Regina v AA

R v MD, BM, NA, JT [2005] NSWCCA 342 R v Wall [2002] NSWCCA 42 House v R (1936) 55 CLR 499 Dinsdale v R (2000 202 CLR 321 Lowndes v R (1999) 195 CLR 665 R v Tait (1979) 46 FLR 386 at 388 Wong and Leung v R (2001) 76 ALJR 79 Malvaso v R (1989) 168 CLR 227 R v Baker [2000] NSWCCA 85 Griffiths v R (1977) 137 CLR 293 CASES CITED: Everett v R (1994) 181 CLR 295 R v Allpass (1993) 72 A Crim R 561 R v Papazis (1991) 51 A Crim R 242 R v Holder and Johnston (1983) 2 NSWLR 245 R v Baker [2000] NSWCCA 85 R v Kalache [2000] NSWCCA 2 R v Jurisic (1998) 45 NSWLR 209 R v Harmouche [2005] NSWCCA 398 R v Prasad (2004) 147 A Crim R 385 R v Abboud [2005] NSWCCA 251 Johnson v The Queen (2004) 78 ALJR 616 R v Brideson (1989) 166 CLR 338

PARTIES: The Crown Respondent: AA

COUNSEL: C: Ms V Lydiard R: Mr C B Craigie QC

SOLICITORS: C: Mr S Kavanagh (DPP) R: Ms S Perera

LOWER COURT FILE NUMBER(S): 04/21/3230; 05/21/3114

• 21 - IN THE COURT OF CRIMINAL APPEAL 2005/1869

McCLELLAN CJ at CL HULME J ROTHMAN J

10 March 2006 REGINA v AA Judgment 1 McCLELLAN CJ at CL: I have had the benefit of reading the reasons for judgment of Rothman J in draft. I am satisfied that the sentence which was imposed upon the applicant by the sentencing judge was inadequate. However, as Rothman J indicates the matter, being a Crown appeal particular considerations arise. As this Court indicated in R v MD, BM, NA, JT [2005] NSWCCA 342 when a Crown appeal is determined shortly before the applicant's sentence is to expire special considerations arise. As was decided in R v MD, BM, NA, JT the additional punishment which would be imposed by extending the applicant's sentence shortly before he was due for release requires careful consideration before it can be justified. 2 In my opinion that burden cannot be justified in the present case and accordingly I agree that the appeal should be dismissed. 3 HULME J: I agree with the order proposed by Rothman J and, subject to the remarks that follow, with his Honour's reasons. 4 I do not regard all of the remarks of Wood CJ at CL in R v Wall [2002] NSWCCA 42 and Rothman J's summary of them as a comprehensive and accurate summary of the principles that guide this Court in the determination of appeals by the Crown against sentence. The nature of the issues in the instant appeal are not such as to make it necessary for me to attempt to deal with the topic comprehensively but I should indicate at least some of my reservations. 5 What Wood CJ at CL said was as follows: "70. The principles which apply in relation to the determination of a Crown appeal against sentence (are): (a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 76 ALJR 79 at para 58 and 109.

(b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85.

(c) A Crown appeal against sentence is concerned with establishing matters of principle "for the governance and guidance of courts having the duty of sentencing convicted persons": per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32, at paras 61 and 62, and Wong & Leung v The Queen at para 109.

