Neil Harris (a pseudonym) v Regina

[2019] NSWCCA 236

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Neil Harris (a pseudonym) v Regina [2019] NSWCCA 236
Hearing dates:	26 June 2019
Date of orders:	09 October 2019
Decision date:	09 October 2019
Before:	Gleeson JA at [1] Harrison J at [2] N Adams J at [3]
Decision:	(1) The applicant be granted leave to appeal. (2) The appeal be allowed. (3) The aggregate sentence imposed by Wilson SC DCJ on the applicant on 8 June 2018 be set aside. (4) In lieu thereof: (a) Impose an aggregate sentence of 3 years imprisonment to commence on 8 June 2018 and expire on 7 June 2021. (b) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW) set a non-parole period of 2 years and a balance of term of 1 year. (c) Specify that the earliest date the applicant will be eligible to be released on parole is 7 June 2020. (d) Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), record that an aggregate sentence is imposed and indicate to the applicant that the sentence that would have been imposed on each count under separate sentences instead of an aggregate sentence is 2 years imprisonment with a non-parole period of 1 year and 4 months.
Catchwords:	CRIME — appeals — appeal against sentence — error of law — procedural fairness — whether sentencing judge led the applicant to understand that a certain course would be adopted — sentenced on a different basis — where sentencing judge relied on matters in confidential affidavit in finding of objective seriousness — where statement not induced — prospects of rehabilitation — finding of “poor to moderate” prospects — objective seriousness
Legislation Cited:	Criminal Appeal Act 1912 (NSW), s 5(1)(c) Firearms Act 1996 (NSW), s 23, s 39(1)(a), 51(1A) Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
Cases Cited:	Athos v R [2013] NSWCCA 205 Baroudi v R [2017] NSWCCA 48 Brennan v R [2018] NSWCCA 22 Button v R [2010] NSWCCA 264 Chong v R [2017] NSWCCA 185 Darren Brown (a pseudonym) v R (No 2) [2019] NSWCCA 69 DL v The Queen [2018] HCA 32 El Jamal [2017] NSWCCA 243 El Masri v R [2014] NSWCCA 13 Gibson v Regina [2019] NSWCCA 221 Govinddaraju v R [2011] NSWCCA 55 JMS v R (2010) NSWCCA 229 Johan v R [2015] NSWCCA 58 Laspina v R [2016] NSWCCA 181 R v Bourchos (2002) 133 A Crim R 413 RO v R [2019] NSWCCA 183 Rodgers v R [2018] NSWCCA 47 Zreika v R (2012) 223 A Crim R 60
Category:	Principal judgment
Parties:	Neil Harris (Applicant) Crown (Respondent)
Representation:	Counsel: I Lloyd QC with T Woods (Applicant) K Ratcliffe (Respondent)   Solicitors: M Sten (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2017/300370
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 08 June 2018 Before: Wilson SC DCJ File Number(s): 2017/300370

Judgment

1. GLEESON JA: I agree with N Adams J.

2. HARRISON J: I agree with N Adams J.

3. N ADAMS J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon him by his Honour Judge Wilson SC in the District Court at Sydney on 8 June 2018.

4. On 20 December 2017, the applicant pleaded guilty to two counts of supplying a pistol to a person not authorised to possess it contrary to s 51(1A) of the Firearms Act1996 (NSW) and one count of not keeping a firearm safely under s 39(1)(a) of the Firearms Act. The maximum penalty for an offence contrary to s 51(1A) of the Firearms Act is 20 years imprisonment and a standard non-parole period of 10 years is applicable. The maximum penalty for an offence contrary to s 39(1)(a) of the Firearms Act is two years imprisonment.

5. His Honour sentenced the applicant under s 53A of the Crimes (Sentencing Procedure) Act1999 (NSW) (the Sentencing Act) to an aggregate sentence of 5 years imprisonment with a non-parole period of 3 years and 6 months. The sentence was imposed to commence on 8 June 2018 and expire on 7 June 2023. The indicative sentence for each of the two offences contrary to s 51(1A) of the Firearms Act was 3 years. In relation to the offence contrary to s 39(1)(a), the applicant was placed on a bond for 12 months under (then) s 10 of the Sentencing Act. Although not expressly stated in the Notice of Appeal, the applicant did not make any complaint concerning the sentence imposed on count 3; only the aggregate sentence imposed for the two s 51(1A) offences. I propose to proceed on the basis that the appeal only concerns that aggregate sentence.

6. The applicant relies upon three grounds of appeal:

1. Ground 1:   The sentence proceedings were affected by procedural unfairness constituting an error of law in that the learned sentencing judge led the applicant to understand that a certain course would be adopted, but in the event a sentence was imposed on the basis of a different course, adverse to the applicant, without the applicant being afforded an opportunity to be heard in the matter.

2. Ground 2:   The learned sentencing Judge erred in law when assessing the objective seriousness of the offending by taking into account evidence that the applicant was aware that the person to whom he supplied the pistols was a person whom he knew was engaged in criminal activity.

3. Ground 3:   The aggregate sentence is manifestly excessive.

7. At the hearing of this application, senior counsel for the applicant sought orders that: the court be closed, a non-publication order made and the applicant be provided with a pseudonym. Although the Crown did not oppose the non-publication orders sought or the use of the pseudonym, there was opposition to the court being closed. After further submissions Gleeson JA, with whom Harrison J and I agreed, made all the orders sought. In order to ensure that these orders are effective I have changed or redacted some of the names and descriptions in the evidence. I am satisfied that doing so provides an appropriate balance between the safety of the applicant and principles of open justice: Darren Brown (a pseudonym) v R (No 2) [2019] NSWCCA 69.

Facts

8. The applicant was sentenced on the basis of Agreed Facts. His Honour described those facts in his reasons for sentence as follows:

“The facts agreed between the parties include the following information in relation to the three charges for which the offender is to be sentenced. In June 2017, 27 criminal organisation search warrants were executed. As a result, 1.4 tonnes of ephedrine was seized as well as six firearms, $3.2 million in Australian currency, an active clandestine laboratory and several kilograms of crystal methylamphetamine. Amongst the firearms located during these warrants were two firearms relevant to these charges.

