Noud v The King

[2023] NSWCCA 157

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Noud v R [2023] NSWCCA 157

Hearing dates:

21 April 2023

Date of orders:

30 June 2023

Decision date:

30 June 2023

Before:

Davies J at [1]
Fagan J at [123]
Yehia J at [124]

Decision:

(1) Grant leave to appeal.

(2) Dismiss the appeal.

Catchwords:

CRIME – appeals – appeal against conviction – one count of domestic violence related intimidation – multiple firearm offences – three related offences on a s 166 certificate – unreasonableness arising from inconsistent verdicts – physical and verbal domestic argument – where applicant waved a gun at the complainant – three other firearms found at the premises – evidence of an admission the applicant had possession of the guns – where applicant acquitted on some counts but not others – where complainant’s evidence essential to each count - whether acquittals can be explained without doubting complainant’s credibility – where jury rejected allegation by applicant of a set-up by the complainant – detailed evidence by the complainant of the guilty verdict count – minor discrepancies in complainant’s evidence – appeal dismissed

CRIME – appeals – appeal against sentence – by applicant – whether sentencing judge failed to take into account general and specific deterrence – where applicant had mental health issues – where matters related to mental health and the reduced need for deterrence were put to the judge – where such matters were not considered – failure to give adequate reasons – ground upheld – no lesser sentence warranted – appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW) ss 61, 195

Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13

Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A

Firearms Act 1996 (NSW) ss 7A, 36, 62

Weapons Prohibition Act 1998 (NSW) s 7

Cases Cited:

Bugmy v The Queen (1990) 169 CLR 525

Craig v The Queen (2018) 264 CLR 202; [2018] HCA 13

Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086

Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 95 ALJR 894

Lee, Matthew v R [2016] NSWCCA 146

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

R v Lachlan [2015] NSWCCA 178; (2015) 252 A Crim R 277

TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151

Walker v R (2019) 96 NSWLR 1; [2019] NSWCCA 4

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Michael John Noud (Applicant)
The King (Respondent)

Representation:

Counsel:
B Robinson (Applicant)
J Styles (Respondent)

Solicitors:
Wade Law (Applicant)
Solicitor for Public Prosecutions NSW (Respondent)

File Number(s):

2018/296121

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

R v Noud [2022] NSWDC 395

Date of Decision:

2 September 2022

Before:

Bourke SC DCJ

File Number(s):

2018/296121

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Michael Noud (the applicant) was charged with seven counts and three related offences. He was convicted by a jury of one count of possessing a shortened firearm, being a Midland 12 gauge shortened shotgun, without authority (count 4). At the sentence hearing, Mr Noud pleaded guilty to damaging property (sequence 1) and was found guilty by the sentencing judge of possessing an unregistered firearm (sequence 4) and domestic violence related common assault (sequence 5). He was sentenced to an aggregate term of imprisonment of 3 years and 4 months.

The applicant and the complainant, Ms Reid, had been in an on-and-off relationship for about six years. On 27 September 2018, a verbal and physical argument arose after Ms Reid told the applicant she wanted to leave the relationship. During the argument, the applicant used his walking stick to smash the windows of Ms Reid’s car (sequence 1) and pushed Ms Reid outside the garage (sequence 5). He also picked up a Midland 12 gauge shortened shotgun (count 4 and sequence 4), unwrapped it from a t-shirt, waved it at Ms Reid and then took the gun to the garage. Ms Reid also said the applicant tried to remove the wheels from her motorcycle. She called the police and waited for them at a nearby train station.

When police arrived, they located the Midland 12 gauge shotgun in the garage. They also found three other firearms and two prohibited weapons in the main bedroom. The Crown relied upon an email, purportedly between the applicant and Ms Reid, as an admission that the applicant had possession of the guns. The applicant alleged that it was Ms Reid who had planted the firearms in the house. He was convicted by the jury of possessing the Midland 12 gauge shotgun (count 4) and acquitted of domestic violence related intimidation (count 1) and possessing firearms the subject of counts 2, 3 and 5.

The sentencing judge considered the applicant’s mental ill-health to accept that Bugmy principles were engaged. The applicant submitted that, by reason of his mental health issues, there was a reduced need for general and specific deterrence. There was no explicit mention of general or specific deterrence in his Honour’s remarks on sentence.

The applicant sought leave to appeal against the conviction on the following grounds:

Ground 1:    The verdict on count 4 is unreasonable or cannot be supported having regard to the evidence.