(d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para 110. (e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para 6 Firstly, it is to be borne in mind that the Crown has a statutory right of appeal. 7 Secondly, as such an appeal is against the exercise of a discretionary judgment at first instance, the considerations referred to in paragraph (a) of the passage cited from R v Wall apply. 8 Thirdly, while it is undoubtedly desirable that appeals by the Crown be rare, that must greatly depend upon the extent to which there is error, or there are good grounds for thinking, there is error by first instance judges in the exercise of their sentencing discretions. Although cases answering that description may only be a small proportion of the total number of cases where sentences are imposed, my experience over the last ten years or so sitting in this Court is that such cases are not "rare". Remarks of the Chief Justice in R v Baker [2000] NSWCCA 85 are to similar effect. Except possibly when overruled on appeal, the results of such cases all find their way into the sentencing statistics and are held up in the future as indicative of appropriate sentences. As I have remarked previously in this Court, it is almost unheard of for counsel for an offender to seek to argue from the first principles of sentencing. Rather is their preference to take this Court to the statistics, commonly accompanied by the submission, explicit or implicit, that this Court should regard the statistics as in practical terms setting the available range. Experience makes it apparent that this approach is too often accepted in the District Court. 9 Fourthly, I have concerns about Wood CJ at CL's statement that "unless there is a clear error of principle identified, it would be exceptional for the Court to interfere". 10 It may be that his Honour was intending to do no more than indicate that the discretion which the Court has to interfere even when error is established is likely not to be exercised when a sentence is "manifestly inadequate" but only by a small margin. However, the Crown's statutory right to appeal and the law as laid down in House v R mean that this Court's entitlement to interfere is enlivened once error of principle, latent or patent is established, and this whether the error is obvious or only apparent after detailed consideration. Considered from another perspective, once error is established to the Court's satisfaction, the error is "clear". 11 I acknowledge also that in R v Baker to which his Honour referred, the Chief Justice with the concurrence of Grove and Hidden JJ said, in the course of an ex tempore judgment: "19 … The authorities make it clear that Crown appeals should be rare. It may be that present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is particularly so with respect to that category of appeals in which no particular error can be identified in the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred." 12 However again it seems to me that whether successful Crown appeals, even those falling within the particular description enunciated by the Chief Justice should be rare must very much depend on the frequency with which error occurs at first instance. This Court has set its face against tinkering with sentences but if with sufficient frequency this Court adopts a general attitude that it will not interfere when sentences are not far below the threshold of manifest inadequacy, then in practical terms such inadequacy becomes acceptable. Again my experience is that it is not rare in this Court for Crown appeals on the basis that manifest inadequacy demonstrates latent error to succeed. 13 Fifthly, Wood CJ at CL's emphasis on "principle" may tend to distract the reader not familiar with what was said in Griffiths v R (1976-1977) 137 CLR 293 at 310, Malvaso v R (1989) 168 CLR 227 at 234, Everett v R (1994) 181 CLR 295, and Dinsdale v R (2002) 202 CLR 321 at [61-62] from a recognition that interference by this Court is warranted - subject to the matter of discretion referred to in Wood CJ at CL's paragraph (d) - even though manifest inadequacy or inconsistency in sentencing be not general but confined to one case, i.e. that the subject of the particular Crown appeal. 14 I shall quote from but one of these. In Malvaso v R (1989) 168 CLR 227 at 234, after quoting a passage from the judgment of Barwick CJ in Griffiths v R at p 310 where his Honour had said, inter alia, that "an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons", Deane and McHugh JJ said:- "That statement of the rare circumstances in which an appeal by the Attorney General can be justified should, in our view, be expanded by the inclusion of express reference to the need to avoid the kind of manifest disparity or inconsistency in sentencing standards which Barwick CJ saw as being "error in point of principle. (See Griffiths.)" 15 Furthermore, although in paragraph (c) of his summary Wood CL at CL refers to remarks in Dinsdale v R (2002) 202 CLR 321, at [61-62], his Honour's summary does not embody the strength of them. 16 There is nothing in paragraph (d) of the extract from R v Wall with which I would disagree. However, I wonder at times whether too much weight is not given to this factor. As I said in R v Kalache [2000] NSWCCA 2, a Crown appeal to this Court in the case of an offender who had previously served significant periods of imprisonment for drug supply, and in the proceedings under appeal had been found to be the, or a, principal of a large scale network, who had pleaded guilty to, inter alia, 6 counts of manufacturing or supplying or being knowingly concerned in the manufacture or supply of 4 different types of prohibited drugs during, in total, a 2½ year period, and in quantities such that he was liable to be sentenced to imprisonment for life on each of 3 counts and to imprisonment for 20 years on each of another 2 counts, at [210-1]:- "… I do not suggest that in all cases evidence concerning the impact of Crown appeals on a respondent is necessary but given this Respondent's antecedents and the circumstances of his offending with which the Court is concerned, before I would be prepared to conclude that there was any substantial impact on the Respondent arising in consequence of the fact of double jeopardy itself, I would require such evidence. This might well include whatever advice the Respondent received prior to being sentenced. Although I do not need to rely on the fact, I would suspect that the Respondent could not believe his luck at the sentence imposed. Nor should it be forgotten that the jeopardy in sentencing which many offenders face is primarily of their own doing, particularly where their offending is premeditated and occurs for financial benefits seen to arise from it. Though not an immediate cause, it may fairly be said that their actions are also a not insignificant contributing factor to any double jeopardy which may arise. The prospect and risk of being sentenced for 7 very serious offences was not sufficient to deter the Respondent from committing one or more of them, almost on a daily basis for months. There is nothing to suggest that that daily jeopardy, voluntarily undertaken, unduly distressed him. Indeed, given the duration or magnitude of his offending, one might be pardoned for thinking he bore the risk with fortitude." 17 I do not regard paragraph (e) of the extract from R v Wall as fully and accurately stating the law. Because of the reference to prior authority contained therein, I take the liberty of quoting again from what I said in R v Kalache, at [204-208]:- "Even though an appeal by the Crown is, in New South Wales, as of right, the exercise of the right involves the respondent to such an appeal being subjected to "double jeopardy" - once at first instance and once on appeal - of punishment, generally imprisonment. The topic has been the subject of much discussion of which it only necessary to mention Cooke v Purcell (1988) 14 NSWLR 51 per Kirby J, and, in a wider context, Pearce v R (supra). Despite statutory authorship of the double jeopardy, sensitivity to it has led to restraint on the part of the Courts in allowing such appeals. Hence, even where the Crown in an appeal under s 5D of the Criminal Appeal Act establishes appealable error in a sentence imposed, this Court possesses a discretion as to the course it will take. Sometimes that discretion will be exercised so as to refuse the appeal and sometimes it will allow the appeal but impose a sentence lower than it thinks should have been imposed at first instance - see- R v Holder (supra) at 269 and the cases there cited. R v Irwin (supra) was a case where the latter course was followed. In R v Allpass (1993) 72 A Crim R 561 at 563 this Court said that that was the course "ordinarily" adopted. That statement was quoted in R v Warfield (1994) 34 NSWLR 200 at 209. In R v Bang (unreported, CCA, 1 September 1992), Hunt CJ at CL, who was a party to those last mentioned decisions, expressed himself thus:- 'It is this element of double jeopardy involved in successful Crown appeals which results in the fresh sentence imposed by this Court usually being less than that which ought to have been imposed at first instance: Regina v Holder & Johnston [1983] 3 NSWLR 245 at 256, 269-270; Regina v Stephen Michael Anthony Baxter (CCA, 7 May 1991, unreported) at 4. It was accepted in the first of those two cases, and in many others, that the distress occasioned to a respondent to a Crown appeal by twice being put in jeopardy usually requires a discount to be applied by this Court. Indeed, so important is this consideration in Crown appeals that this Court will not infrequently exercise its discretion to dismiss the appeal because of the unfairness or injustice which would otherwise be occasioned to the respondent by reason of his double jeopardy: Regina v Holder & Johnston (at 255-256).' Sometimes the Court will impose the minimum sentence which should have been imposed at first instance - see R v Rose (unreported, CCA, 23 May 1996), R v Baugh [1999] NSWCCA 131. In R v Tony Giam (No 2) [1999] NSWCCA 378 at [28] it was said that "where a Crown appeal succeeds, the appropriate sentence is one which is at the bottom of the range". In R v Hanley (unreported, CCA, 9 October 1998), this course was described as "the practice of the Courts". Sometimes, as in R v Holder itself, this will involve the imposition of the maximum provided for by the statute. I am not aware of any decision which contains a reasoned discussion of why one rather than another of these approaches should be adopted in a particular case. None was brought to the Court's attention during the hearing nor was there any debate on the topic. It may be that in practical terms the adoption of one rather than the other approach does no more than reflect what seems to individual judges to be the appropriate exercise of the discretion in the individual case. In deciding what course to adopt following the demonstration of appealable error the Court will seek to take account of all relevant factors. From time to time these will include any delay in the institution or prosecution of a Crown appeal, the change in character from a non-custodial to a custodial sentence and the extent to which a sentence originally imposed has been served. Distress to a respondent in having a sentence increased has been inferred and recognised - see R v Tiege (unreported, CCA, 19 November 1982) and quoted by Priestley JA in R v Holder (at 269)."

