DPP (Cth) v Munro
[2019] VSCA 89
•14 May 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0110
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Appellant |
| v | |
| PAUL ROBERT MUNRO | Respondent |
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| JUDGES: | MAXWELL P, BEACH and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 1 April 2019 |
| DATE OF ORDERS: | 17 April 2019 |
| DATE OF JUDGMENT: | 14 May 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 89 |
| JUDGMENT APPEALED FROM: | [2018] VCC 918 (Judge Trapnell) |
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Importation of firearms (six charges) – Four completed importations – Two attempted importations – Fully automatic machine guns – Semi-automatic handguns – Highest end of range of seriousness – Sentence 10 years and 3 months’ imprisonment, non-parole period of 6 years – Whether manifestly inadequate – Danger to community posed by firearms – Duration of offending – Awareness of use of weapons in connection with criminal activity – Persistent, planned and sophisticated offending – Discrete periods of offending – Offender’s age, health and prospects of rehabilitation – Offender pleaded guilty – Totality – Cumulation – General deterrence – Residual discretion – Sentence manifestly inadequate – Resentenced (15 years’ imprisonment, non-parole period of 11 years) – Customs Act 1901 (Cth) s 233BAB(5), Criminal Code 1995 (Cth) ss 11.1(1), 361.2.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms S McNaughton SC with Mr S Devlin | Ms A Pavleka, Director of Public Prosecutions (Cth) |
| For the Respondent | Ms C A Boston | Furstenberg Law |
MAXWELL P
BEACH JA
McLEISH JA:
Summary
A fully automatic Thureon machine gun can fire 1,000 rounds of ammunition per minute. These guns are manufactured by Thureon Defence, a small firearms manufacturing company based in Wisconsin, USA (‘Thureon’). Save for immaterial exceptions, there is no lawful use for a fully automatic machine gun of this kind. Their importation into Australia is absolutely prohibited. The maximum penalty for importing such a weapon is 10 years’ imprisonment.[1]
[1]The Court was informed that there was a Bill before the Commonwealth Parliament which, if passed, would increase the maximum penalty to 20 years’ imprisonment: Criminal Code Amendment (Firearms Trafficking) Bill 2016 (Cth) sch 1 item 3.
On three occasions between April 2014 and January 2016, Victoria Police seized a fully automatic Thureon machine gun in the Melbourne area. On each of the second and third occasions, the firearm was seized from a person who was subsequently charged, with others, with trafficking a commercial quantity of methamphetamine.
Subsequent investigations by Victoria Police, in Australia and in the United States, revealed that the Thureon machine guns had been ordered, paid for and imported by the respondent (‘Munro’). After Munro had become aware of one of the police seizures, he proceeded to order further supplies of the machine guns but requested that the Thureon brand logo be removed to prevent identification. He arranged for the construction of false-bottomed crates to conceal their importation.
Munro subsequently pleaded guilty to six importation offences, comprising four completed importations and two attempted importations. There were two completed importations of Thureon machine guns — six weapons on each occasion — and an attempt to import a further six machine guns. The other offences involved the importation, and attempted importation, of semi-automatic handguns.
Importation of weapons is a very serious offence. Importing a fully automatic machine gun like the Thureon is, as Munro’s counsel properly conceded, at the highest end of the range of seriousness. And, when the charge concerns multiple guns, the objective seriousness of the offence is higher again.
The Thureon gun is, as the Commonwealth Director submitted, a ‘weapon capable of mass murder in a very short time’. The presence of guns of this kind in our community creates a risk of danger to the community which is both grave and long lasting. Such weapons can remain in circulation for years after their importation, the risk of large-scale death and injury undiminished.
As will appear, Munro was sentenced to a total effective sentence of 10 years and 3 months’ imprisonment, with a non-parole period of 6 years. The Commonwealth Director has appealed against the total effective sentence and the non-parole period, on the ground that they are manifestly inadequate. There was no challenge to the individual sentences, and an application in the course of the hearing to add a ground advancing such a challenge was rejected.
The Director’s submission highlighted the duration of the offending — extending over three years — and Munro’s persistence in importing these weapons even after becoming aware that the first of them had already been used in connection with criminal activity. According to the submission, the orders for cumulation resulted in a sentence which simply did not reflect the total criminality of Munro’s offending.
For reasons which follow, we would uphold the Director’s appeal. This was extremely serious offending, which demanded a substantially higher total sentence and non-parole period. General deterrence is, self-evidently, a consideration of the highest importance for offending of this kind.
We would resentence Munro as set out below. The total effective sentence will be 15 years’ imprisonment, with a non-parole period of 11 years.
The scourge of firearms
Charges 1–4 were charges of importing Tier 2 goods, contrary to s 233BAB(5) of the Customs Act 1901. That importation offence was inserted in the Customs Act 1901 in 1999.[2] The category ‘Tier 2 goods’ was defined to include goods such as firearms, firearm parts and magazines, munitions, warfare items, knives and chemical compounds.
[2]Customs Legislation Amendment (Criminal Sanctions and Other Measures) Bill 1999.
In delivering the Second Reading Speech, the then Attorney-General said:
Prevention of harm is crucial. Deterrents for those who would cause damage to our community are equally vital. This Bill will provide for increased penalties for a range of import and export offences under the Customs Act 1901. … More serious offences, such as those involving weapons or child pornography, will attract a penalty of $250,000 and/or 10 years imprisonment … By any standard, these are serious penalties to address serious offences … These amendments demonstrate the government’s continuing commitment to the approaches it has adopted under the National Firearms Agreement, the Tough on Drugs and Tough on Drugs in Sport strategies.[3]
[3]Commonwealth, Parliamentary Debates, House of Representatives, 24 November 1999, 12467–8 (Daryl Williams).
As the sentencing judge noted, the National Firearms Agreement here referred to was an agreement on firearms control entered into by the Australian Police Ministers’ Council in 1996, in response to the Port Arthur massacre in which 35 people were murdered. The laws giving effect to that agreement placed tight controls on semi-automatic and fully automatic weapons, although permitting their use by licensed individuals who could demonstrate that they required them for a purpose other than ‘personal protection’.
