R v Irwin

Miller v R [2015] NSWCCA 86 Perkins v R [2018] NSWCCA 62 Postiglione v R (1997) 189 CLR 295; [1997] HCA 26 R v Amurao [2005] NSWCCA 32 R v AZ (2011) 205 A Crim R 222; [2011] NSWCCA 43 R v Brown [2006] NSWCCA 249 R v El Sayah; R v Idaayen; R v Mansaray [2018] NSWCCA 64 R v Harris (2015) 70 MVR 412; [2015] NSWCCA 81 R v Hernando (2002) 136 A Crim R 451; [2002] NSWCCA 489 R v Holdom [2018] NSWSC 1677 R v JD [2018] NSWCCA 233 R v Jennar [2014] NSWCCA 331 R v Krstic [2005] NSWCCA 391 R v Lachlan (2015) 252 A Crim R 277; [2015] NSWCCA 178 R v Nabalarua [2017] NSWDC 328 R v O'Connor (2014) 239 A Crim R 487; [2014] NSWCCA 53 R v Skinner [2018] NSWCCA 185 R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170 R v Williams (2005) 156 A Crim R 225; [2005] NSWCCA 355 Sharma v R [2017] NSWCCA 85 Stravropoulos v R [2018] NSWCCA 12 Taylor v R [2013] NSWCCA 157 Tsiakis v R [2015] NSWCCA 187 Vale v R (2016) 77 MVR 194; [2016] NSWCCA 154 Vuni v R [2006] NSWCCA 171 Yu v R [2019] NSWCCA 96 Category: Principal judgment Parties: Crown (Appellant) Matthew Lindsay Irwin (Respondent) Representation: Counsel: B Hatfield (Appellant) S Beckett (Respondent)

Solicitors: Solicitor for Public Prosecutions (Appellant) Katsoolis & Co Lawyers (Respondent) File Number(s): 2017/277360 Decision under appeal Court or tribunal: District Court of New South Wales, Campbelltown Jurisdiction: Criminal Date of Decision: 14 December 2018 Before: Judge English File Number(s): 2017/277360

Judgment

1. SIMPSON AJA: It is a curious feature of this Crown appeal that perhaps the most plainly manifest error in the approach taken by the sentencing judge was one that may have given rise to a successful appeal by the respondent. That was the approach taken by her Honour to what she called the "Bugmy principles", and which she "decline[d] to apply".
2. The "Bugmy principles" are derived from Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and are concerned with the impact on sentencing of a history of disadvantage and deprivation. The plurality in the High Court (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) accepted that such a history is relevant to the assessment of the moral culpability of an offender. The specific question in Bugmy was whether the effects of early social disadvantage and deprivation diminish over time such as to reduce the extent to which it may be taken into account on sentence.
3. Application of the Bugmy principles is not discretionary. Their Honours said: 44 Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision."
4. It was, therefore, in my opinion, an error for the sentencing judge to "decline to apply the Bugmy principles". It was, however, open to her, and, indeed, necessary for her, to assess the impact on the respondent of the circumstances of his early life which are detailed in the judgment of Walton J. It is questionable whether her Honour's interpretation of the opinion of the psychiatrist Dr Furst is properly available on a proper reading of the report.
5. However, this is not an application for leave to appeal against the severity of sentence, and it is unnecessary to say more about this. I make these remarks merely to reinforce, as I have said above, that application of the Bugmy principles is not a matter of discretion. It is, of course, a matter of evaluation what impact they should have.
6. What is curious about the appeal is that, notwithstanding that (in my opinion serious) error, the sentencing judge nevertheless arrived at a sentence that was manifestly inadequate. In this respect I agree with the analysis by Walton J, and I therefore agree that the Crown appeal must be allowed. I also agree that there is no discretionary reason not to allow the appeal and impose a more severe sentence.

1. It was common ground that the sentencing judge erroneously identified that the maximum penalties for sequences 10 and 11 were 2 and 14 years, respectively. As to sequence 11, it should be noted that the offence carries a penalty of 14 years if the firearm is a pistol or a prohibited firearm or imprisonment for 5 years in any other case. The shortened firearm, the subject of the charge, is neither a pistol nor a prohibited firearm, given the dimensions of that firearm: Baxter v R [2018] NSWCCA 281.
2. An issue arose as to whether the maximum penalty for sequence 15 should be 5 years rather than 3 years, having regard to the provisions of s 51B(1) of the Crimes Act 1900 (NSW), because sequence 15 was a subsequent police pursuit offence committed about 4 days after sequence 14. However, it was also common ground that the maximum penalty was 3 years as the respondent had not been charged with the sequence 14 offence by the time of the second police pursuit offence.
3. Sequences 1-6 concerned drug or drug related offences. Sequences 8 and 10-13 concerned firearms offences ("the firearms offences"). Sequences 14 and 15 concerned police pursuits ("the police pursuit offences") and sequences 16-18 and 20 concerned possession of prohibited weapons ("the prohibited weapons offences").
4. The drug or drug related offences and the firearms offences arose in consequence of a Firearms Protection Order ("FPO") search on 30 August 2017 at the respondent's residence. Sequence 14 arose from a police pursuit at Catherine Field on 8 September 2017. The prohibited weapons offences arose out of a further police pursuit on 12 September 2017 (sequence 15) and a subsequent search.