18 To these references I would add two more. One is R v Jurisic (1998) 45 NSWLR 209 at 232 where the Chief Justice, with the concurrence of Wood CJ at CL, James and Adams JJ said:- "The application of this principle (of double jeopardy) to Crown appeals against sentence is well established, although its incidents have not been authoritatively articulated. This is not the case in which to explore the limits of its application. The relevant limit for present purposes is as stated by Gleeson CJ in R v Rose (Court of Criminal Appeal, 23 May 1996, unreported) at 3: "… when re-sentencing a respondent on a successful Crown appeal, this court gives weight to the circumstances of double jeopardy involved in a Crown appeal by imposing a sentence that is the least sentence that could properly have been imposed upon the respondent as first instance." 19 The second is R v Harmouche [2005] NSWCCA 398 where, with the concurrence of Sully and Latham JJ, I expressed the view that what is contained in paragraph (e) of the summary in R v Wall "somewhat overstates the position" (although it is fair also to say that I did not there make the other points concerning R v Wall that I have made here). 20 In R v Wall, Wood CJ at CL did not purport to lay down any new principles. I have said what I have lest his Honour's convenient summary be allowed to obscure the fuller statements of those principles in earlier cases. 21 ROTHMAN J: The Crown appeals the sentence imposed on the respondent by his Honour Judge Phegan DCJ on 12 August 2005. The sole ground of appeal advanced by the Crown is that the sentence imposed by his Honour was "manifestly inadequate". 22 For reasons arising from the surrounding factual circumstances, an order was made by his Honour prohibiting the publication of the respondent's name or material that would identify him and this Court has continued that order. 23 The respondent pleaded guilty to three charges and, in relation to each of them, also sought that the Court take into account in the sentence a number of other offences, included on a Form 1. The matters were:

