83 ALJR 579
CMB v The Attorney General for New South Wales [2015] HCA 9
317 ALR 308
Dinsdale v The Queen [2000] HCA 54
Source
Original judgment source is linked above.
Catchwords
56 NSWLR 146
Bugmy v The Queen [2013] HCA 37249 CLR 571
Carroll v The Queen [2009] HCA 1383 ALJR 579
CMB v The Attorney General for New South Wales [2015] HCA 9317 ALR 308
Dinsdale v The Queen [2000] HCA 54202 CLR 321
Dionys v The Queen [2011] NSWCCA 272217 A Crim R 280
Em v Regina [2006] NSWCCA 336
Everett v The Queen [1994] HCA 49181 CLR 295
Green v The QueenQuinn v The Queen [2011] HCA 49244 CLR 462
Griffiths v The Queen [1977] HCA 44137 CLR 293
House v The King [1936] HCA 4055 CLR 499
KT v The Queen [2008] NSWCCA 51182 A Crim R 571
Lowndes v The Queen [1999] HCA 29195 CLR 665
Mack v R [2009] NSWCCA 216
Markarian v The Queen [2005] HCA 25228 CLR 357
Muldrock v The Queen [2011] HCA 39244 CLR 120
R v Brown [2006] NSWCCA 249
R v De Simoni [1981] HCA 31
Judgment (12 paragraphs)
[1]
001] HCA 64; 207 CLR 584
Yammine v The Queen [2010] NSWCCA 123
Category: Principal judgment
Parties: Regina (Crown)
Ryan Lachlan (Respondent)
Representation: Counsel:
K McKay (Crown)
M Johnston (Respondent)
[2]
Solicitors:
Solicitor for Public Prosecutions (Crown)
Armstrong Legal (Respondent)
File Number(s): 2013/360864
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Date of Decision: 21 November 2014
Before: Phegan ADCJ
File Number(s): 2013/360864
[3]
Judgment
GLEESON JA: This a Crown appeal pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against the sentences imposed on the respondent, Ryan Lachlan, by Acting Judge Phegan at the Campbelltown District Court on 21 November 2014. The sole ground of appeal is that the sentences are manifestly inadequate.
The sentences relate to two charges relating to possession of firearms and a prohibited weapon, in respect of which the respondent had earlier pleaded guilty at the Campbelltown Local Court on 20 August 2014.
The first offence alleged unauthorised possession of more than three unregistered firearms (a rifle and three shotguns), at least one of which was a prohibited firearm contrary to s 51D(2) of the Firearms Act 1996 (NSW). The maximum penalty for that offence is imprisonment for 20 years. A standard non-parole period of 10 years is prescribed.
The other offence alleged unauthorised possession of a prohibited weapon (a stun gun) contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW). The maximum penalty for that offence is imprisonment for 14 years. A standard non-parole period of 3 years is prescribed.
The sentences imposed by his Honour were as follows:
1. in respect of the firearms offence (and taking into account the additional offences on the Form 1 referred to below) - 3 years imprisonment with a non-parole period of 2 years commencing 29 November 2013; and
2. in respect of the prohibited weapon offence - a fixed term of 1 year imprisonment commencing 29 November 2013.
In sentencing for these offences the judge took into account, at the request of the respondent pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act), his guilt in respect of eight further offences listed in a Form 1 document, namely:
(1) possessing ammunition without authority contrary to s 65(3) of the Firearms Act, for which the maximum penalty is 50 penalty units;
(2)-(5) possessing a prohibited weapon (stun gun; extendable baton; two pairs of knuckledusters; and a taser) contrary to s 7(1) of the Weapons Prohibition Act for which, as already mentioned, the maximum penalty is imprisonment for 14 years;
(These offences occurred at the time of the principal offence on 11 November 2013.)
(6) entering inclosed land without lawful excuse contrary to s 4(1)(b) of the Inclosed Lands Protection Act 1901 (NSW), for which the maximum penalty is 5 penalty units;
(7) damaging property contrary to s 195(1) of the Crimes Act 1900 (NSW), for which the maximum penalty is imprisonment for 5 years; and
(8) resisting an officer in the execution of their duty contrary to s 58 of the Crimes Act, for which the maximum penalty is imprisonment for 5 years.
(These offences occurred at the time of the respondent's arrest on 29 November 2013.)
On 7 January 2015, the Deputy Director of Public Prosecutions filed a notice of appeal against the sentence imposed in respect of both the firearms offence and the prohibited weapon offence. At the commencement of the hearing, the Crown indicated that the focus of the Crown appeal was on the asserted manifest inadequacy of the sentence on the firearms offence.