THE APPEAL

1. The appellant relied upon a single ground of appeal, namely, that the sentence pronounced by English DCJ was manifestly inadequate.
2. By the appellant's contentions, it was submitted that the aggregate sentence of imprisonment and aggregate non-parole period imposed upon the respondent were manifestly inadequate.

FACTUAL BACKGROUND

1. On 10 February 2017, the respondent was served with the FPO and a Weapons Prohibition Order ("WPO"). On 30 August 2017, police attended the respondent's residence at Currans Hill for the purposes of conducting an FPO search. Police located and seized the following items: 1. $1,700 in cash ($900 of which was reasonably suspected to be the proceeds of crime) (sequence 1); 2. one 10ml bottle of testosterone containing 9ml of the drug (sequence 2 - Form 1); 3. three sets of portable scales; 4. resealable bags containing 127.1 grams of cannabis (sequence 4); 5. a resealable bag containing 0.81 grams of cocaine (sequence 5 - Form 1); 6. a resealable bag containing four pink tablets of MDMA (sequence 6 - Form 1); 7. a loaded shortened 12-gauge shotgun under the bed (sequences 8, 10 - Form 1 and11); and 8. three 12-gauge shotgun rounds (sequences 12 - Form 1 and13).
2. There was no dispute that when the police attended the respondent's residence in order to conduct the search, the respondent attended the premises and facilitated the entry of police.
3. On 1 September 2017, a "Revocation of Parole Warrant" was issued by Community Corrections, a Division of the Department of Justice.
4. On 8 September 2017, the respondent was driving a black Lexus sedan ("the Lexus") on Camden Valley Way, Catherine Field. A Highway Patrol officer in a marked blue police vehicle ahead of the Lexus, observed the vehicle and slowed allowing the Lexus to catch up. After stopping at a set of lights, the Lexus turned onto Catherine Field Road and the officer activated warning lights in an attempt to pull the Lexus over. As that occurred the respondent made a U-turn over a painted traffic island and drove back towards Camden Valley Way.
5. The police officer activated all warning devices and initiated a pursuit. The respondent accelerated away at speeds of up to 160 kilometres per hour with the officer in pursuit. At the time the road was marked as having an 80 kilometres per hour speed limit. He travelled through a number of intersections contrary to a red light. The officer terminated the pursuit as the respondent sped away. As he did, he observed the Lexus swerve to the left in the middle of the intersection narrowly avoiding a collision with an oncoming vehicle (sequence 14). The period of time over which the pursuit took place is unknown.

EVIDENCE AND SUBMISSIONS IN THE SENTENCING PROCEEDINGS

1. Sentencing proceedings commenced on 12 December 2018. The Crown tendered a bundle of material that included a Crown Sentence Summary, Notice of Committal, copies of the relevant Form 1 schedules, a Section 166 Certificate (containing a backup offence of possess prohibited drug (sequence 3) withdrawn and 7 related offences (sequences 2, 5, 6, 10, 12 and 17) all dealt with on a Form 1), the statement of agreed facts and the respondent's criminal and custodial histories, together with the revocation of parole documents.
2. The respondent did not give evidence on sentence. The respondent's subjective case was supported by the following evidence: 1. Report of Mr Jason Borkowski, psychologist, dated 25 July 2018; 2. Report of Dr Richard Furst, psychiatrist, dated 30 November 2018; 3. Remand Addictions Letter of Attendance, dated 8 November 2018; and 4. TAFE Statement of Attainment.
3. Written and oral submissions on behalf of the respondent were provided by counsel appearing on his behalf.
4. In these proceedings, the respondent made reference to particular aspects of his submissions before the sentencing judge as well as aspects of the submissions of the appellant referring, in that respect, to omissions.
5. In relation to the submissions of the respondent before the sentencing judge, the following submissions received emphasis: 1. The respondent made immediate admissions and his plea was a reflection of remorse. 2. All offences were capable of being dealt with in the Local Court. 3. The respondent had a background of social deprivation arising from being: exposed to domestic violence; a victim of domestic violence; a victim of sexual assault and introduced to drugs at a young age. 4. The applicable "Bugmy" features called for a reduction in moral culpability arising from exposure to domestic and family violence; exposure to drug use from an early age and related drug dependence and dysfunction: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 ("Bugmy"). These features were causally linked to the offending but Bugmy did not require a causal link. 5. In response to the appellant's submission to the contrary, the impact of social deprivation did not diminish over time. 6. That the respondent was institutionalised or in danger of becoming so. 7. That totality principles were called for in light of the earlier sentence and the three separate instances of offending which called for some measure of accumulation but that the commencement date was a matter for the sentencing judge's discretion. 8. It was appropriate to adjust the statutory ratio and find special circumstances in light of his custodial history and the accumulation of sentences, risk of institutionalisation and intensive rehabilitation needs when released into the community. 9. The respondent sought referral to the Compulsory Drug Treatment Correctional Centre under the Drug Court Act 1998 (NSW).