Count 1 : Cultivation of prohibited plant, namely cannabis, pursuant to s.23 Drug Misuse and Trafficking Act 1985, for which there is a maximum penalty of imprisonment of 10 years or a fine of 2000 penalty units or both (date of offence: 30 November 2003). Count 1 - Three Further Offences on the Form 1: Possess prohibited drug, namely cannabis, pursuant to s.10 Drug Misuse and Trafficking Act 1985 (two such offences) for which there is a maximum penalty of imprisonment for two years or a fine of 20 penalty units or both for each (date of offence: 30 November 2003);

Supply prohibited drug, namely heroin, pursuant to s.25(1) Drug Misuse and Trafficking Act 1985, for which there is a maximum penalty of imprisonment of 15 years or a fine of 2000 penalty units or both (date of offence: 30 November 2003). Count 2: Possess prohibited pistol, namely a .45 semi-automatic pistol pursuant to s.7(1) Firearms Act 1996, for which there is a maximum penalty of imprisonment for 14 years (date of offence 30 November 2003).

Count 2 - Two Further Offences on the Form 1: Not keep firearm safely pursuant to s.39(1)(a) Firearms Act 1996 for which there is a maximum penalty of imprisonment for two years or a fine of 50 penalty units or both. Possess ammunition without licence or permit pursuant to s.65(3) Firearms Act 1996, for which there is a maximum penalty of 50 penalty units (date of offence: 30 November 2003).

Count 3: Possess prohibited pistol, namely a .22 long rifle self-loading pistol, without licence or permit, pursuant to s.7(1) Firearms Act 1996, for which there is a maximum penalty of imprisonment for 14 years (date of offence: 25 March 2005).

