Della-Vedova v R
[2009] NSWCCA 107
•21 April 2009
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION:
Shane DELLA-VEDOVA v R [2009] NSWCCA 107
This decision has been amended. Please see the end of the judgment for a list of the amendments.
FILE NUMBER(S):
2007/15984
HEARING DATE(S):
2 April 2009
JUDGMENT DATE:
21 April 2009
PARTIES:
Shane DELLA-VEDOVA (Appellant)
REGINA (Respondent)
JUDGMENT OF:
McClellan CJatCL Simpson J Buddin J
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
2007/11/0904
LOWER COURT JUDICIAL OFFICER:
Williams DCJ
LOWER COURT DATE OF DECISION:
15 May 2008
COUNSEL:
P Strickland SC (Appellant)
W J Abraham QC & L K Crowley (Respondent)
SOLICITORS:
S Kavanagh (Legal Aid Commission of NSW) (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)
CATCHWORDS:
CRIMINAL LAW
particular offences
property offences
unauthorised possession of prohibited weapons
dishonest appropriation of Commonwealth property
CRIMINAL LAW
appeal against sentence
whether error in considering evidence of remorse
whether error in accumulation of sentences
whether error in applying discount for plea of guilty
whether sentence manifestly excessive
LEGISLATION CITED:
Weapons Prohibition Act 1998 (NSW)
Criminal Code Act 1995 (Cth)
Crimes (Sentencing Procedure) Act 1999
Listening Devices Act 1984
CATEGORY:
Principal judgment
CASES CITED:
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Lodhi [2006] NSWSC 691
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Dudko [2002] NSWCCA 336; 132 A Crim R 371
R v Shenton [2003] NSWCCA 346
Cameron v The Queen [2002] HCA 6; 209 CLR 339
TEXTS CITED:
DECISION:
Leave to appeal granted. Appeal dismissed.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
2007/15984
McCLELLAN CJ at CL
SIMPSON J
BUDDIN JTuesday 21 April 2009
Shane DELLA-VEDOVA v R
Judgment
McCLELLAN CJ at CL: I agree with Simpson J.
SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court on 15 May 2008 following his pleas of guilty to two charges on an indictment.
The first charge was brought under s 7(1) of the Weapons Prohibition Act 1988 (NSW), and alleged unauthorised possession of prohibited weapons. The prohibited weapons were specified as ten rocket launchers containing ten rockets.
The second charge was brought under s 131.1(1) of the Criminal Code Act 1995 (Cth) and alleged dishonest appropriation of Commonwealth property. The Commonwealth property was specified as ten rocket launchers containing ten rockets.
It was common ground that the same ten rocket launchers containing rockets were the subject of each count.
S 7(1) of the Weapons Prohibition Act specifies a maximum penalty of imprisonment for 14 years on conviction for an offence against that section. By Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”), a standard non-parole period of 3 years is prescribed.
An offence against s 131.1(1) of the Criminal Code Act carries a maximum penalty of imprisonment for 10 years.
Williams DCJ sentenced the applicant, on the Commonwealth offence (appropriation), to imprisonment for 6 years with a non-parole period of 4 years, commencing on 5 April 2007; on the State charge (possession), he sentenced the applicant to imprisonment for 8 years, made up of a non-parole period of 5 years, and a balance of term of 3 years, which he partly accumulated upon the earlier imposed sentence, to commence on 5 April 2009. The total effective sentence was imprisonment for 10 years with a non-parole period of 7 years.
The facts
What purported to be a statement of agreed facts was put before the sentencing judge in a document bearing a combined letterhead, and the logos, of the Australian Federal Police, the NSW Police Force, and the NSW Crime Commission. It also contained the following:
“Joint Counter Terrorism Team - Sydney
NSW Police Force Terrorism Investigations Squad
Australian Federal Police Counter Terrorism
NSW Crime Commission.”
The document is signed by a Detective Senior Constable identified as the officer in charge of a named Strike Force.
This document appears to be the work of the investigative team, for submission to the Director of Public Prosecutions (“the DPP”) for consideration of what, if any, prosecution ought result therefrom. However, this Court was told that it was, in fact, a document prepared for the purposes of the sentencing proceedings.
