Aird v The The Queen

[2022] NSWCCA 35

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Aird v R [2022] NSWCCA 35

Hearing dates:

14 July 2021

Date of orders:

25 February 2022

Decision date:

25 February 2022

Before:

Meagher JA at [1];
Walton J at [60];
Harrison J at [61]

Decision:

(1)   Extend the time for filing of the application for leave to appeal to 1 March 2021.

(2)   Grant leave to appeal against the sentence imposed on 16 September 2019.

(3)   Allow the appeal.

(4)   Quash the sentence imposed on 16 September 2019.

(5)   Instead, impose an aggregate sentence of imprisonment of 4 years and 10 months with a non-parole period of 3 years commencing on 12 July 2019 and expiring on 11 July 2022, and an additional term of 1 year and 10 months expiring on 11 May 2024 during which the applicant shall be eligible to be released to parole subject to the decision of the State Parole Authority.

Catchwords:

CRIMINAL LAW – application for leave to appeal against sentence – where applicant convicted of firearm offences – where no suggestion that firearms held for sale or storage for any third party – whether sentence imposed manifestly excessive

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A, 21A(3)(i)

Crimes Act 1900 (NSW), s 93FA(2)

Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Firearms Act 1996 (NSW) Pt 4; ss 3(2)(a), (c), (e), 4, 39(1)(a), 51D(2), 62(1)(b), 65(3)

Firearms Regulation 2017 (NSW), r 28B

Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases Cited:

Dionys v R [2011] NSWCCA 272; (2011) 217 A Crim R 280

El Jamal v R [2017] NSWCCA 243

Elsaj v R [2017] NSWCCA 124

Hughes v R [2018] NSWCCA 2

JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528

R v Brown [2006] NSWCCA 249

R v Cromarty [2004] NSWCCA 54; (2004) 144 A Crim R 515

R v Lachlan [2015] NSWCCA 178; (2015) 252 A Crim R 277

Taylor v R [2018] NSWCCA 50

Weaver v R [2021] NSWCCA 215

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category:

Principal judgment

Parties:

Peter James Aird (Applicant)
Regina (Respondent)

Representation:

Counsel:

T Woods (Applicant)
C Dodds (Respondent)

Solicitors:

L MacDougall (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2017/258335

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2019] NSWDC 512

Date of Decision:

16 September 2019; 1 October 2019

Before:

Hatzistergos DCJ

File Number(s):

2017/258335

Judgment

1. MEAGHER JA: The applicant seeks leave pursuant to Criminal Appeal Act 1912 (NSW), s 5(1)(c) to appeal against the sentence imposed on him by Hatzistergos DCJ at the Campbelltown District Court on 16 September 2019 (R v Aird [2019] NSWDC 512 (ROS)). His application for leave to appeal against sentence was filed on 1 March 2021. The time by which that application was required to be filed (it having been extended on at least two occasions) had expired. The explanation for the further delay in filing the application is given by the applicant’s solicitor in her affidavit sworn 6 July 2021. That explanation does not involve fault on his or her behalf.

The offences

2. The applicant pleaded guilty to two offences, namely:

• Sequence 1: that on 24 August 2017 at Pheasants Nest he possessed a prohibited weapon, to wit a knife concealed as a credit card, without being authorised to do so by a permit, contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW).

• Sequence 17: that on 24 August 2017 at Pheasants Nest he possessed more than three firearms, to wit nine firearms that were not registered, of which four were prohibited firearms, in circumstances where he was not authorised by a licence or permit to possess those firearms, contrary to s 51D(2) of the Firearms Act 1996 (NSW).

3. The first of those offences carries a maximum penalty of 14 years imprisonment and a standard non-parole period of 5 years, and the second a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years.

4. In sentencing the offender for the Sequence 1 offence, three further offences were taken into account on a Form 1A. Those offences relate to articles found either in the applicant’s motor vehicle or his residence:

• two offences of possessing a prohibited weapon, namely an extendable baton and set of knuckledusters, contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW)) for which the maximum penalty was 14 years imprisonment; and

• one offence of possess an explosive for an unlawful purpose, namely railway detonators, contrary to s 93FA(2) of the Crimes Act 1900 (NSW) for which the maximum penalty was 3 years imprisonment and/or 50 penalty units.