Ground 2:   The convictions on sequences 4 and 5 on the s 166 certificate are unreasonable or cannot be supported having regard to the evidence.

The applicant also sought leave to appeal against his sentence on the following grounds:

Ground 1:   The trial judge failed to take into account whether general and specific deterrence ought to be reduced on account of the applicant’s mental health issues.

Ground 2:   The aggregate sentence imposed was manifestly excessive.

The Court held (per Davies J, Fagan J and Yehia J agreeing), dismissing the conviction appeal, upholding ground 1 of the sentence appeal but dismissing the appeal:

As to the conviction appeal (per Davies J, Fagan J and Yehia J agreeing):

1. In determining whether the verdict of the jury is unreasonable, it is assumed that the evidence of the complainant was accepted by the jury as credible and reliable. Where inconsistency in verdicts is raised, the acquittals not the convictions must be examined. If, as a matter of logic and reasonableness, the acquittals can be explained without doubting the complainant’s credibility, the guilty verdicts may not be unreasonable: [39] (Davies J), [123] (Fagan J), [124] (Yehia J).

Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, Walker v R (2019) 96 NSWLR 1; [2019] NSWCCA 4, considered.

MFA v The Queen (2002) 213 CLR 606; TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151, cited.

1. On a consideration of the whole of the evidence, there was no doubt about the guilt of the applicant in respect of count 4 or sequences 4 and 5. The firearms the subject of counts 2, 3 and 5 were found under a heavy bed. Given the applicant’s physical disability, they would have been difficult for him to extract. Further, DNA evidence was found on only one of the firearms, with the applicant and the complainant unable to be excluded. By contrast, there was detailed evidence by the complainant about the Midland 12 gauge shotgun (count 4 and sequence 4), including that it was wrapped in a t-shirt and located in the garage. Any discrepancies in the complainant’s evidence were minor and could be viewed as mistaken rather than dishonest. The intimidation offence under count 1 also required proof of four separate matters, whereas the sequence 5 offence did not: [40]–[53], [67]–[76] (Davies J), [123] (Fagan J), [124] (Yehia J).

Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728; TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151, cited.

1. The sentencing judge not giving himself a Murray direction, in circumstances where it was given to the jury at trial and not sought by counsel at the sentencing hearing, is not an error. A party is bound by the decisions taken by their counsel: [62]–[66] (Davies J), [123] (Fagan J), [124] (Yehia J).

Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 95 ALJR 894; Craig v The Queen (2018) 264 CLR 202; [2018] HCA 13, cited.

As to the sentence appeal (per Davies J, Fagan J and Yehia J agreeing):

1. Where one of the purposes of sentencing is to prevent crime by deterrence, and where matters related to those considerations were put to the sentencing judge, it is an error for no reference to be made to them in the remarks on sentence. The sentencing judge failed to give adequate reasons: [96]–[100] (Davies J), [123] (Fagan J), [124] (Yehia J).

Lee, Matthew v R [2016] NSWCCA 146, considered.

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194; Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086, cited.

1. Although specific error has been established, no lesser sentence was warranted than that imposed by the sentencing judge. The sentence appeal should be dismissed: [110]–[121] (Davies J), [123] (Fagan J), [124] (Yehia J).

Judgment

1. DAVIES J:   The applicant stood trial before Judge Bourke SC and a jury on the following charges:

Count 1: Intimidation with intent to cause physical or mental harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The maximum penalty for this offence is five years’ imprisonment. There is no standard non-parole period.

Count 2: Possess a firearm without licence or permit, being a BSA bolt action rifle, contrary to s 7A(1) of the Firearms Act 1996 (NSW). The maximum penalty for this offence is five years’ imprisonment and there is no standard non-parole period.

Count 3: Possess a firearm that was not registered, being a Lithgow bolt action rifle, contrary to s 36(1) of the Firearms Act 1996 (NSW).

Count 4: Possess a shortened firearm without authority, being a Midland 12 gauge shotgun, contrary to s 62(1)(b) of the Firearms Act. The maximum penalty for this offence is 14 years’ imprisonment and there is no standard non-parole period.

Count 5: Possess a shortened firearm without authority, being a Sterling self-loading rifle, contrary to s 62(1)(b) of the Firearms Act.