The manner in which the statement of facts is framed makes it very difficult to discern what is agreed to be fact, and what is merely assertion. For example, it contains extensive reference to, and extracts from, two statements of a person (named only as “Harrington”) who was said to be a former prisoner and co-offender and, who had been convicted of and imprisoned for drug offences, but who had received, from the Commonwealth Attorney General, an indemnity against prosecution in respect of Commonwealth offences. (He has not received a corresponding indemnity from NSW authorities). The statement of facts also contains reference to a statement made by another alleged co-offender (Abdul-Rahman), who, (the statement recorded) at the time of the preparation of the statement of facts and of sentence, had been charged with offences against the Weapons Prohibition Act and against the Criminal Code (s 132.1, receiving stolen property), and whose trial was then pending. Some reference was also made to a statement of another person (Ahmad Hassan). Also before the court was a record of a conversation in which the applicant was a participant and which was recorded pursuant to a warrant issued under the Listening Devices Act 1984. The transcript of an interview in which the applicant participated was also before the court.
What is entirely unsatisfactory about the manner in which the statement of facts is framed is that it does not distinguish between assertions of fact made by those individuals to whose statements reference is made, and facts accepted as true by both the prosecution and the applicant; it does not identify, nor make any attempt to identify, the facts upon which the applicant was to be sentenced.
That the sentencing judge was conscious of the inadequacy of the facts put before him is plain from his Remarks on Sentence; he acknowledged that the statement had been read onto the record by senior counsel who appeared for the DPP, but said that he did not propose to make any significant reference to it. He did not.
In a case which, as will appear, is of considerable significance, the presentation of a statement of facts in this way is, to say the least, unsatisfactory, and indicative of something considerably less than the adequate discharge of their functions on the part of those representing the DPP. It is the DPP who undertakes the statutory responsibility of prosecuting offences and presenting, in a comprehensible fashion, the facts and circumstances of the offences on the basis of which the court is asked to sentence. It is not sufficient merely to rely upon documentation prepared by the investigating arm of the prosecution team. It is plain that on this occasion the preparation of the statement of facts was left to those whose function and expertise is in investigation, and not in litigation. There is no apparent contribution to the statement by anybody representing the DPP, or anybody trained, skilled or experienced in the presentation of evidence in a court. This was a serious dereliction of their duty (as professional lawyers, to the DPP, and to the court) on the part of those who represented the DPP. It is particularly disturbing as senior counsel was briefed. The result was that the sentencing judge was, and this Court is, largely in the dark about the essential factual substratum.
In the light of these observations it is appropriate to note that none of the counsel who appeared in this Court appeared in the District Court.
With those limitations in mind, the factual basis of the prosecution case can, and must, be stripped to its bare essentials, that is, such facts as do emerge, either expressly or by clear implication, or can be seen to have been the subject of agreement. (In the application for leave to appeal no issue was taken about the way in which the sentencing judge approached the fact-finding exercise.)
As alleged in the indictment, the State offence (possession) was committed between 1 June 2001 and 30 October 2003; the Commonwealth offence (dishonest appropriation) was committed between 1 June 2001 and 10 February 2003. At that time the applicant was a long-serving member of the Australian Defence Forces. He held qualifications as an Ammunitions Technical Officer. He worked with the Army Explosive Ordnance Disposal Team. His duties included the disposal of redundant weapons of various kinds. Among these were items known as “rocket launchers”. These are weapons containing highly explosive charges that detonate on impact, capable of penetrating up to 28cm of steel plate, 75cm of reinforced concrete or 180cm of soil.
They have a range of up to 200 metres against stationary targets, 180 metres against moving targets. The rocket motor is capable of propelling the warhead, or charge, up to 1100 metres. Such weapons would be devastating against standard or light armoured passenger vehicles. A direct hit to a passenger vehicle would be likely to kill all occupants.
