Weaver v R

Court of Criminal Appeal (NSW)|2021-05-03|Before: Garling J, Adams J

Judgment

SIMPSON AJA: I have had the advantage of reading in draft the judgment of Garling J, in which the relevant facts and circumstances are comprehensively stated. I agree with the orders proposed by his Honour and generally with his reasons. I wish to add only the following, which is relevant particularly to grounds 2 and 4 of the proposed appeal.
The first count on the indictment was brought under s 51D(2) of the Firearms Act 1996 (NSW). Section 51D(1) creates an offence, carrying a maximum penalty of imprisonment for 10 years, of being in possession of more than 3 unregistered firearms without a licence or permit. Subsection (2) of s 51D creates an offence, carrying a maximum penalty of imprisonment for 20 years, of being in possession of more than 3 unregistered firearms without a licence or permit, in circumstances where at least one of the firearms is a pistol or prohibited firearm. The difference in penalty is indicative of the seriousness with which the legislature views possession of pistols and prohibited firearms.
The first charge on the indictment to which the applicant pleaded guilty alleged possession of 31 unregistered firearms - that is, more than ten times the minimum number to constitute the offence - seven of which were prohibited firearms and one of which was a pistol. This also significantly exceeds the minimum number required to bring the offence within subsection (2). The offence was therefore a particularly serious one of its kind. In my opinion the assessment of objective gravity for this offence as within the mid-range is one which is in no way open to any realistic dispute.
As to ground 1, although the sentencing judge was strongly of the opinion that the interests of the applicant were ill served by the tender of the record of his lengthy interview, particularly that part in which he exposed as a reason for his possession of the weapons the possible need for civilian militarism, there were, as Garling J has pointed out, other features of the applicant's answers that were of benefit to him. I am not satisfied that a forensic decision made by senior counsel to ask the Crown to tender the record of the interview rose to the height of incompetence. That there may have been other, less damaging, means by which the extent of the applicant's cooperation with the investigation could have been established is not demonstrative of the degree of incompetence that sustains a ground of appeal sufficient to warrant interference in the outcome of the sentencing proceedings.

Sentences Imposed

The Judge imposed an aggregate sentence of imprisonment of 4 years and 4 months commencing on 23 September 2020 and concluding on 22 January 2025. He ordered that there be a non-parole period of 2 years and 7 months, which expires on 22 April 2023.
His Honour allowed a discount of 25% for each of the offences. His Honour indicated a sentence for the first offence (including the matters on the Form 1) of 4 years with a non-parole period of 2 years and 4 months. His Honour indicated a sentence of 2 years for the second offence.

Grounds of Appeal

The applicant advances four grounds of appeal which are: 1. A miscarriage of justice arose in the sentence proceedings as a result of the incompetence of the applicant's legal representative. 2. The learned sentencing Judge erred in his assessment of the objective seriousness of the two principal offences. 3. The learned sentencing Judge breached the principle in The Queen v De Simoni (1981) 147 CLR 383 by taking into account the fact that the applicant had shortened the firearm relevant to Count 2. 4. The aggregate sentence imposed is manifestly excessive.