Count 3 - Two Further Offences on the Form 1: Possess ammunition without licence or permit pursuant to s.65(3) Firearms Act 1996, for which there is a maximum penalty of 50 penalty units. Not keep firearm safely pursuant to s.39(1)(a) Firearms Act 1996, for which there is a maximum penalty of imprisonment for two years or a fine of 50 penalty units or both (date of offence: 25 March 2005). 24 The respondent was sentenced, for each of the three counts and the sentence for each took into account the offences on the Form 1 for each, as follows: a Count 1: imprisonment for six months' non-parole period to commence 25 March 2005 and expire 24 September 2005, with a further remainder of sentence of six months to expire on 24 March 2006; b Count 2: imprisonment for six months to commence on 25 March 2005 and expire on 24 September 2005; c Count 3: imprisonment for a non-parole period of 12 months to commence on 25 March 2005 and expire on 24 March 2006, with the remainder of the sentence being a further 12 months' imprisonment to expire on 24 March 2007. 25 All of the sentences were imposed concurrently. The effect of the above sentences and their concurrence was an effective head sentence of 24 months' imprisonment, 12 months of which was the non-parole period. 26 It is accepted by the respondent that the effective sentence imposed by his Honour was "undoubtedly lenient", with which description I would agree. Indeed, in ordinary circumstances, even given the plea of guilty for each of the charges and the earliest cooperation with the police, such a sentence would be wholly inadequate given the objective seriousness of the offences involved. It is said by the respondent, however, that the peculiar factual circumstances giving rise to the charges in question justify the significant degree of leniency exercised by the sentencing judge. It is therefore necessary firstly to examine the principles associated with the Crown appeal against sentence and then look at the factual circumstance before determining whether intervention by the Court on appeal is appropriate.

Principles of Crown Appeal 27 The principles to be applied by this Court on a Crown appeal under s.5D of the Criminal Appeal Act 1912 are well established and have been outlined in a number of judgments of this Court. They are summarised by his Honour Wood CJ at CL in R v Wall [2002] NSWCCA 42 and in R v Prasad (2004) 147 A Crim R 385. The passage was reiterated by me in R v Abboud [2005] NSWCCA 251. I do not repeat the passage. Those principles require the Court to deal with the matter before it in the following way: a It is an appellate review of the exercise of a discretion, so this Court cannot merely substitute its own opinion for that of the sentencing judge; b Crown appeals being rare, it would be exceptional for the Court to interfere, unless there is a clear error of principle identified; c The Court, in dealing with a Crown appeal against sentence, should concern itself with establishing matters of principle for the guidance of courts generally in the function of sentencing of convicted persons, but will do what is necessary to avoid manifest inadequacy or inconsistency; d The Court has a residual discretion, even in the case of error, to refuse to intervene and in so doing should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal; e If the Court does intervene as a consequence of a successful Crown appeal, the sentence will generally be less than that which would have been imposed by the sentencing court at first instance and will be, generally, at the lower end of the available range; f The Court will have a "strong resistance" to tinkering with sentences.

28 It must be remembered at all times, in relation to appeals against sentence, and particularly in relation to Crown appeals, that the sentencing judges "should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected." (Johnson v The Queen (2004) 78 ALJR 616 at [26]) 29 The Crown raises one ground of appeal, namely that the sentence is manifestly inadequate. Manifest inadequacy of a sentence is a necessary, but not always sufficient, condition for a successful appeal by the Crown. In that regard Crown appeals and their determination differ from other appeals (see R v Holder; R v Johnston [1983] 3 NSWLR 245 at 255-256). In R v Holder Street CJ (with whom, on this point, Priestley JA and O'Brien CJ of Cr D agreed), having cited the statement by Jacobs J in Griffiths v The Queen (1977) 137 CLR 293, said: "An important element in determination of a Crown appeal is the exercise of the residual discretion to dismiss an appeal notwithstanding that error of one or other of the categories mentioned above may have been established by the Crown. This discretion is a real and live discretion. In practice, it is exercised, not infrequently. It enables the court to keep an ultimate control by protecting a convicted person against unfairness or injustice if that would flow from an adverse appellate decision. It is in this ultimate discretionary field that considerations of what has been called double jeopardy are of particular relevance. Within this field, also, the court's understandable reluctance to detect manifest inadequacy may be given, so to speak, a second opportunity of operating in the convicted person's favour. I forbear from citing examples of the exercise of this discretion in favour of a convicted person lest in doing so they could be thought to have some controlling significance in a general sense. The discretion, where it is exercised, necessitates an immediate and highly subjective assessment of the circumstances of the case in hand."

