Basedow v R
[2010] NSWCCA 76
•27 May 2010
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION:
Adam Joseph BASEDOW v R [2010] NSWCCA 76
FILE NUMBER(S):
2008/11752
HEARING DATE(S):
14 December 2009
JUDGMENT DATE:
27 May 2010
PARTIES:
Adam Joseph BASEDOW (Applicant)
REGINA (Respondent)
JUDGMENT OF:
McClellan CJatCL Simpson J Hidden J
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
2008/11752
LOWER COURT JUDICIAL OFFICER:
Woods ADCJ
LOWER COURT DATE OF DECISION:
3 December 2008
COUNSEL:
A Francis (Applicant)
F Veltro (Respondent)
SOLICITORS:
S O'Connor (Legal Aid Commission) (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)
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 JThursday 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 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.
In 1999 he was convicted of the unauthorised possession of two firearms and some other related charges, also arising from a search of his home. He was dealt with by a community service order, fines and a bond. The significance which his Honour placed upon those entries is one of the matters to be considered in the present application.
In cross-examination, the applicant acknowledged that he was aware of his legal obligations in respect of firearms, including the requirement to keep them secured in the manner required by the regulations. He also acknowledged that his previous convictions had put him on notice that the community regards the unauthorised possession of firearms very seriously, and that he was aware of the type of offences which might be committed if these weapons had come into the hands of criminals.
His Honour’s starting point for sentence was imprisonment for 4 years, which he reduced to 3 years in recognition of the applicant’s plea of guilty. Given that he had previously committed offences of a similar kind, his Honour was somewhat guarded about the risk of his re-offending but concluded, nevertheless, that his “chances now of rehabilitation are better …”.
The application
Counsel for the applicant, Ms Francis, submitted that his Honour had fallen into error in his approach to the applicant’s prior firearms offences and that, in any event, the sentence is manifestly excessive.
In relation to the previous convictions, his Honour said:
“In considering where in the level of objective seriousness this offence comes, I cannot ignore the offender’s clear refusal to ignore the rules that he very well knew applied to any collection of firearms. … So even if his offending can be seen at the lower end of objective seriousness, and being a passive collecting, he has lost any right to consideration of any special leniency through his prior record of possessing unauthorised firearms.”
Ms Francis submitted that by taking into account the applicant’s knowledge of the requisite provisions relating to firearms, and his choice to ignore them, as a matter bearing upon the objective seriousness of the offence, his Honour had failed to maintain the distinction between circumstances going to the seriousness of the offence, 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 the Crimes (Sentencing Procedure) Act 1999. The Court continued at [91]:
“If that distinction is respected then the spectrum of offences, and the identification of those which fall in the mid range of seriousness can be confined to matters which are directly or causally related to its commission.”
What the Court said in those paragraphs must be understood in the light of what was earlier said about the distinction between matters going to the objective seriousness of an offence and matters personal to the offender bearing upon the level of punishment. Their Honours said at [86]:
“Some of the relevant circumstances which can be said ‘objectively’ to affect the ‘seriousness’ of the offence will be personal to the offender at the time of the offence but become relevant because of their causal connection with its commission. This would extend to matters of motivation (for example duress, provocation, robbery to feed a drug addiction), mental state (for example, intention is more serious than recklessness), and mental illness, or intellectual disability, where that is causally related to the commission of the offence, in so far as the offender’s capacity to reason, or to appreciate 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 to the appropriate level of punishment.”
Ms Francis’s argument, as I understand it, was that the applicant’s knowledge of the unlawfulness of his conduct could not be said to be causally related to the commission of the offence, so as to bear upon its objective gravity. On the other hand, the Crown prosecutor in this Court argued that that knowledge was embraced by the expression “mental state” in that passage from Way and, accordingly, was relevant to objective gravity. The mental state of the applicant, as he put it in written submissions, was that he “knew full well of his obligation to be licensed and to keep firearms in a safe manner, and that he chose to deliberately and flagrantly ignore those obligations …. .”
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 the respondent’s objective criminality, Kirby J said that it was “important that Mr Cromarty knew that he was in breach of the law”, his conduct having been described by the sentencing judge as “a flagrant breach”.
It does not appear that the point taken by Ms Francis was argued in Cromarty. In the present case it must be understood that what his Honour found to be relevant to the objective seriousness of the offence was the applicant’s knowledge of the illegality of his behaviour. It was not his prior convictions for firearms offences as such, although they may have been the source of that knowledge. Viewed in that way, it is not apparent that his Honour fell into error. The offence would have been complete without knowledge that possession of the weapons was against the law and in ignorance of the policy considerations behind that law. The fact that it was committed with that knowledge could fairly be seen as increasing its objective gravity. The knowledge might not be causally related to the commission of the offence, but it could be said to be “directly” related: Way at [91] (cited above).