5. In sentencing the applicant for the Sequence 17 offence, three further offences on a Form 1B were taken into account:

• one offence of possessing ammunition without a licence, contrary to s 65(3) of the Firearms Act 1996 (NSW) for which the maximum penalty was 50 penalty units;

• one offence of not keep a firearm safely (not being a prohibited firearm) contrary to s 39(1)(a) of the Firearms Act 1996 (NSW) for which the maximum penalty was 12 months imprisonment and/or 20 penalty units; and

• one offence of not keep a firearm safely (being a prohibited firearm) contrary to s 39(1)(a) of the Firearms Act 1996 (NSW) for which the maximum penalty was 2 years imprisonment and/or 50 penalty units.

The sentence

6. The sentencing judge imposed an aggregate sentence with respect to the two offences. That sentence was to a period of imprisonment of 6 years and 5 months, comprising a non-parole period of 4 years from 12 July 2019 to 11 July 2023, and an additional term of 2 years and 5 months from 11 July 2023 to 11 December 2025.

7. The applicant pleaded guilty and was afforded an early plea discount of 25%. The sentencing judge, as required by Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A, indicated the following sentences for each of the offences, taking into account the matters on the Form 1A and Form 1B and discount:

• Sequence 1: 16 months imprisonment with a non-parole period of 11 months

• Sequence 17: 5 years and 9 months imprisonment with a non-parole period of 3 years and 6 months

The aggregate sentence is the outcome of the exercise of applying the relevant sentencing principles to the facts of the case and the indicative sentences. In doing so, the sentencing judge acknowledged the overlapping criminality involved in the two offences by providing for a period during which the indicative sentences might otherwise have been served concurrently.

8. The “starting point” of the indicative sentence for the s 51D(2) offence (there being no “starting point” in respect of the aggregate sentence, as to which see Elsaj v R [2017] NSWCCA 124 at [56] per Hoeben CJ at CL), before the application of the plea discount, was approximately 7 years and 7 months.

Ground of appeal: aggregate sentence manifestly excessive

9. The sole ground of appeal is that the aggregate sentence is manifestly excessive.

10. In Hughes v R [2018] NSWCCA 2 at [86], this Court (Payne JA, RA Hulme and Garling JJ), citing various High Court authorities, described the matters to be considered where it is contended that a sentence is manifestly excessive as follows:

(1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

(2) intervention is only warranted where the difference is such that it may be concluded 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 where the sentence imposed is so far outside the range of sentences available that there must have been error;

(3) it is not to the point that this Court might have exercised the sentencing discretion differently;

(4) there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

(5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust.

11. In relation to a manifest excess appeal from an aggregate sentence, as RA Hulme J observed in JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40] (omitting citations), “a principal focus in the determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved”. The indicative sentences recorded in accordance with Crimes (Sentencing Procedure) Act, s 53A(2) are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence.

12. The applicant’s counsel does not contend that the sentencing judge misstated any relevant fact or took into account any extraneous or irrelevant matter. He accepts that the primary judge fairly assessed the objective seriousness of each of the offences – although there is an issue as to how that assessment for the s 51D(2) offence is to be understood – and does not suggest that his Honour should have made any more favourable findings with respect to the applicant’s subjective circumstances.

13. Ultimately, the applicant’s argument is that the aggregate sentence is manifestly excessive having regard to the totality of the criminality involved in his offending (tcpt 14/07/21 p. 2:45). That outcome is said to be apparent in the starting points for each of the indicative sentences before the plea discount – 21 months for the Sequence 1 offence and approximately 7 years and 7 months for the Sequence 17 offence.

