REGINA v HOWARD

30 The third ground of appeal is:- "The learned Judge failed to have regard to the fact of the applicant's residence in Queensland, the different rules governing the illegal possession and transfer of guns applying in Queensland, and found in the absence of evidence that the applicant must have know the more serious penalties applicable to offences involving the sale of firearms in New South Wales." 31 This ground of appeal relies on certain observations made by Ducker ADCJ with regard to other offences charged in the state of Queensland. However, these observations were made by his Honour during the course of submissions, not in his remarks on sentence. During the course of submissions his Honour had said:- "… What he was involved in was an activity which he knew to be criminal in its nature and even those who know nothing about firearms are well aware of the sort of penalties that now exist for the supplying of firearms, other than through registered dealers to persons authorised by law to have those weapons. Your client was handing out weapons to a man he had never met before, who appeared to be reasonably respectable. How did he know?" 32 The particular reference to persons being "well aware of the sorts of penalties that now exist" was not a matter referred to in his Honour's remarks on sentence. There is no reason to believe that his Honour relied on this consideration when he came to sentence the applicant. 33 Mr Byrne referred to a statement in the remarks on sentence to the effect that the sentence imposed for the subsequent firearm offences by a Queensland magistrate were such as to suggest that such offences were dealt with "extreme leniency". He submitted that the fact that the offences were regarded less seriously in Queensland was relevant to the sentence to be imposed under New South Wales law. 34 No authority was cited for this proposition. Nor does his Honour's reasons indicate anything about the degree of leniency that such matters are actually dealt within Queensland. His Honour's reference was preceded by the words "if the sentence imposed upon this offender … is any indication". He made no finding as to what the position was. There is no proper basis for an inference that offences of this character are in fact treated with greater leniency in Queensland. No material was presented to the Court to suggest that that is so. Even if it were the case, I would not regard it as a relevant consideration when determining the severity of the offence against New South Wales law, with respect to weapons which were to be sent to New South Wales, a matter considered under the next ground.

