R v Achilles MEZZADRI

Judgment 1HODGSON JA : I agree with the order proposed by Adams J and, subject to what I say below, I agree substantially with his reasons. 2The sentencing judge's statement that the "objective evidence for the vague concept of general deterrence being in any way effective is sadly lacking" does, in my opinion, strongly suggest that he gave insufficient weight to this consideration. This would not of itself mean that the Crown appeal must be allowed, but it would at least lead this Court to give less weight to the sentencing judge's view as to the adequacy of the sentence. 3The case of Basedow [2010] NSWCCA 76 was a pertinent case; but there are significant differences from this one. The offender in that case had a previous conviction for unauthorised possession of firearms, so that his current offending could be seen as showing greater disrespect for and defiance of the law than that of this respondent; there was no finding in that case, as in this, that the offender was "highly unlikely to re-offend"; and there was no finding in that case, as in this, that the weapons were not in working order when seized. 4Because of those differences from this case, in my opinion it is not necessary to express a final view as to whether the sentence in Basedow of 3 years with a non-parole period of 2 years was severe, as Hidden J considered it to be, or very lenient, as McClellan CJ and Simpson J considered it to be; although I am inclined to the view that it was indeed lenient. 5In my opinion, the sentence in the present case was certainly lenient, but (although near the borderline) it was not manifestly inadequate. Had I considered it was just over the borderline, I would in any event have considered dismissing the Crown appeal in the exercise of discretion, where allowance of the appeal would have required imprisonment of a person who, in the words of the sentencing judge, had otherwise "for 54 years led a blameless and productive life". 6ADAMS J : On 28 October 2010 the respondent was sentenced in the District Court for an offence committed on 17 October 2009 under s 51D(2) of the Firearms Act 1996, the particulars of which were that he possessed eight firearms, four of which were prohibited, none of them being registered and he being unlicensed. The maximum penalty is 20 years imprisonment with a standard non-parole period of 10 years. The respondent asked the Court to take into account on a Form 1 an offence of possessing ammunition without being authorised or licensed, for which there is a maximum penalty of 50 penalty points, and possessing a firearm with a defaced identification mark, for which there is a maximum penalty of 5 years. That firearm was one of the eight firearms comprising the principal charge. 7Section 51D(2) provides - "A person who is in possession of more than three firearms, any one of which is a prohibited firearm, is guilty of an offence if the firearms are not registered and the person is not authorised". 8It was agreed that the respondent had pleaded guilty at the earliest opportunity. Taking into account the Form 1 matters, the respondent was sentenced to imprisonment for 1 year and 10 months, which was suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. The applicant was granted bail at the time of his arrest and has not so far served any time in prison. The Director of Public Prosecutions gave notice of appeal on 16 November 2010 against the leniency of the sentence. The facts 9The facts were not in significant dispute and the following account is largely taken form the learned sentencing judge's reasons for sentence. Police went to the respondent's premises on 17 October 2009 following a report of a domestic dispute and, in response to their request about firearms being on the premises, the respondent produced eight weapons. The weapons were - (i) a 12 gauge combination repeating pump action self-loading shotgun; (ii) a 7.62 calibre Chinese-manufactured repeat action rifle without the bolt; (iii) a 7.62 Chinese-manufactured self-loading rifle without a magazine; (iv) a 7.62 Chinese-manufactured self-loading rifle with the serial number erased and without a magazine; (v) a .3 carbine calibre self-loading rifle without a magazine; (vi) a 6.5 Swedish Mauser calibre repeating bolt-action rifle without a bolt; (vii) a .77 calibre Chinese-manufactured single-shot air-rifle; and (viii) an imitation Luger self-loading pistol with no serial number. 10The sentencing judge held that, whilst each weapon except the replica Luger were ultimately said by the police ballistics expert to be in working order and capable of discharging a projectile, he was not satisfied that such was the case when the weapons were seized. The second and sixth did not have a bolt, the third, fourth and fifth did not have magazines and the seventh was an air-rifle. The ammunition that was found did not relate to any of the weapons. As regards the shotgun, which had a round in the chamber and a round in the magazine, his Honour was not satisfied that it was capable of being fired in the condition in which it was given to the police. Counsel for the Director informed this Court, without objection, that the second, sixth, seventh and eighth weapons could have been registered whilst the first, third, fourth and fifth were prohibited and could not have been registered. 