Personal Background

1. The respondent was 29 years of age at the date of sentence.
2. The following constitutes a summary of evidence available to the sentencing judge as to the respondent's personal background. The respective elements of that summary did not attract controversy.
3. The respondent grew up in a dysfunctional environment with both parents abusing alcohol and with his father being violent and abusive towards his mother, requiring regular intervention by police. He suffered almost daily exposure to domestic violence and abuse between his parents. He formed a hatred of his father. He reported suffering physical abuse from his father, so much so he could not attend school due to the severity of his injuries. The injuries caused him shame and fear that others knowing about the abuse would result in "a hiding".
4. His parents separated when he was 11-12 years of age and the respondent was raised by his mother over the following years. He described his mother as a "drunk" and when intoxicated she was abusive towards him. However, when she was sober they had a good relationship. While in custody the respondent has had regular phone contact with his mother and she has visited him occasionally in custody. The respondent has a number of siblings. He had a reasonable relationship with some, whereas he had nothing to do with others.
5. The respondent left school in Year 9. He was involved in a fight whilst at school and placed in a remedial class. After leaving school the respondent worked in an air conditioning company for approximately 6 months. After this employment ended he was either in custody or leading a transient lifestyle, supporting himself through criminal activity. He reported having had occasional periods of employment after being released from custody, but then relapsing into drug use and crime.
6. The respondent reported to psychiatrist, Dr Furst, that he had been sexually assaulted between the ages of 12-13 years on at least two occasions by an older male who was a family friend. He also reported hearing voices from the age of 18 years, which would "come and go". He had never been treated with antidepressant medication or received formal counselling in relation to sexual abuse victimisation.
7. The respondent reported smoking cannabis from about 7 or 8 years of age to Mr Borkowski. He was drinking alcohol from the age of 11 years. He later used amphetamines and methylamphetamines and MDMA from the age of 15 years. He left home at 16 years of age.

Criminal History

1. The respondent had a significant criminal history dating back to an offence in 2005 when he was still a minor. The respondent accepted that he had spent the majority of his adult life in custody, commencing in 2007. A Table produced by the appellant is again very useful in this respect. That Table appears below: Year when sentence imposed Court Offence Sentence 2005 Children's Court Assault occasioning bodily harm Bond: 12 months 2006 Children's Court Goods in custody suspected being stolen Fine: $50 2006 Children's Court Robbery CSO: 25 hours Assault occasioning actual bodily harm ("AOABH") Probation: 10 months 2006 Children's Court Assault Probation: 4 months Assault 2006 Children's Court Damage property For each offence Bond: 6 months Use offensive language intimidation 2008 District Court Robbery in company cause wounding / Grievous bodily harm Imprisonment 5 years/NPP 3 years Assault with intent to rob in company Form 1 Damage property Form 1 Robbery in company Imprisonment 2 years / NPP 15 months Enter enclosed lands S10A conviction Armed w/intent Imprisonment 18 months 2011 Local Court Refuse to produce license Fine: $200 Not comply with P1 license S10A conviction Exceed speed Fine: $300 Drive under influence of alcohol or drugs Fine: $500 2012 Local Court AOABH Imprisonment 4 months 2013 Local Court Assault (Domestic Violence) Bond s9: 18 months 2014 Local Court Contravene Apprehended Violence Order (Domestic Violence) Imprisonment 1 month 2014 District Court Armed with intent - accessory after the fact to an offence Imprisonment 9 months 2014 District Court Possess unauthorised prohibited firearm Imprisonment 4 years 6 months / NPP 2 years 6 months Not keep firearm safely Form 1 Possess ammunition S10A conviction 2014 Local Court Contravene Apprehended Violence Order (Domestic Violence) Imprisonment 1 month 2018 Local Court Drive with illicit drug present in blood - 1st offence Fine: $450

1. The entry for the year 2008 concerns offences committed on 27 April 2007. The respondent received a term of imprisonment for robbery in company (sequence 2 of the offences) for 2 years and 6 months, commencing 28 September 2007.
2. The respondent had last been released to parole on 24 June 2017. He was sentenced for the offence of possess unauthorised prohibited firearm in 2014 to imprisonment for a non-parole period of 2 years and 6 months and a total term of 4 years and 6 months, which commenced on 6 November 2013, with his earliest release date to parole being 5 May 2016. He was released to parole on 14 December 2016 but returned into custody on 22 December 2016 and was not released again to parole until 24 June 2017. The respondent committed the first of the present offences on 30 August 2017, within two months of being released.
3. As earlier mentioned, during his release the respondent resided at his mother's house and reported to Campbelltown Community Corrections Office where he was required to participate in the EQUIPS Foundations Program and undertake drug testing.
4. As at 21 August 2017, Community Corrections described the respondent's response to supervision as "satisfactory" noting (despite a breach for failing to participate in a secondary drug test) he had attended supervision appointments as required, participated in the EQUIPS program and attended an Alcohol and Other Drugs assessment, as directed. The respondent agreed to participate in drug and alcohol rehabilitation that would allow him to be in employment during the day.
5. On 29 August 2017, the respondent was noted to be "sleepy and fidgety and quick to anger" during an interview with Community Corrections. On 31 August 2017, a second breach order was completed for: failure to complete the EQUIPS program (having left it on 29 August 2017); drug use (following the subject offences); failure to enter a day rehabilitation program and for the possession of firearms and ammunition (sequences 8 and 10-13). As noted, parole was revoked on 1 September 2017.