All that said, this is a matter which may be important to resolve in another case, but not in this one. In the circumstances of the present case, the point is so fine as to be insignificant. His Honour still found the offence to be in the lower range of objective gravity, and Ms Francis acknowledged that the applicant’s awareness of the illegality of his behaviour remained a matter bearing upon the appropriate punishment. The distinction she sought to draw could not have affected the sentence his Honour determined in such a way as to provide a basis for this Court’s intervention.
Ms Francis also challenged his Honour’s reasoning, in the passage of his remarks set out above, that although the offence was at the lower end of objective seriousness, the applicant’s previous convictions for firearm offences deprived him of “any special leniency”. She argued that he remained entitled to a significant measure of leniency, given his generally creditable background and the fact that this offence was not committed with any criminal intent. However, those were matters which his Honour expressly took into account. He was saying no more than that the applicant was not entitled to any further measure of leniency because 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.
As to whether the sentence is manifestly excessive, it is necessary to have regard to the policy which informs the firearms legislation. As his Honour correctly put it in his remarks:
“The policy of the legislature for firearms is to deter and punish unauthorised possession of firearms per se and to ensure that there is no unauthorised or unnecessary proliferation of firearms, which could be used to threaten and injure people, and to deter people who might be tempted to use firearms against others. The use of and dealing with firearms in our society is a privilege and strict regulation is needed to ensure general public safety.”
Section 51D, introduced into the Firearms Act in 2002, was examined by Kirby J in R v Cromarty (supra) at [23] – [25]. Kirby J quoted some extracts from the speech of the Minister in introducing the amendment, which emphasised the community’s concern about firearm related crime, referred to the enactment in the previous year of “tougher firearm trafficking laws designed to inhibit the illegal supply of firearms,” and asserted that the new section was “a further strengthening of our laws”. It would mean, the Minister said, that “criminals warehousing illegal guns for sale on the black market will be liable to up to 20 years in gaol if the firearm is prohibited or is a handgun.”
Later in his judgment, Kirby J said:
“… although the primary object of s 51D, introduced in 2002, may have been the punishment of criminals who warehouse illegal firearms, the objective was, I believe, broader than that. The measures, as the Minister announced in his Second Reading Speech, were ‘designed to inhibit the illegal supply of firearms’. The purpose of the amendments extended to the stockpiling of weapons, as happened here, where that stockpile was vulnerable and, if violated, may feed the market in the illegal supply of firearms.”
In Cromarty, the respondent had pleaded guilty to an offence under s 51D(2) and four other related offences arising from his possession of a very large number and variety of firearms and other material, including ammunition and silencers. Kirby J recorded at [11] that police had described it as the “largest cache of weapons ever taken from a private individual in Australia.” They were not secured in accordance with the regulations. However, rather like the present case, the sentencing judge found that his possession of them was not for the purpose of profiting from their illegal trade but, rather, was the “result of a passion and obsession with firearms as well as other intricate and precision machinery and an almost morbid unwillingness to part with them, knowing that to do so would see them destroyed.” He also found that the respondent “was not a person who in any sense could be described as a criminal or an associate of criminals and certainly not someone who was prepared to engage in the illicit trade in firearms.”: [42] – [43].
Notwithstanding those findings, the Court concluded that sentences imposed in the District Court, to be served by way of periodic detention, were manifestly inadequate. The respondent was re-sentenced to terms of full-time imprisonment aggregating 4 years with a non-parole period of 2 years.
Ms Francis sought some comfort in the outcome of that case, the objective facts of which were considerably more serious than the present case. Yet, she pointed out, that respondent’s sentence was only 1 year greater than the applicant’s, and their non-parole periods were the same. However, as she acknowledged, Cromarty was decided before the introduction of standard non-parole periods. Moreover, the Court exercised restraint in re-sentence in recognition of the 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.
As I have said, his Honour took into account the subjective matters favouring the applicant, including the fact that the offence did not in any way demonstrate involvement in a criminal milieu. He also had proper regard to the applicant’s previous convictions for firearm offences, giving them no more weight than they deserved. No doubt, the sentence is severe for a person of the applicant’s background and general good standing. However, in the light of the maximum sentence and the standard non-parole period, it cannot be said to be outside the bounds of the legitimate exercise of discretion.
Since preparing this judgment I have read the brief judgments of McClellan CJ at CL and Simpson J. I cannot adopt their Honours’ assertions that this sentence is markedly lenient. I express no view about that matter. Whether a pattern of sentence for the offence under s 51D(2) has emerged and, if so, where the present sentence lies within it, were not questions which were argued in this application. I have arrived at my conclusion on the basis only that the sentence has not been shown to be manifestly excessive.
I would grant leave to appeal but dismiss the appeal.
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LAST UPDATED:
27 May 2010
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