35 The next ground of appeal is:- "The learned Judge wrongly concluded that the evidence established that the applicant knew that the guns that he sold to the undercover officer would be returned to New South Wales." 36 Each of the charges to which the applicant pleaded guilty contained in the charge a statement that the applicant acted "knowing that the pistols (firearms) would be taken to New South Wales". This submission canvasses the plea of guilty to the charge. 37 In any event the finding of fact, referred to on this ground, does not support the submission. His Honour said:- "During conversations with the offender the undercover operative represented to the offender that he was from New South Wales and intended to return to New South Wales with any firearms purchased." 38 This finding was clearly open to his Honour. Indeed the particular sentence in his Honour's judgment was a precise recitation of a statement in the Facts Sheet tendered before his Honour without objection. 39 The evidence that the undercover police officer intended to return to New South Wales with the firearm was overwhelming. His Honour was not called upon, by reason of the plea, to make any formal finding of fact in this regard. If he had been called upon to do so, it is clear that his Honour could only have found that the firearms were destined for New South Wales to the knowledge of the applicant. 40 Mr Byrne SC relied on some observations in the course of the applicant's evidence where he had said that no one had actually said to him "that they were going to New South Wales". It was put to him in cross examination by the Crown that the applicant "did not know specifically where they were going, but you did not particularly care either". The applicant replied: "Well I never really thought too much about it". 41 It was submitted that the question was some sort of a "concession" made during the course of cross-examination by the Crown prosecutor. This was not a concession. The question flowed on from the assertion by the applicant, in answer to a previous question, that no one had actually told him where the guns were going. Whether that was said does not affect the only possible inference on the facts. 42 If this Court were called upon to make a finding of fact beyond reasonable doubt that he knew they were going to New South Wales I would have no hesitation in doing so. The purchaser rang from New South Wales, travelled from New South Wales to Queensland for the sole purpose of obtaining the firearms and was returning to New South Wales, as all the conversations made clear. The applicant would have been in no doubt about the destination of the firearms, notwithstanding his assertion that no one told him, in terms, where they were going. In any event, the plea to the charge as expressed was determinative. 43 The fifth ground of appeal is:- "The observations regarding the connection between the applicant and Lionel Ross Death were unfairly prejudicial to the applicant. The evidence established no more than that they were well known to each other and that they both had a common interest in firearms and were gun enthusiasts. Good friends but not necessarily criminally connected. To the extent that the applicant may have had any knowledge of Death's illegal activities, that did not involve, much less establish, the applicant's participation in those activities." 44 It was submitted that the applicant was only involved in an isolated pair of transactions with the same undercover officer. There was no evidence of the applicant being involved in a "syndicate" of any character. 45 His Honour did not sentence the applicant on any basis that he was regularly involved in the trade in illegal firearms. His Honour's references to Mr Death concerned the contact that he had made with the applicant on behalf of the undercover police officer, as quoted above. There was nothing unfairly prejudicial in this or in any other reference to Mr Death, including his Honour's reliance on the sentence remarks by Blanch J about Death, the circumstances of whose case his Honour relevantly distinguished. His Honour made no finding that the applicant was in any way involved in Mr Death's illegal activities. 46 The sixth ground of appeal is:- "The sentencing Judge erred in concluding of the applicant that: 'if you read the transcripts of the tapes that were taken on the telephone, he reveals intimate knowledge of the operation of the sale of illicit firearms, it talks all about the police officers, in somewhat derogative [sic] terms, he talks about others who have been caught. He knows perfectly well what the score is'." 47 This is a reference to some observations made by his Honour in the course of argument. Those particular observations are not repeated in his remarks on sentence. The particular matters do not appear to have been taken into account in any adverse way. A trial judge is entitled to put propositions during the course of argument and to modify those propositions, either as a result of submissions or in the light of further consideration of the relevant material. 48 His Honour did make reference to some matters of the general character identified in the matter complained of, including a finding of fact that the applicant "knew exactly what he was doing" and in the applicant's references to undercover officers and other indications of knowledge of the existence of a trade in illicit firearms. These findings were open to his Honour. If his Honour had made further findings of the particular character complained of, his Honour would have been perfectly justified in doing so. 49 The seventh ground of appeal is:- "The learned trial judge failed to have sufficient regard to the strong subjective case presented by the applicant." 50 Reliance is placed on the fact that the applicant was 63 years, had no prior convictions and had a range of positive attributes, including community service. His Honour made observations about all of these matters in his remarks on sentence. His Honour clearly understood the applicant's prior good character. There is no indication that his Honour failed to give these matters appropriate weight. They were not such as to overcome the objective seriousness of the offence. 51 The eighth ground of appeal is:- "The learned Judge permitted extraneous views about "the firearms lobby", not based on the evidence in the applicant's case, to influence his assessment of the objective seriousness of the applicant's conduct and accordingly to influence the sentence ultimately imposed on the applicant." 52 Reliance was placed on a number of observations during the course of argument. For the reasons I have mentioned above, these are not observations that can be relied upon as a ground of appeal. His Honour was perfectly entitled to advance such considerations in the course of argument. 