Charges 5 and 6 were charges of attempted importation of firearms with the intention of trafficking, contrary to s 11.1(1) and s 361.2 of the Criminal Code 1995 (Cth). The relevant provisions were introduced in 2014, and became operative from 6 March 2015. In delivering the Second Reading Speech, the then Justice Minister said:
The entry of illegal firearms into the Australian community can have a significant impact on the size of the illicit market. The growing pool of firearms can be accessed by groups and individuals to commit serious and violent crimes that can result in death. For example, in 2012, firearms were identified as being the type of weapon used in 25 per cent of homicides in Australia (Australian Crime, Facts and Figures 2013, Australian Institute of Criminology).[4]
[4]Commonwealth, Parliamentary Debates, House of Representatives, 17 July 2014, 8288 (Michael Keenan).
The seriousness of the crime of weapons importation was graphically captured in a decision of the Ontario Superior Court of Justice, to which the sentencing judge referred. In R v Villella, Trafford J said:
First, the importation, distribution and possession of firearms are exceptionally serious crimes. There is no social utility in crimes of this nature. Seldom, if ever, is there any reasonable suggestion of good faith or justification to any such crimes. They lead to the use of firearms, causing death or grievous bodily harm, often to innocent people. The possession of firearms by some people is in furtherance of an intention to use them. Others possess them in contemplation of engaging in conduct, such as trafficking in narcotics, where the use of the firearm is possible, or likely. Still others may carry a handgun, loaded and operable, as a badge of power, or achievement, amongst peers, misguided though they are by the conventional norms of our society. The possession of a handgun may lead to a random, or intentional, act of violence, including the death of innocent bystanders in the area of any confrontation. Unforeseen, and provocative, circumstances can lead to a senseless act of violence, and consequential grievous bodily harm or death, and all of the emotional devastation that goes with it. The importation, distribution and possession of firearms lie at the foundation of all crimes involving the use of firearms. As such, they are properly characterised as exceptionally serious crimes.[5]
[5][2006] O J No 4690 (emphasis added).
Similar views have been expressed in the United Kingdom. Avis v The Queen[6] was a case concerned with possession and use of weapons, rather than with importation, but what was said there is relevant to the present case. Lord Bingham CJ said:
The unlawful possession and use of firearms is generally recognised as a grave source of danger to society. The reasons are obvious. Firearms may be used to take life or cause serious injury. They are used to further the commission of other serious crimes. Often the victims will be those charged with the enforcement of the law or the protection of persons or property. In the conflicts which occur between competing criminal gangs, often related to the supply of drugs, the use and possession of firearms provoke an escalating spiral of violence.[7]
[6][1997] EWCA Crim 3423.
[7]Ibid.
In determining the appropriate level of sentence, Lord Bingham said, it would usually be appropriate for the sentencing court to ask itself a series of questions. The first two of these questions are as relevant to importation offences as they are to offences of use and possession:
(1)What sort of weapon is involved? Genuine firearms are more dangerous than imitation firearms. Loaded firearms are more dangerous than unloaded firearms. Unloaded firearms for which ammunition is available are more dangerous than firearms for which no ammunition is available. Possession of a firearm which has no lawful use (such as a sawn-off shotgun) will be viewed even more seriously than possession of a firearm which is capable of lawful use.
(2)What (if any) use has been made of the firearm? It is necessary for the court, as with any other offence, to take account of all circumstances surrounding any use made of the firearm: the more prolonged and premeditated and violent the use, the more serious the offence is likely to be. [8]
[8]Ibid.
As we have already noted, the firearms which Munro imported were firearms which had no lawful use and there was evidence before the sentencing court of their having been used in connection with serious criminal activity.
Factual background
On 9 May 2018, following a plea hearing conducted over three days in July, November and December 2017, Munro was sentenced as follows:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1
Import Tier 2 goods contrary to s 233BAB(5) of the Customs Act 1901 (Cth)
10 years’ imprisonment or 2500 penalty units or both
4.5 years
15 months
2
Import Tier 2 goods contrary to s 233BAB(5) of the Customs Act 1901 (Cth)
10 years’ imprisonment or 2500 penalty units or both
4 years
12 months
3
Import Tier 2 goods contrary to s 233BAB(5) of the Customs Act 1901 (Cth)
10 years’ imprisonment or 2500 penalty units or both
4 years
12 months
4
Import Tier 2 goods contrary to s 233BAB(5) of the Customs Act 1901 (Cth)
10 years’ imprisonment or 2500 penalty units or both
5 years
Base
5
Attempt to import firearm or firearms parts with the intention of trafficking contrary to ss 11.1 and 361.2 of the Criminal Code 1995 (Cth)
10 years’ imprisonment or 2500 penalty units or both
4 years
12 months
6
Attempt to import firearm or firearms parts with the intention of trafficking contrary to ss 11.1 and 361.2 of the Criminal Code 1995 (Cth)
10 years’ imprisonment or 2500 penalty units or both
4 years
12 months
Total Effective Sentence:
10 years 3 months
Non-Parole Period:
6 years
Pre-Sentence Detention declaration pursuant to s 18(1) of the Sentencing Act 1991 (Vic):
617 days
6AAA Statement:
15 years, with a non-parole period of 11 years
As noted earlier, the Director’s ground of appeal is that the total effective sentence and the non-parole period are manifestly inadequate. The Director particularises her ground of appeal as follows:
(a)The sentencing judge failed to order proper accumulation reflective of separate and discrete serious offending that occurred over a period of two years in three distinct importations of firearms (charges 1–4) and two attempted importations of firearms (charges 5–6).
(b)The total effective sentence and non-parole period imposed does not adequately reflect the nature and circumstances of the overall offending, including the maximum penalties prescribed for the offences.
(c)The total effective sentence and non-parole period imposed do not adequately reflect the principles of general deterrence, specific deterrence, punishment and denunciation.
(d)The total effective sentence and non-parole period imposed reflects undue weight being given to the respondent’s plea of guilty and personal circumstances.
