R v Sward

Court of Criminal Appeal (NSW)|2014-10-27|Before: Hoeben CJ, Hulme J, Davies J

Judgment 1HOEBEN CJ AT CL: I agree with Davies J. 2R A HULME J: I agree with Davies J. 3DAVIES J: The Respondent pleaded guilty to a number of offences in respect of which he was sentenced by Acting Judge Williams in the District Court on 30 May 2014. The offences were these: (1) Sequences 1 to 4: Sell pistol to person unauthorised to possess it. The maximum penalty is 20 years imprisonment. There is a standard non-parole period of ten years. (2) Sequences 6 and 9: Supply prohibited drug being ecstasy and amphetamine. The maximum penalty is 15 years imprisonment and/or a fine of 2000 penalty units. (3) Section 166 certificate: False representation resulting in a police investigation. The maximum penalty is 12 months imprisonment and/or a fine of 50 penalty units. 4In addition, there were four offences on a Form 1 attached to Sequence 1. There were two offences of supply a prohibited drug and two offences of agreement to supply a prohibited drug. These offences involved cannabis, ecstasy and amphetamine. 5Judge Williams sentenced him to an aggregate sentence being a non-parole period of 2 years and 6 months with an additional term of 2 years, such sentence to commence from 9 October 2012. 6The indicative sentences were: Sequences 1 to 4: A non-parole period of 2 years and 5 months with an additional term of 2 years; Sequences 6 and 9: A non-parole period of 1 year 5 months withan additional term of 1 year. 7The sentence for the offence on the s 166 certificate was 6 months imprisonment to commence 9 October 2012. 8It should be noted at this point that in his Remarks on Sentence the Sentencing Judge said this: For each of the firearms offences I would sentence him to four years imprisonment with a non-parole period of two and a half years. For each of the supply offences I would sentence him to two and a half years with a non-parole period of one and a half years taking into account the Form 1 matters on the fifth offence. I propose to impose an aggregate sentence and a single non-parole period. He is therefore convicted of each offence. He is sentenced to a minimum term of two and a half years imprisonment and an additional term of two years. (emphasis added) 9However, the Record of Proceedings signed by the Sentencing Judge provided as follows: The offender is convicted. Sentenced to an aggregate term of imprisonment. I set a non-parole period of 2 years 6 months to commence on 9 October 2012 and to expire on 8 April 2015. The balance of the term is 2 years to commence on 9 April 2015 and to expire on 8 April 2017. The individual sentences I would have imposed are as follows: Sell a pistol to a person not authorised to possess it (seqs 1 - 4) A non-parole period of 2 years 5 months and a balance of 1 years 6 months. Form 1 taken into account pursuant to s 32 Crimes (Sentencing Procedure) Act 1999: Supply a prohibited drug (seq 5) Supply a prohibited drug (seq 7) Agree to supply cannabis (seq 8) Agree to supply amphetamine (seq 10) Supply a prohibited drug x 2 (seqs 6 and 9) A non-parole period of 1 year 5 months and a balance of 1 year. Section 166 Certificate: False representation resulting in a police investigation: A fixed term of 6 months. (emphasis added) 10The parties agreed that the indicative sentences were as shown on the Record of Proceedings. 11It was neither necessary nor desirable for the Sentencing Judge to stipulate a non-parole period for the supply offences since they do not carry a standard non-parole period: s 44(2C) Crimes (Sentencing Procedure) Act 1999 (NSW). One of the purposes of aggregate sentencing was to simplify the sentencing process in cases of multiple offences. No purpose is served by setting non-parole periods or commencement dates for indicative sentences and s 44 relieves a court from the necessity to set a non-parole period for the indicative sentences except in the case of an offence for which a standard non-parole period is stipulated.