These firearms were seized and subject to forensic and ballistic examination including the identification of serial numbers that permitted tracing to be conducted. The first firearm was identified as a point 38 super automatic calibre para ordnance limited self‑loading pistol, the serial number was intact and is referred to in the agreed facts. The second firearm was point 357 Magnum calibre Sturm Ruger model six chamber revolver. Again the serial number was intact and is referred to in the agreed facts.

Police checks reveal that both firearms were registered to the offender. Both firearms were listed as being “in the possession of the owner” at the offender’s residential premises, XXXXX X. That address was nominated by the offender as the safe storage address for those firearms, as well as a further point 177 calibre air gun. The offender is the holder of a category H firearms licence with the licence number referred to in the agreed facts.

The offender has held this licence since October 2014 and prior to that held a probationary pistol licence. The offender provided his genuine reason for holding this category of licence as being “target shooting”. On Wednesday 4 October 2017, investigators applied for and were granted a search warrant for the offender’s residential premises previously referred to. At about 7.05am on Thursday 5 October 2017 police attended the offender’s premises.

The offender was cautioned and provided with the occupier’s notice relating to the search warrant and remained at the premises to accompany police as the search took place. During the search warrant police located a point 177 calibre air pistol in a green case inside the wardrobe of the offender’s bedroom. The offender was licensed at the time to possess the air pistol but agreed that it was not kept safely as required. He told police that he had lost the keys to his gun safe two or three months earlier, suggesting the gun had been kept in an unsafe condition for that period.

The offender admitted to police that he had supplied the point 38 calibre pistol and the point 357 calibre revolver to a male he knows by the name of “Peter” (a pseudonym) for a total of $20,000. The offender stated that he did this as he had accumulated a debt of approximately $100,000 from a gambling habit and he needed a quick fix. The offender stated that he had supplied these two firearms, knowing that “Peter” did not have a firearms licence and was not authorised to possess the firearms.

The offender had met “Peter” on 20 or 30 occasions previously. It is agreed that the offender supplied the firearms to Peter Roberts (a pseudonym) who does not hold a firearms licence or permit in New South Wales. The offender was placed under arrest and conveyed to Fairfield Police Station.

The offender declined the opportunity to seek legal advice prior to participating in an electronically recording interview with the police. During the course of that interview the offender stated that the sale of the firearms had been organised face to face about two or three days prior to the actual supply taking place, and the amount had been agreed at $20,000.

The offender also adopted early discussions with police and confirmed that he had supplied both firearms at the same time. The offender stated that he believed the supply to have occurred between March and April 2017 in an unknown street in Granville. Further, the offender stated that he had been paid $20,000 in $50 notes, money which he then took and paid to his family and friends to satisfy part of his gambling debt. Further, the offender stated that he had every intention of clearing his debt and then buying his firearms back from the male he had supplied them to. The offender said that he knew that he had committed an offence but felt it was the only way to assist in him getting out of financial trouble.”

Proceedings on Sentence

9. The Crown relied upon a bundle of documents on sentence which comprised, inter alia, the court attendance notices, Agreed Facts, and criminal history. A confidential affidavit was also tendered and marked Exhibit B. It was relevant to the sentencing judge’s consideration of s 23 of the Sentencing Act.

10. The offender relied upon a character reference from his employer and a forensic psychologist’s report from Jason Borkowski of “Psychwest” Psychology & Consulting Group dated 12 March 2018. Although the Crown had requested that Mr Borkowski be available for cross-examination, he was not able to attend court that day. In order to avoid an adjournment, it was conceded on behalf of the applicant that only limited weight could be given to certain identified aspects of the report.

11. Written submissions of the Crown and the offender as well as sentencing statistics were also provided to the court.

12. The applicant’s personal circumstances were set out in the report of Mr Borkowski. The applicant came to Australia with his family as a refugee in 1989 when he was five years of age. His parents set up a small business. He described his father as an angry person with gambling problems who would physically and verbally abuse the other family members. He reported having a close relationship with his mother. He moved out of home when he was 25 years of age and moved in with his wife and her family. When that marriage ended in 2017 he moved back with his parents. He currently lives with his parents, sister, brother and brother’s children.

13. Mr Borkowski noted that the applicant’s work history involved several “odd jobs” and then a more permanent position in the transport industry. During his time in the transport industry, the applicant established a successful business and maintained financial stability but when he lost his first full-time contract, he resorted to gambling to try to meet his financial needs. There was another decline in the transport industry after his marriage and he was unable to make enough money to support his family. The applicant then attempted to run a business selling food at local markets but he was still unable to meet the financial expectations of his now ex-wife and her family. He said that his gambling increased at this time. From March 2017, the applicant has been employed with a timber supplies company in a sales and transport role.

14. The applicant explained to Mr Borkowski that he had accumulated gambling debts of approximately $100,000. He had ended up owing this money to his ex-wife’s family, who paid his original debts. He stated that some of his “former associates” offered him a chance to recoup some money by selling guns. He said that at this time he was “willing to do anything for money”. The applicant further stated that he was in a “dark place” due to the breakdown of his marriage.

Risk assessment and diagnosis

15. Mr Borkowski assessed the applicant’s risk of reoffending using the Level of Service Inventory-Revised (“LSI-R”). The LSI-R is an actual assessment tool designed to identify an individual’s risks and needs with regard to recidivistic criminal behaviour. Mr Borkowski indicated that the applicant is in the low risk category for future offending. He stated that the applicant has a demonstrated ability to maintain stable interpersonal relationship and has access to prosocial support networks. Mr Borkowski further indicated that the applicant has a positive attitude towards employment and prosocial values and beliefs.

16. Mr Borkowski also identified several factors which needed to be addressed to reduce the applicant risk of reoffending. These were his gambling disorder and emotional inability, in the form of depression, self-deprecation and lack of confidence, all of which may have an adverse impact on his ability for rational problem-solving.

