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[2013] NSWCCA 37
Court of Criminal Appeal (NSW)
2012-09-24
McClellan JA, Hidden J, Adamson J
Original judgment source is linked above.
Judgment 1McClellan JA: I agree with Hidden J. 2Hidden J: The applicant, Gary Smart, pleaded guilty in the District Court to a number of firearms offences, and had a number of further firearms offences taken into account on a Form 1. The charges to which he pleaded guilty were the following: 2 charges of manufacturing a sub-machine gun, an offence under s 50A(2) of the Firearms Act 1996, carrying a maximum sentence of 20 years imprisonment (sequences 1 and 30); unauthorised possession of the sub-machine gun the subject of sequence 1, an offence under s 7(1) of the Firearms Act 1996, carrying a maximum sentence of 14 years imprisonment and a standard non-parole period of 3 years (sequence 3); unauthorised possession of a .22 calibre Stirling self-loading rifle, another offence under s 7(1) of the Firearms Act (sequence 6); unauthorised possession of a .410 calibre pistol, yet another offence under s 7(1) of the Firearms Act (sequence 10); unauthorised possession of 7 pistol magazines, an offence under s 7(1) of the Weapons Prohibition Act 1998, also carrying a maximum sentence of 14 years and a standard non-parole period of 3 years (sequence 14); unauthorised possession of a silencer, a further offence under s 7(1) of the Weapons Prohibition Act (sequence 27). On the Form 1 were 7 offences of possessing an unregistered firearm (s 36(1) of the Firearms Act) and 16 offences of not keeping a firearm safely (s 39(1)(a) of the Act). 3The applicant was sentenced to terms aggregating imprisonment for 12 ½ years, with an effective non-parole period of 7 ½ years, dating from the day of his arrest, 10 December 2009. He seeks leave to appeal against those sentences. The individual sentences, and the structure of them, will be better understood after a summary of the facts.
Facts 4In September 2009 police set up a task force to investigate the manufacture of machine guns. On 10 December 2009 a search warrant was executed at the applicant's home at Blacktown. He admitted that he had illegal guns at his home and that he had manufactured a sub-machine gun. 5In a shed at the back of the house, which was locked, police found various items used in the manufacture of a sub-machine gun. In a vice on a workbench they found a partially assembled sub-machine gun attached to a magazine (sequence 1). Also found were documents containing instructions and plans relating to the non-commercial manufacture of sub-machine guns, together with hand drawn diagrams of a weapon similar to that which was located in the vice. The applicant was not authorised by licence to possess that sub-machine gun (sequence 3). He admitted to police having test fired the weapon, using .45 calibre ammunition, and showed police an area in the backyard where he had done so. 6Also found in the shed were the Stirling rifle (sequence 6) and the .410 calibre pistol (sequence 10), 7 pistol magazines (sequence 14) and the silencer (sequence 27). The .410 calibre pistol was classified as a prohibited pistol, because it was of a calibre greater than .38 and had a barrel less than the minimum length prescribed under the Firearms Act. The applicant did not have a licence to possess any of these items. 7The 7 offences of possessing an unregistered firearm on the Form 1 related to the sub-machine gun and the Stirling rifle, together with 4 other rifles and a shotgun which were also found at the premises. The 16 charges on the Form 1 of not keeping a firearm safely related to those 7 weapons, together with other rifles which, apparently, were licenced. 8In phone calls intercepted by police on the day before the search, it emerged that the applicant had manufactured another sub-machine gun (sequence 30), which he had given to a co-offender, Nick Andropoloulos. A person known as Paul wanted to buy two firearms from the offender. The applicant asked Andropoloulos to return the weapon so that he could sell it to Paul (or to someone else through Paul as an intermediary). Police found that sub-machine gun at the premises of Andropoloulos at Cranebrook. They noted that both sub-machine guns were strikingly similar, having the same design and having apparently been manufactured by similar techniques. 9In a recorded interview with the police, the applicant said that he might have sold the machine gun found in the shed, although he declined to say to whom he would have sold it and said he had no idea for how much. He told police that he was a trained fitter and machinist, and that firearms had long been a hobby of his. He said that he had no purpose in manufacturing machine guns except as a hobby. 10The applicant gave evidence in the sentence proceedings. He said that Andropoloulos was to pay him $1,000 for the machine gun he gave him, but he never received the money. It also emerged that he had test fired both machine guns shortly before his arrest. He had test fired the weapon found in the shed just before partially disassembling it, and the sentencing judge inferred that he was intending to do further work upon it to refine it. He had obtained the 7 magazines which police found to make machine guns, causing his Honour to observe that the two offences the subject of sequences 1 and 30 could not attract leniency "on the basis of being an isolated aberration." His Honour also noted that both weapons were relatively small, so as to be readily concealed. This he described as "one feature that would make them attractive to those engaged in illegal activities such as armed robberies and home invasions, to mention but two." 11It was the applicant's case on sentence, enunciated in his evidence and in the history he supplied to a forensic psychologist, that he was under pressure from Andropoloulos to make sub-machine guns. As to the weapon he had supplied to Andropoloulos, he claimed that he believed that he wanted it for protection. He said that Andropoloulos was associated with an outlaw motorcycle gang, that he believed him to be dangerous, and that he feared possible harm to himself and his family if he did not comply with his wishes. 