Facts concerning the offending 12In May 2012 the police attached to Strike Force Raptor commenced investigations in relation to the Respondent's involvement in the supply of prohibited drugs. During the course of this investigation, police lawfully intercepted the Respondent's mobile phone. On 22 June 2012 the Respondent was recorded negotiating the supply of an ounce (28g) of methylamphetamine and half an ounce of what the Respondent referred to as "smokeable amphetamine". That constituted the offence in Sequence 10 which was one of the Form 1 offences. 13On 24 June 2012 an unnamed male was recorded contacting the Respondent and saying that he would attend at the Respondent's home that night. The Respondent supplied the unnamed male with 28g of methylamphetamine for the price of $1,800. That offence constituted Sequence 9 being one of the supply offences in respect of which the Respondent was sentenced. 14On 12 September 2012 the Respondent was recorded as agreeing to supply half an ounce of methylamphetamine for $1,400 and three pounds (1.36 kg) of cannabis for $3,200 per pound to an unnamed male. The transaction never occurred. Those matters constituted Sequences 7 and 8, both of which were dealt with by way of a Form 1. 15On 19 September 2012 the Respondent came into possession of 50 pills of MDMA from an unidentified source. That offence constituted Sequence 6 which was the other supply offence for which the Respondent was sentenced. 16The following day, on 20 September 2012 the Respondent was recorded as negotiating the supply of ten MDMA pills to a person called Bagnall at the Campbelltown Bowling Club. Later that afternoon the Respondent met Bagnall and an exchange took place. That offence constituted Sequence 5 and was dealt with by way of the Form 1. 17Sometime between 15 and 17 September 2012 the Respondent agreed to supply four firearms, all handguns, of which the Respondent was the registered owner. These firearms were to be supplied to an unnamed male in exchange for the discharge of a drug debt of approximately $5,000 owed by the Respondent. These offences were Sequences 1 to 4. 18When the Respondent was interviewed in relation to the allegation of supplying firearms to persons unauthorised to possess them he first relayed a fictitious story that he had been to Adelaide to see his brother-in-law. He claimed that when he returned from Adelaide he noticed that his house had been broken into. He found that the safe which contained the firearms was missing from the wall. He contacted the police and the police attended shortly thereafter. 19When confronted with evidence demonstrating that the guns could not have been stolen in the way he had claimed, the Respondent admitted to selling them to pay off a debt. He had incurred the debt by purchasing drugs. He had acquired the guns within the previous couple of months and had been given a specific list of what to purchase with the money provided to him. The police located the safe when executing a search warrant at Bagnall's home address in Campbelltown. The firearms were not within the safe. 20Only one firearm has been recovered. The person in whose possession it was found was a member of an outlaw motorcycle gang. 21The false statement about the break in and the theft formed the basis of Sequence 11 which was the offence on the s 166 certificate. 22When police executed the search warrant at the Respondent's home he made certain admissions regarding the drug supply. The police also found $10,000 in $50 denominations in a black bum bag which the Respondent said was money borrowed from a friend to pay a debt. Other items found were three mobile phones, various amounts of ammunition and a silver set of electronic scales.

Subjective matters 23The Respondent was born on 4 August 1966 and is now aged 48 years. He commenced work at the age of 15 years and 9 months as a naval recruit. Thereafter he has had a variety of jobs as a storeman, sales supervisor, an installation representative, security guard, driver for Armouruard and then for 12 years or so he operated a franchise for Jim's Mowing and Landscape. 24In 2011 he fell from a ladder and suffered an injury to his back. He was off work and unpaid for six months before finding work as a driver delivering perishables. He remained in that occupation until his arrest on 9 October 2012 when he went into custody. 25He married in 1993 and at the time of sentence had two children aged 18 and 13. He and his wife separated in 2006 but they have remained on good terms. 26For reasons which are said to relate to a mid-life crisis, the Respondent joined the Rebels Motorcycle Club in 2008 and became the President of the Sutherland Chapter. He said he did this because he enjoyed the mateship, going on bike rides, having a few beers and the camaraderie. 27He claims not to have been involved in illicit drugs until 2011 when he injured his back. He was prescribed some opioid drugs but when those prescriptions ran out he was introduced to methamphetamine which he claimed assisted with his pain management. 28He denied being a drug dealer but claimed simply to have arranged the supply of drugs for his partner who was a user, for friends and people that he rode with in the Club. He said he was not doing it to make money although he might make a small sum, perhaps $100, by way of a finder's fee. He claimed in his ERISP that he had been doing this for about a year. 29The Respondent was seen by the psychologist, Tim Watson-Munro, who assessed him some nine months after he went into custody. He assessed him as suffering from Major Depression and an Anxiety Disorder and said that his Substance Abuse Disorder was in partial remission. Mr Watson-Munro said that the Respondent impressed as a genuine man and that impression in conjunction with his expressions of remorse and absence of prior forensic history suggested that with continuing treatment, supervision and support his prognosis was positive. The Sentencing Judge said that he agreed with that assessment. 30The Respondent had only one offence on his criminal record, that of a goods in custody conviction in 1985. 31The Respondent claimed that he has been de-patched by the Rebels.