17. Mr Borkowski was of the opinion that the applicant presents with comorbid DSM-5 Disorders which are effectively able to be managed through combined Cognitive-Behavioural Therapy (“CBT”) and psychosocial intervention. He specifically recommended CBT, motivational interviewing and motivational enhancement therapy to treat the applicant’s problem gambling. Mr Borkowski further indicated that a treatment plan for anxiety and depression would be helpful for the applicant. According to Mr Borkowski, the applicant had a number of factors which placed him as a low risk for reoffending, including his willingness to accept responsibility for his actions, as well as his expressed motivation to seek relevant assistance to address his presenting psychological and criminogenic needs.

The applicant’s evidence

18. The applicant gave evidence at his proceedings on sentence about, inter alia, how he came to sell the firearms to “Peter”. His (then) counsel adduced the following explanation in evidence in chief:

“Q. I’ll just ask you some questions briefly in relation to the offences themselves. Firstly, the two firearms that were provided to [Peter Roberts] by you were they your firearms?

A. Yes, they were.

Q. Were they registered to you?

A. Yes, they were.

Q. What were the circumstances that you came to give those firearms to [Peter Roberts]?

A. I was having gambling problems, going through a rough time during that time and I accumulated a lot of debt in association with [Peter], he knew I had debts that I needed to pay. It came up in conversation that he was willing to help me out financially

Q. That conversation or conversations that you’re referring to, was that back at the time prior to the offending behaviour?

A. Yes.

Q. How often would you have been seeing Mr [Roberts] around that time?

A. Around that time, I would have seen him two to three times a week.

Q. What was the conversation you had with him?

A. I told him that yeah, I had financial problems and that I needed help paying debts and he knew that I had pistols so we made an arrangement.

Q. What was that arrangement?

A. It was he would offer me $20,000 for the two pistols but within that arrangement I mentioned to him that when I am out of the financial difficulty I would buy the pistol back off him, pay him more than - we had an agreement amount, about $25,000 it was to repay back to him.

HIS HONOUR

Q. Did you understand his reason for wanting the pistols was?

A. I had no idea what his reasons was but--

Q. You didn’t ask him?

A. No, the agreement was pretty much for him to lend me the money, your Honour.”

19. The applicant was later cross-examined. In cross-examination he stated that one of the guns cost him $2,000 and the other “would have been $1000”. He agreed that receiving $20,000 for those pistols was a “pretty good mark-up” and not the “market rate”. When the applicant was asked whether it struck him as “odd” that someone was willing to pay $20,000 in $50 notes for these guns, he replied to the effect that he was stuck for the money (given his gambling debts) and did not think of the consequences. He gave evidence that he had not thought about what Mr Roberts was going to use the guns for.

20. When the ODPP solicitor suggested to the applicant that he must have been at least suspicious that the guns were not going to be put to “good use”, the sentencing judge started questioning the applicant and the following exchange took place:

“Q. I think that you would have been suspicious at least that those guns weren’t going to be put to good use?

A. Yes.

HIS HONOUR

Q. Sorry, you’re agreeing?

A. Yes, your Honour.

Q. And you were aware weren’t you that Mr - that [Peter] was involved in illegal activity, is that the case?

A. Yes, your Honour.

Q. So when you supplied the guns to him you were aware that you were providing the guns to somebody who was criminally active?

A. Yes, your Honour.

Q. You must have turned your mind at some stage to consider what the guns might be used for by a person who’s engaged in criminal activity?

A. At that point, your Honour, I was really desperate to pay back the debts and I - honestly I didn’t think about it.

Q. You didn’t think about what the guns might be used for by a person who you knew was a criminal?

A. No, your Honour.”

21. The cross-examination continued for some time after this. The applicant was asked about his gambling problems, what other options he had to raise funds, such as obtaining loans, and the size of his gambling debt. The applicant was then re-examined by his own counsel and the following questions and answers were provided:

“Q. Just finally sir, you had given evidence about the supply of the firearms to Mr [Roberts] and you’ve given evidence that you had an agreement with him, it wasn’t in writing but an agreement?

A. That’s right.

Q. Apart from the conversations that you’ve given evidence about of what he said about him holding the firearms and you taking the loan, did he say to you that he was going to do anything more with the firearms?

A. No.

Q. When you handed over those firearms and you took that money what was your understanding with him at that moment?

A. That he was just going to hold it for me until I get money to pay him back with extra, like a loan yep.

Q. But you had agreed that you did know him to be a person who was involved in criminal activity at the time?

A. I had a brief idea, yes.

Q. Do you remember what you thought he was involved in at that time?

A. I’m not sure, well he was using [XXX] and anyone--

Q. Anything else?

A. Not to what I’d seen, no I did not see what--

HIS HONOUR

Q. What was your understanding of the use of [XXX], what was the purpose of their use?

A. For criminal activities.

Q. What, drug related offences, was that your expectation?

A. I would say so your Honour, yes.

Q. Did you ever have a conversation with him to that effect?

A. Of the drugs, no.

Q. Were you involved in providing the [XXX] to him?

A. Yes your Honour.

Q. And you’ve given police information in relation to that?

A. Yes.

CARROLL: Yes, thank you, no further questions.”

Submissions on sentence

22. During oral submissions on sentence, counsel for the applicant conceded that the applicant had sold the firearms to a person who was unlicensed and who he knew was criminally involved. Despite this, it was submitted that the court would consider the criminality to be towards the lower end if not at the lowest end of objective seriousness. It was submitted that an Intensive Correction Order (“ICO”) would be an appropriate sentence. It was also submitted that, as a matter of general principle, a discount for assistance to authorities could be used to reduce not only the length of the penalty but also the form of a penalty. The Judicial Commission Statistics were relied upon to show that other offenders had received non-custodial sentences for the offence under s 51(1A) of the Firearms Act.