14. In response, the Crown submits that whilst the aggregate sentence may be regarded as a “stern” one, it was nevertheless open to his Honour in the exercise of his discretion. (tcpt 14/07/21 p. 8:49). In the Crown’s written submissions, the matters making the offence a “very serious” one are said to be (RWS [61(c)]):

There were nine firearms in total. Four were prohibited. There were two semi-automatic weapons and the two pen guns (which are items capable of easy concealment and thus suited to criminal activity). They were not adequately securely stored and were stored immediately proximate to ammunition. None of them were registered and the offender was well aware he was not licensed to possess them in circumstances where his licence had previously been revoked.

15. Before addressing the ground of appeal, I propose to record the circumstances of the offending, consider five decisions of this Court which address the nature and seriousness of offences under Firearms Act, s 51D(2), and then to summarise briefly the sentencing judge’s remarks concerning the objective seriousness of the offending and the applicant’s subjective factors as taken into account.

Factual background

16. The applicant was sentenced on the basis of a statement of agreed facts. The sentencing judge summarised those facts at ROS [4]-[13].

17. At the relevant time the applicant lived in a house on Pheasants Nest Road, Pheasants Nest. At about 8:30am on 24 August 2017, police saw him driving a Toyota Prado on Rockford Road, Tahmoor, where he was stopped and arrested for an unrelated matter. During a search of the vehicle, the police located a knife concealed as a credit card (the Sequence 1 offence) and an extendable baton (one of the Form 1A offences).

18. Following his arrest the applicant was taken to Narellan Police Station where police were granted a warrant to search his residence. That warrant was executed later that day. Inside that semi-rural residence the police found a set of knuckledusters (one of the Form 1A offences) and two railway detonators (the remaining Form 1A offence). The applicant’s possession of these articles found in the vehicle and his residence is treated as a single act of offending.

19. In a locked toolbox located in a large six door garage at the rear of the residence, police found:

1. 1 x SAKO .22/250 calibre rifle, serial number 78255

2. 2 x .22 calibre tubular firearms commonly known as ‘pen guns’

3. 1 x SAKO .243 calibre bolt action rifle

4. 1 x Stirling .22 calibre rifle, serial number 330446;

5. 1 x Winchester .22 calibre lever action rifle, serial number CHF3387

6. 1 x Harrington & Richardson semi-automatic .22 rifle, serial number AX539842

7. 1 x Daisy .177 calibre rifle ‘BB gun’

8. 1 x Ruger semi-automatic mini 14.223 calibre rifle, serial number 184-59488

9. Assorted calibre ammunition (Sequence 13 - Form 1B):

1. 2 x 12 gauge fired rounds

2. 1 x .22 long rifle rounds

3. 27 x .233 Remington rounds

4. 38 x .22-250 Remington rounds

20. The items in (a)-(h) – seven small-calibre hunting rifles and two pen guns – were the subject of the Sequence 17 offence. The pen guns and two semi-automatic rifles were “prohibited” firearms. The inadequate storage of those and the remaining firearms accounted for two of the Form 1B offences. The third concerned the possession of the ammunition, also in the locked box.

21. The applicant did not give evidence in the sentence proceedings. However, he agreed to participate in an electronically recorded interview, in which he stated that:

• He possessed the extendable baton seized from his car

• He possessed all firearms seized from the garage of his property

• He had not fired any of the firearms in the time he possessed them

• He purchased the firearms to use for hunting

• He did not remove any serial numbers from the firearms, stating they were in the same condition as at the time of purchase

• He intended to hand the firearms and ammunition into a gun shop in Campbelltown due to an amnesty and stated, “I done the wrong thing by havin’ them but I was…gunna do the right thing getting rid of them”

• His firearms licence was revoked in 2000

• He possessed the knuckledusters seized by police

22. It was not in issue that the applicant did not have any permit or licence required to possess lawfully the seized firearms or ammunition.

23. A sentencing assessment report interview was also tendered. This recorded that the applicant had inherited the majority of the firearms in 2006 from his deceased brother and father and that they were “too sentimental to dispose of”. The applicant was also recorded as saying that despite not having a gun licence he purchased three other firearms and that they were “good guns”. The particular firearms referred to are not identified. He claimed to have forgotten he had the knife concealed as a credit card, the railway detonators and the baton. He also stated that while his gun licence had expired several years ago, he enjoyed “hunting with licensed peers”.

