MP v Regina

Elyard v Regina [2006] NSWCCA 43 CASES CITED : Regina v Howard [2004] NSWCCA 348 Regina v Yildiz (2006) 160 A Crim R 218 Ward v Regina (2007) 168 A Crim R 545

PARTIES: MP - Applicant Regina - Respondent Crown

COUNSEL: S Odgers SC - Applicant L Lamprati SC - Respondent Crown

SOLICITORS: Watsons - Applicant S Kavanagh, Solicitor for Public prosecutions - Respondent Crown

IN THE COURT OF CRIMINAL APPEAL 2007/00003271 TOBIAS JA HOEBEN J RA HULME J

Thursday, 10 September 2009 MP v REGINA Judgment 1 TOBIAS JA: I agree with Hoeben J. 2 HOEBEN J: Offence and sentence On 7 November 2006 the applicant was convicted following a trial before Boulton ADCJ and a jury. The indictment alleged: "Between 1 January 1998 and 31 December 2001 at Brisbane in the State of Queensland and Sydney in New South Wales with Michael John Stanbury, Edwin Miller, Zivco Stefanovski and others, conspired together amongst themselves to sell unregistered firearms to persons not authorised by licence or permit to possess the said firearms." 3 The offence of conspiracy to sell firearms without authorisation is a common law offence, the maximum penalty for which is at large. On 21 February 2007 the applicant was sentenced to imprisonment for 13 years and 8 months, with a non-parole period of 5 years and 8 months. The sentence was to commence on 21 February 2007, with the non-parole period expiring on 22 October 2012 and the balance of term expiring on 22 October 2020. In passing that sentence, his Honour took into account that the applicant had already served 4 months in custody.

Factual background 4 The applicant and the two other principal conspirators, Miller and Stanbury, were residents of Queensland. In essence, handguns were purchased in Queensland and sold in New South Wales. 5 The genesis of the conspiracy was the purchase by Miller of a .38 calibre handgun from the applicant in the late 1990's for $1000. Some time later Miller approached the applicant with a proposal to exploit a loophole in the Queensland legislative framework applying to handguns. 6 It seems that a pistol once deactivated (i.e. rendered permanently inoperable by a registered armourer) was of no further interest to Queensland Police once an armourer's certificate to that effect was provided to them. For the conspiracy to work, a compliant armourer was required. 7 Miller recruited Stanbury, who was an armourer in financial need. Stanbury agreed to provide false deactivation certificates for $150 per pistol, subject to a further condition that the pistols had their serial numbers removed and were not sold in Queensland. The applicant and Miller agreed to those conditions. 8 In February 2000, pursuant to the conspiracy, the applicant purchased register books of certificates of acquisition and disposal of firearms. The applicant provided money to Miller to purchase a milling machine, which would be used to remove the serial numbers. The three conspirators used to meet at approximately fortnightly intervals, either at Miller's residence or at that of the applicant. 9 The applicant and Stanbury completed the paperwork while Miller dismantled the guns one at a time and milled off the serial numbers. Sometimes the applicant shared that task with Miller. Miller devised ways of transporting the weapons to New South Wales and their storage there. 10 At an early stage in the conspiracy, the applicant accompanied Miller to Sydney with a number of weapons contained in an esky when negotiations were occurring with potential buyers. Miller and the applicant slept overnight at the applicant's sister's residence at Pyrmont. Some or all of the weapons were stored at that location. 11 The conspiracy proved to be financially lucrative. Stanbury was paid his $150 per weapon while the applicant and Miller shared the profits equally. These profits were considerable since some of the weapons sold for thousands of dollars each. 12 Stanbury carried out a genuine deactivation of three handguns. Each of the conspirators retained one of these deactivated pistols as an example that could be shown on inquiry in order to allay any suspicions which might be held by the authorities. 13 In implementing the conspiracy, the applicant purchased large quantities of pistols as part of his business through his dealer's licence. He also attended gun shows. 14 Miller would visit gun shops in Brisbane and identify pistols which the applicant would later collect and pay for. There was evidence before the Court of 190 pistols being purchased from a Brisbane gun dealer between 20 April 2000 and 4 December 2000, 20 pistols purchased from another gun dealer between 11 March 2000 and 3 April 2001 and 182 pistols purchased from another gun dealer between 12 January 2000 and 3 October 2000. There were other purchases outside this timeframe but fewer in number. 15 At the applicant's trial, the Crown tendered Exhibit NN, which comprised a list of handguns with serial numbers, make, calibre, including the details of the disposal notice, Stanbury's acquisition notice and the deactivation number. Exhibit NN contained the details of 746 handguns. It is clear from that exhibit and his Honour so found, that more than 740 handguns were disposed of during the course of the conspiracy. 16 One of the advantages of the modus operandi used by the conspirators was that purchasers of pistols could, in advance, nominate a particular type of weapon to Miller. He would then find it in a gun shop and the applicant would later purchase it. The costs of such purchases were considerable and the applicant initially funded the conspiracy by putting up the money for such purchases. At one point Miller owed the applicant approximately $44,000 which had been spent on weapon purchases. 17 At the trial evidence was given against the applicant by Miller who had agreed to co-operate with the Crown and by the applicant's former de facto partner. In addition, the Crown relied upon telephone intercepts and police surveillance.