Charge 1: (importing Tier 2 goods between 15 March 2013 and 31 August 2013)
Between 15 and 18 January 2013, Thureon exhibited at the ‘Shooting, Hunting and Outdoor Trade’ show in Nevada. The owner of that company, Andy Huebschmann, occupied a booth at the show. Munro travelled to Nevada from Australia, attended the Thureon booth and said that he was interested in purchasing some Thureon brand weapons. Munro contacted Huebschmann several weeks after the trade show, and enquired as to whether or not Thureon would be prepared to supply unassembled firearms in kit form.
In March 2013, Thureon agreed to supply Munro with six assault rifle kits, along with triggers and machining plates, which were required to convert the weapon from its semi-automatic function, as manufactured, into a fully automatic machine gun, for an agreed total price of US$5,300. Munro left instructions to contact a US-based associate named Ricky Stafford in relation to the supply of these firearms.
As we have mentioned, a fully automatic Thureon assault rifle, which can operate in automatic or semi-automatic mode, can fire up to 1,000 rounds of ammunition per minute. As the judge put it:
the Thureon in full automatic mode is a truly terrifying weapon; a piece of military hardware clearly designed to kill humans in great numbers. It has no use other than as a mass killing machine and it has no legitimate place in civil society.[9]
[9]R v Munro [2018] VCC 918 (‘Reasons’) [7].
On 3 March 2013, Stafford, acting on Munro’s behalf, paid Thureon US$800 by way of deposit for the order of six assault rifles. The balance of US$4,500 was paid by Stafford, acting on Munro’s behalf, to Keith Finch, the sales manager of Thureon, on 11 July 2013. The cheque was delivered to Thureon along with a handwritten letter penned by Munro.
On 23 July 2013, Thureon issued an invoice to Munro for the six assault rifles, recording the payment of US$5,300. On the same day, the consignment of assault rifles was shipped from Thureon to the designated shipping address. The delivery instructions directed that Stafford be contacted upon their arrival.
The assault rifles sent as part of this shipment were devoid of branding, serial number or other identifying marks, except for a small Thureon brand logo etched onto the magazine release.
Charge 2: (importing Tier 2 goods between 1 September 2014 and 31 December 2014)
In early April 2014, Munro left Australia and headed to a gun show in Oklahoma where Munro met with Dale Nygaard, a US Federal firearms licensee, who was exhibiting at the show. Munro also travelled to Wisconsin where he met with Huebschmann and provided him with two AR15 lower receivers.[10] Munro asked him to machine them to ‘full lower receivers’ and also to make a machine plate for the receivers so that they could be drilled to accommodate a trigger set. The purpose of these modifications was to turn the otherwise semi-automatic weapons into fully automatic weapons.
[10]A receiver is that part of a firearm which provides housing for a hammer, bolt or breachlock and firing mechanism and which is usually threaded at its forward portion to receive the barrel.
The AR15 is a lightweight, magazine-fed, gas-operated semi-automatic rifle. It is the civilian version of the US military M16 carbine. As the judge put it, ‘[the AR15’s] primary role is as a military carbine, designed to kill humans’.[11]
[11]Reasons [12].
Munro advised Huebschmann that he had ordered a further four AR15 lower receivers. The receivers arrived at Thureon for modification, having been supplied by a company named Remsport Manufacturing. Munro specifically asked for the AR15 receivers to be machined to accept a fully automatic trigger. All six receivers were subsequently machined to accept fully automatic triggers and then shipped to Munro in Australia.
Charges 3 and 4: (importing Tier 2 goods between 1 February 2015 and 31 March 2015)
At some point during 2014, Munro asked Huebschmann to machine unfinished handgun frames for 1911 model .45 calibre semi-automatic pistols that would be supplied by Remsport Manufacturing. Huebschmann agreed to machine the handgun frames and they were delivered to Thureon for the purpose of being converted to completed firearm lower receivers. The completed weapon had no identifying manufacturer marks or serial number.
On 19 January 2015, Munro departed Australia to attend a show being held in Nevada between 20 and 23 January 2015, where he met with Huebschmann. At the conclusion of the show, Huebschmann returned to Wisconsin where he commenced preparing a further six Thureon assault rifle kits which Munro had ordered, as well as 30 semi-automatic handgun frames previously supplied by Remsport.
At Munro’s request, the assault rifle kits were devoid of branding, serial number or any other identifying marks, including the small Thureon brand logo, which had been present on the magazine release mechanism of the Thureon assault rifles Munro imported earlier. As mentioned earlier, Munro expressly requested that the Thureon brand logo be removed because he was aware that one of these weapons, previously imported by him, had been seized by law enforcement officers in Australia.
In late January 2015, Munro delivered a wooden crate to Huebschmann which contained engine parts and a false bottom, the purpose of which was to conceal the firearms for shipment to Australia. Munro also delivered approximately 30 slides suitable for fitting to the handgun frames. Huebschmann charged Munro US$1,000 per assault rifle and US$2,000 for machining the semi-automatic handgun frames, making a total cost of US$8,000. Munro paid approximately half of this amount to Huebschmann prior to leaving the United States and the outstanding balance was subsequently paid to him by Nygaard, who was acting on Munro’s behalf.
On 11 March 2015, Huebschmann sent the crate via Inexpress Couriers to K & H Mechanical Repairs at an address in California. This destination was provided to Huebschmann by Munro. The company is recorded with the Australian Border Force as a client in their integrated cargo system as a consignor of goods, including vehicles and vehicle parts and accessories to Australia. The crate was subsequently shipped to Australia.
Charges 5 and 6: (attempting to import firearms or firearm parts between 1 January 2016 and 29 August 2016)
On 11 January 2016, Munro telephoned Huebschmann and asked if he could supply another six fully automatic Thureon assault rifles and also if he would be willing to machine more 1911 semi-automatic handgun frames. A short time later, Thureon received a consignment of 1911 semi-automatic handgun frames from Remsport Manufacturing.
