Brown v The King

[2024] NSWCCA 72

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Brown v R [2024] NSWCCA 72

Hearing dates:

28 February 2024

Date of orders:

15 May 2024

Decision date:

15 May 2024

Before:

Garling J at [1];
Wilson J at [2];
Cavanagh J at [89]

Decision:

(1) Extend the time in which to file the application for leave to appeal until 6 November 2023;

(2) Grant leave to appeal;

(3) Allow the appeal;

(4) Set aside the sentence imposed in the District Court of New South Wales on 3 March 2023 and, in lieu, impose an aggregate sentence of 5 years and 9 months imprisonment, to date from 20 January 2022, expiring on 19 October 2027, with a non-parole period of 3 years imprisonment, expiring on 19 January 2025.

Catchwords:

CRIME – appeals – appeal against sentence – four separate sets of offences – possess unauthorised pistol – appeal against sentence – where Crown did not elect to proceed on indictment for Table 2 offence but sentencing judge relied upon indictable maximum penalty instead of summary maximum penalty – Crown conceded error – resentence

Legislation Cited:

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1900 (NSW)

Criminal Appeal Act 1912 (NSW)

Criminal Procedure Act 1986 (NSW)

Firearms Act 1996 (NSW)

Cases Cited:

Attorney-General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518

Higgins v R [2020] NSWCCA 169

JG v R [2023] NSWCCA 33

Kentwell v R (2014) 252 CLR 601; [2014] HCA 37.

Martellotta v R [2021] NSWCCA 168

McDowall v R [2019] NSWCCA 29

Thorp v R [2022] NSWCCA 180

Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266

Category:

Principal judgment

Parties:

Brown (Applicant)
Rex (Respondent)

Representation:

Counsel:
K Averre (Applicant)
S Traynor (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for the Director of Public Prosecutions NSW (Respondent)

File Number(s):

2020/00356551
2020/00356734
2020/00356752
2022/00051582

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Crime

Date of Decision:

3 March 2023

Before:

Bright DCJ

File Number(s):

2020/00356551
2020/00356734
2020/00356752
2022/00051582

JUDGMENT

1. GARLING J: I agree with the orders proposed by Wilson J and with her Honour’s reasons.

2. WILSON J: The applicant, Drew Brown, seeks an extension of time and leave to appeal against an aggregate sentence imposed by her Honour Judge Bright sitting at the District Court at Gosford on 3 March 2023. The sentence was imposed with respect to six offences, with a further two crimes taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The offences were committed by the applicant during four separate incidents that took place from September 2020 to January 2022. The applicant pleaded guilty to all offences at an early stage and received a 25% discount for his pleas. Her Honour imposed an aggregate sentence of 6 years imprisonment, with a non-parole period of 3 years. As that ratio of sentence demonstrates, there was a finding of special circumstances. The sentence commenced on 20 January 2022 and the applicant will be eligible for parole on 19 January 2025.

3. The (abbreviated) sequence (“Seq.”) numbers for each offence, relevant maximum penalties including any standard non-parole period (“SNPP”), and indicative sentences announced are as follows.

Seq.	Offence	Maximum	Indicated Sentence
H10…90/1	Accessory after the fact to armed robbery with an offensive weapon Sections 97 and 347 Crimes Act 1900 (NSW)	14 years No SNPP	2 years 3 months
H76…12/1	Aggravated break, enter and demand money with menaces Section 112(2) Crimes Act 1900 (NSW)	20 years 5 year SNPP	3 years 18 months NPP
H76…24/4	Enter land with intent to commit larceny Section 114(1)(d) Crimes Act 1900 (NSW)	District Court maximum 7 years imprisonment Local Court maximum 2 years imprisonment	Taken into account on a Form 1 in relation to H76…512/1
H76…12/2	Intimidation Section 13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW)	District Court maximum 5 years and/or $5500 fine Local Court maximum 2 years and/or $5500 fine.	Taken into account on a Form 1 in relation to H76...12/1
H11…90/5	Possess unregistered and unauthorised pistol Section 93I Crimes Act 1900 (NSW)	14 years on indictment 2 years dealt with summarily	3 years
H11…90/2	Accessory after the fact to stealing Sections 94(b) and 350 Crimes Act 1900 (NSW)	5 years	9 months
H11…90/3	Common assault Section 61 Crimes Act 1900 (NSW)	2 years	9 months
H11…90/5	Common assault Section 61 Crimes Act 1900 (NSW)	2 years	9 months

4. One ground is advanced, expressed as follows:

Ground 1: The sentencing judge erred in failing to deal with the applicant’s s 93I(2) offence summarily.

5. The ground refers to the penalty indicated for one of the eight offences dealt with by the sentencing court, an offence of possessing an unauthorised pistol in a public place in circumstances of aggravation, contrary to s 93I(2) of the Crimes Act 1900 (NSW), sequence H1107188790/5 above. This offence is one listed in Table 2 to Schedule 1 of the Criminal Procedure Act 1986 (NSW) and is to be dealt with summarily unless the prosecutor elects to proceed on indictment. No election was made in the applicant’s case, and the charge came before the sentencing court on a certificate pursuant to s 166 of the Criminal Procedure Act as a “related offence”. In those circumstances, the maximum penalty applicable was one of 2 years imprisonment, rather than the 14 year maximum that would have applied had the charge been prosecuted on indictment. In determining the indicative sentence, the sentencing judge applied the indictable maximum penalty, rather than the summary maximum penalty, announcing an indicative term of 3 years imprisonment.