Remarks on sentence 18 His Honour assessed the objective seriousness of the offence. He noted that evidence had been given that one of the pistols sold by the applicant had been used in an armed hold up at Chatswood in September 2003 and had been discharged by one of the offenders. His Honour found that the applicant well knew that these pistols were going to the criminal element since legitimate purchasers of pistols would do so from a gun shop for a significantly lower cost than that which was being charged by the applicant and his co-conspirators. 19 His Honour remarked that as a result of the sale of these weapons by the applicant, members of the public would be at risk for the next 30 years. In that context his Honour said: "That must have been obvious to you all along. The behaviour was of course premeditated and carried into effect in organised fashion. There was this connection that I have mentioned with the criminal element in society. You were not impecunious. Your actions would seem to have been motivated by greed in complete disregard for the safety of the public. It would be hard to exaggerate the serious nature of your offence". (ROS 8-9) 20 In relation to the applicant's criminal history, his Honour noted that while the applicant had some prior convictions, they did not relate to serious matters. His Honour concluded that the applicant was unlikely to re-offend and that he had good prospects of rehabilitation. His Honour took into account that the applicant had been born on 19 April 1945 and was almost 62. His Honour accepted that the applicant was remorseful but commented that this was of relatively recent origin. 21 His Honour took into account the principle of parity. He placed the applicant's position within the conspiracy at the same level as Miller. His Honour reached this conclusion because the applicant was a vital member of the conspiracy, that he had the "all important dealer's licence", was able to acquire the pistols and had the ability to issue false disposal certificates to Stanbury. His Honour took into account that the applicant had invented false sale records of supposedly deactivated weapons to cover their disappearance. His Honour also took into account that the applicant had provided the purchasing power for the acquisition of the weapons. 22 Although placing the applicant at the same level in the conspiracy as Miller, his Honour noted that Miller was sentenced on quite a different basis to the applicant. Because of his early plea of guilty and co-operation with the authorities, Miller received a 65 percent reduction in his sentence. It was also apparent that his Honour had substantially more information before him than did the judge who sentenced Miller. That judge was not fully aware of the part played by Miller in the conspiracy, nor was he aware of the number of weapons which had been placed into circulation as a result of the conspiracy. 23 His Honour noted that the charges, in respect of which Miller had been sentenced, were different. Miller had pleaded guilty to three counts of conspiracy to sell firearms between 20 November and 8 December 2000, 29 October and 24 November 2000 and 29 January and 6 February 2001, such sales being to one individual. His Honour concluded that Miller had been sentenced on a different factual basis to that which was before him. The sentence imposed on Miller was imprisonment for 5 years with a non-parole period of 2 years. 24 When comparing Miller's subjective case with that of the applicant, his Honour concluded that the applicant had a much stronger subjective case. The applicant had a history of heart problems, which would be exacerbated by his period in custody. The applicant's family were in Queensland whereas his incarceration would be in New South Wales. There was evidence from a psychologist that the applicant was suffering severe depression. Finally, there was the applicant's age with the unlikelihood of him re-offending and good prospects of rehabilitation. 25 As a result of those subjective matters and the fact that this was the applicant's first period of imprisonment, his Honour found special circumstances. 26 Despite the differences between the applicant's situation and that of Miller, his Honour concluded that it was appropriate to impose the same kind of sentence, i.e. a head sentence of 14 years with a non-parole period of 6 years, before adjustments were made for the applicant's time in custody.

Appeal 27 Senior counsel for the applicant candidly disclosed to the Court that his purpose in raising these grounds of appeal was to persuade the Court that error had occurred in the sentencing process so that it was open to this Court to consider post sentence conduct on the part of the applicant. Senior counsel for the applicant said that if that point were reached, he would seek to persuade the Court that a significant discount should be applied to any re-sentencing by this Court because of that post sentence conduct of the applicant. He relied upon Douar v The Queen (2005) 159 A Crim R 154 as authority for that proposition. 28 For the reasons which follow, I am not satisfied that error has been established in the sentencing process and consequently that issue does not arise.

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.

Ground of Appeal 2 - The sentence was manifestly excessive. 42 The applicant's complaint seems to relate entirely to the head sentence of 14 years. The applicant submitted that in passing that sentence, his Honour had purported to base it upon the sentence imposed on the co-offender Miller. He submitted that in doing so, his Honour had erred because he had misunderstood how the sentence imposed on Miller had been calculated. Miller had in fact been sentenced for three offences and it was only when one accumulated the three sentences that a head sentence of 14 years was achieved. 43 I am not persuaded that his Honour did misunderstand the way in which Miller had been sentenced. On the contrary, his Honour was well aware that the period covered by the offence of which the applicant had been convicted was significantly longer than that covered by the offences of which Miller had been convicted but encompassed all of them. It was well open to his Honour to take into account the effect of the accumulation of Miller's sentences when fixing the head sentence for the applicant in this case. As his Honour pointed out such an approach favoured the applicant in that his Honour had before him much more information as to the seriousness of the offending than was before the judge who sentenced Miller. 44 It is significant that no submission has been made on behalf of the applicant which challenges his Honour's observation that it was "hard to exaggerate the seriousness of the offence". There is nothing which was submitted to establish that the sentence was "unreasonable or plainly unjust". The sentencing judge correctly identified the objective seriousness of the applicant's offence and appropriately took into account sentencing principles, in particular, general deterrence. 45 In the circumstances of this case there was nothing put to the Court which would in any way qualify the observation made by Spigelman CJ in Regina v Howard [2004] NSWCCA 348: "66 Where it appears that there are elements within the community who refuse to accept that firearms offences must be regarded as serious, the objectives of general and personal deterrence are entitled to substantial weight in sentencing for such offences. The availability of such weapons poses a major threat to the community…. The community has determined that trade in such weapons on any other than a strictly regulated basis is to be regarded as a serious offence. That must be reflected in the sentence imposed." 46 This ground of appeal has not been made out. 47 The orders which I propose are as follows:

(ii) The appeal is dismissed. 48 RA HULME J: I agree with Hoeben J. **********

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