Surrounding Circumstances to the Criminal Conduct and Sentencing Judge's Findings 30 Prior to 2003 the respondent was a qualified carpenter-builder. At the age of 19 he had obtained trade qualifications, having completed an apprenticeship. Also at that age he entered into a de-facto relationship with his then partner. The couple eventually had two children who were aged six and four at the time that the sentencing occurred. 31 The respondent used his qualifications as a carpenter to commence his own business and engaged in that business for some period up until about 2002. At that time his business suffered difficulties, in the main, relating to defaulting clients. This led to the bankruptcy of the respondent in 2002. Thereafter, perhaps as a result of the failure of his business, and certainly during that period, he became depressed and was unable to cope with the stress of failing in business and of jeopardising his and his family's secure financial future. The psychologist's report confirms that assessment of the respondent's depression. The psychologist's report describes the respondent as saying "during this time of depression, he lost all motivation; he would wake in the morning and did not want to go to work and often did not; he and [his partner] fought constantly and eventually separated; and he commenced using amphetamines to ease his pain." 32 It was during this time that the respondent's partner gave birth to their first child and was "constantly emotional" to use her words. His partner was diagnosed as suffering from Post Natal Depression which she still suffered at the date of the psychologist's report. The respondent did not understand the symptoms and was, as a consequence, not very supportive of her situation and these factors, together with the depression associated with his bankruptcy, caused them to separate and then co-habitate on eight different occasions and then once more separate some two months before the psychologist's report. Notwithstanding their separation, the respondent's partner continued, during the proceedings before the sentencing judge and on appeal, to support the respondent. 33 The respondent used cannabis from school age and was a social user of ecstasy. His drug dependency commenced during his depression and he stated that he "used these drugs to help [him] to cope with the reality that [he] was losing [his] business". 34 On Sunday, 30 November 2003 police attended and searched the respondent's premises pursuant to a search warrant obtained by them. Upon entering the premises police asked the respondent if he was aware of the presence of firearms in the house. The respondent, seemingly unhesitatingly, showed the police that for which they were searching, namely a colt .45 pistol and two unloaded magazines. The respondent also showed the police a cache of further ammunition, a silver box holding 10 small resealable plastic bags containing a white substance and a number of other objects including one further bullet, another packet of five bullets, some cannabis seeds and weighing scales. Police also located a red metal box containing 600 rounds of varying types of ammunition. 35 In the garage of the premises police located hydroponic equipment and immature cannabis plants (87 in total) of between 3cm and 8cm in height. 36 The respondent was interviewed and, at the very earliest time, made full and frank admissions consistent with his guilt in relation to the first two counts. 37 His Honour the sentencing judge said in relation to the first two counts, after describing the statutory scheme and maximum penalties associated with them, that: "It hardly needs to be said that the generation of a prohibited drug in the quantity which was discovered in this case is regarded by the law, and indeed by the community generally, as a matter of very serious concern. … However, what must be said about the possession of an unauthorised firearm offence is that unlike the cultivation offence which, while it has the potential of causing harm to other members of the public once it is distributed beyond the prisoner in this case, the danger involved in the possession of a firearm is a much more immediate and acute one. That … is reflected in the additional period of four years in the maximum term under the relevant legislation. They are both extremely serious offences, but in relevant terms, the possession of a firearm [is] an even more serious offence." 38 The comments made above were comments made relating to the objective seriousness of the offences concerned and it is obvious that his Honour, notwithstanding the undoubted leniency in the sentence, considered the offences serious ones. 39 His Honour the sentencing judge described the third count in the following terms: "As to the third count, on 25 March 2005, the prisoner had been stopped while driving a borrowed motor vehicle being unlicensed at the time, for a random breath test. In the course of a subsequent search of the vehicle, the .22 calibre pistol was found wrapped in a bandana jammed between the central consol and the driver's seat of the vehicle. One significant distinction as to the objective nature of the offences on these two occasions with regard to the firearms is that the .45 colt firearm, which was the subject of the second count that arose on the earlier occasion, was disabled, and could not, without some further work on it, have been used. By contrast, not only was the .22 calibre pistol found in the vehicle on 22 March 2005 not disabled, but was carrying one bullet which would, in those circumstances, have been fired without any further steps having to be taken. "