In June and August 2001 the applicant attended Myambat Ammunition Store, apparently an army ammunitions repository near Muswellbrook, NSW. The purpose was to “de-commission” (ie destroy) a number of rocket launchers. (According to the applicant, in his recorded interview, he offered, “as a courtesy to the ammunition depot” to dispose of any additional items. He was given a quantity of 66mm rocket launchers for disposal.)
Of the rockets (or rocket launchers) supposed to be destroyed, the applicant retained ten in his own possession, although he signed “destruction vouchers” for a number, including those ten. Thereafter he disposed of at least one to a man called Dean Taylor (his then brother-in-law), who, in turn, disposed of it to a man called Adnan Darwiche, a well-known criminal. The statement of facts contains a number of assertions (largely drawn from the statement of the criminal accomplice, Harrington) about arrangements made for the weapons to be supplied to others. It may be assumed (in the absence of any challenge) that these arrangements were implemented. Certainly, the statement of facts, which was read onto the record without dissent from the very experienced counsel who then appeared for the applicant, makes it plain that, at times, the applicant was dealing directly with Harrington, who appears to have been an intermediary liaising between the applicant and the ultimate recipients.
Only one of the weapons has been recovered. Nine remain in the community – in the possession, it may reasonably be inferred, of criminals.
The weapon supplied to Darwiche was recovered and was found to have been disguised, by painting and by the obliteration of external serial numbers.
There was material in the statement of facts that intimated that the applicant was to be paid significant sums of money for the weapons – anything from $10,000 to $20,000 for each item. However, investigators were unable to locate any evidence of receipt by the applicant of large sums of money. In his interview (Qq 186 and 189) the applicant intimated (without clearly asserting) that he had received only $5,000 for all ten rocket launchers.
The sentencing judge was, understandably, in the circumstances, unable to make any finding of fact concerning what the applicant received by way of payment. (It may here be observed, however, that he was extremely sceptical of the answers given by the applicant to questions on this topic – he described them as “unconvincing”.)
Because of the unsatisfactory way in which the facts were put before the sentencing judge, that is about as much as can be said by way of firm findings of fact concerning the objective circumstances of these offences. His Honour’s Remarks on Sentence are framed in terms of recording various assertions made by the applicant in his interview and, while he expressed doubt about the veracity of those assertions in more than one respect, he steered clear of making findings adverse to the applicant on the basis of the scanty information available.
The applicant was not arrested and/or charged until at least 3 ½ years after the commission of the offences, 5 April 2007.
Recorded interview
Although, in his interview, the applicant admitted to possession and appropriation of the weapons, the tenor of his answers throughout was to minimise his culpability. For example, when asked about the circumstances behind his removing the rocket launchers he said, in a lengthy answer (Q 69):
“ … I had gone up to destroy some items that had been picked up as what we call explosive ordnance disposal pick-ups. While I was there, as a courtesy to the ammunition depot, I said whether they had any items that they required to be disposed of at the same time, while I was on the range, it’s something that’s done, done. They gave me some, some items to dispose of, which included a quantity of 66[mm] rockets. I took them all down the range in my vehicle, set up all the demolitions and, and disposed of the items and then left Myambat Logistic Company to come back to Sydney. On the return to Sydney I realised that in the plastic trunk that I’d put on the back of the vehicle that I’d taken up the other items in and that I’d put items into when I’d come down, that I still had a quantity of 66’s in there, ten to be exact. I then put that trunk into the storage area within the unit I belonged to at the time, which was the, what was it called then, the Explosive Ordnance Disposal Control Centre of New South Wales, which is at Holsworthy, I believe the name at the time was Regional EO Services, Explosive Ordnance Services New South Wales. Obviously I was, I didn’t know what to do. I’d stuffed up, I’d mucked up. I had launchers in the thing and, and a myriad of ideas of what to do to get these gone and back into the system went through my head. And I obviously just panicked and, and was stupid and just, you know, whatever you want to say you can say, I just had a failure in utter logic … At this period of time I was assisting my then brother-in-law in the construction of a salon for my sister. … how it come about I can’t remember, but the approach or idea or thought process was to on forward the 66’s to Harrington for, and I need to reiterate, is, God I was such a stupid bastard, for a trophy purpose for whatever, that, that was what they were going to be. That’s what I was told they were going to damn well be. As something that they could say look I’ve got, look at this I’ve got one of these. I then gave, gave the 66’s to him. Well, I didn’t actually give them to him, I left them in a vehicle and he come to that vehicle and picked them up, if I remember right, and, and that was what was done. And they took them away. There was discussion of money, there was.”