Count 6: Possess a prohibited weapon without a permit, being an extendable baton, contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW). The maximum penalty for this offence is 14 years’ imprisonment and there is a standard non-parole period of five years’ imprisonment.

Count 7: Possess a prohibited weapon without permit, being wooden nunchaku, contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW).

2. There were also three offences on a s 166 certificate as follows:

Sequence 1: Intentionally/recklessly damage property contrary to s 195(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is five years’ imprisonment but the maximum penalty in the Local Court is two years’ imprisonment and/or a fine of 20 penalty units.

Sequence 4: Possess an unregistered firearm, being a shortened, double barrel shotgun, contrary to s 36(1) of the Firearms Act. The maximum penalty for this offence is 14 years’ imprisonment. The maximum penalty in the Local Court is two years’ imprisonment and/or a fine of 50 penalty units.

Sequence 5: Common assault (domestic violence related) contrary to s 61 of the Crimes Act. The maximum penalty for this offence in all jurisdictions is two years’ imprisonment and/or a fine of 50 penalty units.

3. The applicant pleaded not guilty to counts 1-5 and to the three sequences on the s 166 certificate. He pleaded guilty to counts 6 and 7.

4. The jury found him not guilty of counts 1, 2, 3 and 5, and guilty of count 4.

5. At the sentence hearing, the applicant pleaded guilty to sequence 1 on the s  166 certificate, and was found guilty by Judge Bourke of sequences 4 and 5.

6. On 2 September 2022, Judge Bourke sentenced the applicant to an aggregate term of imprisonment of three years and four months commencing 15 June 2022 and expiring 14 October 2025 with a non-parole period of one year and eight months expiring 14 February 2024.

7. The indicative sentences were as follows:

Count 4:   Three years’ imprisonment.

Count 6:   After a 25% discount for the plea, seven months’ imprisonment with a non-parole period of 3.5 months.

Count 7:   After a 25% discount for the plea, seven months’ imprisonment with a non-parole period of 3.5 months.

Sequence 1:   15 months’ imprisonment.

Sequence 4:   Two years’ imprisonment.

Sequence 5:   Two months’ imprisonment.

8. The applicant now seeks leave to appeal against his conviction on the following grounds:

Ground 1.   The verdict on count 4 is unreasonable or cannot be supported having regard to the evidence.

Ground 2.   The convictions on sequences 4 and 5 on the s 166 certificate are unreasonable or cannot be supported having regard to the evidence.

9. The applicant also seeks leave to appeal against his sentence on the following grounds:

Ground 1:   The trial judge failed to take into account whether general and specific deterrence ought to be reduced on account of the applicant’s mental health issues.

Ground 2:   The aggregate sentence imposed was manifestly excessive.

The offending

10. The following summary is taken from the written submissions of the applicant and the Crown.

11. The applicant lived at a property in Alliance Street, East Maitland. He was the sole lessee of the premises. The applicant and the complainant, Roweena Reid, were in an on-and-off relationship for about six years until September 2018. Ms Reid lived at the premises from time to time. She stored various items at the premises.

12. On 25 September 2018, Ms Reid told the applicant that she wanted to leave him. On 27 September 2018, an argument took place between the applicant and Ms Reid about her wanting to leave. During the argument they spoke about the division of property items. They went to the garage and continued to yell at each other. The applicant then kicked a metal ashtray, and its contents went everywhere, including over Ms Reid. Ms Reid left the garage and went into the kitchen. The applicant followed her. Ms Reid threw some plates on the floor and broke them. The applicant called her a psycho and other names. The applicant then went out to Ms Reid’s car which was parked under the carport. Using his walking stick he smashed the car windows (sequence 1 on the s 166 certificate).

13. Ms Reid went to the garage, followed by the applicant, who pushed her outside (sequence 5 on the s 166 certificate).

14. Ms Reid and the applicant then went inside the house. The applicant picked up the Midland 12 gauge shortened shotgun (the subject of count 4 and sequence 4) from beside the fridge which was wrapped in a t-shirt. As the applicant walked past Ms Reid he unwrapped the gun and waved it at her. The gun had an engraved “love heart” on top of it. The applicant took the gun to the garage. Ms Reid called the police. She walked outside and said that she saw the applicant trying to take the wheels off her motorbike.

15. Ms Reid was advised by the police to remain at the house, but she left because she thought the applicant was going to come back into the house with the gun. She went to the railway station and rang the police again to tell them that she was there. When the police arrived at the railway station, Ms Reid participated in a recorded interview.