6. The Crown fairly concedes that it is open to this Court to conclude that the sentencing court fell into error, and consider resentencing the applicant: Kentwell v R (2014) 252 CLR 601; [2014] HCA 37.

7. Although, in the circumstances of this case, it is surprising that no election was made to prosecute the charge on indictment, that being the case the indicative maximum penalty announced by her Honour exceeded the available maximum penalty and error is established. The error likely made little or no practical difference to the aggregate sentence imposed by the sentencing court because of the high degree of notional concurrency allowed to the applicant in the aggregate sentence, but this Court is nevertheless required to proceed to re-sentence the applicant, unless not of the opinion that some other sentence, whether more or less severe, is warranted in law: s 6(3) Criminal Appeal Act 1912 (NSW).

8. Given that, it is appropriate to grant an extension of time to the applicant in which to file his application for leave to appeal, and grant leave to appeal. The remaining question is that of re-sentencing.

The District Court Proceedings

The Crown Case

9. The Crown case proceeded on the basis of an agreed statement of facts, with the applicant’s criminal and custodial histories and some information about prior offending also tendered. Preliminary ballistics reports concerning the pistol the subject of the s 93I offence was also provided to the sentencing judge by both the Crown and the applicant. The Crown’s material was accompanied by a standard coversheet which recorded the offences and statutory maximum penalties. For the offence contrary to s 93I(2) of the Crimes Act, the maximum penalty noted was the indictable maximum of 14 years imprisonment, rather than the applicable 2 year maximum. Although the s 166 certificate formed part of the sentencing court’s record, no reference was made on the cover sheet to the status of the s 93I offence as one that was before the court as a related offence. The Committal Notice itself records the s 93I(2) offence as both a committal offence and a “related” offence, no doubt contributing to the error with respect to the penalty applied. Both the Crown and the applicant conducted their respective cases without reference to the summary nature of the charge (as it had been prosecuted), further leading the sentencing court into the error in the exercise of the sentencing discretion complained of by the applicant.

10. The agreed facts set out the circumstances of each of the four incidents from which the charges arose. What follows is extracted from the relevant documents.

The 17 September 2020 Incident

11. On the morning of 17 September 2020, the applicant met with two men at his home at Mannering Park. He drove one of the men from there to Chain Valley Bay, with the second man travelling to the same location by motorbike. On arrival, the applicant’s two associates both got aboard the motor bike and rode away; the applicant returned to his home. At 11:25am, the applicant’s two associates went to a bottle store; both wore motor bike helmets, and one was armed with a machete. The store attendant was threatened with the machete, which was waved in her face. She was directed to take one of the robbers to the store’s till and safe. The second robber told the attendant that she would not be hurt; he also asked about the safe. He began to load cigarettes from a store display into a bag. When the attendant managed to trigger an alarm, the men became angry, and one ripped the till out. The attendant was warned not to touch anything and not to telephone anyone. The two men then left with a quantity of cigarettes and approximately $1500 in cash. Within ten or so minutes of leaving the bottle shop the robbers arrived at the applicant’s home and advised him that they had committed the robbery. The applicant allowed the robbers to store the motorbike at his home (with his assistance to them extending from 17 September until 9 October 2020, when the police recovered the bike the applicant had hidden for them). The applicant drove the two men to Bluff Point to assist them to escape the area. When police posted information looking for a car that matched the description of the applicant’s car, the applicant changed his number plates through Service New South Wales and made inquiries about changing the appearance of his car by “wrapping”, and the addition of tinting and graphics. On 9 October 2020, police found the car at the applicant’s home, together with the motor bike the robbers had used.

12. In relation to this incident, the applicant was charged with accessory after the fact to armed robbery with an offensive weapon contrary to ss 97 and 347 of the Crimes Act, sequence H1076713890/1 above.

The 10 December 2020 Incident

13. Sometime after 12am on 10 December 2020, the applicant and another male approached a home in which two adults and their 19 month old grandchild were asleep. The applicant and the other man bent the mental frame of a window in the loungeroom that had been closed over an air conditioning vent, and forcefully removed the flyscreen to gain access to the premises. One of the occupants, Mr Jantz, awoke and, going to the window and pulling back the curtains, saw the applicant and his associate standing outside. Both were wearing black balaclavas and hooded jumpers, and an offender was armed with an iron bar about 50 centimetres long. He yelled, “Open the fucking door”. Mr Jantz called out to his wife, Ms Borg, to call the police.

14. The applicant, who was armed with a metal pole, kicked the air conditioning vent into the house and started to climb through the window; his arm, leg, head, and upper torso entered the premises. The applicant pointed the pole at Ms Borg and begun to swing it about, knocking over Christmas ornaments and floor speakers. He demanded money. Ms Borg told him there was no money, but the applicant threatened to smash her car, then parked in the driveway, if she did not hand over money. When Ms Borg called for her dog, the offenders fled.

15. In a later telephone call intercepted by police the applicant spoke of this incident, describing how he had threatened Ms Borg, “Where the fucks the money then cunt, give me a stack or I’m gunna smash your Ford ranger up”. His fingerprints were found on the window frame at the point of entry.

16. This incident was reflected by charges of aggravated break, enter and demand money with menaces contrary to s 112(2) of the Crimes Act 1900, sequence H76971512/1, and intimidation (of Ms Borg), sequence H76971512/2 [1] , contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The latter was ultimately placed on a Form 1 document and taken into account on sentence for the s 112(2) offence.