53 His Honour did make an analogous reference at the commencement of his remarks on sentence. He referred to the identification by the New South Wales Police of what appeared to be systematic trade in illegal firearms from the general area of northern New South Wales and southern Queensland. His Honour also referred to the existence of a group of people, of whom the applicant was one, but his Honour rejected the use of the word "syndicate" and even the use of the word "network". His Honour added:- "It is my impression that the most usual offenders in this loose group are persons of rural background and people who have had a keen interest in firearms, many of them since their early youth, and who harbour considerable resentment about the change that was made to the firearms laws throughout Australia, but to differing extents, following the appalling murders perpetrated in Tasmania …" [a reference to the Port Arthur killings.] 54 His Honour went on to say:- "It seems to me that there is a group of people in northern New South Wales and southern Queensland who would not ordinarily commit other crimes, who are, in many instances, well and favourably known by many of their fellow citizens, who would not themselves consider turning a firearm onto another human being, but who seem to have a complete blind spot of dangerous proportions when it comes to dealing in firearms and see nothing wrong with defying the firearms legislation and selling lethal weapons to people who are not authorised to have them, including known criminals." 55 This was set out as relevant background. In my opinion, it was. 56 In these respects his Honour was drawing on his own experience, and the evidence in the particular case, that persons of otherwise good character become involved in offences of this type because of their attitude to firearms. The contact made by Mr Death and the applicant's numerous references to other persons involved in trade in illegal firearms, and their own attitudes to firearms, all affirm his Honour's analysis. 57 Nothing in his Honour's remarks on sentence suggested that this material was relevant to the objective seriousness of the offence. The references were of significance in the sentencing exercise because they put the applicant's reliance on his good character in its proper context. That was perfectly appropriate. Persons who would not offend in other ways would commit this crime because they did not believe that such conduct should be criminal. That does not work for drug users. It does not work for arms traders. 58 The next ground of appeal is:- "The learned Judge failed to have sufficient regard to the fact that the evidence disclosed that the sales between the applicant and the undercover officer were the only transactions in which the applicant was involved over a lengthy period and at no time had the applicant tried to refer the undercover officer to any other person or tell any other person of existence of the undercover officer, that is to say there is no evidence of 'syndicating' or 'net working' on the applicant's part." 59 Reliance is placed on his Honour's remarks on sentence in the passage which I have quoted above, where his Honour set out the background to the police operation which identified a particular problem with respect to the availability of firearms in southern Queensland and northern New South Wales. His Honour made no finding that the applicant was in any respect a member of a "syndicate" or a "network". Indeed he rejected those terms. He did refer to a "loose group" of persons with a similar attitude to firearms. This attitude explained the applicant's particular offending and was relevant in the determination of the applicant's culpability. It was perfectly appropriate for his Honour to find, as he did, in a passage, not hitherto quoted:- "It seems that this offender fits the description of so many of these people who are responsible for selling to unauthorised people lethal weapons. I note that a great many of the referees in the references that are tendered in these cases are people connected with the 'gun lobby'. Well, that is something that one would expect in some ways. People generally make their friends by mixing with those who have similar interests to themselves." 60 There was a body of evidence in the materials before the Court indicating the applicant's preparedness to become involved in other transactions. I have set out some such references above. However, nothing in his Honour's remarks on sentence suggest that he dealt with the offender on any basis other than that the particular matters charged, were the only relevant transactions. His Honour expressly said, as quoted above:- "This offender though is not being dealt with … for anything other than the charges here before this Court." 61 The final ground of appeal is:- "The learned trial judge erred by failing to give the applicant an appropriate discount for his pleas of guilty." 62 His Honour made an express reference to s22 of the Crimes (Sentencing Procedure) Act and indicated that the plea of guilty must be recognised. His Honour made no separate allowance for the plea. As quoted above, his Honour referred to a reduction of 20 per cent of the sentence for a range of mitigating circumstances, which included the plea. It appears from the structure of his Honour's reasons that factors such as the good character of the applicant, remorse and his good prospects for rehabilitation were also factors taken into account in reaching a discount of 20 per cent. 63 In the light of this Court's indication that a discount for the utilitarian value of the plea should be in the range of 10 to 20 per cent, it does appear that his Honour failed to give this aspect as much weight as would ordinarily be given. In this regard alone, a relevant error has been identified. 64 Nevertheless, this is a case to which I would apply the test in s6(3) of the Criminal Appeal Act 1912. I am not satisfied that some other sentence is warranted. 65 These were, in my opinion, very serious offences, for all the reasons given by his Honour, to which I have referred above. I would give weight to one factor not highlighted by Ducker ADCJ. One of the pistols, the subject of the second charge, was equipped with a silencer. No doubt some recreational gun users have silencers. However, this is quintessentially a feature of weapons used in violent crimes. For a person to deal in weapons of the character not to have any concern about the identity of the purchaser is an aggravating feature. 66 Where it appears that there are elements within the community who refuse to accept that firearms offences must be regarded as serious, the objectives of general and personal deterrence are entitled to substantial weight in sentencing for such offences. The availability of such weapons poses a major threat to the community particularly where, as here, an accused is completely indifferent to the persons who were to acquire them. The community has determined that trade in such weapons on any other than a strictly regulated basis is to be regarded as a serious offence. That must be reflected in the sentence imposed. His Honour's sentence should be upheld.

67 In my opinion all grounds of appeal should be dismissed. The orders of the Court should be:- (1) Leave to appeal granted

(2) Appeal dismissed. 68 GROVE J: I agree with Spigelman CJ 69 SMART AJ: I agree with Spigelman CJ **********

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