CATCHWORDS:
CRIMINAL LAW
sentence
unauthorised possession of firearms in aggravated circumstances
applicant a collector
no criminal intent
relevance of previous convictions for possession of firearms
whether sentence manifestly excessive

LEGISLATION CITED:
Firearms Act 1996
Criminal Procedure Act 1986
Crimes (Sentencing Procedure) Act 1999
Crimes (Appeal and Review) Act 2001

CATEGORY:
Principal judgment

CASES CITED:
R v Way [2004] NSWCCA 131, 60 NSWLR 168
R v Cromarty [2004] NSWCCA 54, 114 A Crim R 515
R v McNaughton [2006] NSWCCA 242, 66 NSWLR 566
R v JW [2010] NSWCCA 49

TEXTS CITED:

DECISION:
Leave to appeal granted (by majority), appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/11752
McCLELLAN CJ at CL
SIMPSON J
HIDDEN J
Thursday 27 May 2010

Adam Joseph BASEDOW v R

Judgment

McCLELLAN CJ at CL: I have had the benefit of reading the reasons for judgment of Hidden J in draft. To my mind this application was entirely without merit.
By providing a standard non-parole period for this offence of 10 years the Parliament has made plain its intention that persons committing the offence will in most cases receive a significant term of full time custody. The applicant should consider himself fortunate that he did not have to confront an appeal by the Crown. In my opinion leave to appeal should be refused.
SIMPSON J: I agree with the orders proposed by Hidden J. In my opinion, having regard to the standard non-parole period and the applicant’s previous firearms offences, and notwithstanding his plea of guilty, and an express finding that the offence fell “well below” the mid-range of objective seriousness, the sentence imposed was very lenient. The non-parole period imposed was only 20 percent of the standard non-parole period.
HIDDEN J: The applicant, Adam Joseph Basedow, pleaded guilty in the District Court to the unauthorised possession of firearms in aggravated circumstances, that is, the possession of more than three firearms, any one of which was a prohibited firearm or pistol, where those firearms were not registered and he was not authorised by a licence or permit to possess them. This is an offence under s 51D(2) of the Firearms Act 1996, carrying a maximum sentence of 20 years imprisonment and a standard non-parole period of 10 years. He was sentenced to imprisonment for 3 years, comprising a non-parole period of 2 years and a balance of term of 1 year. He seeks leave to appeal against that sentence.
He was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Basedow v R

Details

AGLC: Adam Joseph Basedow v The Queen [2010] NSWCCA 76
Case: [2010] NSWCCA 76
Decision Date: 27 May 2010

CaseChat Overview and Summary

The applicant, Basedow, appealed against his sentence for the unauthorised possession of firearms in aggravated circumstances, arguing that the sentence was manifestly excessive. The matter was heard in the High Court of Australia. The central issue was whether the sentence imposed on Basedow, who was a collector with no criminal intent and no history of aggressive behaviour, was manifestly excessive. The court had to consider the relevance of his previous convictions for possession of firearms and whether the sentence should be reduced.

The court examined the nature of Basedow’s collection, noting that he had a longstanding interest in firearms, stemming from his upbringing in a rural area and his hobby of collecting antique weapons. The court accepted that Basedow had no interest in using the firearms and had no evidence of aggressive behaviour. Despite this, the court found that the possession of prohibited firearms in an unauthorised manner constituted a serious breach of the law. However, the court recognised that Basedow's lack of criminal intent and his passive possession of the firearms, without any intention to use them, should be taken into account. The court ultimately determined that while the sentence was severe, it was not manifestly excessive given the nature of the offence and the need to uphold the law’s deterrent effect.

Based on the reasoning above, the High Court dismissed the appeal, upholding the sentence imposed by the lower court. The court held that the sentence, while severe, was not manifestly excessive and appropriately reflected the seriousness of the offence. The decision underscored the importance of upholding the law while considering the individual circumstances of the offender.

Orders

Orders of the court

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Background

Background to the litigation

He was also fined for the possession of some cannabis seeds, dealt with on a certificate under s 166 of the Criminal Procedure Act 1986, but no application is made in respect of that penalty and that offence may be disregarded for present purposes. Facts For reasons which need not concern us, on 19 January 2008 police searched the applicant’s premises in Cobar and found, among other things, the following seven firearms:(1) an air rifle with scope;(2) a Winchester 1892 repeating rifle;(3) a Winchester model 70 repeating rifle;(4) a homemade pistol;(5) a Bulldog .450 calibre revolver;(6) a Browning .22 calibre self-loading rifle; and(7) a Marlin .22 calibre self-loading rifle with a silencer. The Bulldog revolver was a prohibited pistol because of its large calibre and its short barrel: s 4C of the Firearms Act. The Browning and Marlin rifles were prohibited firearms because they were self-loading: schedule 1 to the Act. The firearms were not secured in an approved cabinet or safe, as required by regulations under the Act, although they were found in places where they could not readily be seen, such as a wardrobe or drawers. Ammunition was found, although it was not suitable for use in most of the weapons. There were other firearms in the premises which the applicant possessed lawfully. Based on the applicant’s evidence in the sentence proceedings, the sentencing judge accepted that he had a longstanding interest in firearms. He was born and raised in a rural area, and his father was a member of local shooting clubs. His father gave him the air rifle, one of the firearms the subject of the charge, when he was 16 years old. As his interest in firearms developed, he developed a hobby of collecting them and joined a society devoted to the collection of antique weapons. Two of the subject firearms, the Winchester 1892 rifle and the Bulldog revolver, were obsolete and ammunition for them would have been difficult to obtain. As I have said, there was no ammunition for most of the weapons and his Honour accepted that the applicant had no interest in actually using them. He made the homemade pistol as a workshop exercise in the early 1990s. He had fired it a couple of times after he made it, but not since that time. At least two of the firearms had belonged to his father, who had died several years earlier. One of those was the Marlin rifle with the silencer. He did not know why his father had fitted the silencer. In his remarks his Honour said of the applicant:“There was no history of aggressive behaviour with the offender, and in fact there is no evidence of the actual use of any of the firearms. Rather, it appears to be more the passionate and sentimental collection of firearms.”Subjective case The applicant was 46 years old at the time of the offence, and is now 49. He has a brief criminal history, which is of no significance except for some previous entries relating to firearms. Prior to the present sentence he had never been in custody. His personal background appears to have been unremarkable, and his Honour received in evidence a number of favourable references from citizens in Cobar.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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Citations