In late March 2016, Munro departed Australia and attended another gun show in Oklahoma, where he made arrangements for building wooden crates with false bottoms for the purpose of shipping the firearms back to Australia. On 9 April 2016, Munro delivered one of two wooden crates to Huebschmann and gave instructions on how the firearms were to be concealed to avoid detection by Australian Customs. Munro supplied a handwritten note with an address of where the crate containing the concealed firearms was to be shipped, namely, ‘JT Imports’ also known as ‘JT Core Supplies’. The Australian Border Force has JT Core Supplies recorded as a client in their integrated cargo system as a consignor of goods, including vehicles and vehicle parts and accessories, to Australia.
On 28 June 2016, special agents from the United States Government’s Bureau of Alcohol, Tobacco, Firearms and Explosives (‘ATF’) attended Thureon’s premises on behalf of Victoria Police and interviewed Huebschmann. He said that he had supplied Munro with the previously imported firearms; that he was in the process of preparing 96 semi-automatic handgun frames and six Thureon assault rifles for shipment to Munro; and that the firearms prepared for and sent to Munro were the only firearms he had sent to Australia. ATF Special Agents seized the firearms, firearm frames and the shipping container that had been supplied by Munro in April 2016.
Victoria Police commenced interception of Munro’s telecommunications service and placed him under surveillance. On 17 July 2016, investigators intercepted a call in which Huebschmann said to Munro that he had not heard from him. Munro replied that he thought the box was ‘right to go’ and was on its way. Huebschmann said that the Orlando nightclub shooting had put a ‘crimp’ in getting firearm parts. He also said that ‘the big bunch of stuff that we drilled the two holes in’ (referring to semi-automatic handgun frames) would not all fit in. Munro replied that it was fine and to put in 60–70 and send the rest to Nygaard. Munro confirmed that they should be held there at Thureon because another crate would be coming soon.
On 4 August 2016, investigators intercepted a call in which Huebschmann indicated that he had left a message for Munro — as he needed a phone number as a requirement for shipping — for a person at JT Core where the crate was to be delivered. Munro advised that his daughter sent an email with the relevant number for JT Core. Huebschmann asked if Nygaard had some money that he could drop off because the cost of shipping was $1,000. Munro said he could maybe send a couple of thousand dollars.
On 4 August 2016, after Munro had been informed that the consignment was on its way to Australia, Munro met with a Victoria Police covert operative at a hotel in Swan Hill. During this meeting Munro offered to supply him with Thureon assault rifles for $15,000 each and 1911 model semi-automatic handguns for $5,000 each.
On 8 August 2016, the covert operative telephoned Munro and said that he was interested in purchasing 1911 model semi-automatic handguns and Thureon assault rifles. Munro confirmed that, if he purchased the weapons, they would be supplied with ammunition.
On 9 August 2016, the covert operative telephoned Munro and asked if he could purchase a Thureon within the week. Munro said that he did not have anything available, but he would speak to previous customers to see if he could get one back, in order to sell it to the covert operative.
On 18 August 2016, Munro met with the covert operative in Bendigo. Munro agreed to supply him with five Thureon assault rifles and 10 .45 calibre 1911 model semi-automatic handguns for a total price of $110,000. Munro agreed that he would meet with the covert operative on 30 August 2016, at which time he would bring a Thureon to show him and that he would require a deposit of $22,000.
On the same day, after this agreement was made, investigators intercepted a telephone call between Munro and an associate, Mark White, in which Munro asked White whether he remembered doing ‘a bit of machining’ for him and ‘drilling a few holes’. White said he did remember. White confirmed that he had a ‘complete article’ there (meaning a Thureon fully automatic assault rifle). White asked if Munro meant a little one or a bigger one and said that ‘We did two lots, they were a bit different’. White said he kept one for himself, whereupon Munro asked if he could borrow it ‘to show a bloke’. White agreed to lend Munro the Thureon assault rifle. Munro said he would pick it up and take it down the road and ‘show a bloke’ and then bring it back.
On 19 August 2016 Munro telephoned the covert operative and said that he could meet him on 30 August in the Geelong area. On 26 August Munro confirmed by telephone that he would have a Thureon for him to inspect at the meeting.
On 29 August, investigators intercepted a phone call between Munro and White in which Munro confirmed that he would borrow a Thureon from him to show to the covert operative. Munro advised White that the purchaser was from Melbourne but that he was buying the assault rifle for someone in Sydney. White cautioned Munro about dealing with someone he did not know well. White advised that he did not do anything with anyone who did not come with a recommendation.
The conversation then turned to an email that had been received from Nygaard, which included a list of items that Munro and White were importing into Australia using White’s dealer licence. The list of items included a large volume of parts of 1911 model semi-automatic handguns. The handgun parts discussed by Munro with White were all suitable for use in turning the semi-automatic handgun frames that had been imported, or were being imported by Munro, into operating firearms.
Later that day, investigators intercepted a phone call between Munro and White in which Munro confirmed that he wanted him to remove the lower receiver of the Thureon that he intended to show the covert operative.
On 30 August 2016, Munro collected the upper half of the assault rifle from White at his home near Geelong and placed the weapon in the boot of Munro’s car. Munro drove to a car park in Clifton Springs where he met the covert operative. Munro opened the boot of his vehicle and showed the assault rifle to him. He agreed to pay the deposit which he had with him. At this time Munro was arrested by the police. White was arrested a short time later.
Summary of offending
Munro’s offending may be summarised as follows:
·charge 1: between 15 March and 31 August 2013, importing six Thureon brand fully automatic rifles;
·charge 2: between 1 September and 31 December 2014, importing six AR15 lower receivers;
·charge 3: between 1 February and 31 March 2015, importing 30 1911 semi-automatic handgun frames;
·charge 4: between 1 February and 31 March 2015, importing six Thureon brand fully automatic rifles;
·charge 5: between 1 January and 29 August 2016, attempting to import 96 1911 model 45 calibre handgun frames; and
·charge 6: between 1 January and 29 August 2016, attempting to import six Thureon brand fully automatic rifles.
At the time of sentencing:
·seven of the Thureon rifles had been recovered, and five remained outstanding;
·all but one of the AR15 lower receivers were still unaccounted for; and
·all but one of the 1911 semi-automatic handgun frames were still unaccounted for.
