Counsel for the applicant, Mr Odgers SC, argued the application on three grounds:
1. The sentencing judge erred in her assessment of the objective seriousness of the offence.
2. The sentence is manifestly excessive.
3. Her Honour erred in her assessment of the applicant's culpability.
Ground 3 was added for more abundant caution, and is closely allied to ground 1. It is convenient to deal with those grounds together.
[2]
Objective seriousness/culpability
In assessing the objective gravity of the offence, her Honour noted that the pistol was unsecured and fully loaded and that the applicant had left it in a busy public place in the middle of the day. This, she said, was "objectively very serious behaviour". She also noted that the firearm was, to the knowledge of the applicant, in working order, and had been carried in a vehicle in a public place. This also indicated "a very high level of seriousness". She added that "having and leaving this fully loaded pistol in an open place aggravates the seriousness of the offence".
Her Honour observed that the applicant had admitted having the pistol to defend himself if the circumstances required it. Several weeks after receiving it, it was still fully loaded, "indicating a readiness, if not an intention, to use it". As to the applicant's claim that he had the pistol in his possession to protect himself and his family, her Honour said:
"I find that the proffered reason for the possession of this firearm does not lower the objective gravity of the offence and indeed the circumstances that it was carried in a public place increased its potential seriousness. Clearly the offender had an idea of whom he may need some protection from and was prepared to carry the firearm in a public place apparently in order to deter in some way those attackers. In the circumstances where his complete failure to contact police at that time and then resorting to obtain an illegal firearm does not assist his case."
Sumrein v R [2019] NSWCCA 83 | Case summary | Zoe
Her Honour later observed that the possession of the firearm was planned. She said that the fact that there was "no relationship between the offender and drug use or possession" was not a matter in mitigation but, rather, "a matter of a lack of aggravating circumstance". She added that the offence was not "part of the sort of planned or organised criminal activity that is frequently associated with illegal weapons of this nature", a matter which she saw as of "minor consequence" but which she would take into account in his favour. However, she reiterated her finding that the purpose of having the weapon in his possession "that it was for self-protection does not assist …."
Mr Odgers took issue with her Honour's characterisation of the applicant's conduct as "objectively very serious behaviour", demonstrating "a very high level of seriousness". He submitted that the appropriate characterisation of the offence was no higher than the middle of the range of objective gravity. He pointed out that the gun being loaded and being in a public place were elements of the offence. On the other hand, only one firearm was involved and the applicant was carrying it in a satchel inside a car. When he placed it behind a parked car he was being pursued by police, and the police took possession of it soon afterwards.
In this context Mr Odgers also referred to the fact that the applicant's possession of the gun was unrelated to any criminal activity, and to the "psychological difficulties" he was experiencing at that time. In dealing with this aspect of Mr Odgers' argument, I shall put aside those matters but I shall return to the context of the offence and the applicant's motive.
As the Crown prosecutor pointed out, the expressions used by her Honour which Mr Odgers impugned were directed to particular aspects of the applicant's behaviour, rather than an overall assessment of the gravity of the offence. At no time did her Honour characterise the seriousness of the offence by reference to a range. Reasons for sentence are not an entirely clinical exercise. Sometimes it is not inappropriate for a judge to use forceful language to bring home to an offender the gravity of his or her conduct. It may be that her Honour's observations should be understood in this way. However that may be, I do not see them as a calculated assessment of where this offence stood in the scale of objective gravity of offences of its kind.
However, the reason for the applicant's possession of the gun, and the lack of any criminal purpose, raise different considerations. The centrepiece of Mr Odgers' argument was that in assessing the gravity of the offence, her Honour did not take into account the applicant's motive for possessing the gun, that is, his fear for the safety of himself and his family. It is apparent from the aspects of her Honour's reasons to which I have referred that, while she recorded this matter, she declined to afford it any weight on objective gravity or moral culpability (if there be here any relevant distinction between the two). The Crown prosecutor in this Court cited authority in support of that approach, and a significant part of the argument was a critical examination of that line of authority.