It is to be noted that the sentence for the prohibited weapon offence was a fixed term. No complaint is made by either party that the judge failed to record his reasons for declining to set a non-parole period for this offence: Sentencing Act, s 45(2). The matter is now moot as this sentence expired in November 2014.
[4]
Circumstances of the offences
The sentencing judge proceeded on the basis of a statement of agreed facts. The relevant facts may be summarised as follows.
On 11 November 2013 police conducted surveillance at an address at Airds near Campbelltown. The respondent was observed to leave the premises. He was stopped in a vehicle and spoken to by police. He told police the premises he was leaving was his girlfriend's residence. While police were conducting further checks the respondent ran from police and was not chased.
A short time later police executed a search warrant at the Airds premises and located four firearms which had been "shortened" to less than the dimensions required by the Firearms Regulation 2006 (NSW), namely:
a shortened .22 rifle found on the kitchen bench (the magazine contained 15 rounds);
a shortened single barrel shotgun and a shortened double barrel shotgun, both found in a sports bag in a bedroom; and
a loaded and shortened single barrel 410 shotgun located in another bag in the same bedroom.
Subsequent ballistics examination showed each firearm was in working order. The respondent's DNA was later matched to the rifle and his fingerprints were found on one of the single barrel shotguns. The possession of these four firearms constituted the s 51D(2) offence. Each was a "prohibited firearm" as defined in s 4(1) because the firearm, or any part, had a dimension less than the minimum dimension prescribed for the firearm under the Firearms Regulation: see Schedule 1, cl 16 to the Firearms Act. The minimum length of the barrel (or largest barrel if more than one) for rifles is 40 cm: reg 129(1)(b); and for shotguns is 45 cm: reg 129(1)(a).
The police also located a "X6" brand stun gun on a coffee table. The respondent's fingerprints were later found on that weapon. A stun gun is a prohibited weapon for the purposes of the Weapons Prohibition Act: Schedule 1, cl 18. The possession of this prohibited weapon constituted the s 7(1) offence.
Other items located and seized included additional prohibited weapons (another stun gun; an extendable baton; two tasers; two pairs of knuckledusters - see Schedule 1, cls 2(17A), 2(18), 2(18A) and 2(19), Weapons Prohibition Act), ammunition, firearms magazines, a firearm bolt, a knife and two balaclavas. (The possession of four prohibited weapons and the ammunition constituted five of the offences on the Form 1.) The police also found two paintball guns under the bed.
[5]
The respondent's subjective case
At the time of sentence, the respondent had been in custody for approximately 12 months (since his arrest on 29 November 2013). The respondent was aged 19 at the time of the principal offence, had just turned 20 at the time of his arrest and is presently aged 21 years.
The materials before the sentencing judge comprised a pre-sentence report from Community Corrections, a psychologist's report from Mr Ballardie and letters from the respondent's mother and stepfather. The respondent did not give evidence.
The pre-sentence report outlined the respondent's family and social circumstances noting that his father left the family home when he was a young child. The judge recorded that the respondent had two older brothers who engaged in a degree of physical violence directed both at him and, in the case of his older brother, his mother.
The respondent encountered difficulties early in high school. He was expelled when he was 13 years old because of various misconduct on his part. He then went to Queensland to stay with his father. He attended school there intermittently and finally left school at 15 and moved back to Sydney to live with his mother. Between the ages of 15 and 17 years he did not work or study. He then returned to his former high school to attempt year 10 but left again after a few months. He started a cabinet making apprenticeship but discontinued within a short time.
The respondent commenced using drugs at the age of 13, initially cannabis and later pills including ecstasy, MDMA, cocaine and speed. He started drinking alcohol at the age of 14 years and consumed it moderately to heavily. He told the psychologist that he realised he had a serious problem with alcohol and was drinking heavily most days prior to his arrest in November 2013. Since his arrest the evidence before the sentencing judge was that he had been drug free whilst in custody.
The respondent commenced his interest in firearms whilst residing with his father in Queensland who took him shooting at a firing range from the age of 15 years.
The pre-sentence report noted that the respondent accepted responsibility for his actions, but he displayed a "lack of insight with and a complete disregard for the lack of safety measures in securing the large number of illegal firearms appropriately". Although the respondent acknowledged the potential for the firearms to be utilised in a negative or criminal manner, the report noted that the respondent struggled to identify who might be affected in doing so.