REMARKS ON SENTENCE

1. The sentencing judge found that all of the present offences were committed soon after the respondent's release from custody to parole.
2. The drug offence involved small quantities and was found not so serious in terms of quantity or role. The proceeds of crime were found to be small compared to other cases and fell below the "standard [sic] of the range".
3. Her Honour found the firearms and police pursuit offences were serious examples of the kind.
4. As to the firearms offences, the sentencing judge made the following additional findings: 1. the respondent possessed the loaded, shortened firearm for protection due to his perceived need to protect himself from other criminals given his drug addiction and his sale of drugs to support his habit; 2. her Honour rejected the respondent's account that he took it from an associate who was a drug addict with a young child and that he was intending to hand it in; 3. he was dealing in drugs and mixing with criminals; 4. in those circumstances, he had the shotgun for his own protection; 5. it was not secured; 6. it was within easy reach, in his bedroom underneath his bed, if he needed to produce it or if someone broke into the premises looking for drugs; 7. there was ammunition nearby; 8. such firearms are capable of concealment and can be used in serious criminal activity; 9. the community and the police are put at great risk by the prevalence of such firearms in the hands of criminals; and 10. it was a crime committed whilst he was under the FPO.
5. As to the prohibited weapons offences, her Honour found: The other items in his possession being the handcuffs and the tazer also breach the prohibition order. He knew full well that he was not to be in possession of such items. There is no satisfactory explanation as to how he came to be in possession of those items or indeed why he had them. In possessing those items in the circumstances in which he did, I find his actions demonstrate an ongoing complete disregard for compliance with his obligation under the law.
6. The sentencing judge found the police pursuit offences to be "serious examples of the kind putting a significant number of other road users at risk, including the police". Her Honour rejected the assertions given by the respondent that at the times he was suffering from paranoia. Her Honour found the respondent was "doing nothing more than evading capture and arrest knowing full well there were warrants out for his arrest".

PRINCIPLES APPLICABLE TO THE APPEAL

1. By contending the exercise of the sentencing discretion below resulted in a sentence which was manifestly inadequate, the appellant must be taken as contending the sentencing process was attended by the last mentioned error in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505, such that a sentence is manifestly excessive where the applicant shows that the sentence is "unreasonable or plainly unjust": Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 ("Markarian") at [25]. This has to be established in a context where there is no single correct sentence and where judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle: Vuni v R [2006] NSWCCA 171 at [33] per Hoeben J (as his Honour then was, with Tobias JA and James J agreeing); Markarian at [27]; Vale v R (2016) 77 MVR 194; [2016] NSWCCA 154 at [37] (per Hoeben CJ at CL, with whom Rothman J and R A Hulme J agreed).
2. The appellant made a submission as to the nature of Crown appeals under s 5D of the Criminal Appeal Act which was accepted by the respondent.
3. Consistency of sentencing is a matter of great importance in maintaining confidence in the administration of justice. Inadequate sentences give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public and are likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [56]-[57]; Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49 at 306 (per McHugh J).
4. The primary purpose of a Crown appeal against sentence is to lay down principles for the governance and guidance of courts having the duty of sentencing a convicted person. In the exercise of its jurisdiction under s 5D of the Criminal Appeal Act, the Court retains a residual discretion to decline to interfere with a sentence, even though the sentence is erroneously lenient: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 ("Green") at [1]. The Crown bears the onus of negating any reason why the residual discretion of this Court not to interfere should be exercised: Griffiths v The Queen (1977) 137 CLR 293; Green; CMB v Attorney-General (NSW) (2015) 256 CLR 346; [2015] HCA 9 ("CMB") at [36].

BASES RELIED UPON BY APPELLANT RE MANIFESTLY INADEQUATE GROUND

1. The reference to Harris is particularly apposite in this case because, whilst the appellant relied upon, as earlier mentioned, a sole ground of appeal, namely, that the sentence imposed was manifestly inadequate, it sought to identify errors that may assist in explaining why the ground was made out.
2. The four errors of that character relied upon by the appellant were as follows: 1. failure to make any assessment of the objective seriousness of the prohibited weapons offences; 2. nominating indicative sentences that failed to adequately reflect the objective seriousness of the firearms and prohibited weapons offences; 3. double counting by backdating the commencement date of the sentence and making a finding of special circumstances so as to negate entirely the balance of parole the respondent was required to serve; and 4. imposing an aggregate sentence and an aggregate non-parole period that failed to appropriately reflect the totality of the offending.
3. I shall consider those issues seriatim although it may be observed that the appellant placed particular reliance on the fourth identified error.