23. As for rehabilitation, the applicant’s counsel submitted:

“Your Honour rehabilitation is determinate upon his ability to treat and control his gambling addiction. Your Honour sees that the psychologist has concluded low to moderate and that would be, one might think, the likely risk of reoffending but it is causally connected to his gambling addiction which has put him in this position probably over and above anything else. Certainly your Honour someone who has not come before the Courts before, has no offence proven before, the entire process of being charged and the disgrace of having to inform family and bring them here, all of those factors will add to a lower risk of recidivism but it certainly is connected to whether or not he falls down again in relation to gambling.”

24. The sentencing judge inquired of the applicant’s counsel whether the relationship between the applicant and the purchaser of the firearms was relevant to the objective seriousness of the s 51(1A) of the Firearms Act offences and counsel conceded that it did but that this would reduce the objective seriousness, although it was accepted there were arguments “to the contrary”.

25. During the submissions made by the ODPP solicitor his Honour inquired whether she agreed that the applicant had shown remorse and the solicitor replied that she did. The following exchange then took place:

“HIS HONOUR: My impression is that the risk of reoffending is minimal if at all.

AUSTEN: Your Honour, the Crown doesn’t necessarily share that view in circumstances where the offender has not in the intervening period since his arrest sought any assistance in terms of addressing his gambling addiction.

HIS HONOUR: Didn’t he say he stopped gambling.

AUSTEN: He did, he’s gone cold turkey and it was also his evidence that he has previously stopped in the past.

HIS HONOUR: Yes. When did he say he stopped gambling?

AUSTEN: Sorry?

HIS HONOUR: When did he stop gambling last?

AUSTEN: I think and my friend will correct me if I’m wrong but I think there was an upturn in his personal life, I think he entered into another relationship and had some success with the business. I think he was arrested--

HIS HONOUR: I thought it was before he was arrested but it was at the time of arrest that he stopped gambling is that - anyway I’ll get the transcript.

AUSTEN: Sorry, your Honour, I was thinking you were talking about when he stopped gambling in the past.

HIS HONOUR: No, no, the last occasion.

AUSTEN: His evidence today was that he stopped gambling--

HIS HONOUR: And you say the risk of reoffending is linked to his gambling habit which is in a state of flux of being untreated.

AUSTEN: That’s correct, your Honour, if he--

HIS HONOUR: But surely, it’s ameliorated that he no longer has the legal capacity for himself to purchase firearms?

AUSTEN: That’s so, your Honour, but who’s to know what length he would go to in order to get himself out of debt again. Of course, that’s purely speculation but firearms aren’t the only--

HIS HONOUR: In terms of reoffending I’m not interested in whether he’s--

AUSTEN: In this particular way, yes, your Honour.

HIS HONOUR: Yes, and that’s the only particular way I would have regard to reoffending isn’t it, I mean I wouldn’t have regard to the fact that he might have a gambling debt down the track of $1000,00 and start selling drugs for example?

AUSTEN: No.

HIS HONOUR: The reoffending is limited to the relevant offences as I understand it, correct me if I’m wrong.

AUSTEN: Yes, your Honour.

HIS HONOUR: What do you say about an ICO?

AUSTEN: Your Honour, the Crown says that this offending is simply too serious. Particularly having regard to [the applicant’s] evidence today in that he knew of his obligations in terms of being licensed to hold pistols.

HIS HONOUR: Yes.

AUSTEN: He knew that those licensing conditions were in place for the protection of the community and he knew that [Peter] was licensed to possess those pistols.

HIS HONOUR: I think you’re right Madam Crown.”

26. In submissions in reply the applicant’s counsel addressed the questions of assistance and the prospect of the applicant being place under supervision. She did not return to the issues of reoffending and rehabilitation.

Remarks on Sentence

27. After setting out the Agreed Facts, his Honour went on to assess the objective seriousness of the offences and stated the following:

“Initially in cross-examination the offender told the Court that, “I honestly didn’t know what the guns were going to be used for.” He agreed, however, that the person to whom he gave the guns must have been “pretty desperate for a gun”. He said that he was suspicious that the guns were not going to be put to good use and I took that to mean good legal use. On direct questioning from the Court the offender agreed that he was aware that the person to whom he gave the guns was engaged in illegal activity. That is, that he gave the guns to somebody who was criminally active.

Further, he said that he “didn’t care what use the guns were going to be put to”. When it was put to him by the cross-examiner that he did not care about the safety of the community when he supplied the firearms, his response was, “I didn’t think of the consequences.” Notwithstanding the stated purpose of sale of the firearms was to pay off gambling debts, it seems - although it is unclear - for the continued gambling after receiving the money for the guns. Whether that is in fact the case is immaterial to this sentence.

The offender seemed utterly cavalier as to what purpose the guns would be put in the hands of the person whom he knew was a criminal. Firearms, particularly pistols which are readily concealable, are a great risk to the safety of the community. The offender seemed unconcerned by the risk created by his conduct.

Counsel appearing on behalf of the offender on the last occasion submitted that his offending behaviour was at the lowest end of this category of offences. I do not accept that submission.

On behalf of the Crown it was submitted, quite fairly it seems, that the conduct fell below the midrange of objective seriousness of this type, but does not fall towards the bottom of that range. I accept that the conduct falls below the midrange, but only just, and the objective seriousness of the offending is significant. The purpose of the legislation under which the offender has been charged is planning to avoid circumstances where a firearm is provided to a person not authorised to possess it. The absence of authorisation of course means that the person receiving the firearm has not received the appropriate training and education as to the safe use of the firearm in order to obtain a licence for its legal possession.

The fact that the offender supplied pistols to a person whom he knew was engaged in criminal activity, whilst not an aggravating factor as such, makes the offence of greater objective seriousness. It also demonstrates a lack of moral responsibility on the part of the offender. These are not matters which aggravate the offending necessarily, but rather which are to be taken into account in considering the overall criminality of the offender’s conduct. I have taken care to ensure that this sentence reflects the actual offending and not an uncharged matter which may arise from the offender’s association with a person whom he knew was a criminal.”