[6]
The judge's reasons
After summarising the statement of agreed facts, the judge noted that the maximum penalty and standard non-parole period for the principal offence under s 51D(2) of the Firearms Act indicated the seriousness of the offence and the general need for a sentence of imprisonment of some length, wherever the case may fall on the scale of objective seriousness. The judge continued:
As far as the standard non-parole period is concerned it remains of relevance in terms of general guidance with regard to the appropriate sentence although its effect is mitigated in this case by the plea of guilty.
The judge referred to Mack v R [2009] NSWCCA 216 where at [40] a number of considerations bearing on the determination of the objective seriousness of the offence against s 51D(2) are listed. Applying those to the facts in the present case his Honour addressed as relevant considerations: (a) the number of firearms; (b) the nature and type of firearms; (c) the purpose of possession; and (d) the location and storage of the weapons.
Relevantly the judge considered that the four firearms, together with the weapons the subject of the matters listed on the Form 1, could be reasonably described as "approaching an arsenal of weapons".
The judge considered that the nature and type of the firearms was implicit in the principal offence and the number of weapons the subject of the s 7(1) offence (relating to the stun gun) and a number of similar offences on the Form 1.
However, although the judge had earlier recorded in his summary of the agreed facts that each firearm was a prohibited firearm because it had been "shortened", his Honour did not expressly refer in this part of his reasons to the number of unregistered firearms that were also prohibited firearms (being another relevant consideration identified in Mack v R).
The judge noted that the agreed facts recorded that the weapons were kept for, amongst other things, the purpose of profit on the part of the respondent who was clearly engaged in dealing in those weapons. His Honour accepted that there was evidence that at least "some" of the weapons were for recreational use. (This finding was most generous given that each of the firearms had been "shortened". His Honour seems to have conflated the evidence in the psychologist's report concerning the respondent's early use of his "gun" in the bush to shoot "to feel better", with his later acquisition of other weapons which had been "shortened". The psychologist did not record that the respondent provided a history of using "shortened" firearms for recreational purposes.)
[7]
Crown submissions
As already mentioned, the focus of the Crown appeal was on the asserted manifest inadequacy of the sentence on the firearms offence. The Crown submitted that the sentence is lenient to the extent of being "unreasonable or plainly unjust": Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25].
In written submissions the Crown emphasised a number of matters relating to the objective seriousness of the firearms offence including:
there were four firearms;
all four firearms were prohibited weapons by reason of being shortened;
shortened firearms have no legitimate purpose but by reason of ease of concealment are suited for serious criminal activity;
the firearms were not stored in an appropriate manner and could be accessible to any associate of the respondent;
two of the firearms were loaded and the other two firearms were in a sports bag with a substantial quantity of ammunition and balaclavas; and
the respondent was buying and selling firearms, ammunition and other weapons for financial gain.
The Crown pointed to the respondent's previous conviction for a serious firearms offence and the messages on the respondent's mobile phone which it said indicated that he had multiple contacts with whom he conducted his business. The Crown also pointed to those messages as evidence that the respondent was trading in firearms and other weapons from 28 July 2013, which was less than 6 months after completing a 9 month intensive correction order on the previous firearms offence.
The Crown emphasised that the offences were aggravated by being committed whilst the respondent was subject to a bond.
The Crown contended that there was little to assist in the respondent's subjective case other than his youth.
The Crown further contended that the sentences imposed failed to account for the objective seriousness of the offences and the need for general and specific deterrence.
In supplementary written submissions, the Crown described sentencing judge's finding of below mid-range objective seriousness as "generous", but did not directly challenge this finding. The Crown submitted that the starting point for the sentence of 4 years, before applying the 25% discount for the guilty plea, suggested that the judge had little regard to the matters he found to be of aggravation, and matters which contributed to the seriousness of the firearms offence. The Crown also submitted that the starting point leads to the conclusion that the judge had little regard to the guideposts provided by the maximum penalty and the standard non-parole period for the firearms offence.
[8]
Respondent's submissions
Counsel for the respondent emphasised that it was not alleged that the sentencing judge had failed to take into account any relevant factor. It was contended that the judge had paid careful attention to all relevant legal and factual matters in assessing the objective seriousness of the offences and had taken into account the relevant subjective material including the respondent's youth and the 12 months he had already spent in custody prior to sentence.
It was contended that the sentences imposed were significant custodial sentences which appropriately balanced the need for deterrence with the promotion of rehabilitation of a young offender.
The respondent took issue with the Crown's submission that it would have been abundantly clear to the respondent that he was facilitating serious crime which involved significant risk to life. Counsel noted that the sentencing judge had considered this issue, but came to a different factual finding (see [33] above) which counsel said was open to the judge and moderated the objective seriousness of the offending.