Proceedings on Sentence

At the commencement of the proceedings on sentence, the Judge arraigned the applicant and took his pleas of guilty to the two offences described above. He also took the other relevant formal steps with respect to the admission of guilt of the offences placed on the Form 1.
The Crown tendered a bundle which consisted of a Statement of Agreed Facts, some relevant formal documents, the applicant's criminal history and a Sentence Assessment Report. These were admitted without objection as an exhibit. The Crown then tendered a number of photographs of the prohibited weapons. Those photographs were marked as an exhibit as well.
At that stage, senior counsel for the applicant (who did not appear on the appeal) invited the Crown to tender the transcript of the electronically recorded interview between police officers and the applicant, which was taken on 2 August 2019, which was the day of the applicant's arrest ("ERISP"). The Crown indicated that it did not oppose that course and, accordingly, tendered the ERISP which became an exhibit.
At the time the document was tendered, senior counsel said this to the Court: "This is a document that I wanted your Honour to have available for this purpose only. That it provides clear material, and your Honour doesn't need to read it with great precision - it provides very clear material as to three things, which are really important and central to this plea. The first is the fact that there was immediate acknowledgment and assistance of the most plenary kind provided to the investigating police … … So that what happened was that not only did [the applicant] immediately acknowledge the fact that he was in possession of these unlicensed weapons, but he made the explanation to the police officers, and it was accepted by them and acted on by them, at the very time that is now in the balance of the subjective material, so it's not put forward on any basis other than to show your Honour the three things which I wanted to articulate at the very outset. The first is that complete admission and frankness of assistance. The second is that his explanation for having them, consistent with the psychological report, consistent with his conduct, and consistent with his assertion that he had - he was aware of the problem, but couldn't find a practical solution for it after the amnesties had passed. He could neither register the firearms, nor dispose of them. And the third, that at the time, the firearms were in a situation where they were unused and in a condition where they were protected from passing into the larger community."
It became clear from what senior counsel said that he was putting these submissions in support of an ultimate submission that the Court would impose an Intensive Correction Order ("ICO").
There then followed this exchange between the Crown and the Court: "Crown: Could I assist to some extent on that point? Paragraphs 15 and 17 in the facts … His Honour: No, Mr Crown. Mr Crown, I'm going to have to read the entirety of the record of interview. It's been handed up. I would be failing in my obligations if I didn't read the interview in its entirety. Crown: What I will say is that you shouldn't find any inconsistencies with the facts and the record of interview that you would need to correct. His Honour: That's helpful. Snr Counsel: Your Honour, I'm very grateful to my learned friend for that acknowledgement."
Senior counsel for the applicant then tendered a bundle of documents which included written submissions, a psychologist report about the applicant dated 27 April 2020, the Sentencing Assessment Report dated 19 May 2020, a medical certificate about the applicant's wife, and 31 references from various members of the community who knew the applicant - many who had known him for over 25 years and some for as long as 50 years. As well, the bundle included a number of photographs of the shed where the firearms were kept and the steel chest in which they were found - including detail of the locking devices.
At the conclusion of the tender of the documents, senior counsel made oral submissions. He sought to persuade the Judge that the offences did not arise out of any overarching criminal purpose in the applicant for the keeping of the firearms, but rather because of the surrounding circumstances in which he found himself. That submission was based upon a paragraph in the psychologist's report which said this: "In my opinion, [the applicant] did not set about on a venture to blatantly disregard or flout the law. He is not an anti-social individual who wants to defy or deceive the police. However, given his rather rigid personality style, [the applicant] was initially concerned about gun registration, hoping for a reversal of the laws. As a firearms owner I am aware that the thinking at the time by firearms owners was that 'registration leads to confiscation'. He seems to have genuinely believed that the process may not have gone through. [The applicant] reports that all firearms were acquired before NSW implemented the rifle registration laws. Some of the firearms were left to him when his father passed years ago. He was formerly a 'scrap collector' and would be asked to 'clean up' after a deceased estate. Accordingly, some of the guns may have come from this past business venture. Some of the firearms were purchased (preregistration) from people wanting to dispose of them for various reasons, such as financial, young children in the home and partners disliking guns. A few of the firearms were also purchased as new by [the applicant] from when he was 18 years of age. Some of the firearms were given to him by 'old mates' and they were passed on as 'loved heirlooms'. … [The applicant] reports that in later years he was tiring of the whole firearms ownership 'thing', and was wanting to downsize his legal collection, keeping only a few firearms for farm use of vermin control, stock protection and the few heirlooms. He had sold, six to eight registered firearms in the last two years, with more he intended to sell. [The applicant] reported that 'For years, I was wanting to bring the unregistered guns out, register and keep the ones I wanted, sell the ones with no sentimental value, and surrender the ones with no meaning to me. The later law changes didn't allow for this. They had to be surrendered during an amnesty and subsequently, destroyed. The alternative to this was to leave the guns locked in the box until the laws would maybe reverse, or I passed, leaving the problem of disposal to my children'. He seems to have procrastinated and focussed on other things in his life."
In his oral submissions, senior counsel conceded that the imprisonment threshold set out in s 5 of the Crimes (Sentencing Procedure) Act was satisfied having regard to the circumstances of the case. But he went on to submit that any term of imprisonment ought be ordered to be served either by way of home detention or else by an ICO.
His Honour took a short adjournment to read all of the material before the continuation of the oral submissions from senior counsel.
Upon returning to the Court, the Judge raised with senior counsel for the applicant a number of matters arising from the documents which he had read, including the following contents of the Sentencing Assessment Report: "● [the applicant] accepted that he was aware that the firearms located by Police were illegal advising that when laws initially changed in Australia he held the belief a change of Government would repeal the new laws therefore he remained in possession of the firearms. ● [the applicant] stated that he had locked and secured the items away from his house and had simply forgot about them stating he had put them in the "too hard basket" indicating that he had missed or was unaware of any previous or recent gun amnesty being offered."
The Judge went on to invite senior counsel's attention to a number of answers given in the ERISP and took senior counsel to the answer to Q.571, which he then quoted. That question and answer were as follows: "Q.571 … can you tell me why you had all those firearms? A. A couple of reasons, 1 … and we did talk about it, it's not a conspiracy theory so … I believe in external threats to, to me, to us, to our country. It's probably a silly extreme way of lookin' at it, but, … it's happened around the world where countries get taken over, communities get taken over, and then the, the civilians have to help the police and the Army. I am not a, a rebel, I'm not a terrorist, I'm not an activist, it just seemed like a good idea to, to collect them. Q.572 Yep. A. And not have them destroyed."
The Judge then asked senior counsel whether the answer to that question was different to his earlier submission about the reason for the applicant having the firearms. Senior counsel responded that the answer which I have just set out, was in fact consistent with the applicant's activities as a shooter and consistent with licensed shooting activities.
Senior counsel went on to submit that the offence fell towards the low end of the range for the offences of the kind to which his client had pleaded guilty.
The Crown also made oral submissions. On the question of the seriousness of the offences, the Crown submitted that the assessment would be at a higher level than that contended for by senior counsel for the applicant. The Crown said: "It's below the mid-range, but due to the sheer nature of the weapons, or the amount of them, 30. It's almost enough to supply an Army platoon, and the fact that there's six prohibited firearms as well, it just raises the seriousness out of the lowest category. But given there're no factors relating to any connection with, I guess, illegal drugs, then it is somewhat less than the mid-range. … below, but not much."
The Crown conceded that a discount of 25% for the early plea of guilty was appropriate. It was also submitted that the Court would find that the applicant was unlikely to re-offend, that he had undergone counselling, that he obviously had good support in the community and that he was remorseful. The Crown accepted that such finding of remorse would be made on the basis of the early plea, co-operation with the police and co-operation with the authorities. The Crown noted that the applicant had no prior criminal record and he was "obviously entitled to a degree of leniency for that as well". Ultimately, the Crown accepted that the applicant had a strong subjective case. It put that the main focus of the sentencing exercise for the Judge was general deterrence.
In later submissions, the Crown made plain that it opposed the imposition of a non-full time custodial sentence, but the Crown submitted that if the Court was persuaded that a sentence of less than three years was appropriate, it accepted that, in those circumstances, the imposition of an ICO was appropriate.
In answer to a later question from the Judge, the Crown submitted that the matters on the Form 1 would not substantially increase any sentence, although they ought be taken into account.
Senior counsel made submissions in reply.

