and other items from a barn on a property at Bundanoon. At the time of his arrest on 3 July 2019 the applicant was in possession, at Dee Why, of a Giant Mountain Bike and a surfboard that had been stolen from a neighbouring unit. The receipt of stolen property was dealt with on a Form 1.
Some aspects of the applicant’s background throw light upon the character of his offending. He was 33 years old during the charge period. He was brought up in south-western suburbs of the Sydney metropolitan area, near Campbelltown. When the applicant was 12 years old his mother developed bipolar disorder and became a heavy consumer of alcohol. That resulted in a chaotic home life from which the applicant escaped by spending most of his time with the family of his friend Andrew Gleeson, whose father, Robert introduced him to hunting with firearms. That became his passion. He obtained a minor’s firearm permit at age 14 and a full pistol licence at 17.
The applicant commenced heavy use of cannabis, ecstasy and amphetamines from the age of 18. In late August 2006, at age 21, he took a Glock pistol into local hotel in an attempt to intimidate a person who had threatened his friend. The applicant was convicted of using an unauthorised firearm and handling a firearm under the influence of an intoxicant. His pistol licence was revoked and he was fined and placed on good behaviour bond for two years, which expired on 24 October 2008.
On 27 November 2008 when the applicant was 23 years’ old he was arrested at the home where he resided with his parents. He was in possession of two revolvers, both loaded, two repeating .22 rifles, one shortened rifle, one double-barrel 12 gauge shot gun, two silencers and several thousand rounds of ammunition. All the firearms were unregistered, two of them were prohibited and the applicant had no licence for any of them. He was also in possession of quantities of cannabis, methamphetamine and ecstasy together with resealable bags. When police forced their way into the house the applicant came down to the front entry carrying one of the loaded pistols. He discharged one round, although not at the police. Immediately thereafter he laid down the weapon and surrendered.
It is not necessary to spell out the charges or the individual sentences imposed for the offending in November 2008. It is sufficient to say that he was sentenced to a total effective term of 9 years with a non-parole period of 5 years. Through a psychological report the applicant explained his offending to the sentencing judge, Keleman DCJ, in these terms:
… firearms for him were always a sport and hobby … he used firearms for sporting and recreational shooting.
… he said that he was just a gun enthusiast who loved shooting and got caught up in drugs …
… when he is released from custody he intends to keep to his current fitness regime, stay off drugs and avoid owning any more firearms.
There is no doubt, on the material before me, that the offender has had a long-standing obsession with firearms. However, I am satisfied that if the offender maintains his present motivation, manages to overcome his obsession with firearms and abstains from using prohibited drugs, his prospects of rehabilitation are reasonably good and he is unlikely to reoffend in the future.
The applicant was released to parole on 26 November 2013. Under Keleman DCJ’s sentence, his parole was to continue for 4 years until expiry of the head sentence on 26 November 2017. However, within a year of his release, on 13 November 2014 the applicant committed further offences: possession of a replica rifle, three counts for possession of flick knives and two counts of taking part in the supply of methyl amphetamine (27 g on one occasion and 54 g on another). Further charges of possession of various knives were taken into account on Form 1 schedules. Sweeney DCJ sentenced him on 12 August 2016 to an aggregate sentence of 5 years imprisonment with a non-parole period of 3 years dating from his arrest. The applicant’s parole under the earlier sentence had been revoked. The whole three-year non-parole period of this latest sentence was therefore served concurrently with the balance of his head sentence for the earlier offending.
The applicant was released to parole under Sweeney DCJ’s sentence on 12 November 2017. The head sentence did not expire until 12 November 2019 so that the offending in the first half of 2019, to which this application for leave to appeal relates, was committed whilst the applicant was on parole.
In the sentence proceedings before Judge Baly SC the applicant tendered reports of Dr A Henderson. The Crown tendered a report of Dr K Eagle. Their respective psychiatric diagnoses differ but the applicant provided each doctor with a consistent history of his reasons for having amassed firearms and prohibited weapons and having traded them as charged. He told Dr Henderson that he believed a “solar flare” would occur during his lifetime and would disrupt electronic devices and communications, leading to civil unrest and the breakdown of society. The applicant referred to this prospect as “doomsday”. He said that he had purchased firearms and weapons in preparation for that crisis and to enable friends and like-minded people to protect themselves and to become part of a new society to emerge after doomsday.