11The respondent gave evidence at the sentencing proceedings and it is clear that the sentencing judge accepted him as a truthful witness. The respondent had lived in the Northern Territory until about 2005 when he moved to the Eastern States. Most of the weapons had been obtained in the Northern Territory over 20 years ago. He said, in effect, that the weapons were very rusty and in very bad condition and had never worked (at least while they were in his possession), that one of them had been found in a wrecked aircraft in the Northern Territory where it had been lying for 50 years or so, that the Mauser was manufactured in about 1906, that the air-rifle was his father's and never actually worked whilst the replica Luger was also his father's and passed on to him. The respondent did not have the missing bolts. Although the police ballistics expert said, in respect of the shotgun, that after some work, it would be able to discharge shotgun cartridges, the judge considered that there was no reason not to believe the respondent's evidence that the weapons were inoperable. The respondent said that he was not aware that the number had been ground off the weapon that was in that state. Three of the weapons were registered by the respondent in the Northern Territory but, when the he moved to New South Wales he did not attempt to have any of them registered, saying that he was thinking about getting rid of them. He said that he did not even think about having all his weapons registered in the Northern Territory. He conceded that he decided not to attempt to register any of the weapons in New South Wales because he was concerned that at least some of them might have been seized by the police. 12As it happened, despite the applicant's belief that the weapons were unserviceable it appeared that, other than those which could not be fired because of a missing bolt (and which were therefore not tested though they were firearms as defined by the Firearms Act 1996 as at one time having been capable of firing a bullet) the weapons were test fired and found to be in working order. As I have mentioned, his Honour was not satisfied that they were in working order at the time they were taken from the applicant's premises. Subjective circumstances 13The sentencing judge had not only the evidence of the applicant to refer to in this regard but a number of references were also provided. His Honour summarised the subjective case as follows - "[The applicant] is currently in productive employment as a spare parts analyst. He has two adult children. He and his partner now live separately. She suffers from bipolar disorder. There have been no other criminal proceedings arising out of the visit by police on 17 October 2009. His referees speak highly of his reliability and work ethic. He pleaded guilty at the earliest opportunity. He has been assessed by the Probation and Parole Service who confirm the above information and that he has been in continuous employment with the same employer since 1974, initially in Darwin until he was relocated to this area in 2005. He did not contest his liability for these offences to the Probation and Parole officer. He was regarded by the Probation and Parole Service as a responsible, employed and usually law-abiding adult who has failed to comply with the law in regard to his possession of these firearms. There was nothing in his past or present situation that would require any intervention on their behalf. He was assessed as suitable for a community service order. No other relevant punishments are available in this area other than a fine, a bond or imprisonment. As to personal deterrence, I have no doubt that ... [the applicant] is highly unlikely to re-offend in any way at all. Except for his passion for militaria leading him astray with the possession of these weapons, he has for 54 years led a blameless and productive life. I recognise that while this offence is complete with or without an overt criminal purpose in mind, the circumstances of the possession must be relevant to the assessment of the offence's objective seriousness ..." 14This summary of the position is not controversial. Error of law 15The sentencing judge made some general observations which the Crown contends on the appeal to demonstrate a significant error of law. This passage is as follows - "The Crimes (Sentencing Procedure) Act 1999 requires prison as a last resort. Section 3A of the Act sets out the purposes for which a Court may impose a sentence on an offender. Apart from punishing the offending, deterring further offending by him and others is also relevant. As to deterring others, this is not a particularly appropriate case to make an example of. Persons will not usually behave criminally if there is a high chance of their being caught and receiving an uncomfortable punishment. The objective evidence for the vague concept of general deterrence being in any way as effective is sadly lacking. Neither the severity of the punishment available, nor the results of cases other than high profile cases ever see the light of day in the press, and the general public is substantially ignorant of the things that is said to deter them from offending, except in regards to crimes such as murder, assault offences and theft..." 