Record of interview
Munro participated in a taped record of interview in which he was, to use the judge’s words, ‘less than frank’.[12] He told police that:
[12]Ibid [36].
·he was previously a licensed firearms dealer, but his licence had been cancelled. Nonetheless, he still imported bits and pieces of firearms through other dealers;
·he first saw Thureon assault rifles at a gun show in Nevada;
·he had imported Thureon parts, but only through the post;
·he had given the Thureon parts which he imported to a friend of his from Shepparton called ‘Dave Bailey’, who had since passed away;
·he believed firearms were coming in large quantities into Australia after they arrived in New Guinea, having been put together in Asia;
·he had met the covert operative that morning as an intermediary for a person he knew only as ‘Ronnie’ from Shepparton;
·he had met ‘Ronnie’ through Dave Bailey but did not know much about him;
·he had met a person from Thureon called ‘Andy’ at a gun show and Andy had sent car parts to him;
·he had only ever bought a couple of Thureon bits and pieces from Andy; and
·the Thureons and the 1911 handgun frames that were addressed to him were not his and he was to deliver them to Dale Nygaard.
Personal circumstances
Munro was born in 1953. He was between 59 and 62 during the period of his offending and 64 at the time of sentencing. He had two adult children with whom he was still in contact.
Over the course of his life, Munro had conducted a number of businesses. In the 1990s, he started to travel to America on a regular basis for the purpose of importing motor vehicle parts to Australia. He then completed a course in business management at Duke University, and embarked on a project involving the replication of a particular type of engine. Unfortunately, this proved to be commercially unviable.
As the judge noted, Munro had a number of findings of guilt recorded in a local court in New South Wales in December 2012.[13] These arose out of his having operated a business as a licensed firearms dealer. The offences involved failures to comply with statutory obligations to properly store records and firearms. The Court released Munro on a bond to be of good behaviour for two years.
[13]Ibid [75].
At the time of sentencing, Munro suffered from a number of significant health issues: venous insufficiency in both of his lower limbs, obesity, multiple hernias, respiratory problems, urinary tract and prostate ailments, osteoarthritis, eyesight difficulties, recurrent ear soreness and depression. He also suffered from high blood pressure, although that was well managed with medication. The judge accepted that Munro was ‘a very unwell man’.[14]
[14]Ibid [85].
On the plea hearing, the defence relied on a report from a forensic psychologist, Ms Pamela Matthews. The judge found this report to be unsatisfactory, as he stated in his sentencing reasons:
In my opinion these observations [about impaired cognition] were largely unsupported by rigorous psychological or psychometric testing, depended much on [Munro’s] self-report and appear to be quite speculative in many respects. They also appeared to me to be somewhat partisan observations.
For that reason, his Honour said, he had ordered a pre-sentence psychological report from Forensicare. The Forensicare report came from Dr David Shea, a clinical and forensic psychologist, who relevantly stated as follows:
Mr Munro presented with mild depressive symptoms, including lowered mood and fatigue, but these were considered to fall within the normal range for someone in his circumstances and with his recent substance use history. While he reported some physical symptoms that might be associated with depression (eg, poor sleep), it was difficult to identify causation, given his manifold health difficulties. He specifically attributed his sleep difficulties to sleep apnoea related to his weight. He also expressed hopeful themes, denied any history of suicidal ideation, and was able to articulate realistic, qualified positive plans for the future. Accordingly, it was deemed that he did not currently meet formal DSM-V criteria for diagnosis with a mood or adjustment disorder.
Based on Mr Munro's self-reported usage patterns and experiences, it was apparent that, prior to his current incarceration, he met DSM-V criteria for Alcohol Use Disorder of Moderate severity, in partial remission due to his abstinence since his incarceration late last year. …
Mr Munro’s self-reported difficulties, longstanding patterns of heavy drinking and recent testing performance by Ms Mathews suggested the possibility of cognitive impairment. However, as previously noted, testing conditions at the time of that assessment were non-optimal. No new evidence of significant cognitive impairment was detected during the current assessment, and it seemed that some of the difficulties noted in Ms Matthews' report were either attenuated or no longer present (eg, problems with memory). Nevertheless, comprehensive testing was not conducted. … and the possibility of cognitive impairment may warrant further investigation.
While the possibility remains that Mr Munro has exaggerated his current level of coping, he described a good adjustment to the prison environment, securing appropriate employment where feasible and denying problems with fellow inmates or correctional staff. He has apparently responded well to the structured environment, and remained abstinent from substance use. He reports regular, positive contact with his daughters, brother and several friends, and said that he got along with his fellow prisoners and corrections staff.
Considering the degree to which a custodial sentence would weigh especially heavily on Mr Munro, it appears that the key issues relate more to his physical than mental health.[15]
[15]Ibid [96].
Sentencing reasons
Having described the offending, the judge said:
Illicit firearms are a blight on our society, particularly where, as here, they fall into the hands of serious criminals. … Due to its enduring nature, a firearm can remain within the illicit market for many years and be accessed by serious and organised crime groups for use in the commission of crimes. Undoubtedly, illicit firearms pose a serious danger to public safety and law and order.
In his Honour’s view, general deterrence, denunciation and just punishment must be given primary consideration in this case.[16] He then made the following observations and findings, which were unchallenged on this appeal:
[16]Ibid [42].
(1) The sentence to be imposed ‘must signal to those involved in unlawfully introducing firearms into Australia for profit that the potential substantial financial rewards to be gained from such activities are neutralised by the risk of severe punishment’.[17]
[17]Ibid [43].
(2) The firearms which Munro imported and attempted to import were all ‘high powered and operable in semi-automatic and automatic mode’. They posed a serious danger to public safety, and law and order. Moreover, in arranging to have semi-automatic weapons converted to fully automatic weapons, Munro had ‘significantly increased their lethality’.[18]
[18]Ibid [44].
(3) Munro’s offences were ‘very serious’ examples of the offences with which he had been charged.[19]
[19]Ibid.
(4) Munro’s role and motivation involved ‘sustained offending against the legislative object of the offence provisions of a very serious kind’.[20]
[20]Ibid [46].