The applicant told Dr Henderson that in January 2019 he had commenced operating an online business selling rations and gas masks to other “doomsday preppers”. The applicant said that he had been told, and he believed, that the UCO to whom he sold firearms and prohibited weapons was “a fellow doomsday operator”. He said he had not engaged in any robberies or assaults using firearms or weapons. The Crown did not allege in the sentence proceedings that the applicant had committed crimes of that nature, nor did it adduce evidence that the applicant had sold firearms or prohibited weapons to purchasers whom he had reason to believe might use them in the commission of other crimes.
(1) Supply of firearms and prohibited weapons
| Offence | Max / SNPP | Particulars | Form 1 offences | Indicative sentence | | 2 Supply shortened firearm (s 62(1)(c) of the Firearms Act) | 14 yrs | 31 January 2019 Sawn-off .303 bolt action rifle | No | 2 years and 6 months | | 3 Ongoing supply of firearms (s 51B(1) of the Firearms Act) | 20 yrs / 10 yrs | 29 January - 31 May 2019 9 firearms supplied over 7 dates; the sawn-off .303 in count 2 plus 3 rifles, 1 semi-auto rifle, 2 shotguns, 1 semi-auto pistol and 1 revolver – most items with ammunition. | Supply ammunition | 4 years / 3 years | | 4 Ongoing supply of prohibited weapons (s23B(1) of the Weapons Prohibition Act) | 20 yrs | 27 February - 31 May 2019 13 weapons supplied on 5 dates: smoke grenade, silencer, pistol magazine, 4 x knives, 2 x knuckle dusters, 2 x batons, Taser, slingshot, capsicum spray. | No | 4 years |
(2) Possession of firearms
| Offence | Max / SNPP | Particulars | Form 1 offences | Indicative sentence | | 6 Aggravated possess firearms (including prohibited firearm) (s 51D(2) of the Firearms Act) | 20 yrs / 10 yrs | 3 July 2019 Total 5 firearms at Bundanoon. In lounge room: 1 bolt action rifle with rounds in attached magazine. In roof cavity: 2 rifles and 2 semi-auto rifles (prohibited). | Receiving stolen property (Giant mountain bike and surfboard). | 3 years and 3 months / 2 years and 7 months | | 7 Aggravated possess firearms (including prohibited firearm) (s 51D(2) of the Firearms Act) | 20 yrs / 10 yrs | 3 -12July 2019 In roof cavity at Bundanoon: 1 semi-auto pistol with silencer, 3 military semi-auto assault rifles (all prohibited) | 2 x possess prohibited weapons (magazines, body armour); possess ammunition without permit | 3 years / 2 years and 6 months | | 9 Possess unauthorised prohibited firearm (s 7(1) of the Firearms Act) | 14 yrs / 4 yrs | 3 - 16 July 2019 Single shot .22 calibre pen gun at Dee Why | Possess prohibited weapon; possess ammunition without permit; possess steroids | 2 years and 6 months / 1 year and 10 months |
(3) Unauthorised use of firearms
| Offence | Max / SNPP | Particulars | Form 1 offences | Indicative sentence | | 11 Possess unauthorised firearm (s 7(1) of the Firearms Act) | 14 yrs / 4 yrs | 23 April 2019 R Gleeson’s .22 pistol held by applicant while hunting feral animals on Merriwa rural property | No | 2 years / 1 year and 6 months | | 13 Possess unauthorised firearm (s 7A(1) of the Firearms Act) | 5 yrs | 26 April 2019 R Gleeson’s 12 gauge shotgun held by applicant while hunting feral animals on Merriwa property | No | 9 months | | 14 Handle firearm while under the influence of alcohol (s 64(1) of the Firearms Act) | 5 yrs | 26 April 2019 Same incident as count 13. | No | 9 months | | 15 Use unauthorised pistol (s 7(1) of the Firearms Act) | 14 yrs / 4 yrs | 28 April 2019 R Gleeson’s .22 pistol fired by applicant at a tree on Merriwa property | No | 2 years / 1 year and 6 months |
(4**)** Supply of drugs