The 12 December 2020 Incident

1. Note that there is an inconsistency between the s 66 certificate, which records H76971512/2 as an offence of intimidation of Mr Janz, and the charge sheet for that reference number, which avers an offence of intimidation of Ms Borg. The charge sheet must be preferred as correct.

17. At approximately 4am on 12 December 2020, the applicant and two other males entered a rural property. The three men, armed with a firearm, baseball bat and a pole, walked around the back entrance and pool area. Each wore a hood and all had their faces concealed; the applicant was wearing gloves. It was he who was initially armed with the shortened firearm. The applicant and another male entered a vehicle parked in the driveway and searched it; they later went into a garage to the property. The occupants were awakened when their dog started barking. The man armed with the baseball bat knocked on the front door. The occupants could see via CCTV in operation on the property that there was a person with his face concealed at the front door with two others nearby. One of the occupants turned on an outside light and the three offenders ran away. On 16 December 2020 police executed a search warrant at the applicant’s home and found the shortened firearm used by the applicant during this incident.

18. The applicant was charged with an offence of enter land with intent to commit larceny contrary to s 114(1)(d) of the Crimes Act, sequence H76913924/4. This was the second of the two offences dealt with by the sentencing court pursuant to s 33 of the Crimes (Sentencing Procedure) Act, being taken into account against the s 112(2) Crimes Act offence of 9 December 2020, sequence H76971512/1. At the time of the commission of the offences of December 2020 the applicant was subject to conditional liberty, being four concurrent intensive corrections orders [2] and a community corrections order.

    2. Referred to in the remarks on sentence as two orders, no doubt because of the concurrent nature of two sets of two orders.

19. On 29 March 2022 the applicant pleaded guilty to the 2020 offences in the Gosford Local Court and was committed for sentence.

The 31 January 2022 Incident

20. On 31 January 2022, the applicant contacted Mr Gallo asking to buy cocaine. Mr Gallo, who did not in fact have any cocaine, arranged to meet the applicant nevertheless because an associate of his wanted to speak to him. The applicant agreed to meet Gallo at an underground carpark. The applicant was driven there by his girlfriend Ms Howe; he was accompanied by a friend, Mr Childs. Mr Gallo attended the carpark with his friend Mr Smith.

21. The applicant and Childs approached the parked vehicle in which Gallo and Smith had arrived. Mr Childs got into the rear of the vehicle; the applicant stood by the passenger door. There was some conversation, after which Gallo got out of the car. The applicant asked him for “the stuff”. Mr Gallo said he did not have it, and told the applicant, “You gotta sort out [3] all the people you have robbed”. The encounter became hostile, with Childs displaying a knife and grabbing a wallet – which was empty – from the centre console of the car; the applicant produced a pistol from the waistband of his trousers. He pointed the weapon at Smith, allowing Childs to get away with the wallet. The applicant thereafter directed the pistol at Gallo, who feared he would be shot. The applicant and Childs ran off towards the waiting car, driven by Ms Howe. This was observed by a witness who saw the pistol in the applicant’s hand.

    3. In the remarks on sentence this is recorded as “sell out”, which appears to be a transcription error.

22. Mr Gallo and Mr Smith pursued them and, when Childs tripped and fell just outside the entrance doors to the Lake Haven Shopping Centre, Smith caught him and punched him to the face. A fight involving Childs – who was armed with a knife – Smith and Gallo ensued, in which Smith received a wound to his hand. The applicant went back to assist Childs, openly brandishing the pistol. Mr Gallo taunted him to pull the trigger; Childs lashed out with the knife stabbing Smith in the shoulder. The applicant and Childs fled. This melee was caught by the closed-circuit cameras operating at the shopping centre entrance, the recording of which was tendered to the sentencing court (Ex. B).

23. Although the fight between Childs and Smith is largely off camera, with only flailing legs and arms visible, the applicant can clearly be seen running into the shopping centre through the entrance doors, stopping to look back, and then, brandishing the pistol, running back to assist Childs. For about forty seconds he was recorded at the entrance doors to the shopping centre, running to and from the scene of the fight, very clearly holding up and pointing the pistol towards the scene of the fight. Other shoppers, including a couple with a shopping trolley and a baby in a pram, plainly observing the fight and the applicant with the pistol clearly visible in his right hand, are recorded as they rushed to get away to safety. A moment later Childs, a very large man, moved fully into the camera frame as he followed the applicant into the shopping centre, with what is a sizeable knife held in his right hand.

24. On 3 February 2022 police searched the vehicle of the applicant’s girlfriend, Ms Howe, finding a firearm underneath the front passenger seat. An expert confirmed that the gun was both an airgun and a pistol, as those terms are defined in the Firearms Act 1996 (NSW).

25. The applicant was arrested on 31 January 2022 and charged with accessory after the fact to stealing (of the wallet) contrary to ss 94(b) and 350 of the Crimes Act, sequence H1107188790/2; two counts of common assault (for threatening each of Smith and Gallo with the pistol) contrary to s 61 of the Crimes Act, sequences H1107188790/3 and H1107188790/5 respectively; and the offence of possession of an unregistered pistol in a public place contrary to s 93I(2) of the Crimes Act, the offence the subject of the appeal. At the time of the commission of these offences the applicant was subject to, at least, conditional liberty. [4]

    4. In fact, it appears that the applicant was at large, having breached bail allowed to him by the Supreme Court for the 2020 offences, by leaving a residential rehabilitation facility at which he was required to reside. A charge sheet in the material before the Court demonstrates that he was brought before the Local Court when arrested for the January 2022 offences for breaching bail, in addition to the fresh charges. However, since neither party have referred to that feature, and the sentencing judge concluded only that the applicant was at conditional liberty (a more favourable conclusion to him) I have also treated the applicant as being subject to conditional liberty.