24. The applicant also submitted a statement to the Court in the form of a handwritten letter. He stated that the credit card knife was identical to a box cutter, and that was the purpose for which it was used. He stated that the extendable baton was broken and that the knuckledusters were used for decoration. He claimed he obtained the railway detonators in 1996 when he worked in the Railway Corridor and that they were locked in a safe. In relation to the firearms, he reiterated that most were handed down from his father and brother and were of sentimental value. He was aware that he should not have had the firearms, and had intended to hand them in during a gun amnesty current at the time he was arrested. A couple of days prior to his arrest he had walked into Abela’s Gun Shop in Campbelltown with a friend to whom he claimed the police had spoken, and confirmed that he intended to hand the guns in. He did not, however, do so.

The seriousness of firearm offences

25. The objects of the Firearms Act 1996 include to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances; to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm; and to ensure that firearms are stored and conveyed in a safe and secure manner (ss 3(2)(a), (c), (e); see also R v Cromarty [2004] NSWCCA 54; (2004) 144 A Crim R 515 at [15]-[25], which includes reference to the second reading speech introducing s 51D in 2002).

26. Under s 51D(1), the possession of more than three firearms is an offence if the firearms are not registered and the person is not authorised by a licence or permit to possess them. The maximum penalty for that offence is 10 years imprisonment. Section 51D(2) makes it an offence to possess more than three firearms, “any one of which is a prohibited firearm or pistol”, if the firearms are not registered and the person not licensed.

27. In R v Brown [2006] NSWCCA 249 at [22], Spigelman CJ (Howie and Rothman JJ agreeing) described the maximum sentence for the offence under s 51D(2) as reflecting the role which “persons who are engaged in the warehousing of firearms for sale” play in the “perpetration by other criminals of the worst crimes of violence in this community”; and (at [20]) as confirming that the offence is one which the legislature regards with considerable gravity. In that case, the offender was the warehouser of a large number of prohibited weapons which he bought and sold to criminals. His substantive appeal against a sentence of 8 years with a non-parole period of 5 years (after a plea discount of 15%) was dismissed.

28. In the Chief Justice’s reasons, a comparison of the circumstances in that case to those in R v Cromarty [2004] NSWCCA 54; (2004) 144 A Crim R 515 was rejected. That case involved a “licensed gunsmith who had collected firearms over a considerable period. There was no evidence that he had any intention of selling the firearms into the black market”, and accordingly Cromarty was said to be materially different (Brown at [25], [26]).

29. Mr Cromarty was a long-term licensed gun dealer whose residence in a suburb of Newcastle was found to house “a large number of weapons, including prohibited weapons” which the police described as the “largest cache of weapons” ever taken from a private individual in Australia. All but a few of the weapons were in working order and were found with ammunition. The prohibited weapons included two automatic sub-machine guns (Cromarty at [10]-[12]). Two matters taken into account on a Form 1 were the possession of ammunition, and failure to keep a firearm safe contrary to Firearms Act, s 39(1)(a) (Cromarty at [3], [38]).

30. The Crown’s manifestly inadequate sentence appeal in relation to the s 51D(2) offence was upheld. The sentence originally imposed, following a 25% plea discount, was 3 years with a non-parole period of 2 years to be served (with other sentences) by way of periodic detention. This Court allowed the appeal, quashed the sentence and imposed a sentence of 4 years with a non-parole period of 2 years.

31. As Johnson J said in Taylor v R [2018] NSWCCA 50 at [59], an offence under s 51D(2) may be committed in a wide range of circumstances. That case, like the present one, did not involve any warehousing of firearms for sale (cf Dionys v R [2011] NSWCCA 272; (2011) 217 A Crim R 280, esp. at [50]) or holding of the firearms on behalf of someone else for use in their unlawful activities (cf El Jamal v R [2017] NSWCCA 243, esp. at [9], [20]).