| Offence | Max / SNPP | Particulars | Form 1 offences | Indicative sentence | | 1 Supply large commercial quantity of prohibited drug (s25(2) of the DMT Act) | Life / 15 yrs | 29-31 January 2019 6.077 kg of GBL, 93.6% pure | Supply 27.4 g MDMA; offer to supply 5 lbs cannabis leaf; offer to supply 1000 MDMA pills | 5 years | | 5 Supply commercial quantity of prohibited drug (s25(2) of the DMT Act) | 20 yrs / 10 yrs | 29 April - 7 May 2019 357.4 grams of MDMA (being the 1000 pills the subject of the offer on the Form 1 to count 1) | No | 3 years / 2 years and 3 months | | 10 Supply indictable quantity of prohibited drug (s 25(1) of the DMT Act) | 15 yrs | 14 May 2019 28 grams of Ketamine to a non-UCO purchaser. | Supply 7 g cannabis leaf; 4 x offer to supply 453 g cannabis leaf; offer to supply 28 g MDMA; offer to supply 1,000 MDMA tablets (to non-UCO counterparties) | 2 years and 3 months |
(5**)** Break and enter
| Offence | Max / SNPP | Particulars | Form 1 offences | Indicative sentence | | 12 Armed with intent to break and enter having a previous conviction for an indictable offence (ss 114 and 115(1)(d) of the Crimes Act) | 10 yrs | 25 April 2019 Merriwa property | No | 1 year and 3 months | | 8 Aggravated enter dwelling (in company) with intent to steal (s 111(2) of the Crimes Act 1900 (NSW)) | 14 yrs | 15 June 2019 Barn at 181 Penrose Rd, Bundanoon | Steal 4 firearms | 2 years and 6 months |
In late January 2019 the UCO made contact with the applicant via an encrypted mobile phone application. He introduced himself as a fellow “doomsday prepper” and as a hunter. Through the encrypted application the UCO negotiated purchase of a sawn off .303 bolt action rifle for $6,000 (offence 2) and 5 L of GBL for $14,000 (offence 1). They met in person in the car park at Sutton Forest on 31 January 2019 where settlement took place, in cash.
In further communications between the applicant and the same UCO during February and early March 2019, the applicant agreed to supply prohibited weapons (a smoke grenade and a silencer, part of the offence 4), a .22 bolt action rifle (part of offence 3) and 1 oz/27.4 g of MDMA (a Form 1 offence). The total agreed price was $13,500. Settlement took place in person at Sutton Forest on 13 March 2019.
During mid March 2019, the applicant offered to supply to the UCO 5 lbs of cannabis leaf and 1,000 MDMA tablets (Form 1 offences) and they negotiated for the applicant to supply a 9 mm semi-automatic pistol (part of offence 3), ammunition (a Form 1 offence) and magazines and prohibited weapons (part of offence 4) the total agreed price was $25,000. In late March they met to exchange the items and the payment.
Also, during March 2019, the applicant agreed to supply the same UCO with a rifle (part of offence 3), ammunition and ecstasy (a Form 1 offence). They agreed on a price of $7,000 which was settled in cash at a meeting in Dee Why on 27 March 2019.
On 2 April 2019, the UCO met the applicant at Dee Why where the applicant supplied a revolver and shot gun (part of offence 3) a Glock pistol magazine (part of offence 4) and ammunition. $19,000 was paid by the UCO for those items.
On 7 May 2019, at Dee Why the applicant supplied the UCO with various prohibited weapons (comprised in offence 4), and 1,000 ecstasy tablets comprising 357.4 g at a purity of 14% (offence 5). The UCO paid an inclusive price of $10,500.
On 16 May 2019, the defendant supplied the UCO with a double-barrel shot gun for $7,000 (part of offence 3).
On 31 May 2019, at Dee Why, the applicant supplied a semi-automatic rifle (a prohibited weapon) and a .22 bolt action rifle. The supply of the two weapons was part of offence 3. At the same time six magazines and a metal extendable baton were supplied (part of offence 4). The total cash payment for all these items was $16,000.