Assessment of Objective Seriousness of the Prohibited Weapons Offences

1. The indicative sentence for the offences in sequences 16 and 18 were 18 months (for an offence involving the possession of handcuffs) and 15 months (for an offence involving the possession of a taser), respectively, where the statutory guideposts for each offence were a 14 year maximum penalty and a 5 year standard non-parole period (the sentencing judge did not state, in determining the aggregate sentence to be imposed, the non-parole period that would have been set for those offences had a separate sentence of imprisonment been imposed (see s 54B(4) of the Crimes (Sentencing Procedure) Act) or why a shorter non-parole period than the standard non-parole period was imposed (see s 54B(5)). However, this failure did not invalidate the sentence (s 54B(7)) (it did not feature in the contentions of the appellant that there was a failure to make an assessment of the objective seriousness of the offences).
2. The appellant contended that, despite the sentencing judge making an assessment of the objective seriousness of the firearms, police pursuit and drug offences, no such evaluation was made with respect to the prohibited weapons offences with her Honour's observations representing only slightly more than a bare recitation of the facts. It is submitted this failure was reflected in the indicative sentences for sequences 16 and 18 and the additional criminality involved in sequence 20.
3. The respondent's (implicit) submission that the sentencing court was not required to classify the objective seriousness of an offence (see Sharma v R [2017] NSWCCA 85 at [63] per R A Hulme J (with whom Beazley P and Walton J agreed)), may be accepted.
4. The respondent's further submission that the sentencing judge provided a detailed narrative of events (including, in relation to the prohibited weapons of which the respondent was in possession, in breach of the WPO) and broadly referred to the context of the prohibited weapons offences, namely, being committed whilst the respondent was on parole may also be accepted.
5. However, I do not accept the respondent's submission that there was "little else to say because little was put to the circumstances in which [the weapons] came into the respondent's possession" (as noted by the sentencing judge).
6. It is unnecessary to construct a hierarchy of prohibited weapons in Sch 1 of the Weapons Prohibition Act 1998 (NSW) (I do not take Simpson J to do so in R v Williams (2005) 156 A Crim R 225; [2005] NSWCCA 355 at [37]), to reach a conclusion that, as Johnson J did in Ayshow v R [2011] NSWCCA 240 at [80], the possession of a taser was not a minor example of an offence under s 7(1) of that Act. It was also relevant in assessing the objective seriousness of these offences that the prohibited weapons were found after the respondent had sought to evade police and that the respondent had been subject to a WPO since 10 February 2017 (this was reflected in sequence 20 which represented additional criminality beyond that in offences under s 7(1)).

Indicative Sentences Fail to Reflect Objective Seriousness of Firearms Offences

1. As to sequence 8, there was no dispute between the parties that her Honour had properly assessed this offence as a serious example of its kind. It was also accepted that the offence was the most serious offence faced by the respondent.
2. The following factors were correctly relied upon by the appellant and were applicable to assessing the objective seriousness of the offence: 1. The shortened firearm was of working order, it was loaded, and it was not secured. Offences involving firearms which are kept in working order and loaded with live ammunition constitute more serious forms of offending, especially if the firearms are accessible to others: R v Lachlan (2015) 252 A Crim R 277; [2015] NSWCCA 178 ("Lachlan") at [73] (per Gleeson JA (with whom Johnson and Garling JJ agreed); 2. The respondent at the time was dealing in drugs and mixing with criminals. It is of relevance to the objective seriousness of an offence of possessing firearms that they were possessed in association with a supply of drugs: see R v Amurao [2005] NSWCCA 32 at [69]; Luu v R [2008] NSWCCA 285 at [32] (per Giles JA, Latham J and Mathews AJ); R v AZ (2011) 205 A Crim R 222; [2011] NSWCCA 43 at [76] (per Johnson J, with whom McClellan CJ at CL and McCallum J agreed); and Krivosic v R [2017] NSWCCA 167 at [63] (per R A Hulme J, with whom Harrison J agreed); 3. The respondent's possession of the firearm reflected his need to protect himself from other criminals; 4. If the respondent needed to produce the shortened firearm and ammunition for the firearm, they were nearby. 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) 75 NSWLR 307; [2009] NSWCCA 170 at [88] (per Johnson J, with whom Young JA and Latham J agreed); 5. Such firearms are capable of concealment and can be used in serious criminal activity. Shortened firearms have no legitimate purpose; they are particularly dangerous because of their capacity for concealment and their suitability for use in serious criminal activity: R v Brown [2006] NSWCCA 249 ("Brown") at [23] (per Spigelman CJ, with whom Howie and Rothman JJ agreed); Lachlan at [72]; and 6. The community and the police are put at great risk by the prevalence of such firearms in the hands of criminals.

Double Counting

1. Her Honour noted that the respondent had been in custody because of these offences since 12 September 2017 and served the balance of his parole, which did not expire until 16 May 2018. That period was 8 months and 4 days. Her Honour then stated: He committed these offences very shortly after his release to parole and it is therefore necessary that he serves a significant portion of his revocation of parole before he commences to serve the sentences to be imposed.
2. Her Honour again referred to the "factor of aggravation that he was on parole" and of the necessity that the respondent serve a portion of his balance of parole before he commenced to serve his sentences in respect of these matters. Her Honour then stated that "[as] there will be a partial accumulation of sentence I will make a finding of special circumstances and vary the prima facie ratio. I would not have done so otherwise as I find there is little likelihood that he would benefit from an extended period of supervision on parole".
3. Her Honour reduced the statutory ratio from 75% to 66.7%, resulting in a reduction in the aggregate non-parole period by 4 months. However, her Honour also backdated the sentence to commence on 12 January 2018, which was 4 months into the balance of parole period and itself represented, in practical terms, a reduction of the balance of parole by a further 4 months and 4 days.
4. I agree with the submission for the appellant that the effect of both finding special circumstances (making an adjustment of 4 months) and backdating the sentence to commence 4 months into the 8 months 4 days, the balance of parole, was to completely negate the effect of the balance of parole, contrary to her Honour's expressed intention.
5. The determination of her Honour to both backdate the commencement date and make a finding of special circumstances contributed, in my view, to the manifest inadequacy of the sentence imposed.