(In a later answer the applicant said that Harrington was the husband of his sister’s business partner.)
In Q 137 the applicant was asked why he had spray painted the weapons. He replied:
“I think I just spray painted them black to hide the damn things because I think the, at the time the thought process going through my noggin was that maybe I could try and, and do an EOD pick-up or something like that, you know. Try and cover my, cover my fuckin’ stupidity by, by doing something else. I thought if you know, if I sprayed them black they won’t look like something that I, you know, that you know was the normal that somebody had had them or something like that. Just some, some stupid and wild thoughts going through my noggin to try and, to do something with them, so.”
It was in answer to questions 184 – 186 that the applicant spoke of the money he was to receive. He said:
“It was not much, it was just nothing. It was ridiculous, it was stupid. It was, for some reason five thousand dollars ($5,000) … comes to mind or some shit for some reason. I’m not sure.”
He denied that it was $70,000, and said that the $5,000 was for “the whole lot”. He added:
“It was … it was just ridiculous because in the end they had me over the barrel, to be honest, because they knew I wanted them gone. I didn’t want them in my home, I didn’t want them near my kids, I didn’t want them anywhere. I wanted them gone and they, this was what they were going to give me and, and that was it. And that sounds so, I don’t know, mercenaryish or whatever it sounds like it’s just shocking. And yeah, I think that was the amount. I’m not sure, I can’t remember.”
In answer to a direct question (Q 258) about what the result would be if a rocket launcher were fired at a car or a group of people, he said:
“It would be terrible.”
When asked (Q 259) if he had any idea where the rocket launchers might be, he said:
“I have no idea, sir I have no idea after they left me where they went. If you want to know anything honestly … bad enough that they went and that I didn’t do anything else about them, but I just tried to put them out of my mind. I would ‘ve hoped that they went to some stupid person’s house in the middle of the boonies [boondocks] somewhere up on his wall with the rest of his gun collection or something like that I suppose, is what I really hoped in my guts that that’s where they went but obviously they didn’t.”
At Q 285 he was asked whether, if he knew of other ADF members stealing weaponry he would disclose it, he said that he would, and then added:
“You know, look, no matter what’s said here, what’s going on here, I take the rap. I fucked up. I stuffed up big time, right, this is my, if everybody has a muck-up for their whole entire life, baby, this is it. You know I’ve had twenty-eight years in this man’s army, never been charged, never been charged with anything. Impeccable record, what I do, I had a flaw, I stuffed up and just got into this deeper hole and just went down and down and down until the way out was a stupidity but I thought they would never come back. I thought they would be gone, as I said, in somebody’s bloody trophy cabinet sitting in their shed somewhere out in the middle of boonies by some cow-cockie or someone who maybe wanted the damned thing for his trophy cabinet. Never in my deepest regrets and fears would I think that they would come back because some fools, and some idiots linked to terrorists and shit like that. And that’s the truth. I just stuffed up.”
Subjective circumstances
The applicant did not give evidence in the sentencing proceedings, and no oral evidence was called on his behalf. Nor was any pre-sentence or psychological or psychiatric report presented.
The applicant was born in March 1961 and was between 40 and 42 at the time of the offences, 47 at sentencing. He has no prior criminal record. The applicant’s service record, showing that he had enlisted on 6 June 1978, and continued in service until his arrest, was in evidence, as were a number of testimonials. His service record was impressive and commendable. A special report prepared over a period in 2006 (for what purpose is not clear, but it is several years after he committed these offences) was very favourable, finding him to be:
“An exceptional member of the ADF, whose regard for the values, traditions and practices of the Army could not be faulted.”
and:
“An enthusiastic and constructive team player who provided strong support to the team and team leader (where appropriate)”
and:
“ … a professional, loyal and operationally-focassed Warrant Officer, who interacts comfortably with all ranks … a very experienced and competent ammunition technician (AT) … very passionate about all aspects of the AT trade … [having] exemplary professional standards … highly respected by operators from all contributing [Special Operation Task Group] units as a helpful and approachable subject matter expert on all ammunition matters.”