The applicant’s total receipts from all transactions was $119,000, for the drugs, nine firearms and 14 prohibited weapons.
On the evening of 23 April 2019, the applicant and Robert Gleeson drove around a rural property at Merriwa in the Upper Hunter Shire, which was at the time occupied by Gleeson. They had four firearms in the vehicle and were attempting to shoot feral animals. While they were doing this the applicant had possession of Robert Gleeson’s .22 pistol (offence 11). On 25 April 2019, the two of them went onto a neighbouring property, the applicant having first ascertained that the residents of the house on the property were absent. It is to be inferred, from the statement of facts and from the appellant’s plea of guilty to offence 12, that the two men had one or more firearms with them in their vehicle. They investigated the possibility of gaining entry to a locked container on the property, but they left without having broken into it. Nothing was stolen.
During the evening of 26 April 2019, the applicant and Robert Gleeson drove around Gleeson’s property, again attempting to shoot feral animals, while drinking beer (offence 14). Two days later the applicant discharged four rounds from Gleeson’s .22 pistol. His discharge of the weapon towards a tree was recorded on his mobile phone and led to the charge being laid (offence 14) after the phone was examined at the time of his arrest on 2 July 2019.
On 2 July 2019, police searched the house at 5 Coalmines Road, Bundanoon and they arrested the applicant the next day. Offence 6 concerns five firearms located during the search, being one bolt action rifle with rounds in an attached magazine, located in the lounge room, and two rifles and two semi-automatic rifles (prohibited) found in the roof cavity. The four guns stolen on 15 June from 181 Penrose Road were also found in the roof cavity. The agreed facts provided to the sentencing judge stated that those four firearms were included in offence 6 but that is incorrect. No charge of unlawful possession was laid in respect of the stolen guns, only the Form 1 charge for the theft.
Offence 7 concerns four additional firearms located during a second search of the roof cavity at the Bundanoon house on 12 July 2019. The firearms located on that occasion were one semi-automatic pistol with a silencer and three military semi-automatic assault rifles (all prohibited).
On 16 July 2019, at the applicant’s Dee Why residence, police located two black plastic bags concealed in a narrow gap between the rear fence and an adjoining garage. These contained a spring-loaded pen gun and seven rounds of .22 ammunition as well as a silencer/suppressor. The applicant’s fingerprints were found on the bags. Offence 9 is constituted by his possession of the pen gun. In sentencing for that offence, the learned judge took into account on Form 1 schedules, offences of possession of the ammunition, possession of the silencer/suppressor (which is a prohibited weapon) and possession of some steroids that had been found on an earlier search of the Dee Why property.
Also, at the Dee Why property police located, in July 2019 after the applicant’s arrest, a Giant brand mountain bike and a surfboard. Those items had been stolen and an offence of receiving was taken into account on a Form 1.
As the application for leave to appeal involves an issue of manifest excess in relation to an aggregate sentence and as there is no substantial challenge to the appropriateness of the indicative sentences, it is not necessary to consider in detail which Form 1 offences were taken into account on the respective substantive offences. On this leave application the Court is concerned with an overall view of the totality of offending and the proportionality, or otherwise, of the aggregate sentence imposed.
This was a sustained and wide-ranging course of offending. With respect to the firearms in his possession, the applicant claimed that those secreted in the roof cavity at Bundanoon had belonged to his friend, Andrew Gleeson, that they had come into his possession when Andrew Gleeson took his own life in April 2019. How the applicant came by the weapons is of little consequence. Up to the time of his arrest he retained an arsenal comprising eight long arm firearms and one pistol. He had stolen another four long arm firearms and had supplied another nine in the space of five months. The applicant did not hold or supply the guns specifically for use in any other criminal activity but he did not know what the sold items would be used for and he did not care.
The applicant was recorded by listening device making the following boast to a drug customer on 14 May 2019:
If you want something I will get it for ya, it’s as simple as that … I don’t care what the fuck it is, I really don’t give shit if it was fucking ice, heroin or a fucking machine gun, I don’t give a fuck; as far as I’m concerned, I’m an anarchist man, I don’t care about the law. These cunts sell arms too. The Australian government sells them to the Saudis, killing people.