32. In Taylor, the offender was in possession of a number of unregistered firearms without a licence. Some of the firearms were “prohibited”, a number were found loaded, and more than 500 rounds of ammunition was also found in his rented house on what was referred to as a “semi-remote rural location” (at [47]). The guns “had belonged to his father who had died the previous year” (at [14]). The offender acknowledged that he should have had a licence. None of the firearms was specifically secured. Some were found inside a wardrobe under a blanket.

33. The offender was sentenced for the s 51D(2) offence to imprisonment for 4 and a half years, with a non-parole period of 2 years and 6 months. (The sentence was imposed after a guilty plea. However, the report does not indicate what discount was provided for the utilitarian value of that plea.) His manifest excess appeal was dismissed, that sentence described as being “well open to the sentencing judge in the exercise of discretion” (at [71]).

25. In relation to the range of circumstances in which s 51D(2) might be engaged, Johnson J said (at [59]):

The issue of public safety is a factor of significance with respect to offences under this section. The purpose of s 51D is not limited to the punishment of criminals who warehouse and harbor illegal firearms. The purpose of the prohibition is broader. It extends to the stockpiling of weapons by persons without any further criminal intent: R v Cromarty (2004) 144 A Crim R 515; [2004] NSWCCA 54 at 531 [86]. This is because of the risk that a stockpile, if vulnerable, may inadvertently feed the market in the illegal supply of firearms: R v Cromarty at 531 [86].

35. The factors his Honour considered relevant to the assessment of the seriousness of the offending in that case included the offender’s significant criminal history for firearms offences; the immediate proximity of the ammunition to the firearms; the fact that all of the firearms were in working order and that none was stored securely, with several being loaded; and the fact that the offender was aware of the illegality of his behaviour (at [61]-[63]).

36. In R v Lachlan [2015] NSWCCA 178; (2015) 252 A Crim R 277, this Court (Gleeson JA, Johnson and Garling JJ) allowed a Crown appeal against the manifest inadequacy of two sentences for firearms offences, the principal offence being the unauthorised possession of more than three firearms, one of which was a prohibited firearm, contrary to Firearms Act, s 51D(2).

37. The four relevant firearms (three shortened shotguns and a shortened rifle) were in working order (Lachlan at [12]), two were loaded, and two were found in a sports bag with a substantial quantity of ammunition (at [46]). The agreed facts included that the offender was engaged in buying and selling firearms, ammunition and other weapons for financial gain, and it was not controversial that “shortened firearms have no legitimate purpose but by reason of ease of concealment are suited for serious criminal activity” (at [46]). The offender also had a previous conviction for similar related firearms offences.

38. The sentence appealed from was, after an early plea discount of 25%, a head sentence of 3 years and non-parole period of 2 years. On re-sentencing, after the 25% discount, the head sentence was increased to 5 years and 3 months (a starting sentence of 7 years before the discount) and the non-parole period to 3 years.

39. Most recently, in Weaver v R [2021] NSWCCA 215, the offender appealed, including on the ground of manifest excess, against an aggregate sentence imposed for two firearms offences, the principal one being an offence under s 51D(2). The offender was in possession of 31 unregistered firearms, 7 of which were “prohibited” firearms (at [36]). Some were loaded. The firearms were “stockpiled” on a rural property and had been for a considerable time (at [44]). Significantly, the evidence was that the offender’s purpose for stockpiling firearms was that he “believed in external threats” and accordingly had no intention of surrendering the firearms (at [43]). Finally, there was no suggestion that the firearms were connected with any trade in illicit substances or for that matter with any other illegal activity (at [43]).

40. The aggregate sentence imposed for the s 51D(2) offence and the second offence of possessing a shortened firearm contrary to Firearms Act, s 62(1)(b) was 4 years and 4 months imprisonment with a non-parole period of 2 years and 7 months. The sentencing judge had allowed a 25% discount. This Court (Garling J, with whom Simpson AJA and N Adams J agreed) was not persuaded that sentence, “although stern, was manifestly excessive”.