40 It is clear that the finding of facts made by the sentencing judge were, in some respects, benign and, from my perspective on appeal, extremely generous to the respondent. However, Phegan DCJ had the benefit of hearing the evidence and seeing the respondent and others give evidence and none of the findings of fact made by his Honour are challenged by the Crown in its appeal. I therefore accept all of the findings of fact made by his Honour. 41 One of the findings made by his Honour concerns the use that was to be made of the cultivation of the cannabis. His Honour found that the elaborate hydroponic set up was "part of an ongoing addiction on the part of the prisoner, … but for the purpose of the objective character of the offence … was not part of any commercial activity on the part of the prisoner. It was at most, for the use of the prisoner himself and possibly some of those with whom he had become associated in the drug culture with whom he exchanged various drugs from time to time. There was therefore some potential, in a non-commercial sense of some sharing of the crop at some time in the future." 42 His Honour went on to find that in the case of the firearm offences, they occurred in two quite distinct circumstances. The first offence on 30 November 2003 was "that the firearm, and indeed the very substantial amount of ammunition which was found on the premises, were stored on the premises at the request of some other person who, for understandable reasons, remained unidentified. I am in no doubt," his Honour said, "as far as that incident is concerned, that the firearm not only had been disabled, but that there was no intention on the part of the prisoner to put it to use himself. He had effectively assumed the role of custodian." 43 The second firearm offence was described by his Honour in the following terms: "… not only was the firearm on that occasion capable of being used and being used immediately, but the evidence is that that was precisely the reason why the prisoner had the firearm in his position. That therefore elevates the objective character of the offence on that later occasion to one of much greater seriousness than the first and that is a matter which certainly, in due course, must be reflected in the sentence. There was a real and immediate danger to the public caused by the firearm being kept in the condition in which it was and being carried as it was, by the prisoner, in his vehicle at the time." 44 His Honour then proceeds to describe, on the basis of material in the psychologist's report, that there was possible inconsistency in the reasons that the prisoner had the gun. On the one hand he had made statements and gave evidence that he had the pistol "for the purpose of taking his own life if he had been placed under threat in circumstances similar to the attack which had taken place earlier" (I will later return to the earlier attack). On the other hand, there is material which suggested that the pistol was in his possession, on the second occasion, because of that fear of further attack and that he had acquired the firearm essentially as a means of self-protection. His Honour described that latter reason as "inexcusable" but "at least understandable". 45 On the findings of his Honour, and on the material before his Honour, there was evidence that the prisoner did experience a period of suicide ideation. Notwithstanding the above comment, his Honour accepted that the main reason that the respondent was in possession of the firearm on the second occasion was self-protection which, his Honour commented, was not "an excuse for the commission of that particular offence". 46 It cannot be emphasised enough that the rule of law and the authority of courts depends upon the proposition that persons do not take into their own hands the enforcement of the law, retaliation for past offences or protection by means inconsistent with the law. It is for law enforcement agencies to protect members of the community and it is for the courts to enforce the law. 47 As to the respondent's state of mind, his Honour remarked that the conduct of the respondent (including the different explanations for the reason for the gun on the second occasion) displayed "a pattern of a very confused state of mind which, on that evidence before me, seems to continue to plague the prisoner." 48 The sentencing judge went through the subjective elements associated with the commission of the offences including the business and personal set backs referred to above. His Honour described serious attempts on the part of the prisoner to break his drug habit and to resume (or possibly assume) his responsibilities as a partner and father. His Honour described a decision which set that process back; a decision of which his then partner disapproved. That decision was to assist the police in the obtaining of information relating to the drug trade. It is unnecessary to set out the assistance that was offered or given nor whether or not the information supplied and the assistance offered and given were useful. There is some conflict as to the utility of the information. What is clear, on the findings of his Honour below, is that the process of gathering information involved the resumption on the part of the prisoner of "association with others in the drug culture with whom he had been associated at an earlier stage, and that association, in turn, bought with it a resumption of his drug habit. It was these events which finally brought an end to his relationship with [his partner]." It is also that assistance which brought about the incident which clearly had a major impact upon the exercise of discretion by his Honour the sentencing judge. Phegan DCJ described this incident in the following terms: "That brings me then to the incident I touched upon earlier in the judgment, namely the bashing to which he was subjected. His evidence is that this was the consequence of an apparent leak of the assistance which he had offered police. Those who were affected by that arranged for a meeting, on some pretext at which he was then subjected to a quite severe bashing at the hands of, according to the prisoner, ten people all told, as a consequence of which, although fortunately there do not appear to have been any broken bones, he was quite severely bruised, evidence which was corroborated by observations of his father, who saw him soon after the incident." 49 It is clear that his Honour's discretion was considerably affected by the circumstances that the provision of assistance to police was the reason for the respondent being bashed and the reason the respondent felt it necessary to carry a weapon for his protection (or for his suicide). 50 His Honour described the respondent as a person who was "not capable, without some further assistance, of responding in an appropriately responsible way, to circumstances of the kind which caused the downward spiral which I have already described. He is not only a person who lacks an adequate sense of responsibility, but is also one who is very vulnerable to the influence of others in a way that leads him into circumstances which can ultimately lead to the commission of criminal offences. … He is too easily persuaded to do things which are, in the end, demonstrably against his own interests and those who are closest to him by those who appear to be able to exercise some degree of influence over him." His Honour then, quite properly and fully, discussed the principles of sentencing and the application of those principles to the particular circumstances of the respondent. It cannot be said that his Honour, in any way, misstated the principles to be applied although it was suggested by the Crown that his Honour misapplied the principle associated with discounting for assistance by applying it to the sentence on Count 3 in circumstances where the assistance was given in relation to the offences in Count 1.