28. The sentencing judge then set out the applicant’s personal circumstances in some detail including the opinion of the psychologist. The psychometric testing revealed depression, stress, anxiety, worry and trauma. His Honour noted that these findings are “hardly surprising” given the legal predicament which the offender found himself in. His Honour then stated:

“The psychologist considered that the offender’s risk of reoffending was generally low. Of course, any reoffending of this type is now affected by the fact that the offender no longer retains a license to sell or possess firearms.”

29. His Honour went on to deal with the question of remorse. He noted that the psychologist was satisfied the applicant was remorseful. His Honour noted that this evidence in that report must be approached with caution. His Honour was not satisfied that the applicant suffered a deprived upbringing “within the usual meaning of those words”.

30. His Honour went on to find that the applicant’s prospects of rehabilitation are “poor to moderate”. His Honour based this finding on the fact that the applicant had taken no formal steps to battle his gambling addiction, although he told the court that he was not currently gambling.

31. As for the applicant’s risk of reoffending, his Honour found that the likelihood of reoffending was “moderate”. He went on to note that this increases the need for specific deterrence.

32. His Honour went on to refer to the purposes for sentencing as well as the need for proportionality. He was satisfied that the threshold in s 5 of the Sentencing Act was passed. He applied a combined discount of 40% to the sentence in light of his plea of guilty and assistance to authorities and imposed the aggregate sentence that I have already set out above.

GROUNDS OF APPEAL

Ground 1: denial of procedural fairness

Applicant’s submissions

33. The applicant contended under this ground that his Honour’s finding concerning the applicant’s risk of reoffending in his Reasons “differed significantly” from the view which he clearly expressed at the hearing. It was submitted that the applicant’s counsel was afforded “no opportunity” to provide further submissions to the court on this matter prior to the imposition of sentence.

34. It was submitted that once his Honour stated that his “impression” was that the risk of reoffending was “minimal if at all” it was legitimate for the applicant to expect that the sentence would be imposed on the basis of this “view” expressed during submissions with the ODPP solicitor. This led to the applicant being denied procedural fairness. The decisions of DL v The Queen [2018] HCA 32, Brennan v R [2018] NSWCCA 22, Baroudi v R [2017] NSWCCA 48, Button v R [2010] NSWCCA 264 and Chong v R [2017] NSWCCA 185 were relied upon in support of this ground

Crown submissions

35. The Crown relied upon the transcript of the proceedings on sentence I have extracted above at [21] and [25] and submitted that the transcript does not reflect that the sentencing judge expressed any concluded view in this matter. On this basis, it was submitted, the cases relied upon by the applicant could be distinguished on their facts.

Consideration – Ground 1

36. The determination of this ground turns on whether when the sentencing judge observed to the ODPP solicitor during her submissions “My impression is that the risk of reoffending is minimal if at all”, his Honour was expressing a finding he proposed to make, or, rather, he was indicating a preliminary view and seeking further submissions on the topic. If the sentencing judge had clearly stated that he proposed to make a finding that the applicant’s risk of reoffending was “minimal if at all” and the ODPP solicitor either agreed with that finding or said nothing them, then based on the relevant principles, the applicant would have been denied procedural fairness had his Honour gone on to make a different finding.

37. The High Court recently confirmed the relevant principle in DL v The Queen [2018] HCA 32, where the Court (Bell, Keane, Nettle, Gordon and Edelman JJ) allowed an appeal against a sentence imposed by this Court on the basis that it had, inter alia, departed from an unchallenged factual finding made by the sentencing judge without notice to the appellant. This was held to be procedurally unfair and has occasioned a miscarriage of justice: at [44].

38. The applicant relied upon a number of decisions of this Court where this principle has been applied. I have previously considered these authorities in Rodgers v R [2018] NSWCCA 47 at [123]-[126] where I stated:

“The issue of procedural fairness in the context of sentencing proceedings was recently considered in Brennan v R [2018] NSWCCA 22. Although the point considered in that appeal differs to that in the present matter, the decision provides a convenient summary of the relevant principles. In Brennan v R, Button J (with whom Bathurst CJ and Hoeben CJ at CL agreed) held that, as a matter of procedural fairness, a sentencing judge should give an offender notice if he or she proposes to vary the statutory ratio (or, as Bathurst CJ described it, the “base ratio”) in s.44(2) of the Crimes (Sentencing Procedure) Act (NSW), such that the non-parole period would exceed 75% of the head sentence. In that matter, no indication had been given by the sentencing judge during the proceedings on sentence that this would occur.

A denial of procedural fairness may well be established if counsel is led to understand that a certain course would be taken but ultimately it is not, to the detriment of the offender. In Baroudi v R [2007] NSWCCA 48, it was held that procedural fairness was denied when the sentencing judge failed to warn counsel for the offender that he intended to impose a non-parole period of around 12 months longer than the concession that had been made by the Crown.

In Button v R [2010] NSWCCA 264, procedural unfairness was established in circumstances where the sentencing judge had stated he thought that a head sentence of between two and a half and three years with a non-parole period of one year was appropriate. The Crown did not make submissions against this course of action. The sentencing judge indicated that "the effect of it will be I intend to release him within a year of his going into custody” and reserved his decision. An aggregate non-parole period of 18 months was later imposed without further hearing from the applicant or the Crown.   In considering the relevant principles, Latham J, with whom Kirby J and Simpson J (as her Honour then was) agreed, observed (at [14]-[15]):

“At the heart of the denial of procedural fairness claimed in this appeal is the absence of an opportunity to be heard further in relation to a matter of penalty, where the applicant relied upon a representation by the Judge that a particular sentence was to be imposed, and the Judge departed from that representation without notice to the applicant.

Gleeson CJ said in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 at [35] and [37] ; (2003) 214 CLR 1 at 14:

‘But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. In some contexts, the existence of a legitimate expectation may enliven an obligation to extend procedural fairness. In a context such as the present, where there is already an obligation to extend procedural fairness, the creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed. 

Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice’.”