The applicant served in Afghanistan in 2002, where he was responsible for the timely provision of explosive ordnance to personnel.
One of the testimonials appears to have been an unsolicited letter, written many years before his arrest (but after the commission of the offence), by an officer of the NSW Police, to a commanding officer, expressing gratitude and appreciation for “outstanding support” given by the applicant in providing “valuable professional technical advice” to police in the process of an investigation of serious firearms offences. The police officer said that the applicant remained at the location for more than 8 hours, providing “valuable ongoing specialist advice” and acting “professionally and in a highly competent manner.”
Others also attested to the applicant’s capacity and good character.
After his arrest (but on a date not disclosed by the evidence), the applicant submitted to “Army (the Soldiers’ Newspaper)” a handwritten letter for publication. In full, it reads:
“To the members of the Australian Army and the Australian Defence Force.
I am writing to express my most sincere and profound apologies to members of the Australian Army and the Australian Defence Force. You may or may not have heard of myself or know what an extremely stupid action I have done, never the less my actions have bought (sic) shame and dishonour to myself, the Australian Army and Australian Defence Force.
To all the friends and mates I have made and had the privilege to meet in my 28 years in the Australian Army I am truely (sic) sorry. The hurt I feel in that I will be unable to look you or any member of the Australian Defence Force in the eyes again will live with me forever. I do not expect nor wish any sympathy, my actions are of my doing, although there is some extenuating circumstances I cannot explain, it is still my actions.
I once again please ask you all to accept my apologies. Thankyou.
Yours sincerely
Shane Della-Vedova”
The Remarks on Sentence
I have already alluded to the difficulty in fact finding created for his Honour. As I have indicated above, his Honour expressed considerable scepticism about the version of events given by the applicant. Since the applicant did not give evidence, this Court is in as good as position as the sentencing judge to make that assessment. I would merely record that I share his Honour’s scepticism, for the reasons that he gave – essentially, the inherent implausibility of the applicant’s blatantly self-serving account.
His Honour found it “extraordinarily difficult” to believe that the rockets and launchers came to remain in the applicant’s possession by oversight, as he claimed. He found it “even more difficult to accept” that if that had been the case, then the applicant could not easily, speedily, and without censure, have rectified the situation. He found “even more incomprehensible” his claim that he decided to sell the rocket launchers rather than, for example, taking them to sea and dumping them or destroying them. He noted that, not only did the applicant decide to sell them, but he decided to sell them to a person (Harrington) he knew to be a criminal recently released from gaol. He found “wholly unbelievable” the assertion in the interview that the applicant thought (or hoped) that the weapons would end up in “some cow cockies trophy cabinet”. He found it “extraordinarily difficult” to believe that the applicant would not have had in his mind the likelihood that the weapons would be used for criminal or terrorist purposes. He noted that those things the applicant claimed not to have considered were those very things that he was trained and paid to consider.
He found “unconvincing” the applicant’s claim to have received only $5,000.
His Honour correctly characterised the offences as serious. He recognised, again correctly, the significance of general deterrence in the sentencing exercise.
His Honour said:
“There is no evidence from [the applicant] and there is, thus, no evidence of remorse …”
He recognised as a mitigating factor that the applicant had pleaded guilty at the earliest opportunity, and allowed a discount on sentence of “between twenty and twenty-five percent”. (see R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383.)
On these findings and conclusions his Honour proceeded to impose the sentences that he did.
The application for leave to appeal
Two grounds of appeal were initially pleaded, framed as follows:
“1. His Honour erred in finding that there was no evidence of remorse from the Applicant.
2. His Honour erred in partially accumulating the sentence for count 2 on the sentence imposed on count 1 such that the sentence for count 2 commenced on 5 November 2007 and the sentence for count 1 commenced on 5 November 2009.”