The respondent also took issue with the Crown's submission that the sentencing judge should have taken into account the extent of the respondent's trading of firearms, ammunition and prohibited weapons. Reference was made to R v De Simoni [1981] HCA 31; 147 CLR 383. It was submitted that as the respondent had not been charged with offences with respect to buying and selling either firearms, ammunition, or prohibited weapons, the respondent is not to be sentenced for more serious uncharged acts.
[9]
Principles relating to Crown appeals against sentence
The principles relating to Crown appeals against sentence are well established. It is only necessary to mention that the right of appeal by the Crown against a sentence which is said to be manifestly inadequate is an exceptional one. It must be exercised with restraint, in order to allow the Court to lay down principles for the governance and guidance of the courts having the duty of sentencing convicted persons: Griffiths v The Queen [1977] HCA 44; 137 CLR 293 at 310 (Barwick CJ); Everett v The Queen [1994] HCA 49; 181 CLR 295 at 300 (Brennan, Deane, Dawson and Gaudron JJ); Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [1] and [36] (French CJ, Crennan and Kiefel JJ). This particular purpose of Crown appeals is the reason why Crown appeals should be exceptional or a rarity: R v NT [2015] NSWCCA 136 at [54] (Rothman J; Simpson and Bellew JJ agreeing); Attorney General for New South Wales v CMB [2015] NSWCCA 166 at [25].
Of course, it must also be accepted that this Court may not substitute its own opinion for that of the sentencing judge merely because it would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15].
As the High Court observed in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [24], the weight to be given to the evidence and the various, conflicting, purposes of sentencing is a matter for the sentencing judge. It is not sufficient that this Court would have given greater weight to deterrence and less weight to an offender's subjective case. The High Court also emphasised (at [24]), that an appellate court's power could only be engaged if it was satisfied that the sentencing judge's discretion miscarried because in the result the judge imposed a sentence that was below the range of sentences that could be justly imposed for the offence consistently with sentencing standards.
The High Court has recently reaffirmed these principles in CMB v The Attorney General for New South Wales [2015] HCA 9; 317 ALR 308.
An appellate court can only intervene in a sentence when the applicant, be it the offender or the Crown, establishes that the sentencing judgment is affected by an error that is either identifiable or to be inferred: House v The King [1936] HCA 40; 55 CLR 499. Manifest inadequacy is a conclusion. It is well established that the Crown must show that the sentence is unreasonable or plainly unjust: Carroll v The Queen [2009] HCA 13; 83 ALJR 579 at [6]-[8]; Dinsdale v The Queen [2000] HCA 54; 202 CLR 321.
[10]
Manifest inadequacy
In the present case the Crown does not rely on any specific error of principle. It relies upon the residual category of error in House v The King described in the context of criminal appeals as manifest inadequacy.
The Crown did not attempt to demonstrate that the result arrived at by the sentencing judge is markedly different from other sentences that have been imposed in other cases: see Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58]. Although counsel for the respondent referred to Mack v R as a comparative case, counsel accepted in this Court (at tcpt 15, lines 25-26) that so few cases have been decided under s 51D(2), that no range of sentencing discretion is discernible: Yammine v The Queen [2010] NSWCCA 123 at [52]. In Dionys v The Queen [2011] NSWCCA 272; 217 A Crim R 280 at [45] Hoeben J (McClellan CJ at CL and Adams J agreeing) accepted that the sentencing statistics in relation to, relevantly, s 51D of the Firearms Act were of very limited value in that there were only a small number of cases which had been decided. That remains the case.
The Crown's submission of manifest inadequacy rested upon the proposition that the starting point for the sentence of 4 years, before applying the 25% discount for the guilty plea, is erroneously lenient, especially having regard to: the fact that all four firearms were prohibited weapons by reason of being shortened; the conduct of the respondent; his Honour's characterisation of the firearms offence as not far below the mid-range of objective seriousness; and the absence of any substantial mitigation other than the respondent's youth.
As to the nature and type of firearms it is necessary to bear in mind the nature of the firearms offence in the present case.
The basic offence under s 51D(1) of the Firearms Act prohibits the possession of more than three firearms if the firearms are not registered and the person is not licenced to possess them. This offence attracts a maximum penalty of 10 years imprisonment. Section 51D(2) is directed to an aggravated form of this offence and applies where a person is in possession of more than three firearms at least one of which is a prohibited firearm or pistol. The higher maximum sentence of 20 years under s 51D(2) reflects that this is an offence which the legislature regards with considerable gravity: R v Brown [2006] NSWCCA 249 at [20] (Spigelman CJ; Howie and Rothman JJ agreeing).