It begins with an observation of Latham J in R v Dusan Krstic [2005] NSWCCA 391. Although the sentencing judge in the present case did not refer to it, it had been cited in written submissions by the Crown's representative.
Krstic was a sentence matter involving an offence of possessing a prohibited pistol: s 7(1) of the Firearms Act. Put shortly, the applicant was found by police in possession of a loaded pistol, and a search of his home uncovered further ammunition and, among other things, bottles containing steroids and four methylamphetamine tablets. In a pre-sentence report the applicant had put forward an explanation that he had the weapon for his own protection. He claimed that he had been threatened because there was a rumour (apparently false) that he had been working with the Australian Federal Police. The sentencing judge saw the circumstances as suggesting that he moved "at least on the fringe of criminality", and his possession of the firearm as "consistent with a sinister rather than an innocent purpose". It was argued in the application for leave to appeal that it was not open to the judge to call into question the applicant's explanation.
Latham J (with whom Sully and Hulme JJ agreed) noted that the judge did not in fact make a finding that the applicant had the weapon to assist in criminal activity. However, her Honour expressed the view that he was entitled to doubt the applicant's explanation, particularly in the light of his possession of restricted and prohibited substances. Her Honour added at [14]:
"In any event, accepting the applicant's argument for present purposes, possession of a loaded gun for one's own protection is not a matter of significant, if any mitigation, since the policy of the legislature evinced by the enactment of the offence and a maximum penalty of 14 years' imprisonment is to deter and punish possession of firearms per se."
Latham J went on to consider a number of other specific errors asserted by counsel for the applicant, which she did not find established. At [16], her Honour said that, even if the judge had erred in some respects, no lesser sentence was warranted in law. The sentence was found to be "well within the judge's sentencing discretion": [20].
Regina v AA [2006] NSWCCA 55 was a Crown appeal in a somewhat unusual case. For present purposes it is sufficient to say that the respondent had been involved in the cultivation of cannabis and was found to be in possession of a loaded pistol, giving rise to a charge (among others) under s 7(1) of the Firearms Act. He acquired the gun for his own protection after suffering an assault perpetrated upon him in the context of the drug milieu. Rothman J (with whom McClellan CJ at CL and Hulme J agreed) noted the observations of the sentencing judge that the acquisition of the firearm for self-protection was "inexcusable" but "at least understandable", and that it was not an excuse for the commission of the offence: [44]-[45]. His Honour continued at [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."
Thalari v Regina [2009] NSWCCA 170 also involved a charge of unauthorised possession of a pistol. The applicant had been involved in the supply of drugs. The pistol, which was loaded, was found in a car which he had been driving, and he claimed that he had it for his own protection.
At [88] of the judgment, Johnson J (with whom Young JA and Latham J agreed) cited verbatim the passage from the judgment of Latham J in Krstic set out above. His Honour also stated the principle that people should not illegally take their protection into their own hands, citing the passage from the judgment of Rothman J in AA also set out above. At [89], his Honour added that the fact that the appellant "possessed a pistol in a context where he was involved in the supply of drugs also bears on the objective seriousness of the pistol offence", citing Luu v R [2008] NSWCCA 285 at [32].
Cao v R [2013] NSWCCA 321 involved yet again offences of the possession of unauthorised and/or prohibited firearms, along with the supply of drugs (supplying methylamphetamine on an ongoing basis). Yet again, the applicant had the weapons in his possession to protect himself as a drug dealer.
Hoeben CJ at CL (with whom Simpson and Hall JJ agreed) stated at [32]:
"The firearm offences also involved a significant level of criminality. In Ayshow v R [2011] NSWCCA 240 Johnson J (with whom Bathurst CJ and James J agreed) at [64] - [73] referred to the policy reasons behind s7(1) Firearms Act 1989 and matters relevant to the seriousness of the offence. His Honour said that the use or purpose of possession of an unlicensed firearm - particularly where it is connected with criminal activities - was regarded as a key factor in assessing the seriousness of offences contrary to the Act."