26. On 1 March 2022, the applicant pleaded guilty to these charges in the Local Court. All of the charges with the exception of the s 93I(2) offence were committed for sentence to the District Court; the s 93I(2) matter was transferred to the same court pursuant to s 166(1)(b)(ii) of the Criminal Procedure Act, listed as “s 166 related” on the charge certificate.

20. Of the balance of the Crown’s case the most significant evidence is that concerning the applicant’s criminal history. At the time of sentencing the applicant was aged 23 years. The first entry in his criminal history is from June 2018, when the applicant was aged 18 years. Although the offence is one of possessing or using a prohibited weapon without a permit, the applicant was dealt with pursuant to s 10 of the Crimes (Sentencing Procedure) Act, without conviction. Later in 2018, concurrent 12 month community corrections orders (“CCOs”) were imposed for offences of destroying property and intimidation. Both orders were made subject to the supervision of the Community Corrections Service. Further concurrent orders, for 9 months, were imposed in October 2019 when the applicant was called up for breaching the initial CCOs; with identical penalties imposed in September 2020 when the applicant breached the second set of CCOs and was again called up.

21. In April 2019, a 12 month conditional release order (“CRO”), subject to the supervision of the Community Corrections Service, was imposed upon the applicant for an offence of contravening an apprehended domestic violence order (“ADVO”). He was called up for breaching the CRO (by further offending) about 6 months later, with a further CRO imposed by way of penalty, for a period of 12 months and again, with supervision. A further call-up in September 2019 was penalised by a s 10A conviction.

22. The offences that led to the first of those call-ups were further domestic violence offences, being two counts of intimidation and one of using a carriage service to menace. Two concurrent 12 month CCOs were imposed for the intimidation matters, with a 12 month recognizance imposed for the Commonwealth offence.

23. In January 2020 the applicant was placed on an intensive corrections order (“ICO”) for 9 months, with supervision and an order for abstention from alcohol and drugs, for an offence of intimidation; whilst a further 6 month ICO was imposed for another offence of contravening an ADVO.

24. In September 2020 the applicant was called-up for breaches of the two CCOs imposed in 2018, and an aggregate ICO for 8 months with supervision and abstention orders was imposed.

25. A term of imprisonment of 9 months was imposed for another contravention of an ADVO in February 2021, although the sentence was varied on appeal to the extent that a non-parole period of 6 months was fixed, with the overall term unchanged.

26. Further convictions were recorded in 2022. In March 2022 the applicant was sentenced to a term of 6 months imprisonment dating from 31 January 2022 for an offence of contravening an ADVO. On 11 October 2022 he was sentenced to an aggregate sentence of 18 months imprisonment with a non-parole period (“NPP”) of 10 months, to date from 11 October 2022, for two counts of intimidation and intentionally distributing an intimate image without consent. A separate term of 6 months, to date from 11 April 2023, was imposed for using a carriage service to menace; whilst a term of 2 months imprisonment was imposed wholly concurrently for another such offence. (Her Honour dealt with severity appeals against the last two sets of matters, dismissing both appeals.)

27. The applicant’s custodial history referable to this offending was complex. He was arrested for the first three sets of offences – those of 17 September 2020, 9 December 2020 and 12 December 2020 – on 16 December 2020 and remanded in custody. Whilst bail refused for the 2020 offences, the applicant served a 9 month term of imprisonment with a NPP of 6 months; the sentence commenced on 16 December 2020 and the NPP expired on 15 June 2021.

28. On 23 November 2021 he was allowed bail by the Supreme Court for the 2020 offending, with a condition requiring him to reside at a residential drug rehabilitation programme in a Newcastle suburb. Having entered bail on 24 November 2021, the applicant remained at the rehabilitation facility for two days before he left. (As noted, it appears he was at large in breach of his bail from 26 November 2021 until his arrest for the offences of 31 January 2022 on that day.)

29. When on remand for the 31 January 2022 offences, and the earlier 2020 matters, the applicant served further unrelated sentences, being a term of 6 months imprisonment for breaching an ADVO, commencing on 31 January 2022; and the 10 month NPP imposed on and from 11 October 2022 for other domestic violence offending. As at the date of the sentence hearing on 3 February 2023, the 6 and 2 month terms for using a carriage service to menace were still to commence (on 11 April 2023).

30. The Crown did not provide a total period of pre-sentence custody to the sentencing court; the applicant contended that it was 5 months and 18 days, later corrected to a period of 8 months and 12 days in custody, solely referable to these matters. The basis of the calculations was not given. The applicant’s custodial history does not assist with the calculation. The sentencing judge determined the matter by calculating it herself and ultimately allowed a considerable degree of concurrency between the unrelated sentences and that imposed for the present matter. Neither party took issue with the approach of the sentencing judge, which gave a commencement date for the sentence of 20 January 2022.

The Subjective Case

38. The applicant did not give evidence before the sentencing court.

39. He relied upon a report from a psychologist, Diana Grujoska, prepared on 21 September 2022 for use in the proceedings on sentence. To prepare her report Ms Grujoska had access to the applicant’s criminal history and the facts for the offences of 17 September 2020 and 12 December 2020. It appears she did not have any information concerning the offences of 9 December 2020 and 31 January 2022. The interview with the applicant was conducted by audio-visual link on 16 June 2022. He was 22 at the time.