Agreed Facts

During the course of the proceedings as earlier noted, the Crown tendered a Statement of Agreed Facts. That Statement has featured in the submissions on the appeal and, accordingly, it is convenient to refer here to some relevant parts.
The police obtained a search warrant and attended at the applicant's rural property to execute it. The applicant was not present, but after being telephoned by police, he attended at the property and unlocked the farm gate to enable the police to enter. The police located a weapon in the master bedroom of the house and also a number of other weapons which were stored in three large firearms safes, situated in a brick garage attached to the house. These weapons were registered to the applicant and, subject to compliance with conditions of his licence, he was lawfully entitled to be in possession of them. These registered weapons are not the subject of the offences to which the applicant pleaded guilty. The police also searched an adjacent machinery shed where a large quantity of ammunition and explosives were found.
The Agreed Facts went on to record this: "11. The offender informed police he had upwards of twenty unregistered firearms stored in one of the sheds. The offender took police to a locked shed about 250 metres from the main residence. The offender used a key in his possession and unlocked the shed. The offender indicated a large locked metal box and stated the unregistered firearms and ammunition were stored in the box. The offender also showed police another container with an amount of ammunition stored within the container which was not enclosed. … The offender used the key in his possession and opened the locked large metal box. Police opened the lid of the box and sighted a number of rifles, shotguns and ammunition. The offender stated there were about three layers of firearms in the box. He stated none of the firearms were registered."
After the police seized all of the firearms, the applicant was taken to the Tumut Police Station. The Agreed Facts recorded this: "15. The offender was taken to Tumut Police station. The offender received legal advice and participated in an electronically recorded interview where he made full and frank admissions to all the offences detected. In relation to the unregistered firearms, the offender stated he had been in possession of the firearms prior to the introduction of laws requiring the firearms to be registered. The offender stated he believed in the right and necessity to possess firearms for the protection of the nation but also he was a collector and a number of the firearms held sentimental value to him, some having belonged to his father or friends since passed away or having been purchased by himself when young. The offender stated he knew his actions were unlawful. 16. The Police obtained a search warrant in relation to this matter as a result of information provided from a person known to the offender, and was not obtained as a result of any other illegal activity by the offender. 17. The offender was very co-operative during the execution of the search warrant."
The Agreed Facts noted that in the large metal box located in the locked shed, the police found 31 unregistered firearms, including a fully loaded six shot .44-40 calibre revolver, a loaded .140 shotgun, a loaded sawn-off 20 gauge shotgun, and a loaded Brno .22 calibre rifle fitted with a silencer. In total, the police located one pistol, seven prohibited firearms (being silenced, self-loading or shortened) and 25 other unregistered firearms. The police located a further two silencers and a can of OC spray along with a large quantity of both Class A and Class B category ammunition.