For all the applicant knew, the guns he supplied would find their way into the hands of violent criminals. The guns of which he remained in possession were also a threat to public safety in that they could have been located by criminals who might became aware of the applicant’s activities and might watch his movements. Amongst the weapons supplied or in possession, some were in the prohibited category and could constitute extreme danger to the community in the hands of criminals: two semi-automatic pistols (one supplied and one still in possession) and six semi-automatic rifles (one supplied and 5 still in possession).
Similar considerations apply to the prohibited weapons that the applicant supplied or retained in his possession. They included items that could assist the commission of violent crimes by anyone to whom he sold the items, or to whom they might be on sold, or who might steal them from him. The prohibited weapons included silencers, pistol magazines and a smoke grenade.
The offences in group (3) constituted by temporary use or possession of Robert Gleeson’s firearms at Merriwa are less serious. Of the drug supply offences in group (4), the supply of 6.077 kg of GBL and 357.4 g of MDMA are the most serious. A significant aspect of the applicant’s involvement in drug supply on the scale indicated is that it increased the risk of him becoming known to more serious criminals and becoming a target for a break and enter at Bundanoon, whereby the firearms and prohibited weapons in his possession might be stolen and used in furtherance of other crimes.
Of the two break and enter offences in group (5), the one that was committed at Merriwa in April 2019 (offence 12) did not result in any theft although the applicant’s purpose was to scope the possibility of stealing one or more firearms on a later occasion. He and Robert Gleeson had firearms with them when they went onto the property. The offence committed at 181 Penrose Road Bundanoon on 15 June 2019, when access was gained to a firearms locker and where the stealing of four guns was taken into account on sentence on a Form 1, was very serious.
The following overall description by the learned sentencing judge is apposite:
The offender engaged in sustained, high level, serious offending. He was motivated by profit as well as an interest in firearms and weapons, and an active disdain for authority.
The applicant’s prior record has been summarised above. It shows recidivist offending with respect to firearms. The two-year bond for the applicant’s first serious offending in 2006 had only just expired when he committed the second group of offences in 2008. He was only one year into a 4 year non-parole period for the 2008 matters, when he committed the next group of offences in 2014, although they were less serious than either the 2008 matters or the offences under consideration on this leave application. As previously noted, the charge period for the offending now being considered commenced only a little over 1 year into a 3 year non-parole period that had been imposed for the 2014 matters. On that record, the applicant was not entitled to leniency and personal deterrence was a significant factor in fixing an appropriate penalty.
In the sentence proceedings the applicant relied upon the opinion of Dr Henderson that he suffers from schizophrenia, characterised by persecutory delusions relating to doomsday, grandiose beliefs that he has special knowledge and auditory hallucinations. Dr Henderson opined that “the applicant’s mental illness quite significantly contributed to his offending behaviour”.
The Crown tendered a report of Dr K Eagle in which she expressed the following opinions:
[MJR] appears to have experienced substance induced transient psychotic phenomena in the context of intoxication with stimulant and opioid substances. […] The experiences have not been associated with his underlying beliefs. He does not appear to have had a sustained episode of psychosis triggered by substances involving symptoms that are more than transient and/or have persisted beyond a period of intoxication or withdrawal.
[MJR] does not appear to have had psychotic symptoms or experiences during periods of abstinence from illicit substances. […] He does not display pervasive beliefs consistent with delusions, referential ideas, or passivity phenomena. [MJR] has sociopolitical views that can sound persecutory, conspiratorial and extreme. He has displayed a preoccupation with preparing for an end of world (or doomsday) event. He appears to have extensively researched writings related to this topic, and other topics he finds of interest such as the historical use of illicit drugs for spiritual awakening and for treatment of mental health disorders. He appears to have maintained conspiratorial beliefs with increased intensity during periods of crisis, increased substance abuse and distress. He demonstrated insight into the beliefs as being at the extreme end of commonly held societal beliefs. He has also identified that his beliefs have been present since early adolescence when he resided with a family who were pro-gun and had right wing political views.