40. The applicant gave a history of a stable upbringing in the Central Coast area, where he was heavily involved in sporting activities. He described his mother as loving, involved, and supportive. His father had also been supportive, being involved with the applicant’s sports, and the applicant enjoyed a good relationship with him, albeit at a distance after his father began working remotely. The applicant’s sister and brother are both employed in meaningful work; they remain supportive of him notwithstanding some concern at his lifestyle.

41. The applicant told Ms Grujoska that his positive childhood was disturbed by two significant events, the death of his grandmother and a sexual assault of which he was the victim. The latter occurred at a juvenile detention centre when the applicant was attending a sports day there as part of his school’s sports team. He said that he was assaulted by a male officer in a toilet block; he expressed the belief that a teacher had “set him up” to be assaulted. He did not report the assault (until shortly before the sentence hearing) but felt that it had a significant negative impact upon him, with his conduct at school deteriorating. He began to use cannabis. Prior to the assault the applicant said that he was a good student, doing well academically and in sports. After it, his grades declined, and he was expelled in Year 10 for truanting and poor behaviour.

42. He completed two years of a carpentry apprenticeship, but his drug use escalated and he left his job. After that he worked as a roofer, but his increasingly heavy multi-drug use caused him to lose that employment. A seven year relationship with another drug user, against whom the domestic violence offences were committed by the applicant, further complicated his situation.

43. The applicant has attempted drug rehabilitation, being bailed to a residential programme in 2021, but had not been able to cease drug use until his arrest for the 31 January 2022 offences, after which he told Ms Grujoska that he remained abstinent.

44. Ms Grujoska reported the applicant’s expressions of remorse for his offending and that he attributed the offending to his drug use and disconnection from family. The applicant said that he intended to pursue drug rehabilitation and, upon release, live with his brother, resume sport and employment, and seek treatment for the trauma that affects him.

45. On the basis of the history she was given by the applicant and the symptoms he reported, Ms Grujoska concluded that he has a probable Post Traumatic Stress Disorder (“PTSD”) and high dependence upon the use of substances. The former meant that a custodial environment would be particularly onerous. She believed him to be motivated to deal with his substance abuse and recommended that he undertake rehabilitative programmes if in custody, or when in the community. She thought his expressions of remorse and willingness for change to be genuine.

46. The applicant also tendered evidence of his attendance at various custodial courses, and testimonials from friends and family. In May 2021 the applicant completed the CONNECT resilience programme, involving modules addressing such topics as acceptance and communication skills.

47. In a letter to the court, the applicant’s brother (“Mr Brown”) stated that the applicant gave up sport and employment when he turned 20 and started associating with new friends of whom Mr Brown did not approve. Since his brother’s incarceration, Mr Brown had observed improvements in the applicant’s attitude, and believes the applicant is motivated to return to sport and employment upon release. Mr Brown, who operates his own tiling business, intends to employ the applicant upon release, and the two will reside at the family farm. The applicant’s mother, father and sister confirmed the availability of accommodation at the family home, where he will be supported by family. An aunt, Ms Wild, had also observed a pronounced deterioration in the applicant when he began associating with a new group of friends, after which he began using drugs and stopped working. Ms Wild is also able to assist the applicant with employment upon his release, as her husband operates a concreting business. A family friend, Ms Worrell, had noted the same change in the applicant in the few years prior to sentence after he began to socialise with a different group of friends. She too felt he had returned to his former self since his incarceration.

48. The final evidence tendered by the applicant was a letter to the sentencing court in which the applicant noted that, since being remanded in custody, he had been assaulted, requiring hospital treatment for broken bones; had been attacked by an assailant wielding a knife; had contracted the COVID-19 virus, and spent 133 days locked in his cell with no access to things such as television; and had been unable to attend the funerals of family members who had died during the period when he was on remand (or serving unrelated sentences).

Submissions on Sentence

49. The sentencing judge dealt with this matter in the midst of summing up a trial to a jury in an unrelated matter. The jury having asked to go home prior to 4pm, her Honour commenced this matter at 3:41pm on 3 February 2023. No doubt mindful of the time, the parties tendered the evidence and largely relied on written submissions, with only brief oral submissions made.

50. Counsel then appearing for the applicant agreed with the Crown’s assessment of the gravity of each offence, with the exception of the accessory after robbery whilst armed, which the Crown placed “at about the mid-range of objective gravity”, whilst the applicant submitted it fell “about there or just below” (a largely meaningless difference: see JG v R [2023] NSWCCA 33 at [99] - [102]; Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 at [82]; Martellotta v R [2021] NSWCCA 168 at [65] - [66]; McDowall v R [2019] NSWCCA 29 at [35] – [37]; Higgins v R [2020] NSWCCA 169 at [78]; Thorp v R [2022] NSWCCA 180 at [86]). Counsel accepted in oral submissions that, because the applicant had failed to take up the opportunities allowed him by other courts, and the Supreme Court in granting him bail to a rehabilitation facility, her Honour “could not find good prospects of rehabilitation for him”. Referring to the CONNECT programme the applicant had undertaken in prison counsel submitted that, whilst “I don’t think he’s got at this point an insight into anything that’s happened”, it was “a start”. It was submitted that her Honour would have regard to the psychological report in evidence and give ameliorating weight to the prospect of the applicant suffering with PTSD following childhood abuse.