On the hearing of this appeal, leave was granted to the applicant to amend by filing two additional grounds. They are:
“3. His Honour erred in failing to identify the discount afforded to the applicant for his pleas of guilty at the first opportunity and erred in failing to apply a discount of 25 percent.
4. The total sentence was manifestly excessive.”
Ground 1- evidence of remorse
I have set out above the observation about remorse made by his Honour. That finding is of some significance, in the light of s 21A(3)(i) of the Sentencing Procedure Act which provides that remorse may be taken into account as a mitigating factor if:
“(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and
(b) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).”
Senior counsel who appeared for the applicant in this Court pointed to the letter written by the applicant for publication in “the Army” newspaper as evidence of remorse. He observed that s 21A(3)(i) does not require evidence of remorse to be given orally, and therefore that the juxtaposition of his Honour’s note that the applicant had not given evidence with the conclusion that there was no evidence of remorse was demonstrative of an erroneous approach.
Senior counsel submitted that the letter was evidence both of the acceptance of responsibility, and acknowledgement of injury, loss or damage caused and therefore evidence of remorse within s 21A(3)(i).
He also submitted that there was evidence in the interview indicating awareness of both of those elements.
It may be that the observation by his Honour could have been more accurately stated. I accept that the letter to “the Army” was capable of being evidence of remorse, although it was certainly not necessary that it be accepted as a genuine expression of remorse. If it were not accepted as a genuine expression of remorse, even though, ostensibly, it was evidence of such, it did not warrant being treated as a mitigating factor. On its face, it was not an unqualified acceptance of responsibility; the applicant said that there were “extenuating circumstances”, which he did not identify – hardly convincing evidence of an acceptance of responsibility. The likelihood, in my opinion, is that his Honour treated that letter with the same scepticism as he treated the various assertions made by the applicant in the interview, and simply did not believe that it was a genuine statement of remorse. Given the dissembling on the part of the applicant that permeates his interview, it is hardly surprising that his Honour treated the letter with the same scepticism.
That also explains the absence of any reference by his Honour, in this context, to the applicant’s answers in interview. While it was incorrect to say that there was no evidence of remorse, and incorrect to link the absence of evidence of remorse with the failure of the applicant to give oral evidence, it was perfectly open to the sentencing judge to reject the letter as a genuine expression of remorse such as to qualify as a mitigating factor. This, in my opinion, is the proper characterisation of what happened. I would reject this ground of appeal.
Ground 2: accumulation
In written submissions senior counsel argued that the two offences, although containing different elements, almost entirely overlapped. He characterised “the criminal act comprising the Commonwealth offence” as:
“ … taking the rocket launchers off the Base with the intention of taking them to his home”,
which, so it was said, was when he intended permanently to deprive the Commonwealth of them.
I accept that that was the criminal act comprising the Commonwealth offence. But senior counsel went on to characterise “the criminal act comprising the State offence” also as:
“ … taking the rocket launchers out of the Base with the intention of taking them to his home”
at which point he had no authority to possess them – ie precisely the same act as that said to comprise the Commonwealth offence.
The propositions were formulated in this way to provide the foundation for a further submission, that the act of taking the rocket launchers from the Base was the act that formed the basis of both offences. If this proposition were correct, it would permit a conclusion that the two offences ought to be treated as essentially a single course of conduct, warranting the imposition of concurrent sentences.
But the latter characterisation is simply wrong. The criminal act comprising the State offence was the possession of the rocket launchers. It did not start and end with their removal from the Base. It was not only at that point that the applicant had no authority to possess them: that continued throughout the entire time that they were in his possession.
Senior counsel relied upon a passage in the Remarks on Sentence of Whealy J in R v Lodhi [2006] NSWSC 691, in which his Honour said:
“I am not satisfied, however, that there is any necessity in all the circumstances to impose sentences that are other than entirely concurrent. This flows from the reasons I have given earlier in this decision relating to the fact that the offender’s conduct might properly be viewed and, in my view, should properly be viewed as one uninterrupted and continuing course of criminal conduct over a relatively brief period of time. The offender’s criminal intention, although directed to the commission of three separate offences, was in essence a manifestation of one continuing uninterrupted intention. In my view, the criminality involved in the second count is sufficient to encompass the criminality of the other offences. The principle of totality in the particular circumstances does not permit me to inflict any additional punishment for those two offences.”