The sentencing judge’s assessment of objective seriousness

41. In relation to the Sequence 1 offence, the sentencing judge found that it was within the lower range of seriousness because the credit card knife was “an extremely sharp object which was easily concealed” (ROS [15], [16]). With respect to the Form 1A offences (which carried the same maximum penalty and standard non-parole period as the Sequence 1 offence), his Honour considered they would “lead to a longer sentence for Sequence 1” without elaboration (ROS [59]). The starting point for the indicative sentence was about 21 months imprisonment with a non-parole period of 14 and a half months in circumstances where the maximum penalty was 14 years imprisonment and a standard non-parole period of 5 years.

42. The sentencing judge described the objective seriousness of the Sequence 17 offence as “within the mid-range of seriousness, albeit at the lower end”. In so concluding, his Honour took account of the following matters as relevant to that assessment: that there were nine firearms in total, four of which were “prohibited” firearms, namely the pen guns which were easily capable of being concealed, and the two semi-automatic rifles; none of the firearms was registered; the applicant was not licensed, his licence having been revoked in 2000; the firearms were stored in the garage in a toolbox which, though locked, did not comply with the mandated storage requirements in Pt 4 of the Firearms Act and Firearms Regulation 2017 (NSW), r 28B; and the firearms were stored with quantities of ammunition, although none of the firearms was loaded when found (ROS [26]-[28]).

43. The sentencing judge recorded the lack of clarity surrounding the circumstances in which the firearms had come into the applicant’s possession. Some were acquired in 2006 after he inherited them from his deceased father and brother. Others, at least three, were subsequently purchased. Those inherited from his family had “sentimental value” (ROS [29]-[31]). The sentencing judge made no finding as to the extent to which the guns were being used rather than held by the applicant in the locked box (ROS [37]). As to whether the guns were in working order, his Honour proceeded on the basis that they were, having regard to the plea of guilty, the definition of firearms in s 4 of the Firearms Act, and the applicant’s statement referable to at least three of the guns that they were “good guns” and “purchased for hunting” (ROS [36]-[37]). Finally, whilst the agreed facts recorded the applicant as having stated that he intended to hand the firearms and ammunition to a gun shop in Campbelltown during a gun amnesty which was open when he was arrested, that did not occur and the guns remained in his possession (ROS [33]).

44. Most significantly for the applicant’s argument, the sentencing judge proceeded on the basis that there was no evidence that during any part of the 10 years that the firearms were possessed they had been used for any illegal purpose. The specific finding was “there is no evidence that the possession was associated with illegal activity on the premises and I accept that the firearms were not associated with any other illegal activity nor intended for sale” (ROS [26]).

45. Finally, at ROS [59], the sentencing judge noted that he had taken into account the three matters on the Form 1B in his assessment of the objective seriousness of the Sequence 17 offence.

The applicant’s subjective case

46. His Honour took into account as aggravating factors that the offences were committed whilst the applicant was on bail, and noted that he could not be said to not have a record or significant record of previous offending, as was conceded (ROS [41]-[42]).

47. His Honour found that the applicant was at a low risk of reoffending and had good prospects of rehabilitation, each mitigating the need for specific deterrence. He also considered that there was no particular need for the community to be protected by the applicant’s detention for any extended period (ROS [60]-[61]).

48. Finally, the sentencing judge was satisfied that the applicant regretted that the offence had occurred and its impact on him and his family (ROS [48]). In that respect, the offender, who was 49 at the time of sentencing, lived with his “supportive wife and children” and was self-employed (ROS [50]-[51]). However, he was not satisfied that contrition or remorse had been established, within the terms of the Crimes (Sentencing Procedure) Act, s 21A(3)(i) (ROS [49]).

Disposition of the appeal

49. Accepting, as is conceded, that the sentencing judge’s evaluations as to the objective seriousness of each of the Sequence offences are justified, there remains the question whether the aggregate sentence was manifestly excessive. In Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [12], Gleeson CJ acknowledged the potential relevance of comparative sentences for an appellate court when considering whether a sentence, in the case of an offender’s appeal, is manifestly excessive. In making comparisons for that purpose, it is necessary to articulate any underlying unifying principle. In assessing whether a sentence is manifestly excessive, the question is not whether the appellate court would have exercised its discretion in a manner different from that in which the sentencing judge did, or whether the sentence is markedly different from sentences that have been imposed in other cases. As was said in Wong by the plurality at [58], intervention is warranted “only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”.