Grounds of appeal 32The Crown contended that the sentence was manifestly inadequate and relied upon the following grounds to support that contention. Ground 1: The learned sentencing Judge erred by failing to assess the objective seriousness of the offence; Ground 2: The learned sentencing Judge erred by failing to impose a sentence that reflected the objective seriousness of the offence; Ground 3: The sentencing judge erred in his approach to setting the aggregate sentences; Ground 4: The learned sentencing judge erred in failing to impose a sentence that properly reflected the Form 1 offences; Ground 5: The sentencing Judge erred in imposing a sentence in the related summary offence in accordance with section 53A of the Crimes (Sentencing Procedure) Act; Ground 6: The learned sentencing judged failed to have regard to general deterrence in imposing the aggregate sentence and the aggregate non-parole period; and Ground 7: The sentence imposed was manifestly inadequate.

Ground 1: The learned sentencing Judge erred by failing to assess the objective seriousness of the offence

Ground 2: The learned sentencing Judge erred by failing to impose a sentence that reflected the objective seriousness of the offence

Ground 3: The sentencing judge erred in his approach to setting the aggregate sentences;

Ground 4: The learned sentencing judge erred in failing to impose a sentence that properly reflected the Form 1 offences; 33The Sentencing Judge said, without distinguishing amongst the offences charged: I would regard Mr Sward's offending, having regard to all the circumstances, as just below a mid-range of objective seriousness. 34A little earlier in his Remarks the Sentencing Judge had said: There can be little doubt that the community regards firearms offences as extremely serious matters, particularly where they are likely to be used in the commission of serious criminal activities. That applies particularly to handguns which are easily concealable but become lethal in the event of a conflict or a perceived insult or a threat or to carry out a criminal offence. It must have been realised by Mr Sward these weapons were not going to be used for any legitimate purpose and at best would constitute a threat to others or at worse fatally harmful. 35His Honour went on to say that the number of weapons involved could not be an aggravating factor for each offence, and the fact that there were four offences closely related in time and circumstance meant that the Court needed to consider the overall criminality particularly as it might affect accumulation and totality. His Honour accepted that the transaction was a one-off transaction. He did not consider the relevant considerations in Mack v R; Mack v R [2009] NSWCCA 216 at [40] applied to the case before him. 36His Honour concluded by saying: As far as the firearms offences are concerned I would impose a concurrent sentence, given that the offences occurred at the same time and that there is no objective or subjective difference between any of them. 37The Respondent submitted that the Sentencing Judge was entitled to consider the objective seriousness of the firearm offences together and that it was open to his Honour to find that the objective seriousness of them was just below mid-range. The Respondent submitted that his Honour in fact referred to the relevant considerations in Mack v R. 38The Respondent submitted further that if the assessment that Mr Sward's offending was just below the mid-range of objective seriousness was a reference also to the drug offences, then it was appropriate given that the amounts of methamphetamine and cannabis were well below the commercial quantities for those drugs. Further, the criminality was correctly assessed in relation to the Respondent's addiction and his supplying of drugs to support his and his partner's habits. 39The Respondent submitted that accumulation was within the discretion of the Sentencing Judge. Here, the four firearms had been sold at once. In that way the indicative sentence for each was sufficient to reflect the criminality of the offending. Further, given the background to the drug offences and the nature of the firearm offences it was open to his Honour to consider that the indicative sentences should be almost concurrent. In this regard, the Respondent drew attention to his Honour's finding that it was unlikely the Respondent would have become involved criminally with the Rebels had it not been for his partner's addiction to methamphetamine and his own back injury. 40In relation to the Form 1 matters the Respondent submitted that because of the overlap in the sentences for the drugs and firearms it made no difference to which offence the Form 1 related. Most of the matters on the Form 1 concerned agreement to supply only. In any event the two matters which a court takes into account with Form 1 offences, personal deterrence and retribution were not significant in this case. The Respondent had ceased using drugs and was remorseful. He was unlikely to reoffend. Finally, it was submitted that if error was found in relation to the Form 1 offences the error did not result in a sentence that is manifestly inadequate. 41The Crown submitted that the Sentencing Judge was required to make an assessment of the objective seriousness of each of the offences. The Crown said that a reading of the Judge's Remarks led to the conclusion that he made no assessment as to the Respondent's criminality in relation to his drug dealing other than to excuse it. 42The remainder of the Crown's submissions concerning the objective seriousness of the firearms offences appeared to be directed not so much as a failure to assess the objective seriousness of the offences as a challenge to the assessment made. The submissions point out that the seriousness of the offending must have been greater because of the number of the weapons sold and the fact that the weapons were supplied to members of an outlaw motorcycle gang was an aggravating factor that should have been reflected in the sentence imposed.