Remarks on Sentence

A principal issue in this appeal, arising from the Remarks on Sentence, is whether the request by senior counsel for the applicant to tender the ERISP was a decision which gave rise to a miscarriage of justice. It is convenient to set out part of what the Judge said about that record of interview.
At [10], his Honour said this: "What has occurred in this matter is a good example of the peril that can arise out of counsel going outside and beyond the agreed facts. I am firmly of the opinion, despite the attitude of those who appear for the offender, that some of the contents of that interview are contrary to the interests of the offender and indeed impact on the finding of objective seriousness in a meaningful way in both counts. I must admit to being troubled about the manner in which this matter proceeded."
His Honour recited the facts about the firearms, the ammunition and the explosives.
His Honour then, at [25], set out Q.571 and the answer given by the applicant, to which I have referred at [24] above.
At [26], his Honour said this: "I have already made comment to the effect that the admissions contained in the ERISP operate adversely to the offender on the finding of objective seriousness on both counts. When I raised these matters with [senior counsel] … there was no application for the matter to be stood down for him to consider his position or obtain further instructions, no application for an adjournment nor was there an application that the tender of the ERISP might be withdrawn. It is highly likely that I would have acceded to any of those applications. Given the experience and standing of Queen's Counsel for the offender I proceeded on the basis that he was content for the matter to proceed with the contents of the ERISP as part of the material on which I was to determine the appropriate sentence in this matter."
His Honour then further referred to parts of the ERISP, submissions by senior counsel for the applicant and the contents of the Sentence Assessment Report to which I have also referred above at [23].
At [34], his Honour said the following: "34. But for the tender of the ERISP I would have been obliged to accept what was advanced by counsel as the reason for the offender having stockpiled the firearms. However to my mind, the answer to question 571 of the ERISP … is very telling indeed as to the reason why the offender stockpiled the weapons. By his admissions it was not a case of circumstances or procrastination but rather the purpose of possession of those firearms was the deliberate stockpiling of those firearms because he 'believed in external threats'. I am fortified in this by what also appears in the [Sentence Assessment Report] … 35. From the answer to question 571 in the ERISP, the extract from the [Sentence Assessment Report] set out immediately above and the general circumstances of the offending - meaning the number of firearms stockpiled and secured in the manner they were - I reject any suggestion that the offender ever had any intention of surrendering any of those firearms. I am fortified in this conclusion by the fact that a number of the firearms were loaded. The offender was deliberately stockpiling those weapons. 36. There is not the slightest suggestion that the firearms are connected with the trade in illicit substances or for that matter any other sort of illegal activity."
At [40], the Judge came to consider an assessment of the objective seriousness. He then said: "40. Further [senior counsel] on behalf of the offender put that the matter was well below mid-range. The Crown put that the matter was only marginally below mid-range. Noting the location i.e. a rural property, the number of firearms, the fact that a number of the firearms were loaded, the number of prohibited firearms, the fact that the offender had clearly had the weapons for a considerable time and what I have found to be the reason why the offender stockpiled those firearms I am of the opinion that the matter to which count 1 on the indictment relates is within the mid-range of objective seriousness."
His Honour also came to consider the objective seriousness of the second count. In light of the third ground of appeal, it is appropriate that I set out in full what he said, namely: "41. Count 2 relates to the possession of the shortened shot gun. The offender told police in the ERISP that he had had that firearm for 10 to 15 years. He himself had shortened the firearm. I presume there is no specific charge relating to this given the uncertainty as to when the shortening occurred. The fact that the offender shortened the shotgun in my opinion makes the matter more serious. That shortened shotgun was also loaded. … The barrel has been substantially shortened. The stock has been shortened to a significant extent. The offender told police in the ERISP that he shortened the shotgun because it had a bent barrel. Count 2 is also within the mid-range of seriousness."
His Honour went on to deal with the principles applicable for sentencing of offences of this kind. He also dealt with, at some length, the applicant's subjective case. He found that he was of prior good character who enjoyed an exceptionally good reputation in the district in which he lived and that he had, over many years, made a significant contribution to the community in a number of ways. The Judge said that the applicant was entitled to the full weight to be given to his prior good character.
The Judge accepted that the applicant was unlikely to re-offend and found that the applicant had good prospects of rehabilitation given his lack of record, his work record and his contribution to the community. He also found that the applicant had co-operated with the police and that his plea of guilty together with that co-operation entitled him to a finding that he was remorseful.
His Honour considered a submission which had been put by senior counsel for the applicant that there would be hardship to his wife if he were to be sent to jail. His Honour found that he was unpersuaded that, on the evidence, that hardship ought be taken into account as being exceptional. No criticism is made of this finding.
His Honour described the applicant's subjective case, and in particular the body of testimonial references, as constituting an exceptionally strong subjective case.
His Honour concluded that he was of the opinion that a sentence of imprisonment was the only appropriate sentence. That finding extended to both offences.
His Honour said this at [108]: "I have given this matter a great deal of thought and consideration. Despite there being only two charges, it is a difficult and complex matter. With respect to learned Senior Counsel for the offender the matter was made more difficult and complex with the tender of the ERISP. I am of the opinion that the total sentence must exceed that which can be served by way of Intensive Correction Order. Even without the material in the ERISP (and the resultant findings) I would still conclude that the total sentence would have to have exceeded (and by more than just slightly) that which could be served by way of Intensive Correction Order."
His Honour made a finding of special circumstances. He then imposed the aggregate sentence and indicated the sentence to which I have earlier referred at [10] above.
Finally, his Honour made, without any opposition, an order that all of the firearms and ammunition were to be forfeited to the Crown for the purpose of destruction.

Ground 1

The primary contention of the applicant on this Ground, centres upon the request made by senior counsel for the applicant, during the sentence proceedings, to the Crown to tender the transcript of the ERISP.
The applicant submits that this conduct by the senior counsel then representing him worked a significant disadvantage to him and resulted in a miscarriage of justice. He submits that the decision by senior counsel to ask the Crown to tender the ERISP was one which was grounded in the incompetence of counsel and that it is clear from the Remarks on Sentence that a significant disadvantage occurred to the applicant.
The applicant's submissions contend that the purposes enunciated by senior counsel for the applicant in seeking to have the ERISP before the Judge were more than adequately fulfilled by the contents of the Statement of Agreed Facts. Accordingly, the applicant submits that there was no obvious benefit to be gained from seeking the Crown's tendering of the ERISP. On the other hand, the applicant points to the fact that there were answers which created a significant disadvantage for the applicant.
The first matter of disadvantage relied upon is Q.287 and A.287 ff, where the applicant admits to having shortened the firearm which was the subject of Offence 2 in circumstances where that knowledge on the part of the applicant was not part of the Agreed Facts. As well, the applicant submits that, as has been demonstrated from the earlier review in this judgment of the issue about his motivation, the answers which he gave at Q.571 ff in the ERISP about his motivation were significantly less advantageous to him than the picture painted by the Agreed Facts.
The applicant points to both what the Judge said in the course of submissions, and what the Judge said in his Remarks on Sentence about those parts of the ERISP as indicating that, in fact, they worked to his disadvantage.
The applicant's submission on this ground was encapsulated in this way in the written submissions: "This is a rare case in which the applicant ought not be bound by the conduct of their counsel given the highly detrimental effect of the document, and the impact it had on the ultimate synthesis. There was no forensic advantage in the tender of the document, and if there was, the slightness of its probative value was outweighed by its exponentially higher detrimental effect."
The Crown submitted that the applicant had not made good this ground.
The Crown submitted that the decision to ask it to tender the ERISP was an informed and deliberate one for each of the three purposes enunciated to the Judge, which are contained in the extract at [16] above.
The Crown submitted that given that the aim of the applicant's senior counsel was to persuade the Court that the ultimate resolution of the proceedings should be the imposition of an ICO, a deliberate course of showing that the applicant's case was out of the ordinary, and that he fell into a very different category to most offenders, was embarked upon. The Crown submits that in those circumstances it was both rational and appropriate for senior counsel to have formed the view that the references contained in the Agreed Facts fell short of establishing those points or providing the colour necessary to establish that, for example, the applicant had offered "immediate acknowledgement and assistance of the most plenary kind".
The Crown submitted that the applicant was now asserting that the forensic desirability of tendering the ERISP was outweighed by the disadvantages that resulted from its tender, but that this really constituted no more than a difference of opinion between the applicant's current counsel and senior counsel appearing on the sentencing hearing about the strategic desirability of a forensic decision which was made in the course of those proceedings. The Crown submitted that such difference of opinion does not constitute any basis for identifying a miscarriage of justice. The Crown drew attention to the judgment of Basten JA in Hanna v R [2017] NSWCCA 168 at [13].
Whilst the Crown conceded that the Judge had, in his Remarks on Sentence, had regard to the content of the ERISP in making certain findings, it submitted that similar material was available from the Agreed Facts on the issue of the applicant's motivation with respect to the firearms.
The Crown points to the fact that the applicant's history as given to the psychologist, Dr Blake, was inconsistent with what was recorded in the Agreed Facts and the admissions in the ERISP.
The Crown drew attention to the fact that in circumstances where the Judge raised with counsel the role which was to be played by the answers in the ERISP on the question of the facts to be found, and where counsel for the applicant accepted that the material contained in the ERISP formed part of the material upon which the matter was to be determined, and pressed his submissions, that there could be, and there was, no unfairness to the applicant in the sentencing process.
The Crown submits that the real gravamen of the applicant's complaint is that the expected forensic advantages sought to be gained did not materialise because the Judge did not accept the submissions made by senior counsel. The Crown points to the fact that those circumstances do not constitute any unfairness to the applicant of the kind which is available on appeal to set aside the sentence imposed.
Finally, the Crown points to the fact that no practical injustice has occurred because the applicant does not submit that the Judge's conclusions drawn from the ERISP or admissions upon which those conclusions were drawn, were inaccurate nor that the contents of the ERISP were inadmissible nor that if the Crown had sought to tender the ERISP, it was properly admissible in light of the accounts given by the applicant both to Dr Blake (the psychologist) and to the author of the Sentencing Assessment Report on the issue of motivation.
Finally, in answer to a question from the Court, the Crown indicated that in the event that the Court were to move to re-sentence the applicant, it proposed to tender the ERISP on that re-sentence.