None of [MJR's] views appear to have any personal connection or have personal significance and are consistent with views expressed in the public domain by those who have a similar socio-political ideology. […]
[MJR] has a substance use disorder. He has acknowledged the use of stimulant and opioid substances. He has continued to abuse opioid substances in custody. […]
[MJR ]has had a trial of treatment with an antipsychotic medication, olanzapine. He has maintained his socio-political views. His antipsychotic treatment was ceased in November 2021 and [MJR] does not appear to have experienced any increase in intensity or worsening of his beliefs. On the contrary, he appears to have an improved level of insight into his preoccupation with these extreme views, and his associated behaviour. The views were not consistent with delusions, and the description of them seemed more academic. He was able to challenge the beliefs, and could accept that there may not be any catastrophic event over his lifetime. He could also acknowledge that his behaviour was preventing him from achieving other goals such as having a family and living in the community.
[…] The nature of [MJR's] offending does not appear to be specifically related to his doomsday or other socio-political beliefs. [MJR] stated that he did not intend or want to supply firearms for the use in criminal conduct that might harm others. He indicated he was aware of the wrongfulness and illegality of his conduct. He described feeling distressed following his friend's death, in addition to having additional financial and personal responsibilities.
The learned sentencing judge considered the competing opinions of the psychiatrists, with careful attention to their reasoning, the extent of their respective reviews of past medical information and their differing analyses of the history provided by the applicant. Her Honour was not satisfied on the balance of probabilities that the applicant suffered from schizophrenia or a schizophrenia spectrum disorder. The judge did not accept that any of the offending was causally linked to mental illness but found that “the stockpiling of firearms and weapons, the use of firearms and, to some extent the supply of these items” were linked to the applicant’s beliefs, while the drug supply offences were not.
Those findings were open to her Honour. It was also open to her Honour to conclude, as she did, that the applicant’s primary motivation was financial and that the linkage of his firearms and weapons offences to his doomsday beliefs was not a mitigating factor. In January 2019 he had commenced a legitimate online business under the name Eureka Renegade, through which he sold gas masks, military rations and other items that that might aid survival in an emergency. His belief in the need to prepare for doomsday was accompanied by an express contempt for law and order. Whilst he is and was entitled to believe in an impending end to social order, that belief did not excuse him for breaking the laws by which social order is maintained.
Some of the applicant’s adverse circumstances of upbringing have already been mentioned. In addition, her Honour accepted evidence that he had suffered sexual abuse at the age of 13 or 14 years when training as an army cadet. Her Honour found that the applicant had shown genuine remorse, had taken measures to address his use of illegal drugs and had displayed positive conduct in custody including active contributions to improving prison life for others. Notwithstanding the possible persistence of the applicant’s eccentric ideas, her Honour accepted that he had good prospects of rehabilitation and was unlikely to reoffend. The learned judge took into account the increased hardship of imprisonment due to measures being undertaken to contain the spread of the Covid 19 virus. No adjustment was made to the statutory default ratio of the non-parole period. The finding of no special circumstances was also open to her Honour.
The applicant was entitled to a discount of 25% for his early pleas of guilty. A total discount of 50% was applied, the additional 25% resulting from circumstances that are not in dispute on the appeal and need not be spelled out. In the event that the Court considers it necessary to resentence, it is common ground that the same discount should be applied.
The applicant argued that the question whether the aggregate sentence is manifestly excessive should proceed “on the basis that but for [the 50% discount] the aggregate sentence would have been in the order of 30 years”, citing Chartres-Abbott v R [2021] NSWCCA 239 at [23] (Brereton JA). This Court has held subsequently that where an aggregate sentence is based upon discounted indicatives, a calculation of grossing up the aggregate produces only a rough estimate or guide as to what the aggregate would have been if the offender had not been entitled to the discount. Grossing up does not demonstrate mathematically what the aggregate sentence would have been absent the discount but it is a way of approximating, for the purpose of making comparison with the actual result in the instant case or in another case: Moananu v R [2022] NSWCCA 85; Davidson v R [2022] NSWCCA 153 at [239]-[245]; XY (A Pseudonym) v R [2023] NSWCCA 50 at [71].