Consideration 43It does not seem to me that the Judge failed to assess the objective seriousness of the offences. If his assessment (set out at [33] above) was an assessment of the objective seriousness of both the firearms and the drug offences, such assessment was within his discretion and the appropriate range of assessment. Indeed, the Respondent accepts that the objective seriousness of the drug offences could be appropriately described as just below the mid-range of objective seriousness. 44However, I accept the Crown's submission that the indicative sentences for the firearms offences do not properly reflect the objective seriousness of those offences. First, the imposition of four concurrent equal sentences for the supply of four firearms which were prohibited pistols does not take account of the additional criminality in the sale of four of them rather than just one. Further, it was an aggravating factor, not specifically referred to by the Sentencing Judge that the firearms were being sold to members of an outlaw motorcycle gang. 45The Sentencing Judge also failed to adjust the indicative sentence for the first firearms offence nor give consideration to doing so, by reason of the offences on the Form 1. That failure arose from a misapprehension on the Sentencing Judge's part. When indicating the indicative sentences he said that he would sentence the Respondent for the supply offences to two and a half years with a non-parole period of one and a half years "taking into account the Form 1 matters on the fifth offence". Counsel for the Crown drew his Honour's attention at the conclusion of the Judge's Remarks on Sentence to the fact that the Form 1 was attached to Sequence 1 being the first count of selling a pistol to a person unauthorised to possess it. 46The Sentencing Judge then indicated that the Form 1 matters attached to Sequence 1. However, the Sentencing Judge did not then consider whether the sentence for Sequence 1 should be increased in accordance with the guideline judgment Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146. That judgment made clear that the two elements to be given greater weight when Form 1 offences are involved are personal deterrence and retribution. 47Despite the Respondent's submission, personal deterrence was of some significance in this matter. The four offences on the Form1 were all offences of supply or agreement to supply prohibited drugs. The Respondent may have ceased using drugs but that is principally because he has been in custody since his arrest in October 2012. Although the Sentencing Judge found that the Respondent was unlikely to re-offend he also found that the Respondent would need a considerable amount of professional assistance both before and after his release to deal with drug and personal issues. 48The Sentencing Judge made no reference to personal deterrence or retribution in his Remarks. Indeed, apart from identifying the offences on the Form 1 at the beginning of his Remarks his Honour said nothing more about that offending apart from the fact that the Form 1 offences were taken into account in indicating the sentences for the drug supply offences. 49In failing to adjust the indicative sentences for the number of weapons sold and by reason of the Form 1 offences, the Sentencing Judge has erred in the ways identified in grounds, 2, 3 and 4.