16. The police then went to the premises in Alliance Street and arrested the applicant. They searched the garage and located the Midland 12 gauge shotgun wrapped in a Bandidos t-shirt (count 4 and sequence 4 on the s 166 certificate).

17. In the main bedroom, police found three other firearms and two prohibited weapons as follows:

(a)   A BSA bold action rifle (count 2);

(b)   A Lithgow bolt action rifle (count 3);

(c)   A shortened Sterling self-loading rifle (count 5);

(d)   An extendable baton (count 6); and

(e)   Wooden nunchaku (count 7).

18. An email chain dated 10 September 2018, purportedly between the applicant and Ms Reid, was tendered as Exhibit 1. The Crown case was that the applicant sent the email to Ms Reid on 10 September 2018 at 8.10am where, amongst other things, he wrote:

Do please call whoever you need I will be grateful tell them about the guns and everything don’t hold back I want it all ended.

This was relied upon as an admission that the applicant had possession of the guns the subject of the counts in the indictment.

19. DNA testing was undertaken on the firearms with the following results:

(a)   Midland 12 gauge shotgun - mixed DNA – unsuitable for comparison;

(b)   BSA rifle - mixed DNA – unsuitable for comparison;

(c)   Lithgow rifle – unsuccessful;

(d)   Sterling rifle – mixed DNA – at least three contributors, one being unknown. Neither the applicant nor Ms Reid could be excluded.

20. The applicant presented a positive case in defence of the charges. His evidence was that Ms Reid had examined his mobile phone internet search history, and saw that he had looked up two women from Sydney. That led to the argument in the garage, with the applicant asserting that the women were tattooists in Sydney from whom he wanted to get some tattoo work done. Ms Reid went inside the house and returned to the garage. She threw a bucket at him which missed and hit an ashtray.

21. Ms Reid said that she was leaving the relationship, and she asked him to vacate the property whilst she organised to move out. The applicant said, “If you’re planning on leaving the relationship, there’s a – a problem about the money like – like you can have half of it but I want my half too”.

22. The applicant moved Ms Reid’s motorbike from the garage to under the carport. He did this to assist her to move her property from the premises, and because he did not want whoever was helping her to go into the garage. He denied trying to remove the bike’s wheels.

23. Ms Reid and the applicant spoke further about dividing the property and the money in a fixed term savings account which the applicant said he received as a result of a work accident.

24. When Ms Reid went back inside the house, the applicant heard things smashing. He went inside and saw that she had smashed a plant, broke some plates, smashed the microwave oven, and kicked things out of the pantry. He called her a psycho and as he walked out of the kitchen, she threw things at him. She threw his walking stick at him, hitting him in the arm. He picked it up and said, “Is this my car now? You’re not the only person that can smash stuff up”. He then smashed two windows in the car.

25. He walked towards the access door to the garage, and was about to enter it when Ms Reid ran up to him. She threw a can at him which missed. He went inside the garage and she followed him. She punched him in the shoulders and he grabbed her hands to stop her hitting him. He said, “I want to leave. Leave me alone”. He pushed her hands to defend himself and moved her out of the garage. She went inside and he left the premises. He returned an hour later and she was not there.

26. In respect of count 1, the defence case was said in this Court to be that the applicant pushed her out of the garage in self-defence and, despite damaging the car, he did not, by those actions intend to cause her to fear mental or physical harm. He denied smashing the ashtray.

27. In respect of the four firearm charges, the applicant denied any knowledge of them. His case was that Ms Reid had planted the firearms in the house and the garage. He denied writing the email. He suggested that Ms Reid had doctored the email.

Conviction appeal

Ground 1:   The verdict on count 4 is unreasonable or cannot be supported having regard to the evidence

Submissions

28. The applicant submitted that the verdict on count 4 was unreasonable on two bases. First, it was said to be inconsistent with the verdicts of not guilty on counts 1, 2, 3 and 5. Secondly, it was unreasonable on an independent assessment of the evidence.

28. The applicant submitted that the Crown set itself a high bar in respect of count  1. That was because count 1 was formulated in such a way that the Crown had to prove four acts before the jury could return a verdict of guilty. Those acts were the smashing of the car windows, pushing the complainant out of the garage, showing the complainant the shotgun, and attempting to take the tyres off the motorbike. The applicant accepted that the need to prove those four matters, together with the Murray direction that was given in relation to count 1, might provide some explanation for the verdict of not guilty in respect of count  1. Nevertheless, the applicant submitted that the jury must have had some doubt about the complainant's credibility in arriving at its verdict on count  1.