16It is submitted by the Crown in this Court that his Honour's remarks indicated that he dismissed the relevance of general deterrence in sentencing this respondent, and the Crown cited authority in this Court to the effect that the notion of general deterrence is not only "a structural assumption of our criminal justice system" (per Spigelman CJ in R v Wong & Leung (1999) 48 NSWLR 340 at 363) but one of the purposes of criminal punishment: see the authorities cited in R v Miria [2009] NSWCCA 68 and Veen v The Queen (No 2) (1987-8) 164 CLR 465 at 476. Furthermore, s3A(b) of the Crimes (Sentencing Procedure) Act 1999 states that a purpose for which a sentence may be imposed is "to prevent crime by deterring the offender and other persons from committing similar offences". 17I am not persuaded that this submission is made out. Firstly, the sentencing judge specifically referred to s 3A of the Act and stated that "deterring further offending by him and others is ... relevant". The fact that his Honour considered that this was not a " particularly appropriate case" (emphasis added) in which to make an example of the applicant did not amount to dismissing the relevance of general deterrence in respect of the appropriate sentence. The other comments made by his Honour, which I have set out above, are merely observations aimed at placing general deterrence in a realistic context. Objective seriousness 18As has been pointed out, a maximum penalty of twenty years with a standard non-parole period of ten years is provided for the offence under appeal. In considering whether a particular case is in the middle of the range of objective circumstances, it is necessary to bear in mind the very wide range of circumstances that are caught by s51D(2). Thus, by virtue of s 4 of the Firearms Act 1996 "firearm" is defined as "a gun ... that is (or at any time was) capable of projecting a projectile by means of an explosive, and includes a blank firearm, or an air-gun, but does not include anything declared by the regulations not to be a firearm". It follows that a weapon which at one time was serviceable will be a firearm even if it is completely unserviceable at the time it was in the possession of the offender. Section 4(2) provides that "anything that would be a firearm if it did not have something missing from it, or a defect or obstruction in it, is taken to be a firearm ..." The potential circumstances of offending, on the assumption that (in accordance with the usual rule) the singular includes the plural, are such that, for example, a gun stock or trigger guard alone would arguably nevertheless be a firearm for the purposes of the Act, as much as would a completely operable machine gun. 19It is obvious that the possession of unserviceable weapons must be significantly less objectively serious than the possession of serviceable weapons. Of course, the degree to which the weapons in question were unserviceable, that is to say whether the missing parts were capable of being found and the ease with which the gun could be made to work would be relevant. Here, there was no evidence about the degree of unserviceability or the ease or difficulty with which the missing parts could be found. These are scarcely matters capable of being resolved by judicial notice. In my respectful view, the unchallenged findings of the sentencing judge as to the actual serviceability of the weapons in question was of considerable significance and pointed to objective seriousness well below the middle of the range. Even if the weapons were serviceable, the belief of the applicant that they were not, that is to say that they could not be fired with safety, was a material objective circumstance which again pointed to the lower end of objective seriousness together with the lack of any intention to repair, use or dispose of them. 20It was submitted at first instance by the Crown that "the case fell comfortably within the mid-range of objective seriousness" for offences of its type. Dealing with this question, the sentencing judge, referring to the standard non-parole period and to the maximum sentence, said that "those factors mitigate against a more lenient approach despite the strong subjective circumstances of [the respondent]". His Honour concluded - "... I would regard his offending as falling towards the bottom of the range of objective seriousness, having regard to other matters I have dealt with and the decided cases and given the huge range of offending possibly encompassed by the section which often involves persons who are in the business of the sale of firearms and ought to know better". 21The prosecution brought to this Court's attention the cases of Thurgar (unreported, NSWCCA 17 December 1990), Cromarty [2004] NSWCCA 54; 144 A Crim R 515 and Basedow [2010] NSWCCA 76. 22In Thurgar , the material part of the judgment of the Chief Justice (with whom the other judges agreed) is as follows - "... As the learned judge observed, the offence of possessing an unlicensed pistol is one that can cover a very wide range of circumstances. The maximum penalty for the offence .. was 4 years imprisonment. Plainly, a person may be in possession of an unlicensed pistol in circumstances which call for a light penalty, or even no penalty at all. The failure to have a licence might result from pure inadvertence, or accident, and the possession might in every other respect be completely innocent. On the other hand, the legislature clearly contemplated that there were certain circumstances in which possession of an unlicensed pistol may warrant a lengthy term of imprisonment. Subject to an important qualification that will be mentioned below ... the most obvious circumstance calling for the imposition of a penalty at the higher end of the range would be one relating to the purpose for which such a weapon was possessed. In particular, and again subject to the qualification to be mentioned below, the possession of such a pistol for a purpose connected with proposed criminal activities would be likely to be the kind of thing that would lead to the imposition of a penalty close to the maximum". 