Ground 5: The sentencing Judge erred in imposing a sentence in the related summary offence in accordance with section 53A of the Crimes (Sentencing Procedure) Act 50The Crown submitted that the Sentencing Judge was required to deal with the offence on the s 166 certificate pursuant to the provisions of ss 166 to 168 of the Criminal Procedure Act 1986 (NSW). Those sections impose a maximum two year period of imprisonment. The Crown submitted that whilst the Sentencing Judge indicated a fixed term of six months for the s 166 offence because that offence was included in the aggregate sentence which exceeded two years, the restriction in s 168 Criminal Procedure Act, was exceeded. 51Because of the insignificant role the sentence for the s 166 offence played in the sentencing process, this is not the appropriate case to determine whether an offence on the s 166 certificate can be included in an aggregate sentence that exceeds two years. In any event, there is some indication that the Sentencing Judge did not include this offence in the aggregate sentence. Having identified the indicative sentences for the firearm offences and the supply offences his Honour proceeded to impose an aggregate sentence. He then noted the date the Respondent would be eligible for parole and the period of the additional term and added: In regards to the s 166 certificate he is sentenced to six months imprisonment to date from 9 October 2012. 52It seems to me that the better view of his Honour's approach is that he was not including the s 166 offence within the aggregate sentence. However, if an error was made, it does not go to the manifest inadequacy of the sentences imposed. 53This ground fails.

Ground 6: The learned sentencing judged failed to have regard to general deterrence in imposing the aggregate sentence and the aggregate non-parole period

Ground 7: The sentence imposed was manifestly inadequate 54The Crown submitted that the Sentencing Judge made no reference to the importance of general deterrence in relation either to the firearm offences or drug supply offences. It submitted that the aggregate sentence imposed does not reflect the importance of general deterrence particularly in the firearms offences. 55The Crown further submitted that it is clear from the indicative sentences and the aggregate sentence imposed that the Sentencing Judge did not have sufficient regard either to the maximum penalty or the standard non-parole period as legislative guideposts. The Crown submitted that too much weight was given to the Respondent's good character and subjective considerations. 56The Crown accepted that the Sentencing Judge had material available to him to enable a finding of special circumstances but submitted that the finding of special circumstances did not permit a court to reduce a non-parole period below that which was necessary to reflect the purposes of sentencing. In the present case the reduction of the statutory ratio to 55% was not appropriate to the offending. 57The Respondent submitted that whilst the Sentencing Judge did not refer specifically to general deterrence in his Remarks on Sentence he did not disregard it. The Respondent pointed in particular to the passage in the Remarks which is set out at [33] above. 58The Respondent drew attention to the harsh custodial conditions he had endured when he was placed in strict protection from March 2013 to January 2014. That was a matter taken into account by the Sentencing Judge. The Respondent submitted further that the Sentencing Judge was entitled to place some weight on the material in Mr Watson-Munro's report and in the fact that the Respondent was genuinely remorseful and unlikely to re-offend. 59The Respondent submitted that his Honour's approach appeared to be a consideration of totality when identifying the indicative sentences although the Respondent acknowledged that that was contrary to what Pearce v The Queen (1998) 194 CLR 610 requires. .

Consideration 60The effect of the indicative sentences is that his Honour accumulated the supply offences by only a non-parole period of 1 month and an additional term of 6 months. Although the need for the sale of the weapons by the Respondent arose from a drug debt he had accumulated, there was no other connection between his legal possession of the weapons and their sale on the one hand and the continuing supply of drugs by him on the other. A greater accumulation was indicated with the result that the aggregate sentence should have been increased. 61In circumstances where the maximum penalty for the firearms offences was 20 years with a standard non-parole period of 10 years, and the maximum penalty for the supply offences was 15 years, it is difficult to see how the Sentencing Judge has used those guideposts in reaching the sentence that he ultimately imposed. 62It may be accepted that the Respondent was himself a user of drugs, as was his partner, and that he was not a high level supplier. Nevertheless, the supply offences must be seen in the light of his admission that he had been dealing for a year, that multiple drugs were involved and that other objects found when his house was searched indicated a regular involvement in the supply of drugs. 63Whilst acknowledging the subjective matters in the Respondent's favour, it cannot be overlooked that it was by reason of his good character that he was able to access legitimately the weapons he ultimately on-sold to a person that he knew was a member of an outlaw motorcycle gang. Three of those weapons are still at large within the criminal community. 64In my opinion, the aggregate sentence imposed was manifestly inadequate. It was below the range of sentences that could be justly imposed for the offences consistently with sentencing standards.