51. The Crown responded briefly, pointing out that the psychological report should be treated with circumspection given that the author’s opinion was dependent upon the applicant’s self-report and the information in it as to the applicant’s decline following childhood abuse was contradicted by the accounts of those who knew the applicant, each of whom attributed his descent into drug use to his association at about age 20 with anti-social friends.

52. The only issue before the sentencing court was with respect to the pistol the subject of the s 93I(2) offence. In his short oral submissions, counsel for the applicant (wrongly) described the pistol as a “toy”. Her Honour queried that description and that of “imitation” used in the written submissions and asked for further information. She was told (very unhelpfully, and in part wrongly):

“What the Crown would say, and I think my friend would accept in evidence, that it contained a magazine that was empty at the time it was found by police, that it has a trigger and a slide that works like a gun but the Crown would not pose to ask your Honour to accept that there is positive evidence that it’s capable of causing injury if loaded, if in fact it was loaded, because it wasn’t founded in that way.”

53. Ultimately, the matter was resolved by the Crown filing with leave prior to the imposition of sentence a further ballistics certificate, which stated that when the pistol was seized it had an empty gas reservoir. When the gas reservoir was filled on testing, the pistol was able to be discharged. It was thus in working order.

The Remarks on Sentence

54. Having recounted the agreed facts of the offences the sentencing judge observed that they disclosed a high order of objective seriousness. Her Honour set out the facts and circumstances relevant to the assessment of the gravity of each of the offences and concluded that:

1. The offence of accessory after the fact to armed robbery fell just below the mid-range of objective seriousness;

2. The offence of aggravated break and enter commit serious indictable offence, being demanding money with menaces, was in the mid-range of objective seriousness, with her Honour noting that the commission of the offences in the home of the victims was a feature of aggravation;

3. The s 93I(2) offence of possessing the pistol was placed at just below the mid-range of objective seriousness;

4. The offence of accessory after the fact to the stealing of the wallet from the person was below the mid-range; and

5. Each of the common assaults (of Mr Gallo and Mr Smith) were also just below the mid-range.

55. Her Honour noted that the applicant was subject to conditional liberty at the time of the offending. Although she did not refer to the applicant having been at large at the time of the January 2022 offences after breaching bail for the 2020 offences, she referred to the community based sentencing orders that were current when all offences were committed.

56. The sentencing judge referred to the need for the sentences to recognise the harm done to the victims and found that those affected would have been traumatised by the applicant’s conduct.

57. She set out the detail of the applicant’s criminal history and concluded that it disentitled him to the leniency that might otherwise have been afforded him. The applicant’s personal circumstances were drawn from the report of Ms Grujoska, as was his history of drug use, commencing at age 14, and his expressions of remorse. Limited weight was given to the latter feature in the absence of evidence on oath.

58. Her Honour accepted that the applicant suffered from PTSD, and that his drug use arose from that condition. Although the disorder was not found to be causally connected to the offending her Honour accepted that the applicant would find a custodial environment more onerous than would other prisoners. She concluded that he was motivated to rehabilitate himself and had the support of family, but was of the view that his prospects of rehabilitation must be guarded given the longstanding history of drug abuse. She could not find that he was unlikely to reoffend.

59. The sentencing judge accepted the applicant’s unsworn assertions about the adverse impact of the pandemic on his conditions of custody and concluded that the sentence to be imposed should be moderated as a result. A degree of concurrence was allowed in compliance with the principle of totality. Her Honour was prepared to find special circumstances existed having regard to the applicant’s need for assistance and supervision.

60. As to the commencement date of sentence, the sentencing judge allowed a relatively high degree of concurrency between the sentence to be imposed and those imposed upon the applicant for unrelated offending when he was on remand. A total of 1 year, 1 month and 11 days was allowed in recognition of the time served by the applicant, and the commencement date of the sentence was backdated to 20 January 2022 to recognise time served.

61. A 25% discount on sentence was allowed for all matters to recognise the utilitarian value of the early pleas of guilty.

The Appeal

62. The Crown accepts that the sentencing discretion miscarried because of the error as to the maximum penalty applicable to the offence of possessing an unregistered pistol in a public place without authority, contrary to s 93I(2) of the Crimes Act. That concession is an appropriate one, fairly made. There was error with respect to the treatment of this offence, error brought about by the way the parties presented their respective cases to the sentencing court.

63. As noted, the sentencing judge, sitting in a very busy regional list court, was endeavouring to deal with this matter in the midst of summing up to a jury in an unrelated criminal trial. Her Honour was not able to commence the sentence hearing until 3:41pm, 19 minutes before the court would, in the ordinary course, adjourn for the day.

64. The parties had reduced their respective submissions to writing, and oral submissions were kept to a minimum. That approach was well intentioned and obviously taken in an attempt to both assist the court with the relevant evidence and information and use the available time efficiently. However, such an approach can only be of real assistance when the material provided to the sentencing court is accurate and set out in an accessible way. In this instance, the court was given erroneous information in a coversheet, with the evidence that might have allowed it to be corrected easily overlooked. The correct reference in the committal documentation to the offence having proceeded as a related offence was both buried amongst the numerous charge sheets and s 166 certificates and, in any event, confused by an internally contradictory committal notice which recorded the s 93I(2) offence as both a committal for sentence and a related offence. Her Honour would have required hours to unravel the misinformation.

65. Error having been demonstrated, this Court should proceed to resentence unless not of the opinion that a lesser sentence is warranted. The applicant argued that a lesser sentence is warranted.

66. He points to what he says is a factual error in the sentencing remarks concerning the pistol and, additionally, relies on his affidavit of 8 February 2024 and that of Danka Durovic of the same date.

