Ground of Appeal 1 - The learned sentencing judge erred by having additional regard to certain aggravating features namely (1) that the offence was committed without regard for public safety and (2) that the offence was part of a planned or organised criminal activity.
29 In relation to the first of those matters, the applicant relied upon what his Honour said in the passage quoted in [19] hereof and where later his Honour said "I have already referred to some of the other aggravating matters in that subsection which are in sub-paragraphs (i), (m), (n)". His Honour was there referring to s 21A(2)(i) of the Crimes (Sentencing Procedure) Act 1999 which nominates as an aggravating factor "the offence was committed without regard for public safety".
30 The applicant submitted that the absence of regard for public safety was inherent in the offence itself and could not be legitimately taken into account as an additional aggravating factor. By doing so the sentencing judge had fallen into error by double counting that factor. Specifically, the applicant relied upon the prohibition in s 21A(2) that "the Court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence."
31 That primary submission was expanded as follows. The applicant relied upon what Howie J said in Ward v R (2007) 168 A Crim R 545:
"29 In the present case it appears that the sentencing judge simply referred to the factor of aggravation contained in s 21A(2) almost automatically without any real consideration of what it meant or how it applied in the particular case before him. In some cases it will be unnecessary to explain why a particular aggravating feature is found to be present, but in cases where the aggravating factor is an element of the offence or may be thought to be an inherent characteristic of offences of the kind for which sentence is being passed the judge should explain why the factor is present in the particular case before the court."
32 Reliance was also placed on what Basten JA said in Elyard v Regina [2006] NSWCCA 43:
"11 Because, as noted above, elements of an offence are not irrelevant considerations in identifying an appropriate sentence, it will often be important for sentencing judges to identify with some clarity the way in which they have regard to particular factors. Use of the expression "aggravating factors", without qualification, is likely to suggest that the matter has been relied upon as falling within the positive mandate of s 21A(2). …".
33 It was submitted that his Honour had fallen into the error so described by merely referring to "a disregard for public safety" as an aggravating factor without further explanation.
34 The applicant also relied upon his Honour's reference to the aggravating factor in s 21A(2)(m), i.e. that the offence involved multiple victims or a series of criminal acts. The applicant submitted that his Honour could not properly take into account the number of pistols placed into circulation by the applicant's conduct as involving a disregard for public safety when he had already taken that matter into account as an aggravating feature when referring to multiple victims or multiple criminal acts. To do so would once again involve double counting.
35 The answer to this submission is set out succinctly in the judgment of Simpson J in Regina v Yildiz (2006) 160 A Crim R 218:
"37 … By s 21A(2), the fact that an offence is part of a planned or organised criminal activity is a matter that a sentencing court is obliged to take into account as an aggravating feature. But, by the suffix to that subsection, the court is expressly enjoined against taking into account any aggravating feature if it is an element of the offence charged. That injunction has been extended to circumstances that are "an inherent characteristic" of the offence charged (see, for example, Elyard v The Queen [2006] NSWCCA 43; per Howie J). An example is the disregard for public safety implicit in dangerous driving offences. But this principle does not mean that the degree to which the "inherent characteristic" exists in relation to a particular offence may not, where it exceeds the norm, be taken into account as an aggravating factor. …"
36 Contrary to the applicant's submission, his Honour did explain why it was that he considered disregard of public safety to be an aggravating factor. In the lead up to the passage quoted at [19] hereof his Honour made the point that weapons such as pistols, once placed in circulation, can continue to constitute a risk to police officers and members of the public for many years into the future. Such a risk was obvious. No further explanation was required of his Honour in the circumstances of this case.
37 In relation to the overlap between s 21A(2)(i) and (m), one only has to add to the consideration identified by his Honour, i.e. the longevity of the risk, the fact that in excess of 740 weapons were placed into circulation as a result of the applicant's participation in the conspiracy. Those factors, i.e. the longevity of the risk and the number of weapons placed into circulation, overwhelmingly establish that the risk to the public brought about by this offence "exceeds the norm".
38 This part of the first ground of appeal has not been made out.
39 The applicant submitted that the concept of "agreement" was at the core of the offence of conspiracy. He submitted that inherent in the offence were notions of planning and organization. The applicant submitted that it was artificial, in the context of conspiracy offences, to take into account as an aggravating factor s 21A(2)(n) that "the offence was part of a planned or organized criminal activity". The applicant submitted that having additional regard to the planning and organization of the conspiracy as an aggravating feature, involved the error of double counting in that these features were inherent characteristics of the offence.
40 This submission is also answered by the analysis of Simpson J in Yildiz. The evidence before his Honour went far beyond establishing that the offence was part of a planned or organized criminal activity. The scale and extent of the conspiracy greatly exceeded what one would regard as the normal level of planning associated with a criminal activity. The offence involved the acquisition of specific weapons, their modification, the preparation of false documents, the storage and transportation of weapons interstate, the identification of appropriate purchasers and the ultimate sale of specified weapons to these purchasers. Apart from the sophistication of these procedures, the sheer scale of the enterprise took it beyond the norm.
41 This part of the first ground of appeal has not been made out.