Discernment

In the conduct of proceedings, a person in the applicant's position is as a general rule bound by the decisions made by their counsel: R v Birks (1990) 19 NSWLR 677 at p.685; TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124. In dealing with sentencing proceedings, the ultimate question is best described as whether there is a significant possibility that the asserted omissions (or commissions) of the applicant's legal representatives affected the outcome on sentence: John Wayne Tsiakas v R [2015] NSWCCA 187 at [42]‑[44].
At [44] of Tsiakas, Beech-Jones J said: "With both appeals against conviction and sentences, it is not sufficient to warrant intervention to simply point to some failing, even a gross failing, of the legal representative who appeared during sentence proceedings. In conviction appeals, where incompetence to the relevant standard is demonstrated, the Court considers whether there is a significant possibility that the acts or omissions of which complaint is made affected the outcome of that trial … In sentence appeals an analogous principle applies. Thus, this Court has considered whether 'compelling material was available but not tendered, or its significance not appreciated' … where the material of 'significance' was not presented … or whether the sentencing court was deprived of consideration of an offender's circumstances. … However, it has also been said that it 'will be a very rare case' that miscarriage of justice will have occurred 'simply because of a defect in submissions made to a sentencing judge by defence counsel'. Again these observations reflect the approach adopted with complaints of denial of procedural fairness namely that '[f]airness is not an abstract concept. [it] is essentially practical' and that 'the concern of the law is to avoid practical injustice' …"
In dealing with this ground, it is appropriate to first consider whether the request by counsel for the applicant to tender the ERISP which was made to the Crown by him was an apparently rational decision as to evidence which should be put before the Judge to support the submissions to be made on the plea to the Judge.
Although oral submissions from counsel for the applicant on the appeal concentrated on the question in the ERISP as to the applicant's motivation for having the unregistered firearms and the answers which he gave, pointing out that these were disadvantageous to him, the consideration of the appropriateness of the request to tender the ERISP needs to take into account the entirety of the contents of the document.
It seems to me that the ERISP contained answers, some in detail, which showed: 1. that the applicant had volunteered the fact that there was an unsecured and loaded rifle in the bedroom of his home, and spare ammunition in the kitchen, to police when he first arrived at the front gate of his property and then showed the items in his house to the police: Q.79, Q.94-Q.104; 2. that the view the police executing the search warrant was that - "… from the get go, you were straight up with us telling us what we were going to find": Q.105; 3. that the applicant had assisted the police in the search by:

opening up the outside bathroom and outside office: Q.112;
opening up the roller door to his garage where the gun safes were located: Q.113-Q.114;
informing the police of the existence of registered firearms in his possession which were not contained on the police list: Q.112-Q.125;
unloading ammunition out of the storage cupboards and providing the police with various tubs and other storage containers so that they could remove the ammunition from the property: Q. 203-Q. 208;
telling the police about the unregistered firearms, where they were to be found, opening up all of the locked doors and the locked chest, and then providing details of the firearms to the police to assist with their cataloguing: Q.213-Q.246; 1. the fact that the applicant had shortened the 20 gauge shotgun to remedy the broken or bent barrel and that it had not been fired: Q.287-Q.291; and 2. the history of ownership and use (or lack of use) of the many unregistered firearms: Q.255-Q.305; Q.320-Q.551.

