Decision
82 The Appellant's narrow focus on the sentence imposed on Count 1 introduces an element of artificiality to the case. The Appellant was sentenced for three offences, with the Form 1 offences to be taken into account, as well, on Count 1. Counts 2 and 3 were separate offences involving serious criminality. Count 3 was a deemed supply offence involving the Appellant's possession of 4.82 grams of MDMA - more than six times the traffickable quantity (0.75 grams). Yet the Appellant's sentences for Counts 2 and 3 fell entirely within the non-parole period for Count 1.
83 I turn to the argument directed to the sentence on Count 1.
84 In R v Najem, Hulme J at [38] pointed to what were described as "two irreconcilable standards" against which a s.7(1) offence was to be measured - a maximum penalty of 14 years' imprisonment, but a standard non-parole period of three years.
85 In approaching the challenge to the sentence imposed in this case, it is necessary to keep in mind the available maximum penalty for the s.7(1) offence, as well as the relatively low standard non-parole period which is available, as a guidepost, following a plea of guilty.
86 Although the Appellant's reason for acquiring the pistol was somewhat unusual, it remained the fact that at the time of detection by police, he possessed a loaded pistol in the vehicle, in conjunction with a range of drugs which he possessed for supply. He possessed the paraphernalia of a drug supplier including plastic bags which, it may readily be inferred, were to be used for the purpose of supplying drugs, together with a not insignificant sum of money. He had spent a substantial sum of money to purchase the pistol from a criminal source.
87 Despite the Appellant's unwillingness in his evidence at the sentencing hearing to acknowledge the extent of his drug supply, the messages on his mobile phone (see [13] above), and his possession of funds, point clearly to the business of drug supply.
88 The fact that the pistol was loaded, and that the Appellant possessed other ammunition, bore upon the seriousness of his crimes: R v Mitchell [2002] NSWCCA 270 at [14]; R v Amurao [2005] NSWCCA 32 at [69]; Yang v R [2007] NSWCCA 37 at [18]. The Appellant's claim that he possessed the loaded pistol for his own protection was not a matter of significant, if any, mitigation, since the policy of the legislature evinced by the enactment of the offence under 7(1), with a maximum penalty of 14 years' imprisonment, was to act as a deterrent, and to punish possession of a pistol per se: R v Krstic at [14]. The rule of law, and the authority of courts, depends upon the proposition that persons do not, by illegal means, take their protection into their own hands: R v AA [2006] NSWCCA 55 at [46].
89 The fact that the serial number of the pistol had been obliterated, although explicable by the criminal origin of the weapon, does not assist the Appellant, who possessed the firearm for criminal purposes: Yang v R at [18]. The fact that the Appellant possessed the pistol in a context where he was involved in the supply of drugs also bears on the objective seriousness of the pistol offence: Luu v R at [32].
90 It was necessary for the sentencing Judge to have regard, as well, in imposing sentence on Count 1 to the six offences contained in the Form 1. These matters were to be taken into account in sentencing the Appellant, with a view to increasing the penalty that would otherwise be appropriate for the s.7(1) offence. The sentence imposed for this offence had to reflect the need for personal deterrence and retribution arising from the additional criminality involved in the Form 1 offences: Attorney General's Application under s.37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146 at 159 [42]-[43]; R v Mouloudi [2004] NSWCCA 96 at [66].
91 The sentencing Judge had regard to the objective seriousness of the offences and the Appellant's subjective circumstances. In the circumstances of the case, a combined discount of 30% was allowed. A generous finding was made that the Appellant was contrite, although he denied that he was in the business of supplying drugs, a position rejected by the sentencing Judge (see [23] above), and he had been otherwise caught red-handed with respect to the other offences. I do not accept Mr Hunt's submission that error is revealed in the use of a rolled-up discount in this case.
92 It was appropriate for the sentencing Judge to have regard to issues of general and specific deterrence in the imposition of sentence. Although there was some evidence concerning the Appellant's mental state in psychiatric reports prepared for the purpose of sentencing proceedings, that evidence, in my view, did not render the Appellant an inappropriate vehicle for general deterrence. Mr Hunt referred to this issue only in passing, noting that he did not "mount a full Hemsley style of argument" in this Court. No such argument had been advanced in the District Court.
93 Whether the principle emerging from cases such as R v Hemsley [2004] NSWCCA 228 ought be applied, so as to render an offender a less appropriate vehicle for general deterrence, depends upon the circumstances of the case. See, generally, R v Hamid (2006) 164 A Crim R 179 at 198-200 [109]-[115] and the cases referred to therein. In this case, the Appellant was involved in the supply of drugs for gain, as well as being a personal user of drugs, and he possessed a loaded and lethal pistol in the context of these activities. I do not consider that the evidence before the District Court concerning the Appellant's mental state rendered him a less appropriate vehicle for general deterrence. Indeed, the issue of public safety arising from his possession of a loaded pistol tends to heighten concern, in a manner which might fairly be reflected in a significant allowance for personal and general deterrence in this case.
94 I do not consider that sentencing statistics for s.7(1) offences provide any real assistance in this case, where there were significant offences to be taken into account on a Form 1 in passing sentence for the s.7(1) offence.
95 To make good Ground 3 asserting manifest excess, it is necessary for the Appellant to demonstrate that the sentence imposed on Count 1 was unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357 at 370-371 [25]. The Appellant has not made good this ground.
96 Indeed, the total effective sentence imposed for the combination of firearms and drug supply offences committed by the Appellant lay towards the lenient end of the range of sentence for such criminality.