(5) It was a particularly concerning aspect of the case that a number of the weapons imported by Munro ‘fell into the hands of Australian criminals’.[21]
[21]Ibid [47]. See also [48]–[52].
(6) Munro displayed a callous disregard for the potential consequences of the introduction into Australia ‘of such a large number of inherently dangerous firearms’.[22]
(7) His moral culpability was ‘very high’.[23]
(8) Munro was entirely motivated by greed, expecting to make a substantial profit upon the sale of the firearms he imported.[24]
[22]Ibid [53].
[23]Ibid.
[24]Ibid [54].
The judge accepted that the offending constituted by charge 4 was aggravated by the fact that — by the time of that importation of Thureon rifles — Munro was aware that at least one fully automatic Thureon assault rifle imported by him had been detected by Victoria Police in the course of criminal investigations. As the judge put it:
Possessed of this knowledge, you not only arranged further shipments of these highly dangerous weapons, but sought to avoid their detection by having the firearms manufactured without the limited identification present on the previous shipment. You also took steps to have wooden crates containing car parts to be made with false bottoms so as to conceal the firearms during their importation.[25]
[25]Ibid [56].
The judge then turned to Munro’s role in the offending, finding him to be ‘the principal and the originating and controlling mind in [an] ongoing unlawful importation … of illegal firearms’ into this country.[26] The judge observed that Munro had carried out his role ‘on a commercial scale’, using deceptive means and coordinating the roles of others.[27] The judge then said:
Your offending was premeditated, highly organised, well planned, relatively sophisticated and sustained over a period of nearly 3½ years. You used innocent agents in your nefarious scheme to bring large numbers of highly dangerous firearms into this country. Your criminal conduct ceased only by reason of your detection and arrest on these charges. As charges 5 and 6 demonstrate, your offending was in fact continuing at the time of your arrest. Accordingly, I have no hesitation in sentencing you on the basis that these are serious examples of these serious offences. Your counsel conceded this was ‘very serious’ offending.[28]
[26]Ibid [57].
[27]Ibid.
[28]Ibid [58].
His Honour accepted that Munro’s pleas of guilty were entered at an early stage, and sentenced him on the basis that his early pleas had utilitarian benefit and were indicative of an acceptance of responsibility for his crimes and a willingness to facilitate the course of justice.[29] The judge said, however, that he was unable to find that Munro’s pleas of guilty were indicative of true contrition and remorse.[30]
[29]Ibid [72].
[30]Ibid [73].
At the same time, his Honour accepted that Munro had, by the time of the plea hearing, demonstrated ‘some insight regarding the serious nature of [his] offences and their possible consequences’. The judge said that this was relevant to the weight he would give to specific deterrence and protection of the community, and also to the assessment of Munro’s prospects for rehabilitation — which the judge found to be ‘good’.[31]
[31]Ibid.
In referring to Munro’s prior criminal history, the judge observed that Munro did not fall to be sentenced as a person of otherwise good character. The serious escalation from the offending in 2012 to the current offending was, the judge said, ‘very concerning’.[32] At the same time, the judge ‘accept[ed] the general tenor’ of five character references tendered on Munro’s behalf, and then said:
You are apparently a ‘community minded person’ who ‘will go out of [your] way to help others’. You are reportedly ‘courteous’, ‘likeable’, ‘good humoured’ and you ‘mix well with others’. You are ‘genuine’ and ‘reliable’ and you have a ‘strong work ethic’. Your referees speak of your ‘honesty’, ‘trustworthiness’ and ‘scruples’; but, of course, they were unaware that you were committing the present very serious offences on an ongoing basis until your offending was eventually discovered. They describe your criminal conduct over the period covered by the present charges as being ‘out of character’. I accept that up until 2012, this was so.
Whilst in custody you have participated in a three day KARIOS 18 short course, studying Christian beliefs and values. I was told by your counsel that you have also been attending Alcoholics Anonymous meetings weekly whilst on remand. This augurs well for your prospects of rehabilitation.[33]
[32]Ibid [76].
[33]Ibid [77]–[78].
The judge set out, in some detail, the evidence about Munro’s physical health before concluding (as we have already noted) that Munro was a ‘very unwell man’. The judge said:
Your hypertension has been an ongoing problem, together with your peripheral vascular disease, leading to leg and foot ulcers. You are also extremely overweight. These conditions, in particular, make it difficult for you to exercise, due to poor circulation and swelling in your legs and they must cause you a great deal of discomfort and pain.[34]
[34]Ibid [85].
The judge accepted that the more serious of Munro’s physical conditions would make imprisonment more burdensome for him than it would be for a prisoner of normal health. He also accepted that there was a risk that Munro’s medical condition could deteriorate while he was in custody. He said, however, that there was insufficient evidence to make a finding that the custodial environment itself would contribute to any such deterioration.[35] The judge concluded that he would moderate the sentences that he would otherwise have imposed on account of hardship occasioned by Munro’s physical health problems.[36]
[35]Ibid [87].
[36]Ibid [88].
As to Munro’s mental health, the judge concluded that Verdins[37] principles 1 to 4 were not engaged. He also concluded that there was insufficient evidence to find that Verdins principles 5 and 6 were engaged.
[37]R v Verdins (2007) 16 VR 269 (‘Verdins’).
Under the heading ‘Other mitigating circumstances’, the judge said that because of Munro’s low risk of reoffending he would give less weight to specific deterrence and protection of the community than he would have otherwise done.[38] The judge also noted that there had been a delay of 20 months between being arrested and charged, and sentencing.[39] The judge accepted the psychological evidence that this delay had been ‘unsettling’ for Munro, and he took the delay into account in Munro’s favour.[40]
[38]Ibid [99].
[39]Ibid [100].
[40]Ibid.
Next, the judge rejected a submission made by the prosecutor that he should sentence Munro on the basis that offences of this kind were ‘prevalent’.[41] He noted that there appeared to be ‘no comparable cases of this magnitude of offending’.[42] The judge said that, nevertheless, he had had regard to cases to which he had been referred, ‘to the extent that they assist in establishing a range for significantly less serious offending’.