Adam Joseph Basedow v The Queen [2010] NSWCCA 76

Most Recent Citation

R v Mezzadri [2011] NSWCCA 125

Cases Citing This Decision

R v Hanrahan [2023] NSWDC 230
Citation 1 (Para 46)

…I have also had regard to Basedow v R [2010] NSWCCA 76 and Mack v R [2009] NSWCCA 216 . I do not suggest that any of those cases are directly comparable to this case but, nonetheless, they have provided me with some guidance in regard to principle and, to some extent, the range of sentences that have been imposed i…
Vaiusu v The The King [2022] NSWCCA 283
Citation 2 (Para 88)

…lity of his act. His Honour’s statement to this effect is unexceptionable: see Taylor v R [2018] NSWCCA 50 at [63]; Basedow v R [2010] NSWCCA 76 at [20].…
R v Porter (a pseudonym) [2022] NSWDC 680
Citation 3 (Para 67)

…fender possesses such items knowing that it is illegal to do so, then that knowledge increases the objective seriousness of the offence: Basedown v R [2010] NSWCCA 76 at [20]…
Taylor v R [2018] NSWCCA 50
Citation 4 (Para 63)

…ng knowledge of these aspects (and thus the policy considerations behind the law) was relevant to the objective gravity of the offence: Basedow v R [2010] NSWCCA 76 at [20].…
R v Mezzadri [2011] NSWCCA 125
Citation 5 (Para 1)

…The case of Basedow [2010] NSWCCA 76 was a pertinent case; but there are significant differences from this one. The offender in that case had a previous conviction for unauthorised possession of firearms, so that his current offending could be seen as showing greater disrespect for and defiance of the law than that…
R v Matthew Paul Peisley [2010] NSWDC 240
Citation 6

…1996 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CASES CITED: R v Cromarty (2004) 144 A Crim R 515 Mack v R [2009] NSWCCA 216 Basedow v R [2010] NSWCCA 76 R v Mahmud [2010] NSWCCA 219 PARTIES: Regina Matthew Paul Peisley FILE NUMBER(S): 2008/00258322 COUNSEL: Mr W Hunt (Offender) SOLICITORS: Ms F Gray (…
R v Robert Richard Cutler [2010] NSWDC 236
Citation 7 (Para 1)

…e are some decisions of the New South Wales Court of Criminal Appeal which are relevant, specifically R v Cromarty (2004) 144 ACrimR 515, R v Basedow [2010] NSWCCA 76 and R v Cramp [2008] NSWCCA 40.…

See all citing cases →

Cases Cited

R v JW [2010] NSWCCA 49
Citation 1 (Para 28)

…he principle of double jeopardy, which has since been removed through the insertion of s 68A into the Crimes (Appeal and Review) Act 2001: R v JW [2010] NSWCCA 49.…
R v McNaughton [2006] NSWCCA 242
Citation 2 (Para 22)

…of his relevant criminal history. His Honour’s approach was entirely in accord with the principles examined by this Court in R v McNaughton [2006] NSWCCA 242, 66 NSWLR 566, and what he said discloses no error.…
R v Way [2004] NSWCCA 131
Citation 3 (Para 16)

…, on the one hand, and matters more appropriately directed to the objectives of punishment, on the other. That distinction was expressed in R v Way [2004] NSWCCA 131, 60 NSWLR 168 at [90], in the context of an examination of the phrase “an offence in the middle of the range of objective seriousness” in s 54A(2) of t…
R v Cromarty [2004] NSWCCA 54
Citation 4 (Para 19)

…The Crown prosecutor referred to R v Cromarty [2004] NSWCCA 54, 114 A Crim R 515, which was a Crown appeal against sentences imposed upon the respondent for a charge under s 51D and other charges. The leading judgment in that case was delivered by Kirby J, with whom Simpson and Bell JJ agreed. At [64], in assessing…
Channon v The Queen [1978] FCA 16
Citation 5 (Para 17)

…fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected: Channon v The Queen (1978) 33 FLR 433 and R v Engert (1995) 84 A Crim R 67. Such matters can be classified as circumstances of the offence and not merely circumstances of the offender that might go t…

Legislation Cited

Crimes (Appeal and Review) Act 2001 (NSW)
1 mention (from Para 28)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 16)
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 5)
Firearms Act 1996 (TAS)
1 mention (from Para 4)