R v Glaister [2004] NSWCCA 244 | Case summary

Count 3: A fixed term of imprisonment for two months commencing on 11 April 2004 and expiring on 10 June 2004. 6 The effective overall sentence was a non-parole period of two months with an additional term of ten months. The sentence being for less than three years, the respondent was entitled to be released at the end of the non-parole period which expired on 10 June 2004. 7 On 17 May 2004, a notice of appeal signed by the Director of Public Prosecutions was filed and served on the respondent. That was five weeks after the date on which the respondent was sentenced. 8 At the sentencing hearing a statement of facts was tendered by consent. Statements and other documents were tendered at the sentencing hearing which supported the statement of facts. The respondent gave evidence. A pre-sentence report by the Queensland Department of Corrective Services dated 13 April 2004 and a report by Dr I Colls, consultant psychiatrist, dated 6 April 2004 were tendered. A character reference by Mr P Morrison concerning the respondent's prior employment with the Queensland Corrective Services Commission was tendered. A further reference by Mr K Johnson, relating to other employment was also tendered. 9 The facts of the case as presented to the sentencing judge are as follows. In February 2002, an undercover New South Wales Police Officer, "Danny", made contact in Queensland with an associate of the respondent, Mr C Lovejoy, who had a business involving the sale of military paraphernalia. Mr Lovejoy introduced Danny to the respondent. On 4 March 2002, in the course of a telephone conversation, it was agreed that Danny would purchase a .38 Smith and Wesson five shot revolver for $2000. On 7 March 2002, Danny and the respondent met at Ballina. During the meeting, Danny purchased the revolver from the respondent for $2000 cash. During the meeting, the respondent showed Danny a silencer for a pistol. 10 The $2000 paid by Danny was distributed as follows. The supplier of the firearm received $1100. Mr Lovejoy received $500. That left $400 for the appellant. 11 The .38 Smith and Wesson revolver was examined by police. The serial number at the base of the stock had been obliterated, although a serial number was located on another part of the firearm. 12 The respondent held a Queensland firearms licence permitting possession of a pistol. However, the respondent did not hold any relevant licence or permit under New South Wales law. 13 At no stage did the respondent inquire as to whether Danny was the holder of a licence or permit to hold a firearm. 14 On 19 November 2002, the respondent's residence in Queensland was raided by the police. A silencer and other items were found. The silencer was the same item as was shown to the police operative, Danny, on 7 March 2002. 15 The respondent was charged under Queensland law with unlawful possession of a weapon as defined, namely the silencer, while not being authorised to possess such a device; secondly, with possession of a modified firearm, namely, a .22 calibre Beretta handgun which had been modified to take a silencer; and, thirdly, with possession and acquiring of restricted items, namely, a telescopic baton, three sets of shackles and two pairs of handcuffs. 16 The respondent was extradited to New South Wales to face charges relating to the Ballina meeting with Danny. He remained in custody until 25 November 2002, when he was released on conditional bail. 17 The respondent pleaded guilty to the Queensland charges. On 22 July 2003, he was convicted and fined $2000 by a Queensland court. 18 On 20 October 2003, the respondent came before Gibson DCJ in the District Court in Sydney, charged on three counts. At that stage, the first charge was for selling a firearm to Danny at Brisbane on 2 March 2002. (That charge related to the agreement to sell the firearm made in the course of the telephone conversation prior to the Ballina meeting.) The second and third charges correspond with the first and third of the three charges for which the respondent was ultimately sentenced in New South Wales. 19 On that date, 20 October 2003, the respondent pleaded not guilty to the first charge (selling firearms at Brisbane) and guilty to the other two charges. 20 The first charge was heard by Gibson DCJ without a jury. The charge was dismissed for want of jurisdiction. 21 On 16 April 2004, the respondent was indicted before Goldring DCJ, on the three charges which give rise to the present appeal. The respondent pleaded guilty to the three charges, that is, the new charge (count 2) and the two earlier charges to which the appellant had pleaded guilty (now counts 1 and 3). The sentencing hearing proceeded and the appellant was sentenced on that date. 22 The respondent's personal history, as appears from the evidence before his Honour was as follows. The respondent was born on 17 May 1962. He was 39 years of age at the time of the offences. He had no significant criminal record. 23 The respondent had joined the Navy at the age of 16 and had served for ten years. He acquired considerable expertise in relation to weaponry. He was then employed for something over four years as a prison officer with the Queensland Corrective Services Commission. In mid 1993, just prior to closure of the centre where he was employed, he was injured in the course of a riot, being knocked unconscious and receiving a dislocated shoulder and a fractured collar-bone. A colleague received more serious injuries and was taken away. Notwithstanding his injuries, the respondent was left in charge of a large number of prisoners for some hours. In consequence of this experience, the respondent suffered post-traumatic stress disorder for which he later received treatment. 24 Following an 18 month period of unemployment, the respondent obtained a position as a security manager which he held for ten months until retrenched. He was then unemployed again for about ten months, until he obtained a position as operations manager of a security company based at Port Moresby. He was there for about a year, returning to Australia to attend to family matters. 