It follows that the question whether the aggregate sentence in this case was manifestly excessive cannot be determined upon the simplistic basis that, without the 50% discount that was allowed in the indicatives, the aggregate would have been 30 years with a non-parole period of 22 years – and that that would have been excessive. The applicant relies upon three other considerations, two of which are persuasive.
First, the applicant’s criminality in several offences overlapped significantly with his criminality in other counts of like kind. That feature called for a substantial degree of notional concurrence in fixing the aggregate sentence. A convenient intermediate stage in analysing the common and separate elements of criminality is to consider the offences category by category.
In category (1), offence 3 (ongoing supply of nine firearms) subsumed the supply of a single weapon in offence 2 and also covered much of the criminality in the supply of prohibited weapons in offence 4. Notwithstanding that prohibited weapons are items of a different class from firearms and taking into account that the weapons supplied in offence 4 had less lethal potential than the firearms in offences 2 and 3, the three offences together constituted one enterprise of supplying dangerous weaponry, in the general sense of the word. The starting point sentences (and hence the discounted indicatives) for each of offences 2, 3 and 4 were within the sentencing judge’s discretion, having regard to all objective and subjective factors. However, very little accumulation between the indicatives for those three matters was warranted in order to address the overall criminality of the firearms and weapons supply activity as a whole.
A further example is that in category (2), the nine weapons that are the subject of possession charges across offences 6 and 7 were all held at one location at the same time, albeit they were discovered by police on separate dates. The additional pen gun in offence 8 was in the applicant’s possession at a different location but at the same time as the possession of the firearms in offences 6 and 7. If possession of all 10 guns had been charged in a single count, an appropriate indicative sentence would not have been significantly greater than an appropriate sentence for either offence 6 (five guns) or offence 7 (four guns). Again, the starting points and hence the discounted indicatives for each of offences 6, 7 and 8 were within the range of discretion but substantial notional concurrence was called for to avoid excessive punishment for the overall criminality of possessing the whole collection.
In category (3), the temporary use and possession of firearms belonging to Robert Gleeson at Merriwa was charged in four separate counts (offences 11 and 13-15). The conduct took place over a few days during one or more visits by the applicant to the Merriwa property. All four offences were part of a related course of handling firearms in that rural setting. The indicative sentences for offences 11 and 15 had starting points of 4 years each and were stern. Within this group of closely related offences no, or only nominal, accumulation was called for.
For the three drug supplies (offences 1, 5 and 10) in category (4), the highest sentence was the indicative of 5 years for the supply of an amount of GBL weighing 2 kg over the threshold for the large commercial quantity. The implied starting point was 10 years. That was at the upper end of the range of sentencing discretion. The three offences in category (4) constituted a course of related conduct in respect of which it would be appropriate to apply very limited, if any, notional accumulation beyond the length of the highest sentence.
In category (5), the indicative sentences for the break and enter offences were by no means severe. As they involved break and enters at two separate locations, a measure of accumulation was called for.
Of course, significant additional and different criminality was involved in the firearms/weapons supply matters compared to the firearms possession charges and the drug supplies and the break and enters. The differences from one category of offending to the next required a measure of accumulation but the applicant’s point about overlap within each category has merit.
A second consideration invoked by the applicant is that where indicative sentences are at the high end of the range of discretion, substantial notional concurrence is necessary to ensure that the aggregate is not excessive. That proposition seems self-evident but if authority be required it was recognised in Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [64]. As noted above, the indicative sentences for offence 1 (5 years for supplying a large commercial quantity of GBL) and offences 11 and 15 (possession and use of Robert Gleeson’s unauthorised pistol on the Merriwa rural property) appear to be at the high end of the judge’s discretion. However, in general the other indicatives were not notably stern.
Thirdly, the applicant submits that the degree of notional accumulation applied should not be so great as to erode significantly the benefit of the discounts to which he was entitled. In Johnson v R [2021] NSWCCA 13 that consideration was expressed in the following terms by Garling J at [73] (Price and Wright JJ agreeing):
Careful attention must also be paid to ensure that the real effect of the 15% discount which has been applied to each indicative sentence is adequately reflected in the final aggregate sentence. It is, of course, proper to apply the discount to the indicative sentences and not the aggregate sentence. However, the utilitarian value of early pleas should be reflected in a final aggregate sentence lest the incentive to enter such pleas be lost through the use of an aggregate sentence.