23The qualification to which his Honour adverted was that which arose from the fact that under, another provision of the Firearms and Dangerous Weapons Act 1973, it was an offence carrying a higher maximum penalty to be in possession of a prohibited weapon with the intention of committing an indictable offence and the applicant therefore could not be sentenced upon the basis that he had committed an offence under that provision. In the particular circumstances that gave rise to appealable error and the appellant's sentence was reduced. 24Although the judgment of Gleeson CJ is, with respect, useful, in the sense that it notes that offences relating to the possession of firearms cover a wide variety of circumstances from the relatively trivial to the extremely serious, no further useful information in relation to the present offence is gained. 25Cromarty involved multiple offences relating to the possession of firearms and prohibited firearms described as "the largest cache of weapons" ever taken from a private individual in Australia. They included a significant number of weapons discovered in an area concealed by a false ceiling, including two Thompson automatic sub-machine guns, a number of pistols and parts for high calibre machine guns. Essentially, Cromarty was an obsessive collector and was not motivated by any desire to profit from illegal trade, nor was he in any way a criminal or an associate of criminals. It appears to have been accepted by the Court that the criminality involved in failing to register firearms and weapons, which the applicant was otherwise authorised to possess, although seriously understated by the sentencing judge, was a relevant consideration. The Court held that the sentence of periodic detention was manifestly inadequate and, ultimately, the offender was sentenced to concurrent terms comprising an effective sentence of 4 years with a non-parole period of 2 years. The facts in this case are, in my view, very different. 26The Crown in this Court relied heavily on Basedow , in which the Court of Criminal Appeal dismissed an appeal against a sentence of 3 years with a non-parole period of 2 years imposed on a man who was 46 years old at the time of the offence with a brief criminal history of no significance except, however, for previous entries relating to firearms. He was otherwise a person of good character. The weapons which were discovered on a police search comprised an air-rifle with a telescope, two Winchester repeating rifles, a home-made pistol, a .45 calibre revolver and two .22 calibre self-loading rifles one with a silencer. The offender had a long-standing interest in firearms, having been born and raised in a rural area where his father was a member of local shooting clubs. The air-rifle was a gift from his father when he was 16 years old. Two of the weapons were obsolete and ammunition for them would have been difficult to obtain and the applicant's interest in firearms was merely as a collector with no interest in actual use of them. At least two of the firearms had belonged to his father and passed on to him. Hidden J, who gave the leading judgment, considered that the prior convictions of the offender for the unauthorised possession of two firearms and other related charges some nine years earlier increased the objective gravity of the offence but that, whatever might be the significance of this fact, his Honour considered that in the light of the maximum sentence and the standard non-parole period the sentence appealed could not be said to be outside the bounds of the legitimate exercise of discretion, although his Honour described the sentence as "severe for a person of the applicant's background and general good standing". McClellan CJ at CL, agreeing that the appeal should be dismissed, considered that the application "was entirely without merit" and commented - "By providing a standard non-parole period for this offence of 10 years the Parliament has made plain its intention that persons committing the offence will in most cases receive a significant term of full-time custody. The applicant should consider himself fortunate that he did not have to confront an appeal by the Crown. In my opinion leave to appeal should be refused". 27Simpson J agreed with the orders proposed by Hidden J but expressed the view that "the sentence imposed was very lenient". 28Hidden J commented in his judgment on these opinions and declined to adopt their Honour's assertions "that this sentence is markedly lenient". His Honour noted that a pattern of sentencing for offences of this kind had not yet emerged and, as the matter was not argued on this basis, declined to express a view. 29With respect, whilst I would agree with McClellan CJ at CL that in many cases the offence would attract a significant term of full-time custody, it is impossible to surmise that this will be so in most cases, since the relative seriousness of the cases that happen to come to notice must be a matter of speculation. At all events, I do not see Basedow as indicating anything more than that which would conventionally follow from the approach which would apply from giving appropriate attention to the standard non-parole period. 