Crown appeals and the residual discretion 65The Respondent submitted that if the Court finds that the sentence is manifestly inadequate, the residual discretion not to intervene should be exercised. The Respondent points to the fact that he has served more than two years of his two and a half year non-parole period. The appeal is affecting his application for C3 classification which would allow him to do work release. He had not previously offended and he is participating in the recovery program for his addictive behaviour. He pointed also to his continuing suffering from depression and anxiety. He said that he is still concerned for his safety in prison from members of outlaw motorcycle groups. 66In my opinion, the residual discretion should not be exercised to dismiss the Crown appeal. Nothing in the conduct of the Crown would justify the exercise of the discretion against increasing the sentence. The appeal was brought promptly. Most of the time served occurred before the Respondent was sentenced. 67The prevalence of firearms in the criminal community and amongst outlaw motorcycle groups continues to be of considerable concern in the community. It is necessary for this Court to emphasise the seriousness of firearms offences including those with which the Respondent was convicted. This Court needs to stress that when sentencing for these offences judges should have due regard to the guideposts of the maximum penalty and any standard non-parole period provided. Both general and specific deterrence are significant considerations for these offences. 68The manifest inadequacy in the present case has been magnified by the knowledge of the Respondent that the guns were being purchased by a member of an outlaw motorcycle gang.

Re-sentence 69There were tendered on the Respondent's behalf two affidavits. The first was by the Respondent himself sworn 17 October 2014 and the second by his solicitor sworn 21 October 2014. The solicitor's affidavit annexed a Certificate of Appreciation by Corrective Services for his assistance and support with Dawn De Loas's 2014 NAIDOC event. The second was a transcript of his academic record with Western Sydney TAFE being an introductory certificate in Access to Work and Training. 70The affidavit of the Respondent provided information on the time he spent in protection as well as the limitations on telephone and other access to friends and family. He referred to the fact that he was taking Avanza for depression, to the continuing fear he has for his safety and to the extra stress arising from this appeal. 71Bearing in mind this further material, I propose the following sentence: a non-parole period of 4 years and 6 months commencing 9 October 2012 and expiring 8 April 2017 with an additional term of 2 years 6 months expiring 8 October 2019. 72The indicative sentences are these: Sequence 1 and taking into account the matters on the Form 1 - a non-parole period of 3 years 3 months with an additional term of 1 year 9 months; Sequences 2, 3 and 4 - a non-parole period of 3 years with an additional term of 1 year 6 months for each offence; Sequences 6 and 9 - an indicative term of 4 years for each offence; S 166 certificate: 6 months imprisonment commencing 9 October 2012. 73I would find special circumstances by reason of his custodial arrangements and his need for ongoing rehabilitation with drug issues.

Conclusion 74I propose the following orders:

Uphold Crown appeal;
Quash the aggregate sentence imposed by Acting Judge Williams on 30 May 2014;
In lieu on Sequences 1, 2, 3, 4, 6 and 9 and taking into account the offences on a Form 1, the Respondent is sentenced to an aggregate sentence consisting of a non-parole period of 4 years and 6 months commencing on 9 October 2012 and expiring 8 April 2017 with an additional term of 2 years 6 months expiring 8 October 2019.
In respect of the offence on the s 166 certificate, confirm the sentence of 6 months imprisonment commencing 9 October 2012.

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: 14 November 2014

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