25 It was at about the time of his return to Australia in 1996 that he started to experience extreme difficulty in his everyday functioning as a result of the post-traumatic stress disorder. He was assessed unfit for work at that stage and was granted a disability pension. He had since worked on a casual basis for a labour-hire company. He was currently earning about $400 per week in addition to a part disability pension. 26 Dr Colls, whose report was tendered, supported the earlier diagnosis of post-traumatic stress disorder. This, however, had improved. The respondent reported ongoing symptoms of sleep disturbance, hyper-vigilance, a persecutory view of the world, irritability and easy arousal, but Dr Colls did not think that the respondent now met the diagnostic criteria for the disorder. 27 At the time of the sentencing hearing, the respondent also suffered from stomach ulcers and passed blood regularly. He was afflicted with sores which he attributed to his state of stress. 28 At the time of the relevant offences, the respondent had been required to leave the place where he had been living and had been provided with accommodation by Mr Lovejoy. It was Mr Lovejoy who was first approached by the police operative, Danny, and who introduced Danny to the respondent. The arrangement between the respondent and Mr Lovejoy was that the respondent would pay an amount as rent and would also assist Mr Lovejoy in his business. 29 According to the respondent, this was the only occasion in which he had engaged in the unlawful sale of a firearm. He said he did so on this occasion because of the financial pressures he was under at the time and in order not to put Mr Lovejoy offside. That is consistent with the way the proceeds of sale of the pistol to Danny were distributed. 30 Although there was evidence that the respondent had told Danny that he was able to obtain a range of firearms, there was no evidence that the respondent had sold firearms illegally on any prior occasion or was doing more on that occasion than providing Danny with a choice for a one-off sale. 31 The respondent said he was led to believe that the revolver sold to Danny was to be used only for protection and that there was no question in his mind that it might be used for any criminal purpose. He was not cross-examined to controvert this evidence, and this was a matter about which it was reasonable to expect the Crown would be informed since Danny was a police operative. 32 As for a serial number having been removed from the revolver, the respondent said that he did not notice that the number had been removed from the butt of the firearm. 33 As for possession of the silencer, the respondent said he was carrying that in his bag. Goldring DCJ thought that showing the silencer to Danny was a bit of showing off on the respondent's part. There was no evidence of the respondent offering the silencer to Danny for sale, and he still had it eight months later when his residence was raided by the Queensland police. Punishment for possession of the silencer was subsumed in the fine imposed for the Queensland offences in July 2003. That was not precisely the same offence, but this was an ameliorating factor nonetheless. 34 The respondent said that the Beretta which was the subject of one of the Queensland offences was his authorised club pistol. The Queensland charge in relation to that firearm was not that he was unauthorised to have the pistol but that it had been modified to take the silencer. The respondent said, at the sentencing hearing in Sydney, that he used the pistol to shoot vermin such as toads, and that it was threaded to take the silencer in order to dampen the sound of the shots. That evidence was not challenged by cross-examination. 35 The baton found at the respondent's residence was obtained in the course of his prior work as a security officer. The handcuffs and shackles had been obtained in the course of his employment as a prison officer. He said that he had offered to return these when he gave up that employment but he was told to keep them because the centre was being closed. 36 The respondent said that he had joined a shooting club after leaving the Navy and had, thereafter, maintained a Queensland pistol licence. Following the convictions in Queensland, in July 2003, he had been required to surrender the licence. 37 Mr Lovejoy was also charged in relation to the sale of the revolver to Danny. The respondent had offered to give evidence against him but the police had declined the offer on the basis that they had sufficient material. 38 In his remarks on sentence, Goldring DCJ recorded the respondent's personal history, the circumstances leading up to the offences and the circumstances of the offences themselves. His Honour observed that in view of the respondent's lifetime involvement with guns, he ought to have known that there was an obligation to take care not to sell a firearm to anyone who was not authorised to possess such a weapon. His Honour noted that there was clearly a degree of planning, and that this was a commercial operation, the respondent holding himself out as a person able to supply firearms. There was total disregard for whether the purchaser was authorised to own such a weapon. 39 His Honour regarded the offences as being serious. He noted that general deterrence was of particular importance in relation to offences of this nature. 40 His Honour found special circumstances in three respects: as he understood it, the respondent would have to serve his term in prison in protection because of his background; he would be serving his sentence in New South Wales, whereas his personal associations were in Queensland; then there were the respondent's health problems which would make prison more difficult for him. 41 His Honour's starting point for a sentence under count 1, which was to be the effective sentence, was 18 months. He reduced that period by two months for the respondent's willingness to assist the authorities and by a further four months for the utilitarian value of the early pleas of guilty, producing a sentence of 12 months. 