Even from that brief extract, divergences between the two cases can be seen. The applicant’s offences (at least the possession offence) certainly did not occur over “a relatively brief period of time”. Nor were they “a manifestation of one continuing uninterrupted intention”. The dishonest appropriation of the rocket launchers was preliminary to, but nevertheless an offence distinct from, the offence constituted by their continued possession.
Senior counsel filed supplementary submissions in support of this ground. He relied upon the decision of the High Court in Pearce v The Queen [1998] HCA 57; 194 CLR 610. In the joint judgment, McHugh, Hayne and Callinan JJ held that, where two offences contain common elements, it would be wrong to punish an offender twice for those common elements. Even where the statute creating the offences are such as to give rise to more than one offence, with areas of overlap, care should be taken to ensure that the overlap does not result in additional punishment. But that is not this case. The two offences are, for very good reasons, discrete and very different. The Commonwealth offence was, as senior counsel submitted, constituted by (and was complete on) the removal of the rocket launchers from the Base. The State offence may have commenced at that time (it may be assumed that until that time the applicant’s possession of them was not unauthorised) but it continued until he disposed of them.
In R v Dudko [2002] NSWCCA 336; 132 A Crim R 371, Spigelman CJ observed that, in that case, “the gist or gravamen” of the criminal behaviour was not the same in the two offences, although both were part of a course of conduct.
So it is, for the reasons I have already given, in the present case.
In oral submission, senior counsel argued that, because of the dates specified in the indictment both offences were of a continuing nature. That is true of the possession offence. It is not true of the appropriation offence, which, by its very nature, is complete when certain things are done – in this case, the removal of the weapons. Continued possession of items such as dangerous weapons is not in the same category as continued possession of other items that have been stolen or otherwise unlawfully obtained. In some circumstances, it might be appropriate to perceive continued possession of a stolen item as the logical and natural result, or continuation, of the offence of stealing. But it is not possible to overlook the nature of possession, where possession of that item is, of itself, and by reason of different statutory provisions (and for different and very obvious reasons) unlawful. Possession of these weapons (without appropriate authorisation) is a discrete offence, and is an offence no matter how the possessor comes into possession of them. It may be the result of, but is not the same as, unlawful acquisition.
I would reject ground 2.
Ground 3: discount for pleas of guilty
As set out above, Williams DCJ stated that he allowed the discount of:
“In the order of between twenty and twenty-five percent.”
It was put that there was no good reason why this should not have been precisely quantified. It is unnecessary to say any more about that. The ground of appeal has no merit. Notwithstanding the encouragement given in Thomson & Houlton to do so, a judge is not obliged to quantify the discount allowed for a plea of guilty. The only authority put forward on behalf of the applicant for the proposition that the quantification of the discount as “between twenty and twenty-five percent” is indicative of error was an extempore decision of this Court in R v Shenton [2003] NSWCCA 346, in which Handley JA, in concurring remarks, said:
“I really emphasise for myself the importance of sentencing judges following the practice commended by the Chief Justice [in Thomson & Houlton] in actually making it clear what discount they have in fact allowed in the sentence that they are awarding.”
I do not read this as authority for the proposition stated. Over-precision in formulating the discount can, and on occasion does, result in absurdly complicated sentences of odd months, weeks and days, instead of rounded figures. Further, the principles applicable to discounting for pleas of guilty in Commonwealth offences are not the same as those applicable in discounting for pleas of guilty in State offences: see Cameron v The Queen [2002] HCA 6; 209 CLR 339.
Here, the judge was sentencing for a combination of State and Commonwealth offences. Failure to be more specific does not, in my opinion, constitute error. I would reject this ground.
Ground 4: manifestly excessive?
The argument put in support of this ground had two strands.