50. The principal offence is the possession of the firearms, which was not associated with any other illegal activity. They were not intended for sale (cf Dionys, Lachlan) or held on behalf of someone else for use in unlawful activities (cf El Jamal). The firearms were the two pen guns inherited from his father and brother and the remaining low-calibre hunting rifles. The applicant’s possession of them for a period of over 10 years was undoubtedly a serious breach in circumstances where he appreciated that he did not have a licence and that it was unlawful to possess them. Although the firearms were kept in the locked box, there remained a residual risk that they might get into the hands of others. Fortunately, that risk did not come to pass in the 10 years that the guns were held.

51. What is clear, however, is that the offence would have been far more serious had it involved holding firearms for the purpose of sale or storage for reason that, in such a case, the risk that the firearms might end up in the hands of criminals, and be used to perpetrate crimes of violence, is foreseeable and a likely outcome of the possession.

52. The sentencing principles informing the sentences imposed in Cromarty (albeit before the standard non-parole period was introduced), Taylor and Weaver acknowledge and accommodate the distinction between the purpose of the possession addressed in cases such as Brown and Lachlan, and a purpose which does not of its nature increase the likelihood of the firearms being used by third parties in crimes of violence. That distinction is reflected in the lower range of sentences imposed in those cases as compared to Brown and Lachlan.

53. Recognising the same principles in the applicant’s case undoubtedly required that he spend time in prison, principally as a general deterrent to others from engaging in the same conduct. However, a starting sentence after the plea discount of 5 years and 9 months for the s 51D(2) offence was manifestly excessive, noting that the substantially equivalent sentences in Taylor and Weaver were 4 years and 6 months and 4 years and 4 months, respectively. That is so in circumstances where the applicant’s subjective case was strong. There was a low risk of reoffending, good prospects of rehabilitation, and a finding that he did not otherwise represent any risk to the community.

54. The sentence imposed on 16 September 2019 should be quashed. Notwithstanding the delay in prosecuting the appeal, the interests of justice require that the applicant be permitted to do so. That conclusion makes it necessary for this Court to re-sentence.

Re-sentence

55. There is no need for me to repeat the objective facts of the two offences and the Form 1A and Form 1B matters to be taken into account, or the subjective features of the applicant’s case. They are all dealt with by the sentencing judge in his remarks and for the purpose of resentencing, I adopt them as correct. I also make, for the reasons given by the sentencing judge, a finding of special circumstances.

56. There can be no doubt that a custodial sentence must be imposed, and I do not consider that it should be served other than by way of full-time imprisonment.

57. In accordance with Crimes (Sentencing Procedure) Act, s 53A(2)(b), the indicative sentence for the Sequence 1 offence, taking into account the plea discount and the Form 1A matters, is 12 months imprisonment; and for the Sequence 17 offence, again taking into account that discount and Form 1B matters, is 4 years 4 months.

58. Taking those sentences into account, the aggregate sentence to be imposed should comprise a non-parole period of 3 years from 12 July 2019 to 11 July 2022, and an additional term of 1 year and 10 months expiring on 11 May 2024. That means the applicant will be eligible for parole in July this year rather than July 2023.

59. In the result, the orders which I propose be made are:

1. Extend the time for filing of the application for leave to appeal to 1 March 2021.

2. Grant leave to appeal against the sentence imposed on 16 September 2019.

3. Allow the appeal.

4. Quash the sentence imposed on 16 September 2019.

5. Instead, impose an aggregate sentence of imprisonment of 4 years and 10 months with a non-parole period of 3 years commencing on 12 July 2019 and expiring on 11 July 2022, and an additional term of 1 year and 10 months expiring on 11 May 2024 during which the applicant shall be eligible to be released to parole subject to the decision of the State Parole Authority.

60. WALTON J: I agree with Meagher JA.

61. HARRISON J: I agree with Meagher JA.

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Decision last updated: 25 February 2022