Senior counsel for the applicant adopted an approach of attempting to persuade the Judge that the possession of the unregistered firearms had nothing to do with the commission of any other offences, or with any criminality at all. This was undoubtedly a relevant factor as part of an assessment of the objective seriousness of the offences, and also as part of the mitigating or aggravating factors relevant on sentencing. Part of that submission was that the applicant was able, upon questioning by the police, to provide them with a history of where each unregistered firearm had come from, how he had acquired it and what use, if any, it had been put to - that part of the ERISP referred to at [74(v)] above fulfilled that purpose.
The second matter which counsel sought to establish was that consistently with the first submission about the absence of any criminality associated with the possession of the firearms, the applicant's conduct in helping the police and providing the information to which reference has been made above, was full and voluntary, and indicative of what one would expect of a person who was not involved in any criminality. There can be little doubt that the ERISP added significantly to the description of that assistance in the Agreed Facts which were tendered to the Court - in particular see [74(i)], [74(ii)] and [74(iii)] which amply fulfilled that purpose. The contents were more detailed and more fulsome than the statement in the Agreed Facts - to the potential benefit of the applicant.
It was important, undoubtedly, for the applicant to give to the Court some explanation as to why he had not only obtained the firearms in the first place but had retained them in his possession although they were unregistered. The applicant's position on this matter was confusing. It will be observed that, as set out in [34]-[35] above, the descriptions of his motivation contained in the Agreed Facts: "The applicant believed in the right and necessity to possess firearms for the protection of the nation, but also he was a collector and a number of the firearms held sentimental value to him …", what he told the psychologist - that he was initially concerned about gun registration, hoping for a reversal of the laws - and what is contained in the Sentence Assessment Report, namely that "…when laws initially changed in Australia, he held the belief a change of government would repeal the new laws, therefore he remained in possession of the firearms …" were not all consistent each with the other. They were all before the Judge.
The explanation contained in the ERISP as to his motivation could rationally have supported a conclusion that, although he did not move to surrender the firearms initially because he thought that it was appropriate to have firearms and that the restrictive laws might change, his retention of them owed more to the dilemma of having items of sentimental value which meant something to him when compared with what would happen with their loss if he was to attempt to register or surrender them.
I do not accept that the forensic decision of senior counsel to tender the whole of the ERISP was an irrational or unthoughtful one. On the contrary, my assessment of it is that faced with a number of possible explanations for why the applicant acquired, and why he kept the unregistered firearms, together with the other matters revealed in it, Senior Counsel tendered the ERISP to strengthen the plea and in so doing, attempted to do no more than crystallise the applicant's case for the possession of the firearms. It also successfully provided evidence of matters of weight on the plea which I have identified in [75] and [76] above.

Ground 2

The submissions of the applicant concentrate on one finding of fact which was said to be erroneous. The applicant submits that the Judge erred in his assessment of the objective seriousness of the first offence by making a finding, which was not open to him, that some of the firearms, the depiction of which were included in the photographs which were tendered by the Crown, were operational, i.e. capable of being used, in circumstances where there was no direct evidence of that fact.
The applicant's submissions seek to impugn the finding in [29] of the Remarks on Sentence which was in the following form: "In the matter presently under consideration there were thirty-one firearms, seven of which were prohibited and there was one pistol. Some of the prohibited firearms were self-loading. A number of the firearms were loaded including a revolver that was "fully loaded" and the sawn off shotgun. The firearms were not otherwise described. However, exhibit B on sentence is a selection of photographs of some of the firearms. So far as can be determined from those photographs they appear to be in good order and condition. The court is not informed as to whether any or all of the firearms were able to function, i.e. to propel a projectile by means of explosive charge. However in respect of at least those firearms that were loaded there is an overwhelming inference that they were operational. The fact that those weapons were loaded entitles me to find beyond reasonable doubt that at least the weapons that were loaded were operational. It is clear that the offender had possession of the firearms for a considerable period of time."
The applicant submits that there is a relevant error in this paragraph because it was not open to the Judge to find beyond reasonable doubt that the firearms which were loaded were in an operational condition. The applicant submits that a photograph is not a sufficient basis to make such a finding nor is the fact that a firearm may be loaded. The applicant points to the absence of any ballistic evidence attesting directly to the issue of operability. As well, the applicant points to the fact that the Judge himself noted that the Court was not "informed", inferentially by evidence, as to whether any or all of the firearms were able to function. The applicant noted that the Agreed Facts were silent on that issue.
The applicant submits that such is the error that the sentence would need to be quashed and the Court would need to make a fresh assessment of the objective seriousness of the offences.
The Crown submits that in addition to the photographs, Exhibit B contained a statement from a member of the Forensic Ballistics Investigation section of the police that is in the following terms: "… from the appearance and features [of the seized firearms] it appears that the exhibits are or at one time were capable of propelling a projectile by means of an explosive."
Exhibit B notes that the firearms have not been tested. In addition, the Crown points to the fact that when the applicant was asked in the ERISP about each of the weapons, he did not suggest that any of them were inoperative either because they had been made inoperative or because, over time, they had become inoperative.
The Crown submits that taken together there was sufficient evidence upon which the Judge could be satisfied beyond reasonable doubt that, at least, the firearms which were found in a loaded condition were capable of operating.
In my view, the Crown's submissions ought be accepted.
The applicant was experienced in the handling of firearms. He had a number of registered firearms in his possession which were appropriately secured. He told the police, as recorded in the Agreed Facts, that he had been out hunting the night before the search warrant was executed and that a rifle which had been used for that purpose was in his bedroom, loaded with ammunition. During the search the police discovered a large amount of ammunition stored entirely separately from the loaded weapons. The loaded weapons in the chest had some ammunition loose in the box.
The applicant told the police that he had been in possession of the firearms for many years.
These facts were matters of context which his Honour had recited, and which were open to be taken into consideration. In that context, the simple fact that firearms were stored in a loaded state is in my view overwhelmingly demonstrative of the fact that the firearms were capable of being discharged or fired. There were places to store ammunition separately from the firearms. The only reason ammunition would be loaded into a firearm is so that the firearm could be used.
In my view, the finding was open to his Honour and I would not uphold Ground 2.