12His Honour rejected this account for reasons he supplied in detailed remarks on sentence. He expressed himself to be satisfied that the applicant manufactured the machine guns "as part of a small scale business to make and sell about 7 such items and not in response to pressure from his co-offender." He noted that the applicant had given the sub-machine gun to Andropoloulos in the expectation that he would be paid for it and found that, when he was not paid, he asked Andropoloulos to return it because he expected to be able to sell it, along with the weapon found in his shed, to the man Paul. He was satisfied that the applicant's manufacture of the 2 weapons and his possession of the one found in the shed "were premeditated offences committed so that he could earn money by employing his skills for illegitimate purposes." 13In his remarks his Honour quoted the following passage from the statement of facts: "The sub-machine guns being manufactured by the offender at the time of his arrest are classed as 'prohibited firearms' by the Firearms Act NSW. Sub-machine guns typically only have military and law enforcement applications. Sub-machine guns are classified as prohibited firearms due to their devastating firing capabilities. Such firearms are designed to fire multiple rounds through a single depression of the trigger. It is the experience of Detectives from the Firearms & Organised Crime Squad that firearms such as these are highly sought after and prized by members of organised criminal groups. The two sub-machine guns manufactured by the offender were chambered in .45ACP. This is a high calibre pistol round that carries massive amounts of energy relative to other pistol rounds. In NSW, pistols alone chambered in calibres in excess of .38 or 9mm are classified as prohibited pistols due to their devastating ballistic capabilities."
The sentences 14His Honour concluded that some accumulation of sentence was called for. He noted that the offence of unauthorised possession of the sub-machine gun found in the shed (sequence 3) was "inexorably connected" with the offence of manufacturing that weapon (sequence 1), calling for a concurrent sentence. He had taken into account the unauthorised possession of the 7 magazines (sequence 14) in determining the criminality of the two manufacturing offences (sequences 1 and 30), and decided that the sentence for sequence 14 should also be concurrent with other sentences. He determined that had the offences of unauthorised possession of the Stirling rifle (sequence 6) and of the silencer (sequence 27) stood alone, he would have passed suspended sentences in respect of them and, for that reason, concluded that the sentences for those two offences should also be concurrent with other sentences. As will be seen, he also passed a concurrent sentence for the possession of the .410 calibre pistol (sequence 10). 15The sentences imposed, then, were as follows: Sequences 6 and 27 (rifle and silencer): fixed terms of 12 months, commencing on 10 December 2009. Sequence 14 (magazines): fixed term of 21 months, also commencing on 10 December 2009. Sequence 10 (.410 pistol): 34 months with a non-parole period of 18 months, again commencing on 10 December 2009. Sequence 3 (possession of sub-machine gun): 4 years with a non-parole period of 27 months, commencing on 10 June 2010. Sequence 30 (manufacture sub-machine gun): 8 years with a non-parole period of 5 years, also commencing on 10 June 2010. Sequence 1 (manufacture sub-machine gun), taking into account the matters on the Form 1: 10 years with a non-parole period of 5 years, commencing on 10 June 2012. 16It will be seen that the sentences for sequences 3 and 30 were accumulated upon the previous sentences to the extent of 6 months. The sentence for sequence 1, which also had to reflect the criminality of the Form 1 matters, was accumulated by a further 2 years. The aggregate sentence, as I have said, was 12 ½ years with a non-parole period of 7 ½ years.
Subjective case 17The applicant was 43 years old at the time of the offences, and is now 45. He had a minor matter on his criminal history which is of no significance, and his Honour treated him as a first offender. He and his sister were adopted. His personal background was unexceptional, and his employment history creditable. Indeed, while in custody he had been working in responsible positions. His Honour noted his extensive voluntary work with sporting clubs and his assistance to his parents, both of whom had significant health problems. 18He was married and fathered a son, but the marriage ended in 2001. At the time of his arrest he had been maintaining regular contact with his son and meeting his financial obligations to him. He had a second relationship with a woman who had mental health and substance abuse problems. That relationship ended in 2007. He had set up his own business, but it failed and caused him financial hardship. 19His Honour received a report from Mr Sam Borenstein, psychologist, who concluded that at the time of the offences the applicant was suffering "an adjustment disorder with mixed anxiety and depressed mood consequent to the failure of his marriage, failure of a business venture, and financial hardship associated with same, and the failure of his second relationship ..." This report is the subject of the first ground of the application. 20His Honour noted that the applicant had co-operated with police by making admissions, and found that he was entitled to an additional measure of leniency because of a matter attracting the operation of s 23 of the Crimes (Sentencing Procedure) Act 1999. For that matter, and in recognition of the utilitarian value of the pleas of guilty, he allowed a reduction of sentence of 27.5%. In the light of all the evidence, and notwithstanding his findings about the applicant's criminality, his Honour concluded that his prospects of rehabilitation and of not re-offending were good.