[11]
Resentence
There remains the question of the residual discretion to decline to intervene with the sentence even where it is found to be manifestly inadequate: Green v The Queen; Quinn v The Queen at [1]-[2].
It is for the Crown, when asserting manifest adequacy, to negate any reason why the residual discretion of this Court not to interfere should be exercised: CMB v The Attorney General for New South Wales at [32]-[39] (French CJ and Gageler J); [57]-[66] (Kiefel, Bell and Keane JJ).
The Crown submits that there is no apparent reason why the residual discretion not to interfere should be exercised. Although the category of factors to be considered in the exercise of the residual discretion is not closed, relevant factors were collected in R v Reeves [2014] NSWCCA 154 at [17]. Factors relevant in the present case are: any delay in the institution of the Crown appeal or the period in which there was likely to be a resolution of the Crown appeal; the length of time which the respondent has already spent in custody and the timing of his likely release on parole; and the disruption of the respondent's progress towards rehabilitation.
As to the first matter, there is no dispute that the filing of the notice of appeal was prompt. The matter has been heard with reasonable expedition. There has been no relevant delay in the institution or resolution of the Crown appeal.
As to the second matter, that the respondent has served a large part (approximately 19 months) of the 2 year non-parole period is attributable, in large part, to the time spent in custody before the sentencing hearing occurred. The respondent first entered into custody on his arrest on 29 November 2013, and remained in custody up until his sentence on 21 November 2014. There is no evidence which explains this delay in the proceedings. Counsel for the respondent stated from the bar table, and this was not controverted by the Crown, that the time between arrest and sentence was related to discussions and negotiations with the Crown as to the formulation of the various charges and the matters listed on the Form 1. Reference was also made to suggested delays in the provision of the Crown brief, but there was no evidence in this regard.
The impending expiry of the non-parole period at the end of November 2015 is a relevant consideration to be taken into account: Green v The Queen; Quinn v the Queen at [43]. However, in all the circumstances, it may not be determinative: see R v Machtas (1992) 62 A Crim R 179. In the present case, the imminence of the respondent's eligibility to apply for release on parole needs to be balanced against the absence of any relevant delay in the Crown appeal and the matter next considered.
[12]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 03 July 2015
On 29 November 2013 police attended premises at Swansea in connection with an unrelated matter. The respondent was found hiding against the side of the house. He gave a false name and ran from police. He kicked over a compost bin and jumped a fence while being pursued. He was arrested a short time later attempting to climb a 6 foot fence. (This conduct constituted the remaining three of the offences on the Form 1.) He was taken into custody and refused bail on that date.
After his arrest, police downloaded the contents of the respondent's mobile phone and found photographs of knuckledusters and firearms. The agreed facts record that the police retrieved many messages on the mobile phone between July 2013 and November 2013 where the respondent was engaged in the buying and selling firearms for financial gain. It is only necessary to refer, by way of example, to one such message conversation that took place in October 2013 (the "incoming" message being received by the respondent and the "outgoing message" being sent by the respondent):
Incoming: talking to a fella now got a semi auto 22 16 round clip with a 8 aswell dosnt wana sell but im tryna convince him.. Delete this msg after just to be safe
Incoming: Yeah bro he reckons he comes acroos them all the time even tradded a bb gun not long ago for a sawn off shotty things are looking good bruva guna be armed to the teeth soon
Outgoing: Haha good bro I'll probably come c u this arvo
Outgoing: Did that bloke wanna get rid of that toy
Incoming: Hes thinking about it he hasn't got any semi auto bullets for it so its useless to him …tried selling me a chromed out paintball gun haha laughed at that..
Outgoing: Tell him I'll get it off him today for the right price or if Hell take pot for it [sic]
The pre-sentence report assessed the respondent "as an immature individual who appeared to struggle to understand the gravity" of his current situation. The report observed that "[h]is juvenile presentation and thinking patterns were reflected when discussing his attitude to the offences" and concluded that "his level of insight into his actions is questionable".
The psychologist's report also addressed the respondent's attitude to the offences. It recorded that the respondent appeared genuine when he told the psychologist that he knows what he did with the weapons in his possession was wrong and sincere in his regret and remorse about the offences.