Ground 3

Ground 3 is a ground which asserts error on the part of the Judge because he took into account the fact that the applicant admitted to shortening the 20 gauge shotgun when imposing a sentence for the offence of possession of a shortened firearm, which was the second offence. The applicant submits that thereby he has been punished for an offence with which he has not been charged, and of which he has not been convicted, contrary to the principle in The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383 at 389.
The applicant points to the fact that the offence to which he pleaded guilty simply requires that a person possesses a shortened firearm without the requisite permit. He notes that, albeit pursuant to the adjoining sub‑section (s 62(1)(a)), the act of shortening any firearm is a separate offence which is at least as serious as the act of possession of a shortened firearm.
The applicant points to [41] of the Remarks on Sentence as demonstrating the fact that the applicant shortened the firearm was taken into account in assessing the objective seriousness of the offence to which he had pleaded guilty. The Judge said this: "Count 2 relates to the possession of the shortened shotgun. The offender told the police in the ERISP that he had had that firearm for 10 to 15 years. He himself had shortened the firearm. I presume there is no specific charge relating to this given the uncertainty as to when the shortening occurred. The fact that the offender shortened the shotgun in my opinion makes the matter more serious. That shortened shotgun was also loaded. There is a photograph of the shortened shotgun within exhibit B. The barrel has been substantially shortened. The stock has been shortened to a significant extent. The offender told the police in the ERISP that he shortened the shotgun because it had a bent barrel. Count 2 is also within the mid-range of seriousness."
The applicant submits that the offence of shortening a firearm, although it carries the same maximum penalty and does not have a prescribed non-parole period, can nevertheless be regarded as a more serious offence than the offence of possessing the firearm because the act of shortening a firearm involves an offender turning their mind to the act of creating the shortened firearm thereby increasing the culpability of the offender when compared with simply being in possession of a shortened firearm. As well, the applicant submits that the act of shortening a firearm is commonly regarded as making possible the availability of a shortened firearm to the criminal milieu.
For those reasons, the applicant submits that the De Simoni principle extends to the finding made in this case and that although the offences are of the same maximum penalty, it nevertheless has application.
The Crown submits that the principle in De Simoni has no application here for two reasons: firstly, the offence of shortening a firearm is not more serious as that expression is used in De Simoni; and, secondly, the Judge was simply taking into account one of the relevant circumstances surrounding the offence for which he was imposing a penalty as he was engaged in the task of assessing the seriousness of the offence to which the applicant had pleaded guilty.
The principle in De Simoni is derived from a passage in the judgment of Gibbs CJ in The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383 at p.389 where he said: "… the general principle that the sentence imposed on an offender should take account of all of the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted… The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot to take into account circumstances of aggravation which would have warranted a conviction for a more serious offence."
The applicant seeks to rely upon the judgment of Basten JA in Cassidy v R [2012] NSWCCA 68 as authority for the proposition that the principle in De Simoni can be applied to two offences of the same maximum penalty where it can be argued that one is nevertheless more serious than another. It is necessary to consider carefully what Basten JA said in Cassidy.
The relevant charge in Cassidy was one under s 198 of the Crimes Act 1900 involving allegations that the applicant "intentionally destroyed a number of motor vehicles and a dwelling house" with the further intent "by that destruction to endanger the life of [the victim]". Part of the factual material before the sentencing Judge included a statement by the offender which appeared to reveal an intention to kill the victim rather than merely endangering their life. Of that material, Basten JA said this at [4]: "The sentencing judge was not required to ignore that evidence, but he was required to exercise care in taking it into account. It appears that the evidence was taken into account in two ways, namely as material demonstrating a lack of remorse on the part of the applicant and, secondly, as material relevant to the seriousness of the offending conduct."
His Honour was not persuaded that taking the evidence of an intention to kill into account in assessing whether the applicant was entitled to the benefit of a finding of remorse was in error. That matter can be put to one side. However, Basten JA concluded, as did Blanch J (with whom Beech-Jones J agreed) that the intention to kill would have warranted a charge of attempt to murder pursuant to ss 28-30 of the Crimes Act which the offender submitted were more serious offences than the offence against s 198 of the Crimes Act. The Crown submitted that they were not more serious offences.
Accordingly, the Court had to determine whether they were or were not more serious offences. Each of the offences carried the same maximum penalty - namely, imprisonment for 25 years. The Crown in its submissions concentrated on that proposition to say that the offences were not more serious. However, that submission was rejected.
All members of the Court concluded that the attempt to murder charges (pursuant to ss 28-30 of the Crimes Act) were more serious than the s 198 charge because each of them was subject to a standard non-parole period of 10 years, whereas there was no standard non-parole period for the s 198 offence. Each of the Judges concluded that the consequence of this is that the offences were treated by the legislature as being more serious.
Basten JA (but without the agreement of Blanch J and Beech-Jones J) expressed the view that the charges under ss 28-30 of the Crimes Act were more serious because the relative moral culpability was higher in those charges and that they would accordingly warrant a more serious sentence than one where the relative culpability was only an intention to endanger life.
In my respectful opinion, this conclusion was not essential to the finding of the Court and was obiter dicta, and I am not bound to follow it.
The decision in Cassidy was considered by this Court in Environment Protection Authority v Wollondilly Abattoirs Pty Limited & Davis [2019] NSWCCA 312. In that decision, Brereton JA (with whom Harrison and Bellew JJ agreed) said at [66]: "It is now well established that the maximum penalty, and the standard non‑parole period where there is one, are the legislative signposts which inform the sentencing process. For present purposes they provide clear objective markers for comparing the relative seriousness of the offences. Their use as the exclusive indicator of relative seriousness is consistent with the underlying rationale of the principle, which is that an offender should not be exposed, on conviction for a lesser offence, to being sentenced in respect of conduct which would have made it a greater offence, of which he or she has not been convicted. They also provide objective criteria, for Courts, prosecutors and defendants alike, whereas the evaluation of the relative moral obloquy associated with different offences will often be impressionistic and uncertain. Use of such a yardstick would introduce uncertainty where it is neither required nor desirable. Using anything other than the statutory signposts of maximum penalty and standard non-parole period would involve introducing very difficult questions of discretionary judgment [sic] about relative moral culpability, which are undesirable in principles of the criminal law."
This approach is wholly consistent with the approach adopted by Blanch and Beech-Jones JJ in Cassidy and also makes plain that the approach of Basten JA in considering relative moral culpability is contrary to principle.
The two offences here both carried the same maximum penalty. Neither of them had a standard non-parole period. They were entirely equivalent, neither offence was more serious than the other.
The principle in De Simoni does not govern the determination of this question.
I am satisfied that the fact found by the sentencing Judge, namely, that the applicant had himself shortened the firearm, whilst not an element of the offence to which the applicant pleaded guilty, was nevertheless a relevant contextual fact and circumstance to which the Judge was entitled to have regard when assessing the objective seriousness of the offence. That is because it demonstrated beyond all doubt that the applicant knew that the firearm had been shortened and knew that he was in possession of a shortened firearm. He accepted, as the Agreed Facts recorded, that he was aware that his conduct was unlawful.
If the facts were that he had not realised or known that the shotgun had been shortened, but nevertheless pleaded appropriately to the offence of being in possession of a shortened firearm, the Judge may have been entitled to have regarded that as a less serious example of the criminality involved in that offence.
Accordingly, I am unpersuaded that this Ground is made out because: 1. the principle in De Simoni was not applicable; and 2. the fact that the applicant shortened the firearm was a relevant fact or circumstance to be taken into account by the Judge in assessing objective seriousness.
I would not uphold this Ground.