The application 21Counsel for the applicant, Mr Brady, argued the application on two bases: that his Honour failed to have adequate regard to the evidence of the applicant's psychological condition, and that the sentences are manifestly excessive.
Psychological evidence 22I have set out above the conclusion of Mr Borenstein, the psychologist, that at the time of the offences the applicant was suffering from an adjustment disorder with mixed anxiety and depressed mood. In addition to the stressors in his life arising from the breakdown of his relationships and his financial difficulties, Mr Borenstein noted the death in 1990 of the applicant's maternal grandfather, with whom he had developed a bond from a very early age. In the light of the history he obtained and the applicant's account of the offences, Mr Borenstein expressed this opinion: "Mr Smart's judgment at the time of the offence was impaired by virtue of his chronically depressed and anxious state, following sustaining significant losses, which activated core attachment difficulties, the result of his adopted status and losing the only man in his life with whom he felt close, namely his maternal grandfather in 1990." 23In his evidence the applicant attested to the truth of the history he had provided to Mr Borenstein. Mr Borenstein reported that he continued to suffer symptoms of depression while in custody, and the applicant gave evidence that he had not had any professional intervention for his condition within the prison system and was confined to twice weekly discussions with a chaplain. 24As I have said, his Honour rejected the applicant's account of the circumstances of his involvement in the offences. In his remarks he referred to Mr Borenstein's opinion that the applicant's judgment was impaired at the relevant time and subjected it to critical analysis in the light of his own findings. This led his Honour to observe: "... there is no credible evidence justifying a conclusion that, at the time of committing any of the seven offences, the offender did not know what he was doing or did not fully appreciate the consequences of his conduct." 25For the purpose of the application Mr Brady accepted his Honour's findings about the applicant's involvement, and his conclusion that he knew what he was doing and appreciated the consequences of his conduct. He submitted, however, that that conclusion still leaves room for an assessment of the bearing of the applicant's psychological condition on the sentencing process. In particular, he argued, the fact that the applicant was aware of the nature and consequences of his actions did not necessarily mean that his judgment was not impaired. 26He relied on a passage from the judgment of Simpson J, with whom Hunt AJA and Rothman J agreed, in Benitez v R [2006] NSWCCA 21, 160 A Crim R 166, at [33] - [42], in which her Honour reviewed authorities on the bearing of mental illness on sentence. Relevantly to the issue in that case, she emphasised that for mental illness to have such a bearing it was not necessary to show that it was the cause, or even a cause, of the commission of the crime. The error identified in the approach of the sentencing judge was his conclusion that the offender's depressive illness was irrelevant to the sentencing process because it was not causative of his offences. 27Her Honour noted that mental illness may bear on the weight to be given to general and specific deterrence, as well as considerations of rehabilitation. In fact, her Honour found that the offender's illness did have some bearing upon the commission of the offences but, because he "acted with knowledge of what he was doing and of the gravity of his actions", it was a matter which could not "weigh too heavily", citing the judgment of Hunt CJ at CL (as he then was) in R v Wright (1997) 93 A Crim R 48 at 51: see her Honour's judgment at [41] - [42]. 28In the present case his Honour accepted that the applicant suffered the condition which Mr Borenstein identified. What his Honour found, however, was that it had no bearing upon his commission of these crimes. Plainly enough, Mr Borenstein's opinion was influenced by the applicant's account of the circumstances of his offending, an account which his Honour found to be sanitised. His Honour's conclusion was well open to him. 29His Honour also decided that the offences required "particular weight to be given to general deterrence." That view was also open, notwithstanding the applicant's psychological condition, given his Honour's finding about the nature of his criminality. As he noted towards the end of his remarks, the applicant "was motivated by profit." As to specific deterrence, his Honour's finding was favourable to the applicant. 30None of this is to say that the applicant's psychological condition was ignored in the sentencing process. Clearly, his Honour took it into account as part of his subjective case and, in particular, found that his continuing symptoms of depression were "likely to make his time in custody more burdensome." His Honour's approach to this issue was consistent with the authorities, conveniently summarised by McClellan CJ at CL in DPP (Cth) v De La Rosa [2010] NSWCCA 194, 79 NSWLR 1, at [177]. 31An important case on this issue, to which Simpson J referred in Benitez, is R v Engert (1995) 84 A Crim R 67. It is pertinent to repeat some observations of Gleeson CJ, with whom Allen and Sully JJ agreed, in that case. His Honour said (at 71) that "the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to the circumstances of the individual case to be taken into account in the application of the relevant principles." One of those principles had been enunciated by his Honour a little earlier in the judgment (at 68): "It is ... erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise." 32This ground of appeal is not made out.