Totality

1. The issue raised by the appellant in this respect was whether the aggregation of the sentence appropriate to each sequence reflects a just and appropriate measure of the total criminality involved: Postiglione v R (1997) 189 CLR 295; [1997] HCA 26; R v JD [2018] NSWCCA 233 at [101] (per Hoeben CJ at CL, with whom Meagher JA and Fagan J agreed).
2. The sentencing judge only referred to the question of totality and, in particular, accumulation in relation to the sentence imposed in the context of considering the balance of parole to be served where a finding of special circumstances had been made.
3. The aggregate sentence of 4 years imposed by the sentencing judge represented a minor, and inappropriate, amount of accumulation.
4. The indicative sentence for the most serious offence charged, sequence 8, was 3 years and 3 months imprisonment. However, there were a further 9 offences for which the respondent was found guilty with sentences ranging from 6 months to 3 years. The result is a high degree of concurrence; with the notional accumulation being about 9 months.
5. This approach is inconsistent with a proper assessment of accumulation between the various tranches of charges for the following reasons: 1. whilst it was appropriate for concurrence with respect to offences arising out of the FPO, and noting that the sentencing judge found the firearms related offences were connected to the drug offences, no relevant connection could be made between those offences and the police pursuit offences or the prohibited weapons offences; 2. further, I agree with the appellant that there would be some accumulation between the police pursuit offences which were committed days apart in different locations and varied in their duration and intensity; 3. there was separate criminality in the firearms offence. The acquisition of the firearm contrary to the FPO should have been reflected in sequence 11, whilst the possession of a shortened firearm (and Form 1 matters) should have been reflected in sequence 8.
6. Further, it was necessary to reflect the additional criminality in sequence 20 for contravention of the WPO over sequences 16 and 18 for possession of a particular weapon.
7. It was appropriate for there to be accumulation between sequences 8 and 11 and between sequences 16 and 18 and sequence 20.

ADDITIONAL FACTORS RAISED BY THE RESPONDENT AS TO MANIFEST INADEQUACY GROUND

1. In addition to responding to the particular factors relied upon by the appellant to demonstrate manifest inadequacy, which have been addressed in the aforementioned considerations, the respondent advanced submissions in support of a contention that, whilst the sentence imposed was lenient and contained a "significant degree of concurrency arising from the common thread and circumstances of the totality of the offending", the aggregate term was not manifestly inadequate.
2. In summary, the factors relied upon by the respondent were: 1. errors in the sentencing judgment which were not in the respondent's favour; 2. the failure of the sentencing judge to take into account that all offences could have been dealt with in the Local Court (it was not suggested that this constituted an error but illustrated the offence may have been dealt with in a court with a maximum jurisdictional cap of 2 years for each offence); 3. whilst there are no appellate cases considering a like number of offences, the respondent relied upon judgments concerning a "more serious offence of s 52D(2) (carrying a 20 year maximum penalty and a standard non-parole period of 10 years)" to demonstrate the aggregate sentence and aggregate non-parole period imposed by the sentencing judge were not manifestly inadequate. Reliance was placed upon Herod v R [2010] NSWCCA 17 ("Herod"), Taylor v R [2013] NSWCCA 157 ("Taylor") and Lachlan.

Error in Maximum Penalty

1. As to the first category, reference has already been made to the wrong maximum penalty applied by the sentencing judge for sequences 10 and 11.

Respondent's Contentions

1. The principal focus of the respondent's submissions, in this respect was, however, the misapplication of "Bugmy" principles by virtue of the sentencing judge requiring a causal link between the respondent's dysfunctional background and the offending in order to discount the sentence based upon their subjective features. It was submitted that the approach taken was inconsistent with the view of the plurality in Bugmy at [44] and other authorities in this Court: Perkins v R [2018] NSWCCA 62 ("Perkins"); Judge v R [2018] NSWCCA 203 at [29]-[32] (per White JA, with whom Bellew and Wilson JJ agreed); R v El Sayah; R v Idaayen; R v Mansaray [2018] NSWCCA 64 at [72] (per White JA); R v Holdom [2018] NSWSC 1677 at [106] (per R A Hulme J); Tsiakis v R [2015] NSWCCA 187 at [37], [53] and [74] (per Beech-Jones J, with whom Leeming JA and Johnson J agreed); Gardener v R [2015] NSWCCA 170 at [53]-[56] (per R A Hulme J, with whom Price and Davies JJ agreed); Kentwell v R (No 2) [2015] NSWCCA 96 at [86]-[89] and [94] (per Rothman J); Bungie v R [2015] NSWCCA 9 at [48] (per Simpson J, with whom Ward JA and Wilson J agreed). (See also R v Nabalarua [2017] NSWDC 328 at [150]-[151] (per Yehia SC DCJ)). (The respondent accepted that a contrary approach was taken by Hoeben CJ at CL in Perkins at [42]; in Katsis v R [2018] NSWCCA 9 at [108]; and Yu v R [2019] NSWCCA 96 at [49]).
2. In any event, it was submitted that a broader approach to causation has been recognised in the Court in circumstances of a background of deprivation, subsequent drug use and offending conduct. Reference was made to the following authorities: Linden v R [2017] NSWCCA 321 at [62]; Edwards v R [2017] NSWCCA 160 at [8]-[10] (per Garling J, with whom Hoeben CJ at CL and Fullerton J agreed); Lambert v R [2015] NSWCCA 22 at [33] (per Simpson J, with whom Ward JA and Davies J agreed); Miller v R [2015] NSWCCA 86 at [102]-[112] (per Schmidt J); R v Jennar [2014] NSWCCA 331 at [37-] [39] (per R A Hulme J, with whom Leeming JA and McCallum J agreed); and JL v R [2014] NSWCCA 130. I will return to the judgment in Buxton v R [2017] NSWCCA 169 ("Buxton") in this respect.
3. From this foundation, the respondent contended that the sentencing judge erred in finding that the respondent's history of exposure to domestic violence (both as a witness and a victim); introduction to drug use by his father when a child and being a victim of sexual abuse as a child were not "so compelling" as to attract application of the Bugmy principle.