In Milsom v R [2014] NSWCCA 142, procedural unfairness was established in circumstances whereby the sentencing judge had given the impression he would not impose a custodial sentence and urged the solicitor for the Crown to obtain an undertaking from his superior that no Crown appeal would follow if he took such a course. The offender was ultimately sentenced to a non-parole period of two years and six months with a balance of term of three and a half years. Garling J (with whom Macfarlan JA and Johnson J agreed) noted at [66]:

“The key to determining whether there has been a breach of the requirement of procedural fairness is to ascertain the consequence of any departure from the dictates of proper procedure because what is ultimately in issue is whether unfairness has resulted from the process: See Lam at [34]. The concern of the law is to avoid practical, and not merely theoretical, injustice: Lam at [37].”

39. In Chong v R [2017] NSWCCA 185 it was contended that the offender had been denied procedural fairness concerning the finding as to his role in the drug supply. Harrison J (with whom Basten JA and Schmidt J agreed) observed at [38]:

“It seems to me …. to be very important for sentencing purposes that any concession by the Crown that an accused person falls within a particular category of criminal responsibility, and upon which an accused person would appear to have relied, should not lightly be departed from and not, as it were, without notice. Notice in that context incorporates the notion that the accused person will be given the opportunity to address the prospect that the assumption will be disregarded by the sentencing judge if that is proposed.”

40. Thus, it can be seen that in order for an applicant to establish a denial of procedural fairness, he or she needs to identify the proposed finding from which the judge departed without notice to the applicant. During the hearing of this application, senior counsel for the applicant was asked to identify where in the transcript of the proceedings on sentence it can be seen that the sentencing judge made any finding in relation to which he later resiled. Senior counsel responded:

“Your Honour, he clearly hasn’t said, I’m going to find the risk of reoffending is minimal or low. I can’t tell you that that has been stamped down as a given that everything on this page and a half says, for anybody reading this transcript fairly, that’s his view at that stage.”

41. This submission highlights the difficulty with the applicant’s position on this ground and why the authorities on which he relies are of little assistance. In the present matter, the “finding” relied upon is statement to the ODPP solicitor extracted above at [38]. The transcript reflects that the ODPP solicitor made no concession in this regard and in fact sought to dissuade his Honour from making such a finding. Although it is to be accepted that the applicant’s counsel did not address on that matter any further in her submissions in reply, and that this suggests she may have been under the impression that it was unnecessary for her to do so, that does not mean that she was not provided with an opportunity to do so.

42. I do not consider that it places too heavy a burden on a representative of an offender that when a sentencing judge states a potential favourable finding to an ODPP solicitor who then seeks to dissuade him from that to clarify the position during submissions in reply. In the present case she was afforded the opportunity to do so but did not. Although representatives may on occasion believe that the judge is “hinting” that he or she will be going in a particular direction, unless that is expressly stated it should not be presumed. The applicant’s counsel may well have been under the misapprehension that the judge had not been dissuaded from his preliminary view but it was beholden on her to make further submissions to clarify this given the attitude taken by the Crown.

41. Although I am not satisfied that the sentencing judge resiled from any “preliminary” finding, it is not apparent to me the basis upon which the sentencing judge found the applicant’s prospects of rehabilitation to be “poor to moderate”. The applicant’s counsel had submitted, consistent with Mr Borkowski’s report that the applicant’s risk of reoffending was “low to moderate” and dependent on his ability to overcome his gambling addiction. The same submission was made regarding his prospects of rehabilitation. As I recently observed in Gibson v Regina [2019] NSWCCA 221 at [56]:

“It is to be accepted that questions of whether an offender is unlikely to reoffend (s 21A(3)(g) of the Sentencing Act) and whether the offender has good prospects of rehabilitation (s 21A(3)(h) of the Sentencing Act) are distinct matters, yet they share much in common. As Price J observed in Zuffo v R [2017] NSWCCA 187 at [48], an “assessment that an offender is unlikely to reoffend is commonly linked to a favourable finding that the offender has good prospects of rehabilitation”.

44. Although I am not satisfied that his Honour was bound by any preliminary observation that the applicant had “minimal if any” risk of reoffending, it was a significant step to go on to find that his prospects of rehabilitation were “poor to moderate” in circumstances were the Crown did not suggest such a finding nor is there a basis for it in the report before his Honour. It would also be inconsistent with the significant assistance offered by the applicant. Although his Honour was not bound by his observation that the risk of reoffending was “minimal if at all”, I am satisfied that if he proposed to in fact make a finding that his prospects of rehabilitation were “poor to moderate” he was required to raise this with the applicant’s counsel.

45. I would uphold this ground.

Ground 2: error in assessment of objective seriousness

Applicant’s submissions

46. It was submitted that there was no mention in the Agreed Facts that the applicant knew or suspected that “Peter” was engaged in illegal activity or was “criminally active”. It was the sentencing judge who did so in circumstances where he had before him the confidential affidavit tendered by the Crown to adduce information relevant to s 23 of the Sentencing Act. That affidavit disclosed that Mr Roberts was criminally active. The judge’s questioning of the applicant set out above at [21] was based on material in the confidential affidavit and should not have been used against the applicant when the sentencing judge was assessing the objective seriousness of the offending behaviour.

47. Reliance was placed on the decisions in R v Bourchos (2002) 133 A Crim R 413 at [99]-[100], JMS v R (2010) NSWCCA 229 at [29] and Govinddaraju v R [2011] NSWCCA 55 at [66].

Crown submissions

48. The Crown submitted that it was the applicant’s counsel who had introduced this topic in the first place when adducing the applicant’s evidence as to the circumstances of the offence: see above at [20]. It was in response to those questions asked by his own counsel that the sentencing judge started questioning him about his knowledge of Mr Roberts. The applicant was cross-examined on this explanation for his offending and the sentencing judge again started questioning the offender about his knowledge of Mr Roberts.