At [33] his Honour set out the relevant passage from the judgment of Latham J in Krstic. He continued at [34]-[35]:
[34] Part of the rationale behind s7(1) was explained by RS Hulme J (with whom Beazley JA and Latham J agreed) in R v Najem [2008] NSWCCA 32 at [40]:
"40 ... That rationale includes at least a recognition that firearms and pistols, if possessed, are liable to be used, and if used, are liable to be a source of great danger or damage. It includes also a recognition that not all persons can be relied on to avoid or minimise such danger and not misuse the weapons and that misuse, even without discharge, is liable to amount to a great infringement of others' rights."
[35] This Court has said on a number of occasions that an offender's criminality is more serious where he or she possesses a firearm as part of their involvement in crimes, such as trading in illegal drugs. In R v Amurao [2005] NSWCCA 32 at [69] RS Hulme J said:
"69 ... It behoves the Courts to discourage any tendency for such objects to become just tools of trade for those whose activities are outside the law."
…"
AA, Thalari and Cao were cases where the offenders possessed firearms for their own protection because of the hazards of the criminal enterprise in which they were involved. The Crown prosecutor referred to two other cases in which Latham J's statement in Krstic was referred to, both of them involving the possession of a firearm in the course of criminal activity: R v AZ [2011] NSWCCA 43; 205 A Crim R 222 at [73]; and Johan v R [2015] NSWCCA 58 at [121]. In Krstic itself, there was no satisfactory explanation for the offender's possession of the pistol. The facts carried the suggestion of criminal involvement and his explanation for having the weapon was not accepted.
Standing in contrast to those cases is Mack v R [2009] NSWCCA 216. In that case the applicants, who were husband and wife, were charged with cultivating cannabis and the unauthorised possession of firearms (here pursuant to s 51(D)(2) of the Firearms Act). However, there was evidence that the firearms had been acquired over a period and that at least some of them were used for legitimate purposes. There was no evidence of a criminal purpose for the possession of any of them, nor that they were in any way connected to the drug enterprise.
Davies J (with whom McClellan CJ at CL and RA Hulme JA agreed) identified the relevant factors in determining the objective seriousness of the offending at [40]. Relevantly for present purposes, they included "the purpose for the possession" of the weapons. In the circumstances of the case, his Honour considered the objective gravity of the case to be "on the lower side of the middle range ….": [42].
In Mack not only was it accepted that the weapons were not connected with any criminal activity, it was also not suggested that the offenders had them for self-protection. It would seem that Krstic was not referred to. However that may be, Mr Odgers submitted that Mack is authority for the proposition that in cases such as this, in accordance with general principles of sentencing, motive is relevant to objective gravity. He cited a passage from the judgment of Johnson J (with whom Payne JA and Simpson AJA agreed) in Tepania v R [2018] NSWCCA 247. This was a very different case from the present, but at [112] his Honour addressed principles of general application:
"In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J)."
The dictum of Latham J in Krstic was challenged by Mr Odgers. He argued that it conveys that it is the policy of the legislature to punish offenders of this kind equally regardless of the purpose for the possession of the firearm. He relied in particular on her Honour's reference to a policy "to deter and punish possession of firearms per se".
It is my respectful view that her Honour's observation should be approached with some caution. As Mr Odgers pointed out, it was not essential to the resolution of the case at hand. It was made on the basis of "accepting the applicant's argument for present purposes", but in determining the matter that argument was not accepted. A generalisation of this kind may serve as a useful guide to the exercise of the sentencing discretion, but it cannot be of universal application. It must yield to the facts of the individual case.
Mr Odgers did not represent the applicant in the District Court. The Crown prosecutor in this Court argued that senior counsel who was then appearing conceded that the applicant's possession of the gun for protection of himself and his family was not a mitigating factor. In written submissions, senior counsel referred to Mack and to the applicant's genuine belief that the firearm was needed for protection after his home was the subject of a drive-by shooting.