62. As to the asserted factual error, the applicant’s submission reveals a misunderstanding of the evidence. As noted above there was an issue at the sentence hearing as to the capacity of the pistol to be used. The issue was resolved by a further short-form ballistics report (Ex. D) which established that the pistol was operational when the gas reservoir was filled. Before this Court, the applicant argues that the pistol could not properly be regarded as in working order as the gas reservoir was empty when it was found by police and the evidence was silent as to whether it was in the same condition on 31 January 2022.

63. There is no doubt on the evidence that the pistol was in working order and capable of propelling a projectile. That is the effect of the certification of the weapon as an “airgun” and a “pistol” in the first ballistics report (Ex. 10), and the second ballistics report, which became Ex. D before the sentencing court. Those conclusions flow from the definitions of the relevant terms found in s 4 of the Firearms Act:

air gun means a gun that—

(a)  can propel, or is designed to propel, a projectile—

(i)  by means of any gas or mixture of gases, including air but not including a gas or mixture of gases generated by an explosive, or

(ii)  by means of a spring, and

(b)  is operated or designed for operation by means of a trigger or similar device.

…..

firearm means a gun, or other weapon, that is (or at any time was) capable of propelling a projectile by means of an explosive, and includes a blank fire firearm, or an air gun, but does not include […]anything declared by the regulations not to be a firearm.

…..

pistol means a firearm that—

(a)  is reasonably capable of being raised and fired by one hand, and

(b)  does not exceed any dimension prescribed by the regulations.

69. The fact that the gas reservoir was empty when the pistol was seized by police is irrelevant to its capacity to propel a projectile as that phrase is used in the Firearms Act. The gas reservoir does no more than provide the propellant, or “fuel”, for the pistol to enable its use, much as petrol allows a car to be driven. A car without petrol is still a functional vehicle; it simply requires petrol. The pistol the applicant threatened Mr Gallo and Mr Smith with, and then used to support Mr Childs in his fight with them at the public entrance to the shopping centre was a fully functional pistol and airgun as defined by s 4 of the Firearms Act, whether the gas reservoir was full or empty on the relevant day, a matter about which is there is no evidence.

70. The gravity of the offence is in the capacity of the pistol, in the applicant’s possession as it was on 31 January 2022, to terrorise others. Not only were Mr Gallo and Mr Smith threatened with what, to all intents and purposes appeared to be a gun, but members of the public going about their daily business in a public shopping centre were put in fear. It is reasonable to conclude that none of those to whom the applicant displayed the pistol would have been aware of the fine distinctions between an airgun with an empty gas reservoir – assuming it was empty – and a loaded pistol able to discharge a bullet. I do not doubt that the witness to the altercation in the car park who saw the applicant aiming the pistol at Gallo and Smith as he ran off; and the young couple who fled with their baby in a pram as he again displayed it at the entrance to a public shopping centre, were frightened by the applicant’s possession of the pistol.

71. As the images of the pistol in evidence make plain, the weapon looked like a pistol; the expert evidence was that it was capable (when the gas reservoir was full and the magazine was loaded) of discharging a projectile. Her Honour concluded that the offence was just below the mid-range; if not confined by the undisputed conclusions of the sentencing judge, my own assessment would have placed it somewhat higher than that.

72. The affidavit evidence goes to the applicant’s circumstances now and in the period following sentencing. In his affidavit the applicant gives his current age as 24 years. He spent much of his post-sentence custody at the Clarence Correctional Centre where he has a “B” classification. The applicant has been trained as a barber in custody and worked in that capacity, providing hair cutting services to four wings containing about 100 prisoners, until better paid employment, as a sweeper, was available. His duties as sweeper include cleaning and assisting with food service at meals. Since being made head sweeper, the applicant has taken on additional duties, overseeing other sweepers, and ensuring that meal distribution is accurate. He is also responsible for handing out forms to other prisoners such as forms connected with access to telephones and is allowed to paint walls when necessary. He has more freedom than other prisoners, and more time spent outside his cell, because of his employment.

73. At the institution in which the applicant is currently housed he does not have the same access to employment, but is better accommodated, living in a house with seven other prisoners with ready access to a large yard. The applicant has been employed as “pod sweeper” in the house, giving him responsibility for cleaning the environment and cooking meals. The position is a trusted one, as he is permitted to use knives and cooking equipment.

74. The applicant has undertaken various courses, including Anger Management and Emotional Wellbeing courses, which he has found helpful. His vocational training in barbering has resulted in the issue of a “Certificate II”. The applicant is willing to undertake more educational or vocational training as he wishes to better himself, with a view to living a law-abiding life upon release.

75. The applicant reports being charged with two institutional offences, involving respectively the use of an illicit mobile phone and the discovery of a syringe in his cell. He was also involved in a fight but not charged.

76. His family remain supportive of the applicant. The applicant reports their disappointment in him, whilst he is ashamed of himself. He says he is sorry for what he has done. His plans remain as they were on sentence – to live with his family on the family farm and take up full-time employment with his brother’s tiling business. He is interested in pursuing work as a barber. He is currently receiving an opiate replacement and plans to continue drug rehabilitation, as well as therapy for PTSD, upon release.

77. In her affidavit Ms Durovic referred to and produced records confirming the applicant’s employment in custody, and his completion of educational courses. A Corrective Services case note from 20 November 2023 records the applicant as displaying “good behaviour”. Ms Durovic has also made inquiries with an advocacy and support service known as “About Time For Justice” and confirmed that the applicant has consulted the service, and maintains his connection with it in relation to the sexual assault he described to Ms Grujowska.