Conclusion regarding Subjective Features

1. The sentencing judge found that the respondent was raised in an abusive and dysfunctional environment. Her Honour found the respondent had suffered mental, sexual and physical abuse and the impact of which manifested itself at a young age. Further, it was observed that these factors "may well be the cause of [the respondent's] substance abuse and criminal behaviour and that the effects of such childhood deprivation do not diminish with time". Further, her Honour observed that Dr Furst had associated his anti-social behaviour and pattern of substance abuse with, in part, the respondent's deprived upbringing although she considered that Dr Furst had additionally found the respondent's offending was a result of a combination of factors and an unhealthy and detrimental pattern of substance abuse "more linked to his antisocial behaviour, propensity for committing criminal offences and associated period of incarceration", which were not associated with the respondent's upbringing.
2. Given the leniency of the sentence imposed for the offences, it is difficult to conceive how the aggregate sentence or aggregate non-parole period imposed may have been contemplated in the absence of such factors.
3. Nonetheless, it is apparent that her Honour allowed no mitigation of sentence based upon these subjective features. After a discussion of Dr Furst's opinion, her Honour declined to "apply the Bugmy principles and reduce [the] offender's moral culpabilities". The sentencing judge went further to conclude "the circumstances are not so compelling as to be a relevant factor".
4. The pathway to that conclusion in the sentencing judgment is not entirely clear. It is plain that her Honour declined to reduce the sentence by reason of the subjective features relied upon by the respondent upon the basis that, notwithstanding "an abusive and dysfunctional upbringing (from a young age) and that this caused the substance abuse and criminal behaviour", the "respondent had not established the "very essential causal link" between [the respondent's] dysfunctional upbringing and the nature of the offending for which he is now being sentenced".
5. It is unclear what her Honour intended by her reference to there being "no clear link between [the respondent's] upbringing and the nature of offences for which he is facing sentence" and "the circumstances are not so compelling" as to be relevant. This aspect of the sentencing remarks on the subjective features seems to accept there was a link between the social deprivation and abuse suffered by the respondent and the offending, but that, as a matter of weight, it was not appropriate to mitigate the sentence on that basis.

CONCLUSION: MANIFEST INADEQUACY GROUND

1. Notwithstanding the need to address the failure to have sufficient regard to "the subjective features" of the respondent's case in the sentencing of the respondent, the combination of these considerations, particularly with respect to the objective seriousness of the offending, must result, nonetheless, in a conclusion that the sentence imposed was manifestly inadequate.
2. The appellant has demonstrated inadequacy in certain indicative sentences, as discussed above, and a misapplication of the principle of totality resulting in an unduly lenient aggregate minimum term of imprisonment and aggregate non-parole period (whilst the error in maximum penalty affected the appellant's challenge to the indicative penalty for sequence 11, that factor did not significantly affect the overall conclusion. That same observation may be made about the proposition that the offences may have been dealt with in the Local Court).
3. In terms of the objective seriousness of the offence in assessing an appropriate aggregate sentence, the following factors point to the gravity of the offending: 1. The respondent possessed a shortened firearm in working order. The firearm was loaded, kept unsafely under the respondent's bed along with ammunition. This was particularly dangerous by reason of the accessibility of the firearms to the respondent and others. 2. Shortened firearms have no legitimate purpose. They are particularly dangerous because of their capacity for concealment. This makes them suited for serious criminal activity; a consideration which calls for condign punishment: Brown at [23]; Lachlan at [72]; R v Krstic [2005] NSWCCA 391 at [14]. 3. The respondent was in possession of the shortened firearm for protection against other criminals in pursuit of his criminal activity of drug sales giving rise to the potential for lethal use. 4. The respondent acquired the shortened firearm contrary to an FPO and whilst subject to parole for a firearm offence. He was the subject of an FPO and WPO and had previously been convicted of a firearms offence. 5. It was necessary for specific deterrence to feature in the sentencing of the respondent. Further, general deterrence is a particularly important aspect of sentencing for firearms offences: El Jamal v R [2017] NSWCCA 243 at [35]. 6. There were two serious police pursuits which her Honour found to be "serious examples of their kind putting a significant number of other road users at risk, including the police". The respondent drove at very high speeds, in a highly dangerous manner and over a considerable distance. Human life and safety were plainly at risk. The respondent committed both police pursuit offences to evade capture. 7. As to the prohibited weapons offences, they were serious having regard to the maximum penalty for the offences, the weapons seized and their discovery after police pursuit. There was no legitimate purpose for the possession of these weapons (namely, handcuffs, flexi-cuffs, and taser). 8. The ease of concealment of the prohibited weapons and the fact the respondent acquired them contrary to a WPO. The offences were aggravated by being committed whilst subject to parole.

