A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, is "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons." That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion."
CONSIDERATION
- In considering the submissions of the parties two matters must be emphasised at the outset.
- Firstly, the inherently serious nature of offending against s. 7(1) of the Act is reflected in the maximum penalty set by Parliament. In the present case, the Crown placed significant reliance upon the nature and characteristics of the firearm to demonstrate what was said to be the seriousness of the offending and the manifest inadequacy of the sentence. However, they were not the only factors which were relevant in determining the seriousness of the offending. Given the charge, the nature and circumstances of the respondent's possession of the firearm were obviously relevant.
- Secondly, none of the factual findings of the sentencing judge were the subject of any challenge by the Crown before this Court. This included his Honour's findings as to:
1. the circumstances in which the respondent came into possession of the firearm;
2. the absence of any evidence that he intended to use it; and
3. his low level of moral culpability.
- It is plain from his Honour's observations (at ROS 7-8) that he was aware of, and took into account, the various characteristics of the firearm. His analysis of those characteristics was lengthy and detailed. In those circumstances it was not, in my view, open to the Crown to submit to this Court that the seriousness of the respondent's possession arising from the nature of the firearm was something that his Honour "appeared to have overlooked".
- Further, his Honour dealt at length with the circumstances in which the respondent came into possession of the firearm. As I have noted, he found (at ROS 10) that such possession arose from unexpectedly finding the firearm in the show car. His Honour concluded that the respondent did not plan to come into possession of the firearm but that having done so, he had decided to retain it. All of these findings were consistent with his Honour's conclusion that the offending fell below the mid-range of objective seriousness.
- The location of the firearm in immediate proximity to additional rounds of ammunition was relevant to an assessment of the seriousness of the offending: R v Thalari [2009] NSWCCA 170; (2009) 75 NSWLR 307 at [88]. However, that factor was rendered of less significance in the present case in light of his Honour's findings set out at [27], [28] and [31] above.
- There was, as I have outlined, evidence that the respondent was in the habit of using illicit drugs at or about the time of the offending. In other circumstances, that may have supported the Crown's submission that a position of particular danger had been created as a consequence of the respondent's possession of the firearm. However, leaving aside the fact there was no evidence that the respondent was under the influence of any drug at a time when he handled the firearm, the fact of his addiction is of less significance in light of his Honour's finding that there was no evidence to support the conclusion that he had any intention of using it.
- There is no doubt that the identification markings of the firearm had been defaced. In some circumstances, that may well be consistent with the intended use of the weapon for a criminal purpose. However, and again leaving aside the fact that his Honour found no evidence to support any intention on the part of the respondent to use the firearm, he also found (at ROS 7) that there was no evidence that the respondent was responsible for defacing it.
- In support of the proposition that the respondent's possession of the firearm was linked to some criminal purpose, the Crown submitted that there was "unchallenged" evidence of the respondent's previous membership of an outlaw motorcycle gang. In this regard, the Crown pointed to a report of Professor Woods of 1 July 2014 which stated (inter alia):
"Mr Farrell is making excellent therapeutic progress and in this regard -
a)…
b)…
c) no longer views himself as being a member of the Rebels O.M.C.G. and in fact now regrets having become a member of the O.M.C.G.;
d)…
e)…"
- To the extent that this may have constituted evidence that the respondent had in fact been a member of an outlaw motorcycle gang at some point, there was no evidence that such membership coincided with the time of his offending.
- An assertion was made by the officer in charge of the investigation when giving evidence in the sentence proceedings that the respondent was a member of an outlaw motor cycle gang (commencing at T13 L33 on 21 November 2013):
"Q: Is it your understanding the offender is a member of an outlaw motorcycle gang?
A: Yes, the Rebels.
CROSS-EXAMINATION BY MR JAMES
Q: In relation to that last matter you spoke about, is your information concerning that as reliable as the evidence that you have given of the two earlier matters that you spoke about?
A: So the evidence in relation to the charge against Mathew Farrell?
Q: Firstly, you read somebody else's statement of facts?
A: Yes.
Q: And you have an understanding of that statement of facts that you gained from reading it?
A: Yes.
Q: And you're giving evidence as though it were, as far as you're concerned, representing the truth. Is that right?
A: Well the information that I've given is only from what I have read from the facts sheet, as I said.
Q: And your understanding?
A: Yes.
Q: Which may or may not be accurate?
A: Yes."
- Contrary to the submission advanced by the Crown, there was clearly a challenge to this evidence. There was an equally clear concession by the witness that his "understanding" the respondent may have been a member of the Rebels Outlaw Motorcycle Gang he may not have been accurate. The Crown's reliance, before this Court, upon such evidence was in my view misplaced.
- In respect of the matters contained in the Form 1, his Honour said (at ROS 1-2):
"I propose, as advocated by the solicitor for the DPP, to take these four offences on the Form 1 into account when assessing the objective seriousness of the principal offence. I shall not take them into account again, as is the practice, where the sentencing process involves offences included on a Form 1. To do so would be to double count their respective impact in the sentencing process. I understand the solicitor advocate for the DPP agrees with this approach."
- It is evident from that passage that his Honour was aware of those matters and that he took them into account in the sentencing process. It is also evident, from his express reference to it at the commencement of his sentencing remarks, that his Honour was aware of the maximum penalty and the prescribed standard non-parole period.
- The respondent had the benefit of a series of favourable findings made by the sentencing judge as to the nature and extent of his possession and the level of his moral culpability. None of those findings were challenged on this appeal. They support the conclusion reached by the sentencing judge that the offending fell below the mid-range of seriousness.
- Moreover, the sentence imposed was one of imprisonment for a lengthy period, albeit one which was to be served other than in full time custody. It was also relevant that the respondent had spent almost 9 ½ months in custody in relation to this matter when his bail had been refused.
- In all of these circumstances, I am not persuaded that the sentence is unreasonable or plainly unjust.
ORDERS
- For the forgoing reasons I propose the following order:
1. The Crown appeal is dismissed.
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Decision last updated: 21 April 2015