49. It was submitted that the authorities relied upon by the applicant all pertained to the use of induced statements being taken into account in sentencing. The evidence provided by this witness was not induced. Nor, it was submitted, did the applicant’s counsel seek any limitation on the use that could be made of the confidential affidavit or object to the sentencing judge’s questions arising out of what the applicant said to police as contained in the confidential affidavit thus no error is established. Reliance was placed on the decision of this court in Zreika v R (2012) 223 A Crim R 60.

Consideration Ground 2

50. This ground concerns the use a sentencing judge can make of material tendered in a confidential affidavit to mitigate an offender’s sentence under s 23 of the Sentencing Act, in finding the relevant facts and then using those facts to assess the objective seriousness of the offending.

51. The confidential affidavit, Exhibit B, was in a sealed envelope on the registry file. It was provided to this court for the purposes of this ground. It was sworn by a senior police officer. It did not contain the applicant’s police statements; rather, it contained a summary of them and an assessment of their value. It was common ground that none of the statements provided by the applicant were induced.

52. The ODPP Prosecution Guidelines define an “induced statement” in Guideline 15 in these terms:

“An induced statement is one taken from a person on the basis that the information in the statement will not be used against the person making the statement. It is a statement from a person who is prepared to supply information relevant to the investigation of criminal activity which may tend to incriminate him or her in criminal activity and who is not otherwise prepared to supply the information.”

53. That is, an induced statement clearly states in the opening paragraph that it has been made on the basis that the information provided in it will not be used against the person making the statement in any criminal proceedings. This protection extends to a situation where an offender’s induced statement is tendered at proceedings on sentence for the purposes of s 23 of the Sentencing Act.

54. In R v Bourchos (2002) 133 A Crim R 413 an offender’s statement of assistance had been admitted over the objection of his counsel and then used by the judge to find facts more objectively serious. On appeal to this Court, Giles JA, with whom Levine and Sperling JJ agreed, summarised the relevant principles regarding the use that can be made of evidence put before a sentencing court for the purposes of s 23 of the Sentencing Act at [99] as follows:

“1. The offender carries the burden of proving assistance to the authorities, as a matter going to mitigation.

2. The Crown should assist the offender in the discharge of that burden.

3. The assistance may extend to the Crown tendering the evidence of assistance to the authorities, but the Crown should not do so over the objection of the offender.

4. A statement made by way of assistance to the authorities on an undertaking that the information in it will not be used against the offender may properly be admitted on the basis that the information in it will not be used against the offender, and with its use restricted accordingly.

5. When the offender tenders a statement made by way of assistance to the authorities, or accepts the Crown’s assistance in tendering such a statement, it is prudent that the basis of the tender be agreed and stated showing any restriction on the use of the information in the statement; if there is disagreement, a ruling can be made in the normal way.

6. In the absence of an agreed basis of tender or a ruling at the time of admission, whether use of a statement made by way of assistance to the authorities is restricted will depend on the circumstances, but normally the information in the statement cannot be used against the offender.”

55. In JMS v R (2010) NSWCCA 229 the offender gave an induced statement to police which indicated criminal conduct beyond that contained in the agreed statement of facts. Although the court was not satisfied that the induced statement had been used in the assessment of his objective criminality, Hodgson JA, with whom Price and Fullerton JJ agreed, stated at [29]:

“I accept that if the sentencing judge had taken the induced statement into account in assessing the objective criminality of the applicant, this would have been an error, in circumstances where the induced statement had been admitted only on the basis that the sentencing judge would assess criminality on the agreed statement of facts. I think this does follow from Bourchas”.

56. In Govindaraju v R [2011] NSWCCA 255 the Crown tendered an ‘Assessment of Assistance’prepared by the Australian Federal Police. This report included information about where the offender stood in the hierarchy of an organisation involved in the importation of drugs, how the offender became involved and the offender's state of mind. It was tendered in a sealed envelope. It was argued that the sentencing judge erred in using the evidence to determine the role that the applicant played in the importation and thereby the objective criminality of the applicant. At [66] Hall J, with whom Bathurst CJ and Harrison J agreed, observed:

“Whether the use of evidence of assistance was restricted, it was observed, will depend on the circumstances, but normally the information cannot be used against an offender: Bourchas v R (2002) 133 A Crim R 413 at [99].”

57. These cases all concern the situation where the offender’s statements to police were induced. The question is, to what extent do these principles apply when an offender’s police statement was not induced, as in the present case? It seems to me that the answer to this question depends on the expressed position taken by the offender in each case.

58. In the applicant’s case it seems clear that the Agreed Facts were compiled on the basis that any reference to the identity of the purchaser of the firearms would be removed. By describing the purchaser as “Peter”, the impression was given in the Agreed Facts that the offender was not aware of the full identity of the purchaser.

59. Exhibit B was then tendered which disclosed that the applicant clearly knew not only that the identity of his purchaser was Mr Roberts, but also that Mr Roberts was “criminally active”.

60. The transcript of the proceedings on sentence discloses that the sentencing judge, who had before him in Exhibit B the criminal background of Mr Roberts, put matters to the applicant about Mr Roberts that came solely from Exhibit B. No complaint was made by the applicant’s counsel to this approach. In fact, when his Honour inquired of the applicant’s counsel whether evidence that Mr Roberts was criminally active could be used in the fact finding process, she agreed that it could.

61. Although the principles derived from Bourchas v R arose in the context of the use of induced statements, I am satisfied that the same caution should be exercised when any letter of assistance is tendered for the sole purposes of s 23 of the Sentencing Act. As this court noted in Bourchas v R, when an affidavit of assistance is tendered, the basis of the tender should be agreed and clearly stated and the question of whether there is any restriction on its use identified. This did not occur in this case.

62. I am satisfied that these sentencing proceedings miscarried as a result of the way in which the confidential affidavit Exhibit B was used against the applicant in his sentence following cross-examination of the applicant by the sentencing judge based on the content of the Exhibit B.

63. It is to be accepted, as was submitted by the Crown on this appeal, that an offender is bound by the conduct of his counsel. In Zreika v R (2012) 223 A Crim R 60 Johnson J observed at [80]:

“There is a practical expectation that an offender's legal representative will make submissions to the sentencing Judge at first instance, by reference to the particular factors which are sought to be taken into account in mitigation of sentence in the case at hand.”