Ground 4

The final ground for which the applicant contends is that the sentence was manifestly excessive.
The principles upon which this Court acts in considering such a submission are well known and do not need to be repeated.
In short, it is only where in considering the sentence which was imposed, the Court concludes that there must have been some misapplication of principle even though where and how is not apparent from the reasons of the sentencing Judge or else where the sentence imposed is so far outside the range of sentences available, that there must have been some error: see Hughes v R [2018] NSWCCA 2 at [86].
The appellant contends that the sentence was manifestly excessive by reason of the errors to which submissions were addressed in respect of Grounds 1, 2 and 3. The applicant submits that this would lead to the Court reassessing the objective gravity of the offences, and having regard to the absence of any statutory aggravating factors pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act and the applicant's exceptionally strong subjective case, the Court ought conclude that the sentence was manifestly excessive.
As is apparent from the earlier reasons, I do not accept that the applicant has demonstrated any error of the kinds to which Grounds 1, 2 and 3 relate.
The applicant's submission that there should be a reassessment of the objective seriousness of the offences is unpersuasive. The Judge found that each offence was within the mid-range of objective seriousness. Such a finding is not easily to be overturned in this Court. It is apparent from the applicant's submissions that any reassessment of objective gravity depends entirely upon the identification of the errors in Grounds 1, 2 and 3.
I see no error otherwise in the assessment of the objective seriousness made by the Judge.
The applicant points to his exceptionally strong subjective case. It cannot be doubted that this was so. However, equally, the Court had to take into account the nature of the offences and the quantity of the firearms which were being stored. They were well above the minimum number (3) required to constitute the offence. General deterrence is of particular importance for an offence such as this, as are considerations of public safety and the risk that a horde of weapons such as that found in this case, may inadvertently feed the market in the illegal supply of firearms.
When all of those matters are taken into account, I am unable to conclude that the sentence, although stern, was manifestly excessive.

Orders

I propose the following orders: 1. Grant leave to appeal. 2. Dismiss the appeal.
N ADAMS J: I agree with the orders proposed by Garling J for the reasons provided. I also agree with the additional reasons provided by Simpson AJA. I wish to make some additional observations in relation to the tender of the ERISP.
Even before the ERISP was tendered, a number of inconsistent explanations for the applicant's possession of the firearms had already been put before the court. The Agreed Facts stated that he possessed them prior to the registration laws, that he believed in the "right and necessity to possess firearms for the protection of the nation", that he was a collector, and that some of the firearms had sentimental value. The explanation provided in the report of the psychologist was that the applicant had a "rather rigid personality style" and he was hoping for a reversal of the gun registration laws. The explanation in the Sentence Assessment Report was that he initially remained in possession of the firearms because he believed that a change of Government would repeal the laws and he later locked them away and put the problem in the "too hard basket".
In the context of the above material, I found the sentencing judge's repeated criticism of the decision to tender the ERISP somewhat surprising. This is especially so given that the ODPP solicitor (who it is presumed drafted the Agreed Facts) had expressly stated to his Honour that he should not find any inconsistency as between the Agreed Facts and the ERISP (see above at [18]).
I am satisfied that the tender of the ERISP did not represent incompetence on the part of senior counsel. I am also satisfied that it was open to his Honour to make the findings of objective seriousness that he did either with or without the tender of the ERISP. It is on this basis that I am satisfied that no miscarriage of justice arose in these sentence proceedings.

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