Firstly, it was put that, having regard to the maximum sentences available, and particularly after factoring in the discounts for the pleas of guilty, the sentencing starting points were at close to the maximum provided in respect of the said offence, and therefore available only if the offences could properly be categorised as “worst case” offences (which, it was argued, they were not).
In respect of the Commonwealth offence, the maximum sentence is 10 years. If it be assumed that the discount for the plea of guilty was 25%, then the starting point (for the head sentence) was 8 years.
The maximum sentence applicable to the State offence is 14 years; a 25% discount resulting in a head sentence of 8 years indicates a starting point (for the head sentence) of 10.6 years.
It is true that each of these sentences, more so that imposed in respect of the Commonwealth offence, was well above 50% of the maximum.
Senior counsel argued that a “worst case” conclusion could only be drawn if the DPP established that the weapons were operable. He stressed that the onus of proving that lay upon the DPP.
He then pointed to answers given by the applicant in his interview that suggested, or were capable of suggesting, that the weapons were ineffective. Two responses may be made to this. Firstly, the answers on which he relied were, at best, equivocal. On one occasion the applicant said that the weapons were earmarked for destruction:
“Because they’re either failed, failed proof, in other words they weren’t going to work, they’d failed proof. They’re out of service life.” (Q 104)
or words to similar effect.
A little later, in reference to ammunition, he said some were to be disposed of because they were “unserviceable”. He said other things to the same effect. However, he did not explicitly assert that the weapons had no functioning capacity, and certainly did not assert that he had taken any steps to render them inoperable.
The second answer to the proposition is that no weight whatsoever could be placed on anything said by the applicant in his interview. The sentencing judge rejected his answers in a number of respects. The interview as a whole was largely a self-serving exercise on the part of the applicant, designed to downplay the very serious offences he had committed. And common sense dictates that it is unlikely that the applicant would sell inoperable weapons to the kind of individuals to whom these were supplied.
Nor do I accept that there is any onus on the DPP to prove that the weapons were operable. By the applicant’s own admission, he had removed them from the possession of the Army, and, except for one, they have not been available for testing. The only reasonable inference, in my mind, is that all ten of the rocket launchers were effective (and deadly) weapons.
Although the sentencing judge did not make any express findings that these offences fall into the category of worst cases, such a view was entirely open. It is not only the nature of the weapons – it is also the number that must be recognised.
Accordingly, the sentences were not manifestly excessive by reason of any false factual assumption or evaluation of criminality on the part of the sentencing judge.
The second argument put in support of this ground concerned the weight given to mitigating factors.
Senior counsel pointed to four mitigating factors accepted by the sentencing judge. These were that the applicant had no criminal record, that he was a person of good character, that he was unlikely to re-offend and had good prospects of rehabilitation, and that he had pleaded guilty at the first opportunity.
The last of these must be put to one side. It is recognised in the discount allowed for the plea of guilty. It cannot be recounted as a mitigating factor.
The first and second are, in effect, part of the same thing. They were given weight, and appropriate weight. The same must be said for the third.
I have set out above, in some detail, the favourable subjective material put about the applicant’s service record. But, as I have previously observed, a good deal of this comes from material that came into existence at a time when, although unbeknown to those who favourably reported upon him, the applicant had committed these offences.
What the applicant cannot avoid is that these offences were a serious breach of trust. He was, as he has shown, a highly regarded and trusted army officer. It was because of that that he was entrusted with the destruction of deadly weapons. He abused that trust in order to make those weapons available on the black market, and to enrich himself. He would not have been in a position to do that had he not had the favourable history on which he now relies.
These offences on the part of the applicant were of the utmost seriousness. The weapons are dangerous and life threatening. His Honour found that the only reasonable use of them was for criminal or terrorist activities. In reaching that view he was entirely correct.
I would grant leave to appeal but dismiss the appeal.
BUDDIN J: I agree with Simpson J.
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AMENDMENTS:
28/04/2009 - Additional notation added after paragraph 14 regarding counsel appearances. - Paragraph(s) 14
LAST UPDATED:
28 April 2009
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