RESIDUAL DISCRETION

1. It was contended for the respondent that the appellant had not satisfied the onus of demonstrating its residual discretion not to intervene: CMB at [33].
2. The primary bases for exercise of its residual discretion relied upon by the counsel for the respondent were as follows: 1. the respondent is 30 years old and has been almost continuously in custody for the majority of his adult life; 2. the diagnosis of drug dependence and personality disorder derive from his background of disadvantage; 3. the respondent's specific criminogenic need is drug related; and 4. the respondent has never participated in a residential rehabilitation program and the experts agree that the respondent would benefit from such placement before being released into the community. There is a need for a stepped reintegration into the community. In an affidavit of Peter Katsooslis, solicitor for the respondent, evidence was given that the respondent had participated in daily educational programs assisting in literacy and numeracy whilst in custody and that he is agreeable to participating in a full time residential drug treatment program upon his eventual release from prison.
3. The respondent accepted that the question of delay was not raised as a factor going to the exercise of residual discretion.
4. In my view, there is no proper basis for the exercise of the residual discretion in this case. Mr Katsooslis stated that the respondent remained agreeable to participating in a full time residential drug treatment program on his release from prison without any particular arrangement being proffered in support of the same. Whilst it is true the respondent has not previously undertaken such a program, that omission arose, in part, from his objection to undertaking such a course of action. As was conceded by counsel for the respondent, if there was to be an increase in the sentence imposed, there was no restriction on the respondent taking a full time drug rehabilitation program if the parole authority thought that course was appropriate.
5. In this case the observations of Adamson J (with whom R A Hulme and Davies JJ agreed) in R v O'Connor (2014) 239 A Crim R 487; [2014] NSWCCA 53 at [88] and [89] are applicable as follows: [88] Although the principal purpose of the determination of a Crown appeal is to give guidance to sentencing judges, the sentence actually imposed on the respondent is still of considerable importance. The need for specific deterrence in the present case would not be served by an exercise of the residual discretion. [89] Nor indeed would the need for general deterrence be fulfilled were the residual discretion to be exercised. The general deterrence of a sentence is not to be measured solely by reference to its effect on putative offenders. One of the purposes of incorporating an element of general deterrence in a sentence is to ensure that sentences accord with legitimate community expectations and that public confidence in the administration of justice is maintained: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [82] per McHugh J. Another associated purpose is to prevent the community from supposing that justice could ever require the infliction of extra-curial punishment to make up for any perceived inadequacy of a sentence imposed by a court. As Lord Lane CJ said in R v Darby (1986) 8 Cr. App. R (S.) 487 at 490: "...one of the objects of punishment and by no means the least important object of punishment, is to prevent, so far as possible, the victims of crime from taking matters into their own hands. It is no great step from private vengeance to vendetta, and there is no knowing where vendetta will stop."

RESENTENCING

1. In resentencing the respondent, I consider that it is appropriate to impose an aggregate term of imprisonment which reflects the objective seriousness of the respective sentences but allows for accumulation to properly reflect the principle of totality as discussed earlier in this judgment. The Crown accepted that a discount of 25% for the pleas of guilty was appropriate.
2. I will adopt the same approach to special circumstances as the sentencing judge but adjust the commencement date to 17 May 2018.
3. I propose the following orders: 1. Appeal allowed; 2. Quash the sentence imposed by English DCJ on 14 December 2018; 3. In lieu thereof, sentence the respondent to an aggregate term of imprisonment of 7 years which commences on 17 May 2018 and concludes on 16 May 2025 with a non-parole period of 4 years 8 months concluding on 16 January 2023; 4. Pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the indicative sentences for each sequence of offence (having regard to charges under Form 1 with respect to sequences 4, 8 and 16) are as follows: 1. sequence 1: 6 months; 2. sequence 4: 18 months; 3. sequence 8: 4 years 6 months; 4. sequence 11: 3 years; 5. sequence 13: 18 months; 6. sequence 14: 2 years; 7. sequence 15: 2 years; 8. sequence 16: 3 years with a non-parole period of 2 years; 9. sequence 18: 4 years with a non-parole period of 2 years and 8; months; 10. sequence 20: 3 years.
4. ADAMSON J: I have had the benefit of reading the reasons of Walton J in draft and gratefully adopt his Honour's summary of the facts and the parties' submissions. I agree with the orders proposed by Walton J for the following reasons.
5. Whether a sentence is manifestly inadequate is a conclusion. Manifest inadequacy may be the result of a discernible error in the process of arriving at the conclusion. Alternatively, it may be an inference that arises from the result: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J). I agree with Walton J's identification of errors made by the sentencing judge in the process of sentencing. However, in my view, irrespective of the errors in the process, it is plain that the aggregate sentence imposed was manifestly inadequate to reflect all relevant factors, and in particular the totality of the offending conduct and its objective seriousness. It is not necessary to decide whether the error arose from a failure to select appropriate indicative sentences or whether the sentencing judge allowed for excessive concurrence or whether it was a combination of the two. The manifest inadequacy is sufficient to indicate that the sentencing discretion miscarried and must, subject to the residual discretion, be exercised anew by this Court.

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