[41]Ibid [101].
[42]Ibid.
The judge then turned to the issue of totality:
The totality principle must be given effect to, given the overlapping nature of the charges and also to avoid imposing a crushing sentence on you, particularly given your age and physical health problems. I will also impose a shorter non-parole period than I would otherwise have imposed, particularly on account of your physical health problems, your low risk of reoffending and your good prospects of rehabilitation.[43]
[43]Ibid [102].
In conclusion, his Honour said:
The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them and your personal circumstances.
I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated and reintegrated into society.
General deterrence and denunciation are important sentencing considerations for these offences. Moreover, whilst just punishment, general deterrence and denunciation must be given primary consideration in the instinctive synthesis, I am of the view that, in your case, specific deterrence and protection of the community are required to be given some weight, in light of your previous offences and general attitude of non-compliance with firearms legislation.
It is difficult to make any accurate assessment of your prospects of rehabilitation, but on balance I am of the view they are good. There has also been significant delay in this case, which I also take into account in your favour. You have had this matter hanging over you for some 20 months.[44]
[44]Ibid [105]–[108].
Appellant’s contentions
In her written case, the Director advanced four submissions in support of her contention that the total effective sentence and non-parole period were manifestly inadequate. First, the Director submitted that the judge had ‘failed to order proper accumulation reflective of separate and discrete serious offending that occurred over a period of two years in three distinct importations of firearms (charges 1 to 4) and two attempted importations of firearms (charges 5 and 6)’.
In support of that submission, the Director noted that:
(1)The offending involved three separate importations into Australia of automatic assault rifles and major component firearm parts (receivers) for automatic assault rifles. A total of 12 automatic assault rifles, 30 semi-automatic pistols and a further six automatic assault rifles’ receivers were imported in the three importations.
(2)The importations were separate transactions and each involved distinct planning and execution. Each importation was motivated by profit, and the importations occurred ‘over a lengthy period’.
(3)The attempted importations occurred over a further eight month period and involved a further six automatic assault rifles and 96 semi-automatic handgun frames. Again, Munro engaged in planning, and profit was the sole motive of his activity.
(4)There was evidence that some of the imported firearms had been used in criminal offending and that, prior to the attempted importations, Munro was aware that the imported firearms had been so used and had organised for the removal of specific branding on the firearms.
Each of the offences was ‘discrete’ and each was a serious offence. The cumulation ordered on each charge was inadequate to reflect the individual seriousness of each distinct offence.
Secondly, the Director submitted that the total effective sentence and non-parole period did not adequately reflect the nature and circumstances of the overall offending, or the maximum penalties prescribed for each offence. As the Director put it in her written case:
The nature and circumstances of the offending was not reflected in the overall sentence and non-parole period imposed and the overall sentence and non-parole period did not adequately reflect the ten year maximum penalty that applies to each of the six offences for which the respondent was sentenced. The legislative object of the offences for which the respondent was sentenced is to deter conduct which frustrates the controlled importation into Australia of firearms so as to protect the community from their uncontrolled importation. The respondent’s offending very seriously offends against that legislative object given the large number of firearm parts and firearms that entered the community as a result of the respondent’s offending and the fact that those firearms were used in criminal offending.
Thirdly, the Director submitted that the total effective sentence and non-parole period did not adequately reflect the principles of general deterrence, specific deterrence, punishment and denunciation. General deterrence, specific deterrence, punishment and denunciation were required to be given significant weight because of the inherently serious nature of Munro’s offending and the fact that the offending involved automatic assault rifles, ‘being weapons that could only be used in criminal activity’. Munro’s offending was submitted to fall within the worst category of offending, ‘and the sentence should [have] reflect[ed] this’.
Fourthly, the Director submitted that the total effective sentence and non-parole period ‘reflected undue weight having been given to Munro’s plea of guilty and personal circumstances’. The Director highlighted that Munro was not particularly cooperative with police when he was interviewed by them.
Additionally, the Director submitted, the respondent’s plea of guilty and personal circumstances should have been regarded by the judge as ‘secondary to the main sentencing principles of general deterrence, specific deterrence, punishment and denunciation’.
In oral argument, the Director made the following additional points:
(1) Each of the charges to which Munro pleaded guilty was in fact a rolled up charge. The importation of any one of the firearms and firearm parts could have formed the basis for an individual charge.
(2) The maximum term of imprisonment available to the sentencing judge was 60 years, and the sentence ultimately imposed should be looked at in the light of that maximum penalty.
(3) There was a relevant distinction between offending involving the importation (or attempted importation) of firearms, and like offending involving drugs. Drugs were ultimately consumed; whereas firearms existed indefinitely. Thus the harmful effects of drug importation might eventually dissipate, while the ‘mass killing machines’ imported into Australia in this case would continue to exist, with an ongoing capacity to kill human beings in great numbers.
During the course of her argument, the Director made application to amend her notice of appeal so as to contend that, in addition to the orders for cumulation being manifestly inadequate, the individual sentences imposed on the charges were also manifestly inadequate. After hearing argument, we refused the Director’s application for leave to amend, saying we would provide reasons at the time of judgment.
In our view, it was not in the interests of justice to permit such a significant amendment at such a late stage in the proceeding. The Director’s decision to appeal — but to refrain from challenging the individual sentences — was obviously a considered one. At the time of hearing, the appeal had been on foot for in excess of nine months. At no point prior to the hearing had the Director foreshadowed any application for leave to amend. The position might well have been different had the Director given notice of an intention to apply for leave to amend a reasonable time prior to the commencement of the hearing.
Finally, the Director submitted that there was no basis upon which this Court should exercise the residual discretion.
Respondent’s contentions
Counsel for Munro correctly pointed out that the ground of manifest inadequacy ‘is a stringent one, difficult to make good’.[45] Far from the sentence being inadequate, counsel submitted, the sentence imposed was stern. The judge took into account the seriousness of the offending, and the importance of general deterrence, punishment and denunciation. While specific deterrence and protection of the community were to be given some weight, the judge gave these matters less weight than he would have otherwise because of Munro’s low risk of re-offending.