Is there Error, Manifest or Otherwise? 51 The discount available for assistance to the police is, as with most issues associated with sentencing, a matter for the discretion of the trial judge and there is no strict requirement as to the offence to which the discount must apply. In a significant number of cases, the kind of assistance that warrants a discount does not strictly relate to any offence committed by the person giving the assistance, but rather applies to offences committed by others in which the accused may have been involved or, as is the case here, in which the accused is prepared to be involved for the purpose of obtaining incriminating material. Given the unchallenged findings by his Honour that the assistance given was the cause of the respondent being beaten and, albeit inappropriately, the desire to have protection, his Honour was entitled, within his discretion, to apply the discount to Count 3. That is not to say that in the circumstances I would have done the same, nor is it to be said that in other circumstances, not as extreme as these, it would be appropriate. 52 The most difficult submission for the respondent to overcome is the submission based upon the inadequacy of the sentence. I should make clear that, were I exercising the original jurisdiction to sentence, on the material before me, I would not have sentenced the respondent as leniently as did his Honour. 53 While I accept that there was no need for a specific deterrence beyond that which would ordinarily occur, the offences in question, particularly in Count 3, warrant a general deterrence of a significant kind because of the potential risk to the public and fundamental danger associated with the conduct. 54 On the other hand, the material before his Honour below, and this Court, indicating the degree to which the respondent has matured in his responsibility and undertaken rehabilitation programs, warrants a significant degree of leniency and certainly enabled a finding by the Judge that special circumstances existed. 55 In ordinary circumstances, and on balance, even in the extraordinary circumstances of this case, the sentence imposed by his Honour seems inadequate, and manifestly so.

Residual Discretion and Conclusion 56 Having so found, the question remains as to whether the Court should, notwithstanding that finding, exercise its residual discretion not to intervene. 57 In this matter, the sentencing judge dealt thoroughly with each of the principles and factual circumstances associated with the discretion on sentencing. It cannot be said that any of those principles were misunderstood or ignored by his Honour. His Honour came to a conclusion, different from mine, to impose a sentence which I consider to be manifestly inadequate. However, such a decision was deliberately made by his Honour for the discretionary reasons that his Honour has given and which I have sought to summarise. It is the application of principles that have been properly expressed which has miscarried. The respondent is due to be released in March 2006 on parole. Notwithstanding that I consider his Honour to have erred, given the extraordinary circumstances of this case and the imminent release that, but for intervention, will occur, I propose that the Court should exercise the residual discretion, referred to earlier, not to intervene. 58 No exercise of discretion is truly unfettered (see R v Brideson (1989) 166 CLR 338 at 347) in that extraneous considerations or arbitrariness are not permitted. In this case, the prisoner has been through one trial and sentence procedure. He has suffered extra-curial punishment associated with assistance he gave to the police and has now suffered the additional anxiety of a Crown appeal. In these extraordinary circumstances, I propose that the appeal by the Crown against sentence be dismissed.

10/03/2006 - typographical error - Paragraph(s) coversheet

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