Manifestly excessive? 33Mr Brady submitted that the individual sentences are excessive, as is the aggregate sentence. In his written submissions he set out a table showing the starting point of the sentence (rounded off) for each offence before the 27.5% reduction to which I have referred. It is unnecessary to set out the figures in relation to the fixed term sentences for sequences 6 (.22 rifle), 27 (silencer) and 14 (magazines). However, the figures for the remaining offences should be noted: sequence 10 (.410 pistol): starting point of 47 months (discounted sentence 34 months); sequence 3 (possession of sub-machine gun in shed): starting point of 5 ½ years (discounted sentence 4 years); sequence 30 (manufacture sub-machine gun - Andropoloulos): starting point of 11 years (discounted sentence 8 years); sequence 1 (manufacture sub-machine gun in shed) with Form 1 matters: starting point of 13 years and 9 months (discounted sentence 10 years). The aggregate sentence of 12 ½ years with a non-parole period of 7 ½ years would be derived from a starting point of 17 years and 3 months with a non-parole period of 10 years and 4 months. 34Plainly enough, the longest sentences are those for manufacturing the sub-machine guns, and it is those offences which led to the larger measure of accumulation. It appears that there are no Judicial Commission statistics in respect of sentence for that offence, and counsel could refer us to no decision of this court dealing with it. This may well be the first time the court has encountered it. 35Mr Brady acknowledged the seriousness of the offences, but submitted that the sentences for them, both individually and in their aggregate, failed to give adequate weight to the applicant's favourable subjective case which I have outlined. This, of course, included the fact that he was a mature man of prior good character who, his Honour found, was remorseful and unlikely to re-offend, and who faced more burdensome conditions of custody because of his psychological condition. 36Nevertheless, the whole pattern of offending revealed by the committal charges and the Form 1 matters was very serious. Particularly was this so of the manufacture of the two sub-machine guns. On his Honour's findings, these were destined for sale and, if they had been sold, there would have been delivered into hands of members of the community, probably the criminal fraternity, two extremely dangerous weapons. Moreover, as his Honour also found, if the applicant had not been apprehended, more weapons of that kind would have been manufactured and sold. Of course, the applicant stood for sentence for no more than two charges of manufacturing sub-machine guns but, as his Honour observed, they could not be characterised as an isolated aberration. 37The sentences for the two offences of manufacturing sub-machine guns must be viewed against a maximum sentence for each of them of 20 years imprisonment (with no standard non-parole period). The maximum sentences for each of the other offences is 14 years imprisonment, with a standard non-parole period of 3 years. The 10 year sentence for the manufacturing of a sub-machine gun the subject of sequence 1, derived from a starting point of almost 14 years, is undoubtedly high, but the sentence for that offence had to embrace the criminality of the Form 1 matters. It was accumulated by 2 years upon the 8 year sentence, derived from a starting point of 11 years, for the other manufacturing offence (sequence 30), so that the latter sentence was largely subsumed within the former. 38The 4 year sentence for possession of the sub-machine gun at the shed (sequence 3) was wholly subsumed within the sentence for sequence 30, and was accumulated by only 6 months upon the 34 month sentence for possession of the .410 pistol (sequence 10). The fixed terms of imprisonment for the remaining offences were wholly subsumed within the sentence for that pistol offence. 39A finding of special circumstances led to a departure from the statutory proportion between sentence and non-parole period for the sentences in respect of sequences 1, 3, 10 and 30, with a marked reduction of the proportion for the two manufacturing offences: in each case a non-parole period of 5 years. That generous allowance for special circumstances is also reflected in the aggregate sentence. 40The sentencing judge was confronted with a very difficult task, particularly determining the appropriate sentences in the uncharted territory of the offence of manufacturing a sub-machine gun. The case was made the more difficult by the need to balance the gravity of the offences against the applicant's favourable subjective case. The sentencing outcome is undoubtedly severe but, after careful reflection, I am not persuaded that it was beyond the bounds of the proper exercise of his Honour's discretion. This ground is not made out. 41I would grant leave to appeal but dismiss the appeal. 42Adamson J: I agree with Hidden J.
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SMART, Gary
R