[45]DPP vKarazisis (2010) 31 VR 634, [127].
According to the submission, the sentence could not be viewed as manifestly inadequate when regard was had to:
·the fact that Munro pleaded guilty at the earliest reasonable opportunity;
·his good prospects for rehabilitation;
·the reasonably lengthy period of delay, which was not of his making;
·the principle of totality;
·the fact that Munro was 64 years old at the time of sentencing, and the imposition of a crushing sentence was to be avoided; and
·the fact that Munro was a ‘very unwell man’, for whom imprisonment would be more burdensome than for a prisoner of normal health.
The purpose of cumulation, it was said, was not to reflect the individual seriousness of each distinct offence. That function was served by the imposition of appropriate sentences in relation to each offence. The degree of cumulation, by contrast, gave effect to the principle of totality and had to be set at a level which avoided the imposition of a crushing sentence. Far from failing to order proper accumulation, if anything, insufficient regard was paid by the judge to the principle of totality.
According to the written case, the sentences imposed on each offence properly reflected the 10 year maximum penalty applicable for each offence. Munro was sentenced to 40 to 50 per cent of the maximum term of imprisonment on each offence, notwithstanding the operation of ‘highly significant mitigating factors’. In such circumstances, it could not be said that the total effective sentence fell outside the range of sentences that were open to the judge.
In oral argument, counsel for Munro accepted that the offences committed by her client were very serious but contended that the individual sentences were manifestly excessive, having regard to Munro’s pleas of guilty and the other matters able to be called on in mitigation of sentence. It followed that the total effective sentence could not be held to be manifestly inadequate.
Finally, counsel submitted that, if this Court held the sentence to be manifestly inadequate, then the residual discretion should be exercised.
Was the sentence manifestly inadequate?
For the reasons given earlier, Munro’s offending was extremely serious. We reject immediately the contention that the individual sentences were manifestly excessive. Notwithstanding the matters relied upon in mitigation by Munro, the sentences on each charge were lenient in view of the objective gravity of the offending.
As we have said, general deterrence must be a paramount sentencing consideration for offending of the present kind. We agree with the judge that the sentence to be imposed had to signal to those involved in unlawfully introducing firearms into Australia for profit that the potential substantial financial rewards to be gained are neutralised by the risk of severe punishment.[46]
[46]Reasons [43].
Munro’s offending was particularly egregious, the firearms he imported and attempted to import being all high powered and operable in semi-automatic and automatic mode. They posed a serious danger to public safety, and law and order; and in arranging to have semi-automatic weapons converted to fully automatic weapons, Munro, as the judge put it, ‘significantly increased their lethality’.[47]
[47]Ibid [44].
Munro’s offending was protracted, planned and persistent over four periods of time:
·March to August 2013, charge 1;
·September to December 2014, charge 2;
·February to March 2015, charges 3 and 4; and
·January to August 2016, charges 5 and 6.
Substantial cumulation was warranted between these periods of offending, as well as the cumulation required for different offending during the same timeframes (that is, the different offending in each of the two later timeframes).
In oral argument, the parties accepted that there were no comparable cases for sentencing purposes. Initially, the Director submitted that R v Khoder El Ali[48] may provide some guidance to the Court. In that case, the offender had been sentenced to a term of imprisonment of 8 years with a non-parole period of 5 years 6 months on one charge of conspiracy to import Tier 2 goods. Ultimately, however, it was accepted in argument that Khoder could provide no guidance in the present case. Again, to use the judge’s words, ‘there appear to be no comparable cases of this magnitude of offending’.[49]
[48][2017] NSWDC 46 (‘Khoder’).
[49]Reasons [101].
We reject Munro’s submission that any increase in the amount of cumulation would infringe the principle of totality. Higher cumulation is necessary, and appropriate, to reflect the discrete periods over which his serious offending was committed, coupled with his knowledge by the time charge 4 came to be committed that at least one fully automatic Thureon assault rifle had been detected by police in the course of criminal investigations.
Over a period of some three and a half years, Munro engaged in persistent, planned, sophisticated offending to bring into Australia mass killing machines the only purpose of which was their use in the threatened or actual taking of human life in the course of criminal activity. The total effective sentence and non-parole period are well below what was required to reflect the aggregate criminality of the offending.[50] It was not reasonably open to the judge in the circumstances to impose the total effective sentence and non-parole period which he did.
[50]See, for example, Postiglione v The Queen (1997) 189 CLR 295, 307–8; Azzopardi v The Queen (2011) 35 VR 43, 59–60 [57]–[58].
The appeal must be allowed. The orders for cumulation must be set aside. Moreover, the Director has persuaded us that there is no basis for the exercise of the residual discretion in this case.
Resentencing
In place of the orders resulting in the periods of cumulation of 15 months in respect of charge 1 and 12 months in respect of each of charges 2, 3, 5 and 6, there should be orders that result in the cumulation of two years of each of the sentences imposed on those charges, on the base sentence of 5 years imposed on charge 4. This produces a total effective sentence of 15 years. In light of Munro’s age, health issues and prospects of rehabilitation, we would then impose a non-parole period of 11 years.
For Federal offences, the issues of cumulative, partially cumulative, and concurrent sentences are dealt with in s 19 of the Crimes Act 1914 (Cth). Under that section, cumulation is effected by the Court directing that sentences for different federal offences commence on different days. The table below sets out the commencement dates ordered by the judge that resulted in the total effective sentence he imposed, and the altered commencement dates necessary to achieve the periods of cumulation and total effective sentence we propose to impose:
Charge on Indictment Sentence Commencement dates ordered by the judge New commencement date 1 4.5 years 9 February 2020 9 November 2020 2 4 years 9 August 2021 9 May 2023 3 4 years 9 August 2022 9 May 2025 4 5 years 9 May 2018 9 May 2018 5 4 years 9 August 2023 9 May 2027 6 4 years 9 August 2024 9 May 2029 Conclusion
The appeal will be allowed. Orders will be made that result in Munro being sentenced to a total effective sentence of 15 years, with a non-parole period of 11 years.
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