42 When formally setting the sentences, his Honour erroneously did so in the manner required for offences committed after 1 February 2003, that is, by first determining a non-parole period, whereas the offences were committed before that date. A failure to follow correct sentencing procedure can warrant intervention by this court but need not do so. 43 Quite properly, having regard to the considerations I have mentioned, the gravamen of the Crown's case, as argued on the hearing of the appeal, was that the non-parole period under count 1 was insufficient to reflect the criminality involved in relation to that offence and the offence on Form 1. 44 As part of that argument, it was pointed out on behalf of the Crown that the sentencing judge was mistaken as to maximum penalties and, accordingly, about the relative seriousness of the offences involved. His Honour said that the maximum penalty for the offence under count 1 was 14 years. In fact it was five years. His Honour also said that selling an unauthorised firearm is equally as serious as possessing an unauthorised firearm, whereas the maximum sentences in relation to counts 1 and 3 were respectively five years and 14 years. His Honour was mistaken in both respects. The Crown sought to use the error in an elliptical way. It was submitted that the sentence under count 1 was the more erroneous because his Honour thought the maximum penalty for the offence was higher than it actually was. I would reject that line of reasoning. Manifest error is to be judged objectively by reference to the correct maximum sentences and other relevant considerations. 45 In any event, the Crown is responsible for the error. His Honour asked whether the maximum penalty in relation to counts 1 and 3 was 14 years and, in relation to count 2, five years, to which the Crown's representative said that was correct. It does not behove the Crown, in these circumstances, to endeavour to use the error in criticising the sentence. 46 The objective seriousness of the offences under count 1 and on Form 1 is ameliorated in this case by the absence of criminal intent beyond the bare elements of the offences. The offences were not committed in the context of broader criminal activity or for any other criminal purpose. The offences were far from being the more serious of such offences. That said, however, firearm offences of this kind are always serious. 47 There were subjective considerations in mitigation of penalty in this case. It appears that the respondent was vulnerable to being drawn into dealings with the police operative, Danny, arising from a combination of inadequate income and his dependency on Mr Lovejoy for accommodation and for consideration in relation to the payment of rent. This was to be the respondent's first time in custody. Imprisonment was also likely to be more onerous for him than for the ordinary run of prisoner by reason of his background as a prison officer and because of residual elements of his post-traumatic stress disorder and other health problems. 48 Weighing up the objective seriousness of the offences in question and the subjective considerations mentioned above, the non-parole period under count 1 was manifestly inadequate, and plainly so. 49 That, however, is not the end of the matter. There are special constraints in relation to Crown appeals against sentence. If it comes to re-sentencing, the sentence will be set towards the lower end of the range for the offence in the circumstances of the case because of the principle of double jeopardy. Secondly, this court has a discretion whether to intervene at all, even if the sentence is manifestly inadequate and a more severe sentence would be warranted but for that discretion. 50 In the present case there are a number of factors bearing on the exercise of the court's discretion. First, the respondent did not receive notice of the appeal until some five weeks into a two months non-parole period. In a case as plain as this and where a short sentence is involved, notice should be given within days rather than weeks. 51 Secondly, when this appeal came on for hearing on 9 July 2004, the respondent had served the effective non-parole period and had been released at the expiration of that period some four weeks earlier. Meanwhile, the sentence continued to run. The period on parole pending the decision of this court would count as service of any extended non-parole period. This consideration reduced the utility of extending the non-parole period. 52 Thirdly, the court now had evidence that the respondent elected not to go into protection in prison, which he understandably believed might increase rather than decrease the danger to himself by drawing attention to his background as a prison officer. He was nonetheless recognised and was fearful of what the consequence might be. That state of mind was no doubt exacerbated by the residual effects of post-traumatic stress disorder which included a paranoid element (as previously described). Fourthly, the court had evidence of constructive efforts by the respondent to resume a normal, productive life during the time between his release and the hearing of the appeal. 53 In these circumstances, there would be an element of cruelty in now requiring the respondent to return to prison for what would be a relatively short further period by reason of the double jeopardy principle. 54 The appeal should be dismissed in the exercise of the court's discretion. 55 This is a special case. The non-parole period for firearms offences of this kind was seriously inadequate. The outcome I propose should not be seen as precedent for any other case. 56 I propose that the appeal be dismissed. 57 Adams J: I agree with the judgment of Sperling J and with the order he proposes. -oOo-

R v Glaister

At a glance

Court

Decision date

Before

Source

Judgment (14 paragraphs)

Parties

Cited By (1)