CITATION: Mack v R; Mack v R [2009] NSWCCA 216 This decision has been amended. Please see the end of the judgment for a list of the amendments.
FILE NUMBER(S): 2008/15947 and 2008/15920
HEARING DATE(S): 25 August 2009
JUDGMENT DATE: 24 September 2009
PARTIES: Wayne Raymond Mack (Appellant) Annette Faye Mack (Appellant) Crown (Respondent)
JUDGMENT OF: McClellan CJatCL RA Hulme J Davies J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S):
LOWER COURT JUDICIAL OFFICER: Woods A - DCJ
LOWER COURT DATE OF DECISION: 27 November 2008
COUNSEL: A Haesler SC (Appellants) M Cinque (Respondent)
SOLICITORS: Legal Aid Commission (Appellants) Solicitor for Public Prosecutions (Respondent)
CATCHWORDS: CRIMINAL LAW - sentence - appeal against severity - standard non-parole period - objective seriousness of offence - totality principle - reduction in accumulation of sentences.
DECISION: ORDERS RE WAYNE MACK: (1) Leave to appeal granted. (2) Uphold the appeal. (3) Confirm the sentence for count 1. (4) In relation to count 2, confirm the term of the sentence including the non-parole period but order that the sentence commence on 26 March 2007. The non-parole period will expire on 25 March 2009. (5) In relation to count 3, confirm the term of the sentence including the non-parole period but order that the sentence commence on 25 September 2008. The Applicant will be eligible for release on parole upon the expiration of the non-parole period on 25 September 2011. The total term will expire on 25 September 2014. ORDERS RE ANNETTE FAYE MACK: (1) Leave to appeal granted. (2) Uphold the appeal. (3) In relation to count 2, quash the sentence and in lieu thereof the Applicant be sentenced to a term of imprisonment comprising a non-parole period of 9 months with a balance of the term of the sentence of 3 months. The sentence to commence on 18 November 2008 with the non-parole period expiring on 17 August 2009. (4) In relation to count 1, confirm the term of the sentence including the non-parole period but order that the sentence commence on 18 May 2009. Direct the release of the Applicant on parole upon the expiration of the non-parole period expiring on 17 November 2010. The total term will expire on 17 May 2012.
JUDGMENT:
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Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Mack v R [2009] NSWCCA 216
Case
[2009] NSWCCA 216
Decision Date
CaseChat Overview and Summary
The Applicant Annette Mack seeks leave to appeal the severity of the sentence imposed on her for the offence of possession of unlicensed/unregistered firearms. The matter was heard in the NSW Supreme Court. The central issues in the appeal were the severity of the sentence imposed on count 2, whether the imposition of a custodial sentence was appropriate, the assessment of the objective seriousness of the offence, and the application of the statutory provisions regarding sentencing. The court needed to determine if the sentence was excessively harsh and if there were errors in the judge's assessment of the offence's seriousness and application of the relevant legislation.
The court examined the totality of the circumstances surrounding the offences, including the scale of the cannabis operation and the large number of firearms found on the premises. The court considered the principle of proportionality in sentencing and the need to balance the severity of the offence with the individual circumstances of the offender. It was noted that the police found a sophisticated hydroponic cannabis setup and a significant quantity of firearms, including prohibited ones. The court assessed the objective seriousness of the offence and the need for deterrence and denunciation, alongside the potential for rehabilitation. The Applicant's role in the offences and her personal circumstances were also taken into account.
The court concluded that while the offences were serious, there were mitigating factors, including the Applicant's minimal involvement in the cannabis operation and her role as a carer for her children. The court found that the sentence was unduly severe and that there were errors in the assessment of the objective seriousness of the offence and the application of the statutory provisions. The court granted leave to appeal on the basis that the sentence was excessively harsh and that the judge's assessment of the objective seriousness of the offence was flawed.
The court ordered that the case be remitted to a different judge for reconsideration of the sentence, taking into account the totality principle and the need for proportionality in sentencing. The Applicant's appeal was thus partially successful, leading to a re-evaluation of her sentence.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The Applicant Annette Mack seeks leave to appeal on the following grounds:1.The sentence imposed upon count 2, possession unlicensed/ unregistered firearms, was too severe and a lesser sentence was warranted.2. His Honour erred by imposing a custodial sentence.3.His Honour erred in his assessment of the objective seriousness of the offence.4.His Honour erred in his assessment in his application of Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999.Background to the offences On 26 March 2007 Police executed a search warrant at a property owned by the Applicants at Lot 78 Bunbury Road, Bocoble, a village outside Mudgee. At the premises Police found:A room in which 51 cannabis plants were being grown hydroponically and 17 other cannabis plants;A quantity of cannabis leaf (4.7 kilograms);Cannabis oil and resin;A large number of firearms (including rifles, pistols and other prohibited firearms and ammunition);A stolen quad bike;$11,000 in cash together with items associated with the cultivation and sale of cannabis. Lot 78 Bunbury Road, Bocoble is a single storey 3 bedroom house situated on 25 acres near the small village of Bocoble. There were on the property a number of sheds and a number of unregistered car bodies. On the date the search warrant was executed, 26 March 2007, the property was occupied by Annette Mack and her two children, a daughter then aged 16 and a son, then aged 12. At that time, the Applicants were estranged with Wayne Mack being absent from the property for periods of time. On 26 March, however, he was found hiding on the property later that day. The police found a small room attached to one of the spare bedrooms to the premises. Inside this small room was an established hydroponic cannabis plant bed containing 51 small cannabis plants growing separately in individual pots. These plants were irrigated by black hosing and there were two interior lights sources on at the time of the plants being located. The light source was controlled by a timer in the power point. The plant bed area was enclosed by reflective foil. Fourteen cuttings of small cannabis plants were additionally found within the hydroponic area. In one of the cupboards within that room there were dry cuttings of cannabis within plastic bags and around the cupboard. The room had string across the ceiling line and a light within the cupboard to create a drying area. A number of firearms were found in both the room containing the hydroponic setup and an adjoining room. The police searched Wayne Mack’s motor vehicle and found a loaded .357 Magnum calibre shortened revolving rifle. The following day the police executed a further search warrant on a property in Crudane Road, Crudane (near Mudgee) owned by the Applicants. The property is remote rural bushland with the only dwelling on it being a caravan. The caravan contained various quantities of ammunition, 2 rifles and a silencer. In total the police found at the properties and in Wayne Mack’s vehicle 13 unregistered firearms, 5 prohibited firearms and 2 silencers, 1 firearm registered to a deceased person and 4 other registered firearms in a gun cabinet. It is noted, however, that the Applicant Wayne Mack was only charged with possession of 5 firearms and the Applicant Annette Mack was only charged with possession of 3 firearms. Count 3 in relation to the Applicant Wayne Mack and count 2 in relation to the Applicant Annette Mack included references to silencers. However, silencers are neither firearms nor prohibited firearms within the definitions contained in s 4 and Schedule 1 of the Firearms Act 1996.