That consideration is of significance here. In the Court’s view, the benefit to the applicant of the 50% discount to which he was entitled, as the Crown accepts, was significantly eroded at the stage of aggregation.
The gravest components in the applicant’s course of offending over the six month charge period were his supply of multiple firearms and weapons and his holding of an arsenal of further firearms and weapons. The drug supplies involved separate and significant criminality, as did the break and enters. Upon assessment of the degree of notional accumulation implicit in the aggregate sentence, the Court is of the view that the aggregate sentence of 15 years with a non-parole period of 11 years is manifestly excessive having regard to the principle of totality.
In resentencing, the Court adopts the indicative sentences nominated by her Honour, except for offences 1, 11 and 15, where we indicate lesser penalties. Below is a table of the sentences that the Court would have imposed for each offence if separate sentences were being imposed. In the Court’s view, taking into account all sentencing factors, the applicant should be resentenced to an aggregate sentence of 10 years imprisonment with a non-parole period of 7 years and 6 months. The significant reduction from the aggregate sentence imposed by her Honour is primarily a result of the greater degree of overall concurrence that the Court considers appropriate to satisfy considerations of totality. The lowering of the indicative sentences for three of the offences does not significantly contribute to the reduction. The indicative sentences in the table take into account the 50% discount.
| Offence | Indicative Sentence | | 1 Supply large commercial quantity of prohibited drug (s25(2) of the DMT Act) | 4 years | | 2 Supply shortened firearm (s 62(1)(c) of the Firearms Act) | 2 years and 6 months | | 3 Ongoing supply of firearms (s 51B(1) of the Firearms Act) | 4 years, non-parole period 3 years | | 4 Ongoing supply of prohibited weapons (s23B(1) of the Weapons Prohibition Act) | 4 years | | 5 Supply commercial quantity of prohibited drug (s25(2) of the DMT Act) | 3 years, non-parole period 2 years and 3 months | | 6 Aggravated possess firearms (including prohibited firearm) (s 51D(2) of the Firearms Act) | 3 years and 3 months, non-parole period 2 years and 7 months | | 7 Aggravated possess firearms (including prohibited firearm) (s 51D(2) of the Firearms Act) | 3 years, non-parole 2 years and 6 months | | 8 Aggravated enter dwelling (in company) with intent to steal (s 111(2) of the Crimes Act 1900 (NSW)) | 2 years and 6 months | | 9 Possess unauthorised prohibited firearm (s 7(1) of the Firearms Act) | 2 years and 6 months, non-parole period 1 year and 10 months | | 10 Supply indictable quantity of prohibited drug (s 25(1) of the DMT Act) | 2 years and 3 months | | 11 Possess unauthorised firearm (s 7(1) of the Firearms Act) | 1 year and 3 months, non-parole period 11 months | | 12 Armed with intent to break and enter having a previous conviction for an indictable offence (ss 114 and 115(1)(d) of the Crimes Act) | 1 year and 3 months | | 13 Possess unauthorised firearm (s 7A(1) of the Firearms Act) | 9 months | | 14 Handle firearm while under the influence of alcohol (s 64(1) of the Firearms Act) | 9 months | | 15 Use unauthorised pistol (s 7(1) of the Firearms Act) | 1 year and 3 months, non-parole period 11 months |
The orders of the Court are as follows:
Grant leave to the applicant to proceed on his application filed out of time.
Grant leave to appeal against sentence.
Order that the aggregate sentence imposed in the District Court on 8 April 2022 be quashed and that in lieu thereof the applicant is sentenced to imprisonment for 10 years commencing on 3 July 2019 and expiring on 2 July 2029 with a non-parole period of 7 years and 6 months expiring on 2 January 2027. The earliest date on which the applicant will be eligible to be released to parole is 2 January 2027.
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Pending
Restriction removed
MJR
R [2025] NSWCCA 51
(2016) 256 CLR 656