Re-sentence

78. There is no question that no penalty other than one of imprisonment is required to reflect the criminality of this course of offending: s 5 Crimes (Sentencing Procedure) Act. In sentencing the applicant, the sentencing judge determined to commence the sentence from 20 January 2022, a date which imports a significant degree of concurrence with sentences served for other, unrelated, matters. This Court should adopt that same approach, since neither party disputed its appropriateness. Her Honour was prepared to give full weight to the applicant’s self-report to Ms Grujoska, notwithstanding the absence of any supportive evidence for his account, and despite the evidence from the applicant’s friends and family which contradicted it and, in the absence of any issue taken with her Honour’s conclusions in that regard, they too must be adopted.

79. As the sentencing judge also concluded, the course of offending for which the applicant is to be re-sentenced is serious, and it occurred over a relatively protracted period. The applicant was subject to conditional liberty at all times, a matter that renders his criminality higher than it would otherwise have been and which calls for greater emphasis to be given to specific deterrence in the determination of sentence.

80. The individual offences were all serious examples of their type. In the absence of challenge to the assessments of the gravity of the crimes at first instance, those assessments are adopted. The basis of the conclusions of the sentencing judge in this regard are well founded. The assistance the applicant provided to the robbers who carried out the armed hold up on 17 September 2020 was both crucial to their escape and extended in time. The applicant drove the offenders away from the area soon after the robbery, thus allowing them to avoid police officers searching for them; and secreted the motorbike that had been used for a period of over three weeks, with his assistance in that regard ended by police action rather than any change of heart by the applicant. The armed home invasion of 10 December 2020, and the associated intimidation of Ms Borg (the latter on a Form 1 document) were both very serious, and must have caused great fear and distress to the occupants. The offence was committed in company, at a time when both the applicant and his co-offender were separately armed. The entry to the premises was accompanied by highly threatening conduct, and the serious indictable offence (“SIO”) committed – demanding money with menaces – was a more serious offence than the usual crime that accompanies a break and enter, being larceny. Demanding money with menaces carries 10 years imprisonment by way of maximum penalty, and 14 years where the offender was in company; larceny carries 5 years. The offence occurred in a family home where a toddler was in residence. The intimidation of Ms Borg involved the display to her of an offensive weapon. It calls for a material increase to the sentence indicated for the s 112(2) offence, to deter the applicant and to recognise the community’s right to exact retribution: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146. The other offence taken into account against the s 112(2) offence – entering land with intent to steal – also requires some appreciable increase to the indicative sentence. The applicant was both armed and in company when he entered the property, and the offence occurred upon residential premises; it would have occasioned considerable alarm to the occupants of the farmhouse.

81. The offences of January 2022 all involved the use of a pistol, with Mr Gallo and Mr Smith each entitled to fear that the applicant intended to shoot them. The very public place in which these offences occurred – in business hours at a suburban shopping centre where many people can be inferred to have been present, beyond those referred to in the evidence – heightens the criminality. Offences such as this sow fear in the community and cause members of the public to become concerned for the safety of ordinary life.

82. The applicant’s criminal history does not assist him – it disentitles him to leniency and must call for a greater measure of specific deterrence. General deterrence is also an important consideration since offences involving the use of firearms and other weapons present a particular danger to the community and must be deterred by all the means available to the courts.

83. There is some evidence of remorse, and the applicant is still relatively young, although he is not, of course, a child.

84. The applicant’s future prospects can only be assessed as guarded. His drug addiction is one of long-standing, and he has failed to take advantage of opportunities for rehabilitation facilitated by the courts in the past, including walking out of a residential rehabilitation facility he had been ordered to attend only two days after arrival. The many supervised orders imposed upon the applicant seem to have made no difference to the applicant’s criminal lifestyle. Whilst his plans for his release are positive, the applicant has never been without the support of his family and it is unclear if that continuing support will prevent him from returning to drug use and crime on this occasion, when it did not deter the applicant in the past. The outcome is entirely dependent on the applicant taking responsibility for his crimes and his own future.

85. The finding at first instance of special circumstances should be maintained.

86. An aggregate sentence should be imposed. The indicative sentences I have concluded are appropriate, allowing a 25% discount on those that would otherwise be announced to recognise the early pleas of guilty, do not differ from those announced by the sentencing judge, with the obvious exception of the penalty for the firearms offence. For that offence, the indicative sentence is one of 18 months imprisonment.

87. The principle of totality requires some concurrency between each of those indicative sentences, with a slightly higher degree of concurrency as between each of the January 2022 offences. The aggregate sentence I would impose is a term of 5 years and 9 months imprisonment; with a NPP of 3 years imprisonment. The ratio of NPP to parole period is very slightly different to that allowed by her Honour, but by such a tiny amount as to be negligible.

Conclusion:

88. The orders I propose are:

1. Extend the time in which to file the application for leave to appeal until 6 November 2023;

2. Grant leave to appeal;

3. Allow the appeal;

4. Set aside the sentence imposed in the District Court of New South Wales on 3 March 2023 and, in lieu, impose an aggregate sentence of 5 years and 9 months imprisonment, to date from 20 January 2022, expiring on 19 October 2027, with a non-parole period of 3 years imprisonment, expiring on 19 January 2025.

89. CAVANAGH J: I agree with Wilson J.

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Endnotes

Amendments

15 May 2024 - 15/05/2024 - paragraph numbers amended

Decision last updated: 15 May 2024