30The starting point, before applying the utilitarian discount of (as I think) 25%, was a sentence of two years and six months (the resulting sentence being rounded down). It is submitted that this sentence is so low that his Honour, despite his statement to the contrary, failed to take into account the offence on the Form 1, which carried a maximum term of imprisonment of 5 years. In respect of this offence, the firearm with the defaced identification mark was, as I have mentioned above, one of those which was the subject of the principal offence. Furthermore, the respondent gave evidence - which was not controverted - that he was unaware that the firearm had a defaced identification mark. The additional criminality involved in this offence must be slight indeed. So far as the ammunition is concerned, none of it fitted the weapons collected and comprised two rusty shotgun shells and seven .303 cartridges. In my view the contention that the sentencing judge did not give sufficient weight to the additional criminality of the offences in the Form 1 cannot be sustained. 31I conclude that the sentence (before suspension) was well within the appropriate discretionary range. Reasons for departing from the standard non-parole period 32It was submitted on behalf of the appellant that the sentencing judge erred in failing to give sufficient explanation for departing from the non-parole period. In El-Chammas v R [2009] NSWCCA 154 Buddin J (with whom the other members of the Court agreed) stated - "[25] ... [the] statutory requirement to state ... reasons for departing from the standard non-parole period ... [requires those reasons] to be stated with some specificity and the greater the departure from the standard non-parole period, the more compelling the reasons need to be." 33Similar remarks were made by Latham J (with whom Hunt AJA agreed) in R v Tory and Tory (2006) NSWCCA 18. 34The requirement to give reasons for a sentence is the obligation at common law of every court and is in my opinion no greater or lesser in a case in which the offence under consideration is subject to a standard non-parole period. In that event, however, reasons for departing from the standard non-parole periods must be given as a requirement of the legislation as well. There is no rule, as I apprehend it, that this requires some additional explanation more extensive than that which is required by the general law. The sentencing Court must simply make the explanation for the departure reasonably clear. In my view the remarks which I have set out above satisfy this requirement. The suspension of the sentence 35Lastly, the Crown submitted that the suspension of the sentence so significantly ameliorated its effect as to render the punishment imposed manifestly inadequate. Counsel for the appellant candidly conceded that it was the suspension of the sentence which lay at the heart of the complaint about inadequacy. 36In R v Zamagias [2002] NSWCCA 17, Howie J (with whom the other members of the Court agreed) discussed, amongst other things, the significance of the suspension of a sentence in terms of the hierarchy of the seriousness of punishment. Firstly, his Honour pointed out that a decision to suspend a sentence must necessarily be made after the sentence has been determined, so that the process is a two-stage one. Here, the sentencing judge complied with that requirement. Howie J then went on to say (omitting references) - "[31] As s 5 of the Act recognises, the imposition of a sentence of imprisonment is a grave step for a court to take whether or not the offender's liberty is immediately removed or curtailed. Section 5(2) requires a court, which imposes a sentence of imprisonment of 6 months or less, to indicate to the offender, and to record, its reasons for imposing such a sentence including the reasons why no penalty other than imprisonment is appropriate. These restrictions upon the power of a court to impose a sentence of imprisonment apply even if the sentence is suspended. A sentencing court, therefore, must recognise that a sentence of imprisonment can be a significant and effective punishment even where the execution of that sentence is suspended ... That is why, in the hierarchy of sentencing alternatives, a suspended sentence is considered as more severe than a community service order even though it may appear on its face to be less punitive. [32] Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate". 37It is my view, having regard overall to the objective and subjective features of this case, bearing in mind (as in my view the sentencing judge did) the maximum term of imprisonment and the standard non-parole period, that this was a case in which suspending the sentence of one year and ten months was within his Honour's discretion. I would readily agree that his Honour's sentence was relatively lenient but I do not consider that it was manifestly inadequate. It follows that the appeal must be dismissed. Conclusion 38In the result I would dismiss the appeal. 39HALL J : I agree with the orders proposed by Adams J.