In the course of oral submissions, her Honour appeared to be adopting the dictum of Latham J in Krstic when she referred to the applicant's possession of the gun for self-protection but added, "We all know that that's not a reason that I can give any …." At that point her Honour was interrupted by senior counsel, who made a submission that the evidence demonstrated that his possession of the weapon had nothing to do with any criminal activity. Her Honour pressed him about taking the applicant's motive of self-protection into account, referring particularly to his failure to convey his suspicion of the source of the drive-by shooting to police. At this point senior counsel said "I'm not asking your Honour to find that this was a mitigating factor …." Asked how it should be taken into account, senior counsel said:
"Firstly to simply put his actions into context. In the same way when your Honour hears a matter in relation to the possession of drugs, a background may well be given by the person making the submissions as to how it came about. This is the same basis here. This is the circumstance."
Later senior counsel said that it was not put forward by way of mitigation, but that it was a factor that "gave rise to a particular state of mind at that time", although he acknowledged that it was "a flawed state of mind" and that his decision was seriously wrong. Counsel continued:
"It doesn't excuse the conduct but it certainly assists your Honour in understanding why a person who has otherwise never been involved in this serious type of criminal conduct has made a serious mistake in the way that he has conducted himself."
In this Court the Crown prosecutor submitted that senior counsel had disavowed "any submission that the applicant's proffered reason for possessing the pistol could be regarded as a mitigating factor". He argued that the applicant should be bound by that concession, citing the familiar decision of this Court in Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [79]-[81].
However, as Mr Odgers pointed out, it is unclear what it was that senior counsel was conceding. Of course, his having the weapon for the defence of himself and his family was not an excuse for this criminal conduct. However, while senior counsel said that he was not advancing that motive as "mitigation", it is plain enough from his submissions as a whole that he was relying upon it as a matter favourable to the applicant in the assessment of the objective gravity of the offence.
I adhere to the view I expressed in my judgment (dissenting as to the outcome) in R v Shortland, questioning the utility of assessing the objective gravity of an offence by reference to factors said to be "aggravating" or "mitigating": [95]. I added, in a passage cited by Mr Odgers in the present case, that it is appropriate to examine the extent to which the offence "shares features commonly encountered in offences of that kind, bearing in mind that ultimately objective gravity turns on the features of the offence at hand".
One of the features commonly encountered in offences of this kind, as her Honour acknowledged, is that the offender possessed the firearm in connection with a criminal enterprise. As one would expect, and in accordance with observations in the authorities to which I have referred, that is a matter which elevates the objective gravity of the offence. That feature was absent in the present case, which her Honour also acknowledged. However, the absence of that feature did not deserve to be characterised as "of minor consequence", as her Honour did.
More importantly, the applicant's motive for obtaining the gun, to protect not only himself but his family, was a relevant matter in assessing objective gravity and moral culpability. I am satisfied that, in failing to take it into account, her Honour was in error. Even if senior counsel in the District Court should be seen as having conceded that it was a matter not to be taken into account, that concession was in error and this Court should not allow it to stand in the way of remedying a miscarriage of justice: cf Zreika at [82].
Accordingly, this Court should intervene and resentence the applicant. It becomes unnecessary to deal with the ground that the sentence was excessive, although it is appropriate to have regard to the material presented in relation to it.
[3]
Resentence
In the event of resentence, the Crown read an affidavit of Ms Emma Phillips, solicitor in the Office of the Director of Public Prosecutions, to which was attached custodial records disclosing that the applicant has been dealt with for two breaches of discipline. One, on 4 December 2018, was intimidation, involving his using abusive language to an officer. The other, on 15 July 2018, was the illicit possession of tobacco. I consider these matters to be of little significance.
While taking into account the fact that the applicant's possession of the pistol was not in connection with a criminal enterprise, and accepting that he was motivated by fear for himself and his family, the fact remains that he took the law into his own hands rather than reporting his concern to the appropriate authorities, as he should have done. His behaviour was not only foolish, it was reprehensible. Clearly, it posed a real danger to the public. It may be that he carried the gun simply to scare a possible attacker, but there was a substantial risk that in a confrontation he might fire it.
