Ground 1 - Assessment of the Objective Gravity of the Offence
9 The applicant's complaint in respect of this ground rests upon the following passage in the Judge's remarks on sentence (p 6):
"The various offences for which he is to be dealt with pursuant to s 166 suggest that he moves at least on the fringe of criminality. The loaded firearm and his refusal to discuss his reasons for having it other than hinting at reprisals is consistent with a sinister rather than an innocent purpose. His desire to stay in this country should have motivated him to avoid criminality. He was clearly acting in a way prejudicial to that ambition."
10 Allied to this comment is an earlier reference to the pre-sentence report tendered on sentence (Ex 2), wherein the following appeared:
"Mr Krstic appears to minimise his involvement in these offences except for possession of the loaded weapon. He stated he had the gun in his car for his own protection which was reiterated by his wife. The offender added that on release from Villawood Detention Centre he was "threatened" as there was a rumour that he was working with the Australian Federal Police and he was warned he might be targeted."
11 It was submitted that the Judge was not entitled to find that the applicant "moved on the fringe of criminality", nor that his possession of the loaded firearm absent any cogent explanation, was "consistent with a sinister rather than an innocent purpose". According to the applicant, the offences on the s 166 certificate could not be regarded as relevantly related to the possess firearm offence, so as to justify any assessment of the applicant's criminality in the terms outlined by the Judge. It was further contended that his Honour was not entitled to call into question the explanation for possession of the firearm which the applicant had provided to the Probation and Parole Officer. The applicant's counsel asserted on the hearing of the appeal that the Crown did not contest that explanation and that therefore the Judge was bound to accept it. In support of that submission, we were referred to p 8 of the transcript of the sentencing proceedings on 12 November 2004. On that day, the applicant's counsel handed up an outline of submissions which contained a summary of the applicant's and his wife's account in respect of his possession of the firearm. In response to that material, the Crown representative is quoted as saying: "I have no objection to that material, your Honour".
12 The balance of the transcript of the sentencing proceedings, in particular on 11 February 2005, do not support counsel's submission in this regard. At p 12 of that transcript, the applicant's counsel responds to the written submissions filed on behalf of the Crown. Those submissions included an invitation to the court to infer "that the possession of the weapon was to assist the offender with criminal activity". The applicant's counsel then alerts the Judge to the state of the evidence and argues essentially that such an inference or a finding of fact would not be available to the requisite standard.
13 The Judge did not in fact find the weapon was in the possession of the applicant to assist him with criminal activity. In my view, he was entitled to doubt the applicant's explanation for the possession of the weapon, particularly in the light of the applicant's possession of restricted and prohibited substances and in circumstances where that explanation was of a hearsay nature. The Crown's submission was an appropriate one in the circumstances of this case, albeit the Judge refrained from embracing it.
14 In any event, accepting the applicant's argument for present purposes, possession of a loaded gun for one's own protection is not a matter of significant, if any mitigation, since the policy of the legislature evinced by the enactment of the offence and a maximum penalty of 14 years' imprisonment is to deter and punish possession of firearms per se. The applicant arrived in Australia in 1996. His family, then consisting of his wife and 2 children, appear to have preceded him. The applicant's supervision by the Immigration authorities continues, pending approval of a spouse visa (Ex B). In these circumstances, it could hardly be suggested that the applicant was not acutely aware of his obligations to abide by the laws of this State, whatever the nature of his experiences in his former homeland, Serbia.
15 A number of other specific errors were identified by the applicant. It was submitted that the Judge found that the applicant appeared to minimise his involvement in the firearms offence, that the firearms offence was committed in disregard of public safety and that the firearms offence was part of a planned or organised activity. With the possible exception of the last-mentioned factor, I have no difficulty with these findings, assuming that they were made. However, it appears from a reading of the remarks on sentence, that the Judge was doing no more than setting out, almost verbatim, the contents of the pre-sentence report, and repeating the Crown submissions. Nowhere in the remarks on sentence does the Judge unambiguously accept those submissions or adopt that aspect of the pre-sentence report. It is not strictly necessary to consider these matters further, for the following reason.
16 Counsel for the applicant frankly and properly conceded that the sentence for the firearm offence, whilst towards the upper end of the range of sentences imposed, could not be said to be manifestly excessive. It follows that, even if the Judge erred in some respect, no lesser sentence was warranted in law.