The pre-sentence report assessed the respondent as having a "medium to high" risk of reoffending. The psychologist expressed a more favourable view that the respondent had a "low to moderate" range for risk of future reoffending. The psychologist considered that the respondent would not benefit from extended incarceration which would expose him to further negative influences and reinforce antisocial values and behaviours.
His Honour also accepted that there was no evidence to suggest that the weapons were either used by or intended to be used by the respondent in some criminal activity. Nonetheless his Honour found that by being engaged in the distribution of weapons the respondent was contributing to the potential use of those weapons for purposes which may have led to serious injury and indeed death, and that this bore directly on the objective seriousness of the offence.
The judge had earlier referred in his reasons to the location and manner of the storage of the weapons at the Airds premises - one rifle was located on a kitchen bench, and the three shortened shotguns were located in two sports bags in a bedroom. The judge considered that the weapons were readily accessible to anyone who gained entry to the house.
The judge concluded that the offences "fall somewhere short of but certainly not far from the mid-range of objective seriousness".
The judge then summarised the respondent's subjective case, which has been already outlined above. He noted the respondent's relative youth and that he had spent his 21st birthday in custody during the sentencing proceedings. He also noted the evidence that the respondent had been drug free during his period in custody.
The judge next considered a number of aggravating and mitigating factors.
With respect to aggravating factors, the judge noted:
the respondent's criminal record which included drug offences, driving offences and the offence of common assault;
of greater significance was a previous conviction for similar related firearms offences on 27 November 2011 involving possession of a shortened shotgun, for which the respondent received a 9 months intensive correction order which expired on 10 February 2013;
the present offences were committed while the respondent was subject to a s 9 bond for driving whilst disqualified;
the offences had the potential of causing extensive injury and damage had the weapons and ammunition been subsequently used by others; and
the degree of planning or organised criminal activity was a relatively minor ("if any") aggravating factor, having regard to what the judge considered to be the somewhat disorganised way in which the respondent seemed to have conducted the business aspect of his activities. (This finding was most favourable to the respondent when one examines the content of the messages on his mobile phone.)
With respect to mitigating factors, the judge referred (without making any express finding) to the conflicting assessments in the pre-sentence report and the psychologist's report of the likelihood of the respondent re-offending.
As to the prospects of rehabilitation, the judge accepted the psychologist's assessment that "the respondent would respond well to a supported and managed return to productive engagement in the community", which the judge concluded was sufficient to enable a finding of special circumstances.
The judge noted the observations of the respondent's mother and stepfather to the effect that, since his arrest there had been a very significant change in the respondent's attitude, not only towards the offences themselves but in terms of his general social behaviour. These observations included that the respondent had committed himself to a fundamental change in his lifestyle with the intention of gaining appropriate qualifications, finding appropriate employment and putting his drug and alcohol abuse behind him.
The judge observed that only limited weight could be given to the respondent's expression of remorse to the psychologist, in the absence of scrutiny by way of cross-examination (the respondent not having given evidence on the sentencing hearing).
The judge allowed a 25% discount for the utilitarian value of the respondent's early guilty plea, and recorded that he had taken account for the purpose of sentence the offences on the Form 1.
In imposing the sentences mentioned above, the judge referred to the need for both specific deterrence and general deterrence. His Honour made a finding of special circumstances under s 44(2) of the Sentencing Act to provide for the respondent's supervision upon his release from full time custody in order to promote his rehabilitation. The judge also took into account that this was the respondent's first time in custody. The non-parole period of 2 years on the firearms offence represents two thirds of the head sentence.
Even if error in a sentencing judgment is found, there is a residual discretion to dismiss the appeal. As explained in CMB v The Attorney General for New South Wales at [33] (French CJ and Gageler J) the discretion is residual in the sense that it does not fall to be considered, unless an error has been established: see also at [54] (Kiefel, Bell and Keane JJ).
In R v Brown at [21]-[22] Spigelman CJ explained the rationale behind s 51D as follows:
When s51D was introduced by the Firearms Amendment (Public Safety) Act 2002, the Minister said:
"Firearm related crime is a major concern for both police and the community."
The offence, in a series of offences relating to firearms in the Firearms Act 1996, is directed to persons who are engaged in the warehousing of firearms for sale. A person so engaged plays a critical role in the perpetration by other criminals of the worst crimes of violence in this community. The maximum sentence reflects the important role that such conduct plays in the injuries inflicted upon members of the community by deadly weapons.