29. The applicant submitted that the Crown case in respect of the applicant’s being in exclusive possession of the four firearms relied upon the finding of the firearms in the premises, particularly the three guns behind the bed in an inaccessible location, the DNA evidence relating to the Sterling firearm (count  5), the admissions in the email, and the evidence of the complainant.

30. In relation to count 4, the Crown relied upon the complainant's evidence that, to her knowledge, no-one else had access to the garage apart from the applicant. The complainant said that she did not have keys to the garage, and she only entered the garage if the applicant was there or if he wanted her to get something from the garage. However, the applicant submitted that the defence case was that one key opened the front door, the back door and the garage, and the complainant had such a key.

31. The applicant submitted that the difference in the evidence relating to the firearms was that the Midland 12 gauge shortened firearm was located in the garage, which was a different place from where the other three firearms were located. Further, the complainant had given evidence that on 27 September 2018 the applicant had picked up the Midland shotgun from beside the fridge and waved it at her as he walked past.

32. The applicant submitted that there was little if any difference in the strength of the evidence in respect of each of the firearms counts, yet the jury, having seen and heard the complainant give evidence, had a reasonable doubt in respect of counts 2, 3 and 5. He submitted that the weaknesses in the Crown case as to possession of the three firearms in the bedroom must have been attributable to some doubt that the jury held about the complainant's credibility.

33. The applicant submitted that the alleged admission in the email (Exhibit 1) as to the applicant's possession of "guns" was unambiguous, yet it was rejected by the jury in relation to the three firearms found behind the bed.

34. The applicant submitted that there was no reasonable justification for the jury to distinguish the admission in the email as between the shotgun in the garage and the three firearms in the bedroom. The applicant submitted that the verdict in respect of the counts relating to the three firearms in the bedroom was a clear rejection of the complainant's account as to the origin of the email emanating from the applicant.

Legal principles

36. The High Court said in Dansie v The Queen [2022] HCA 25 at [8]:

[The] understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that "the question which the court must ask itself" when performing that function is "whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty", that question being "one of fact which the court must decide by making its own independent assessment of the evidence".

37. In Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 the High Court said:

[37]   … [T]he assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors’ subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.

[38]   It should be understood that when the joint reasons in M v R spoke of the jury’s “advantage in seeing and hearing the witnesses” as being “capable of resolving a doubt experienced by a court of criminal appeal” as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury’s assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness’ evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M were remarking upon the functional or “constitutional” demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible.

[39]   The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.

(citations omitted)

38. Where the allegation of unreasonableness arises from what are said to be inconsistent verdicts, this Court said in Walker v R [2019] NSWCCA 4 (per Hoeben CJ at CL, Rothman and Price JJ agreeing):

[103]   There was no dispute between the parties as to the legal principles to be applied. The test when considering whether inconsistent verdicts were handed down by a jury is one of logic and reasonableness (Mackenzie v The Queen [1996] HCA 35; 190 CLR 348). Those principles were recently restated in Jafary v R. In order to succeed, the applicant “must satisfy the court that the verdicts cannot stand together”, i.e. that “no reasonable jury who applied their minds properly to the facts of the case could have arrived at that conclusion” (Mackenzie at [366]). If there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury properly performed their functions, that conclusion will generally be accepted (Mackenzie at [366], Jafary at [31]).

[104]   There is no general rule that in cases where several offences depend upon the evidence of a single complainant, acquittal on some counts compels the conclusion that the jury must necessarily have regarded the complainant generally as an untruthful witness or that the complainant’s credibility was undermined in respect of the counts upon which they have returned guilty verdicts: MFA v The Queen [2002] HCA 53; 213 CLR 606 at [35] and [89].

[105]   The applicant bears the burden of establishing inconsistency of verdicts and it is only where inconsistency rises to the point where intervention is necessarily required to prevent a possible injustice, that the relevant conviction will be set aside: Still v R [2010] NSWCCA 131 at [58]; Miller v R [2014] NSWCCA 34 at [56]; Darby v R [2016] NSWCCA 164 at [140]; Tsaccounis v R [2016] NSWCCA 163 at [116]. Furthermore, this task must be considered in the context of the system within which juries function as the trier of fact and of the jury’s role in that system (MFA at [34]).