In determining the appropriate sentence, I would have regard to the applicant's generally favourable subjective case and, like her Honour, I would find special circumstances. It is necessary to take into account the offences on the form 1 of the unauthorised possession of a pistol and ammunition but, of course, they arise from the circumstances of the principal offence.
The sentence I propose would be a salutary one, but would involve a statutory parole order, pursuant to s 158(1) of the Crimes (Administration of Sentences) Act 1999 (NSW), coming into effect immediately. From a starting point of imprisonment for 4 years I would allow a 25% reduction for the utilitarian value of the applicant's plea of guilty, producing a sentence of 3 years. I would fix a non-parole period of 1 year and 5 months, which would have expired shortly before this judgment is delivered.
Accordingly, I would grant leave to appeal and allow the appeal. I would quash the sentence passed in the District Court. In lieu, taking into account the matters on the form 1, I would sentence the applicant to a non-parole period of 1 year and 5 months, commencing on 16 November 2017 and expiring on 15 April 2019, and a balance of term of 1 year and 7 months, commencing on 16 April 2019 and expiring on 15 November 2020.
[4]
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Decision last updated: 18 April 2019
LEEMING JA: I agree with Hidden AJ, save that I prefer not to express a view on what was said in R v Shortland [2018] NSWCCA 34 as to the assessment of objective gravity. In particular, in relation to the concession made by counsel then appearing for the applicant at the sentencing hearing, I agree that it is unclear from the transcript precisely what the effect of the so-called concession was, and I agree that there was error in the way in which the applicant's motive for possessing the firearm was treated by the Court below. That is sufficient to warrant this Court's intervention.
I wish to add a note about the way in which the appeal came to be heard, which is generally applicable to appeals against relatively short sentences such as that imposed upon the applicant.
The District Court imposed a sentence of imprisonment for a period of 3 years and 9 months, with a non-parole period of 2 years, back-dated to 16 November 2017, on 21 February 2018. The applicant's notice of appeal was filed on 12 December 2018, which was the last week of the Court's term, and after the applicant had served more than half of the sentence which was said to have been appellably too high. In the first week of the new term, on 31 January 2019, the appeal was allocated a hearing date of 3 April 2019 (ie about nine weeks thereafter). (It is not clear from the file whether an earlier date was requested, or was available, or was suitable to the parties.) It was not possible for this Court to deal with the matter on 3 April 2019, because on 2 April 2019 the applicant filed further submissions in reply, about triple the length of his submissions in chief to which the Crown had responded, and flagging an amendment to the notice of appeal. Through an email error, they were not received by the Crown until the morning of the appeal. The Crown was permitted, without opposition from the applicant, a short period of time to respond in writing to the applicant's new ground and new submissions.
None of the foregoing is intended by way of criticism of any party or any practitioner. And naturally this Court will do its best to accommodate the hearing and determination of appeals which have become urgent because the sentence will shortly expire, as has occurred in the present case. However, it is obviously desirable that such appeals be brought and prosecuted as expeditiously as may be. It is in no one's interest for artificial urgency to be introduced merely because of the effluxion of time where that can be avoided.
IERACE J: I agree with Hidden AJ.
HIDDEN AJ: The applicant, Mahmoud Sumrein, pleaded guilty in the District Court to possessing a loaded firearm in a public place, an offence under s 93G(1)(a)(i) of the Crimes Act 1900 (NSW), carrying a maximum sentence of 10 years imprisonment. He also asked that two related offences be taken into account on a form 1: possessing an unauthorised pistol, an offence under s 7(1) of the Firearms Act 1996 (NSW), carrying a maximum sentence of 14 years imprisonment and a standard non-parole period of 4 years; and possessing ammunition without a licence or permit, an offence under s 65(3) of the Firearms Act, carrying a penalty by way of fine only. On the principal offence, taking into account the matters on the form 1, he was sentenced to imprisonment for 3 years and 9 months with a non-parole period of 2 years, dating from 16 November 2017. He seeks leave to appeal against that sentence.