Subsequent cases have emphasised that the possession of firearms, except where necessary and by persons authorised to have them, is calculated to lead to substantial damage. Accordingly sentences imposed for such offences must "operate as real disincentives to those otherwise attracted to the illegal position of firearms": R v Mahmud [2010] NSWCCA 219 at [71] (R S Hulme J; Giles JA and Latham J agreeing). See also R v Howard [2004] NSWCCA 348 at [66] (Spigelman CJ; Grove J and Smart AJ agreeing); Dionys v The Queen at [47]-[48] (Hoeben J; McClellan CJ at CL and Adams J agreeing).
As to the conduct of the respondent, although he had the benefit of a finding that there was no evidence to suggest that the weapons were either used by or intended to be used by him in some criminal activity, it remains significant that the judge found that the weapons were kept for, amongst other things, the purpose of profit on the part of the respondent who was clearly engaged in dealing in those weapons.
Although there is no challenge to his Honour's characterisation of the firearms offence as just below the mid-range of objective seriousness, the respondent's conduct was a serious example of the offence under s 51D(2).
First, the circumstance of aggravation referred to in s 51D(2) is that at least one of the three unauthorised firearms in the accused's possession be a "prohibited firearm". Here, all four firearms in the respondent's possession had been shortened and hence was a prohibited firearm.
Secondly, and related to the first matter, shortened firearms could have no legitimate purpose. Compact firearms are particularly dangerous because of their capacity for concealment: R v Brown at [23]. This makes them suited for serious criminal activity.
Thirdly, all of the firearms were in working order. Two were loaded with ammunition, the other two were in a sports bag containing a quantity of ammunition and none were safely secured at the Airds premises. Again this was particularly dangerous by reason of the accessibility of the firearms to others, including associates of the respondent.
Fourthly, on the facts, the respondent was a young person who was in possession of the firearms for the purpose of buying and selling them for financial gain. The text messages on his mobile phone indicate that he had multiple contacts. Even accepting the judge's finding that the respondent did not have any intention of using the firearms for any criminal activity, the offence was significant because, as the judge found, by engaging in the distribution of firearms the respondent was contributing to the potential use of those weapons for purposes which may have led to serious injury or indeed death.
Viewed against the maximum sentence of imprisonment for 20 years and the standard non-parole period of imprisonment for 10 years, the sentence of imprisonment for 3 years with a non-parole period of 2 years for the firearms offence, even taking into account the discount for the respondent's plea, can only be regarded as too short. Together with the maximum penalty, the standard non-parole period was a legislative guidepost to be taken into account on sentence: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27]. Although not the subject of a separate ground of appeal, it should be noted that the sentencing judge adopted an erroneous approach to the standard non-parole period in the passage cited at [27] above. Since Muldrock v The Queen, it is not correct to approach the use of a standard non-parole period upon the basis that its effect is mitigated by a plea of guilty: Muldrock v The Queen at [22]-[25].
The erroneous leniency in the sentence is reinforced by two further matters - the respondent's prior firearms offences in November 2011 and the seriousness of the five additional weapons and ammunition offences on the Form 1.
As to the prior offences, one involved possession of a shortened firearm, namely, a shotgun. The prior offences must have brought home to the respondent the illegality of what he was doing in possessing the firearms the subject of the current charge.
As to the matters on the Form 1, the nature of the s 7(1) prohibited weapon offences were serious. This is reflected in the maximum penalty of 14 years imprisonment and standard non-parole period of 3 years. There could be no legitimate purpose for the possession of these weapons (stun gun; extendable baton; knuckledusters; and taser). The ease of their concealment also made them particularly dangerous. While the maximum penalty for the unauthorised possession of ammunition is only a fine (50 penalty units), in view of the related prohibited weapons and firearms offences, the unauthorised possession of ammunition was nonetheless serious.
In taking these additional offences on the Form 1 into account, with a view to increasing the penalty that would otherwise be appropriate on the principal offence, the sentencing judge was required to give greater weight to the need for personal deterrence and the community's entitlement to extract retribution for serious offences: Attorney General's Application Under Section 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCA 518; 56 NSWLR 146 at [42].
Against these matters it is to be accepted that the respondent's youth operated in mitigation of sentence, as did his dysfunctional childhood and adolescence, his problems with alcohol and drugs and his social isolation and distrust of others. However, none of this provides an explanation let alone excuse for the possession of shortened firearms, along with an assortment of other prohibited weapons and ammunition, which the sentencing judge fairly described as approaching an arsenal of weapons.
Counsel for the respondent argued that rehabilitation took precedence over deterrence and retribution in the present case. Reference was made to R v GDP (1991) 53 A Crim R 112, and R v DM [2005] NSWCCA 181 at [61]. Both of those cases involved minors who were 15 years of age at the time of sentencing and in both cases, s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) was engaged. In the case of an extremely young offender such as a minor, more emphasis can be given to rehabilitation, even at the expense of deterrence.