64. His Honour went on to observe at [81] that an application for leave to appeal against sentence to this court:

“….is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made.”

65. Having regard to these principles, if I was satisfied that the applicant’s counsel had made a considered decision to put before the court evidence that Peter Roberts was criminally active, then the principles in Zreika v R would apply. The reason why I cannot be satisfied of this fact is that the sentencing judge did not make any inquiry at the time as to what purpose Exhibit B could be put. The procedure that the judge should have adopted was to clarify the admissibility of the contents of Exhibit B to the fact-finding exercise. This is especially so in circumstances where there was an apparent conflict between the Agreed Facts and the contents of Exhibit B. It is to be noted that, despite the apparent inconsistency, the ODPP solicitor did not refer to any of the contents of Exhibit B in her cross-examination of the applicant. She went no further than testing the applicant’s evidence that he was not even suspicious about what the guns might be used for.

66. I would allow Ground 2 as well.

67. In circumstances where I have found error in the sentencing process, I am required to discharge the obligation imposed by s 6(3) of the Criminal Appeal Act which provides that:

(3) On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.

68. Given that I am required to re-exercise the sentencing discretion having upheld Ground 1 and 2, I do not consider it necessary to go on to consider whether the sentencing was also manifestly excessive (Ground 3).

Re-sentence

69. In exercising the sentencing discretion afresh, I do so consistent with the relevant principles as recently stated by Beech-Jones J in RO v R [2019] NSWCCA 183 at [79]-[89] (with whom Bathurst CJ and I agreed). Although there was one discrete matter in RO v R where I respectfully disagreed with his Honour, that matter does not arise in the present case (see at [123]).

70. In determining the facts on sentence, I have put to one side the contents of the confidential affidavit, Exhibit B and confined the fact finding to the Agreed Facts tendered.

71. Even putting to one side the contents of Exhibit B, the explanation provided by the applicant for selling the firearms was so inherently implausible that I am not satisfied of its truth on the balance of probabilities. The applicant’s explanation was that he sold two firearms with a combined value of $3,000 to “Peter” and it was proposed that Peter would just keep them for him until he was able to buy them back. The applicant’s evidence was that it was agreed that he would buy them back from Peter for $25,000 when he had the money. Why, at a time when the applicant owed $100,000 in gambling debts, he would spend $25,000 on firearms worth $3,000 was never explained.

72. I am not satisfied on the balance of probabilities that “Peter” was going to hold the firearms for the applicant as some sort of “loan shark” and then sell them back to him at a higher price. The price differential between their $3,000 value and the purchase price of $20,000 was sufficient to put the applicant on notice that the firearms must have been going to be used for some illegal purpose. In that respect, although I have put to one side the relationship between Mr Roberts and the applicant for the purpose of assessing the objective seriousness of the offence, I am nonetheless satisfied that the applicant was at the very least reckless as to whether the firearms would be used for criminal activity.

73. Thus, I would make a finding as to objective seriousness in the same terms as was submitted by the Crown to the sentencing judge – slightly below mid-range of objective seriousness.

74. These were very serious offences. They carried a maximum penalty of 20 years imprisonment and a SNPP of 10 years. As the Crown submitted, the clear intention of the Firearms Act is to remove firearms from the community unless possession is expressly authorised: El Jamal [2017] NSWCCA 243 at [23], as well as to deter and punish possession of firearms: Athos v R [2013] NSWCCA 205 at [39]: Johan v R [2015] NSWCCA 58 at [121]. General deterrence is an important factor when sentencing for firearm offences given the prevalence of illegal firearms in the community: El Masri v R [2014] NSWCCA 13 at [14]. In Laspina v R [2016] NSWCCA 181 Rothman J observed at [6]:

“…for far too long courts have dealt with firearm offences in a way which has had regard to whether the firearms were intended to be used in a criminal offence of another kind. In so doing, in my view, we are underplaying the seriousness of firearm offences generally, including mere possession, but particularly when those firearms are possessed for the purpose of sale to other persons who, for obvious reasons, will not be in possession of them legally.”

75. Turning to the applicant’s subjective case, I have set out his background and mental state in some detail above. It is to be noted that when he was arrested, he immediately admitted to the offences and provided assistance to the authorities. Without disclosing the contents of Exhibit B, I am satisfied that the assistance he has provided is extensive. During the hearing, counsel for the Crown was asked whether, in the event that error was established and this court came to re-sentence, she wished to be heard against the court finding that the combined value of the plea of guilty and discount for assistance to authorities would be 50% rather than the 40% found by the sentencing judge. The Crown did not wish to be heard against this finding.

76. Insofar as the other findings made by the sentencing judge are concerned, I would not interfere with a finding of special circumstances for the reasons provided by his Honour. In relation to the applicant’s prospects of rehabilitation and risk of reoffending I would arrive at a slightly different finding to that of the sentencing judge. I would find that the prospects of rehabilitation are moderate and the risk of reoffending low to medium. Both of these matters are dependent on resolution of the applicant’s gambling problem.

ORDERS

77. Having regard to all of these matters, I would propose the following orders:

1. The applicant be granted leave to appeal.

2. The appeal be allowed.

3. The aggregate sentence imposed by Wilson SC DCJ on the applicant on 8 June 2018 be set aside.

4. In lieu thereof:

1. Impose an aggregate sentence of 3 years imprisonment to commence on 8 June 2018 and expire on 7 June 2021.

2. Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW), set a non-parole period of 2 years and a balance of term of 1 year.

3. Specify that the earliest date the applicant will be eligible to be released on parole is 7 June 2020.

4. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), record that an aggregate sentence is imposed and indicate to the applicant that the sentence that would have been imposed on each count under separate sentences instead of an aggregate sentence is 2 years imprisonment with a non-parole period of 1 year and 4 months.

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Amendments

03 December 2019 - Cover sheet correction

Decision last updated: 03 December 2019