It may be accepted that similar principles may apply in the case of a young offenders who are no longer a minor: Tammer-Spence v R [2013] NSWCCA 297 at [37]. Accordingly, in cases such as the present, regard should be had to the age of the young person and the circumstances of the offence: R v MA [2004] NSWCCA 92; 145 A Crim R 434 at [28].
Nonetheless, in R v Gordon (1994) 71 A Crim R 459 at 469, Hunt CJ at CL (McInerney and Sully JJ agreeing) observed:
… where a youth conducts himself in the way an adult might conduct himself and commits a crime of considerable gravity, the protective function of the criminal courts would cease to operate unless deterrence and retribution remained significant considerations in sentencing that youth: Pham (1991) 55 A Crim R 128 at 135; Allam (unreported, Court of Criminal Appeal, 15 April 1993) at p 4; Hawkins (1993) 67 A Crim R 64 at 66.
Similar statements appear in KT v The Queen [2008] NSWCCA 51; 182 A Crim R 571 at [23]-[26] (McClellan CJ at CL) and [102]-[106] (Hall J; Price J agreeing); and Em v Regina [2006] NSWCCA 336 at [110]-[111] (Giles JA; Grove and Hidden JJ agreeing).
In the present case the respondent had prior convictions for similar related firearms offences two years earlier. Notwithstanding his youth, the respondent conducted himself in the way an adult might and committed a crime of considerable gravity. The sentence imposed on the firearms offence leads inevitably to the conclusion that the judge wrongly allowed the respondent's subjective case, in particular his youth, to so dominate matters relevant to sentence, that it became determinative of the sentence imposed on the firearms offence. His Honour characterised the firearms offence as just below the mid-range of objective seriousness. It is difficult to reconcile that assessment, in light of the finding as to the purpose of the firearms, with the sentence imposed on the respondent.
I conclude that a manifestly inadequate sentence has resulted in the sense that it can be properly described as being "unreasonable or plainly unjust".
As to the third matter, counsel for the respondent relied upon an affidavit from the respondent sworn 30 May 2015 as evidence of what has happened between the time of sentence and the hearing of the appeal. The following matters relevantly emerge from the respondent's affidavit:
1. he has been drug and alcohol free since being taken into custody on 20 November 2013 ([sic] 29 November 2013);
2. in January 2015 he commenced the Getting Smart Program for drug rehabilitation but the program was cancelled for reasons unrelated to the respondent;
3. he has completed a vocational and community engagement program and workplace safety program, being a three day course. He has also undertaken an IT course; and
4. he has maintained regular phone contact with his mother who remains supportive and upon his release he proposes to live with his mother in Bradbury and work with his stepfather doing gyprocking and plastering.
Against this there have been two breaches of gaol discipline in 2014. One related to possession of a mobile phone and sim card; the other related to possession of an offensive weapon or instrument. Counsel for the respondent tendered a letter from the Parklea Correctional Centre, dated 25 September 2014, where the respondent is now housed, concerning the mobile phone and sim card infringement. It seems to have been accepted by Mr Jones, the Correctional Manager at Parklea, that at least with respect to the mobile phone, the respondent had been forced to take ownership by another prisoner.
The respondent's affidavit demonstrates an acceptance that he needs to undertake relevant counselling with respect to use of drugs and alcohol, but he has not yet had an opportunity to participate in an appropriate program. To the extent that the respondent has completed some vocational programs, these are relatively minor. Whilst the evidence is that the respondent has remained drug free in custody, his progress towards rehabilitation can only be described as limited.
In all the circumstances, I consider that the Crown has established that this Court should decline to exercise its discretion not to re-sentence the respondent.
In resentencing on the firearms offence, an appropriate commencing point is 7 years which, after the 25% discount for the plea, reduces to 5 years and 3 months. The Crown did not challenge the finding of special circumstances below or in the Court. I would make the same finding and impose a non-parole period of 3 years.
Accordingly the orders I propose are:
Appeal allowed.
Quash the sentence imposed on the respondent by Phegan ADCJ on 21 November 2014 with respect to the firearms offence.
In lieu thereof sentence the respondent, in respect of the charge under s 51D(2) of the Firearms Act, to imprisonment for a non-parole period of 3 years commencing on 29 November 2013 and expiring on 28 November 2016, and a balance of term of 2 years and 3 months commencing on 29 November 2016 and expiring on 28 February 2019.