[106]   The significance of verdicts of not guilty on some counts on an indictment must be considered in the light of the particular circumstances of the case. As Gleeson CJ, Hayne and Callinan JJ observed in MFA at [34], it must be borne in mind that where an indictment contains multiple counts, the jury will ordinarily be directed to give separate consideration to each count and that the jury will ordinarily be directed that the evidence of each witness may be accepted in whole or in part.

[107]   It should also be borne in mind that the directions to the jury will emphasise the heavy onus of proof which lies on the prosecution and that in the case of sexual assault offences, one, or all, of the members of the jury may require “some supporting evidence before they are satisfied beyond reasonable doubt on the word of the complainant” (MFA at [34]). As their Honours observed:

“34 … [a finding of guilt] does not necessarily involve a rejection of the complainant's evidence. A juror might consider it more probable than not that a complainant is telling the truth but require something additional before reaching a conclusion beyond reasonable doubt. The criminal trial procedure is designed to reinforce, in jurors, a sense of the seriousness of their task, and of the heavy burden of proof undertaken by the prosecution. A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. …”

(See similarly R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 at [8], [34] and [219]-[221]).

[108]   Their Honours also observed that other factors that “might cause a jury to draw back from reaching a conclusion beyond reasonable doubt” in respect of a particular count may include “where the complainant has shown some uncertainty as to matters of detail or has been shown to have a faulty recollection of some matters or has been shown otherwise to be more reliable about some parts of his or her evidence than about others” (at [34]).

[109]   It is necessary for the court to scrutinize the evidence and make its own assessment of the reasonableness of the guilty verdicts. However, in making that assessment the court should properly be conscious of the advantage of a jury over an appellate court in that there would be aspects of the case that would not be reflected adequately in the written record: MFA at [23]; ML v R [2015] NSWCCA 27 at [46].

[110]   As the applicant rightly submitted, on appeal the correct starting point for considering whether verdicts can be reconciled is not the convictions, but the acquittals. This is to follow the approach stated by Simpson J in TK v R [2009] NSWCCA 151; 74 NSWLR 299 (with whom McClellan CJ at CL and Latham J agreed) at [128] where her Honour said:

“128 … In determining whether convictions are unreasonable, in these circumstances, the focus of the inquiry is upon any explanation, not for the convictions, but for the acquittals. If such an explanation can be found, without resort to doubts about the complainant’s credibility, the verdicts of guilty may not be unreasonable, at least not on that basis. … .”

Her Honour went on at [130] to stress that:

“130 … [Before] an appellate court, faced with diverse verdicts on multiple counts, must intervene to set aside the convictions, the court must inquire whether there exists any rational explanation for the acquittals (not the convictions), other than doubts about the complainant’s credibility. …”

(emphasis added)

(The italicised words in brackets at [107] should read “A jury’s requirement that there be some supporting evidence”: see MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [34].)

39. The starting point is, therefore, that consideration of whether the verdict of a jury is unreasonable or cannot be supported having regard to the evidence proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable: Pell at [39]. Further, where inconsistency is raised, this Court examines not the convictions but the acquittals. If, as a matter of logic and reasonableness, an explanation can be found for those acquittals without resort to doubts about the complainant’s credibility, the guilty verdicts may not be unreasonable: TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [128].

Consideration

40. Whilst it is true that proof of counts 1 to 5 depended, in the first instance, on the jury accepting the evidence of the complainant, that does not lead to a conclusion that not guilty verdicts on one or more of those counts meant that the jury did not believe her evidence in respect of those counts.

41. The acquittal on count 1 is explicable by reason of the four elements specified by the Crown before the jury could convict on that count. In his summing up, the trial judge said:

… I am on the topic of count 1, the allegations that relate to count 1 come from the mouth of the complainant substantially, almost exclusively. When I say almost exclusively, there is some confirmation of at least part of what she says in the sense that there was observed damage to the car and the accused does not deny that he did that damage to the car but the Crown in this case relies upon four particular acts which the complainant says were committed by the accused. Those four acts are these; firstly, that he damaged her car by hitting it with a walking stick, secondly, that he pushed her from the garage, thirdly, that he displayed or showed to her the shortened shotgun and fourthly, that he attempted to remove the wheels from her motorcycle. So the Crown relies upon those four things and the Crown must prove all four of those things in order to make out the act of alleged intimidation. Now essentially those events or the evidence of those events comes from the mouth of the complainant. There is no other witness who was there apart from the accused. Therefore, the complainant’s evidence is crucial with respect to that count 1 intimidation charge and therefore, you must be satisfied beyond reasonable doubt of the essence of the complainant’s version in other words, you must be    satisfied beyond reasonable doubt of her evidence that those four things were done by the accused. You do not need to be satisfied beyond reasonable doubt of every word that she said in the two days that she gave evidence but you must be satisfied beyond reasonable doubt that she was an honest and accurate witness and you must be satisfied beyond reasonable doubt of the essence of her evidence namely, as I said, those four aspects.               

42. A little later in his summing up, the judge said:

Next …, the Crown relies upon the following conduct as amounting to intimidation, for the purposes of count 1: Damaging the complainant’s car by hitting it with a walking stick, pushing the complainant out of the garage, showing the sawn off shotgun to the complainant and attempting to remove the wheels from the complainant’s motor cycle. Now, just pausing there and adding something, as I told you earlier, the Crown relies upon those four things and must prove all, each and all of those four things, beyond reasonable doubt, for you to find the accused guilty of count 1.

43. The jury may well have taken the view that they could not be satisfied about the complainant’s evidence concerning the alleged attempt by the applicant to remove the wheels from her motorcycle. She agreed that between where she was standing and the motorcycle was her car, so that she could not actually see what the applicant was doing. The jury may also have accepted the submission put to them by the applicant’s counsel that removing the wheels would not have prevented the complainant from leaving the premises (the complainant’s explanation for removing the wheels) when she could have driven away in her car, and his submission about the difficulty of removing the wheels when the bike was standing on its wheels. It was apparent from the complainant’s evidence that she concluded that the applicant was trying to remove the bike’s wheels but, when pressed, she could not actually see what the applicant was doing.

44. The unsatisfactory nature of this aspect of the complainant’s evidence may well have left the jury with a reasonable doubt about one of the four matters the Crown accepted had to be proved to make out count 1.

45. In relation to the acquittal on counts 2, 3 and 5, the jury may have felt that the evidence was not sufficiently certain. The complainant had only given evidence about two other firearms. Moreover, the firearms were found under a very heavy bed, and were difficult to extract. The officer who located the guns, Detective Senior Constable Cook gave this evidence:

Q. Officer, in your observation was there anything which would indicate whether the firearms had been placed there recently or not recently and if you can’t say one way or the other, please say.

A. No, I can say that it would appear that they’ve been placed there for some time. The bed took four of us to lift it. It was against the wall - the head of the bed was against the wall. Like I say, four persons on each corner of the bed to lift that out and to enable us to get to the firearms. Extremely heavy bed.

Q. Was that the only matter which you observed which is relevant?

A. The bed was also quite low. I had difficulties in getting under it and I couldn’t actually get to the firearms by climbing under the bed. I had to have the bed pulled out from the wall to get to them.

46. The applicant had physical problems that would not have permitted him to move the bed. The jury had the opportunity of seeing the applicant in the courtroom and on some police videos. They may have accepted, at least, that he had ongoing physical and mobility problems, even if they did not otherwise accept his evidence.

47. The forensic evidence is likely to have created more doubt, because DNA found on only one of the guns contained at least three contributors, with the applicant and the complainant unable to be excluded.

48. The statement in the email, on the assumption that it was written by the applicant, was a vague statement about guns with no specification of the number of them, and was made a week and a half before the guns were found. Whilst it could be regarded as a piece of circumstantial evidence, it was by no means sufficient to be regarded as an admission in relation to the four guns charged.

49. On the count on which the applicant was convicted, there was detailed evidence from the complainant about that firearm and what the applicant did with it on the morning of 27 September. On the other hand, the applicant’s evidence about the guns was that the complainant had set him up by placing the shotgun in the garage and telling the police about other guns the applicant had.

50. It seems clear that the jury rejected the applicant’s allegation of a set-up. That rejection was not unreasonable. First, if the complainant had planted the other three guns, it is not clear why she gave evidence of knowing of only two other guns, and telling the police on 27 September of three guns in total. Secondly, it is far from clear why she would plant one in the garage and the other three in an almost inaccessible location. Thirdly, given the evidence of Detective Cook, it is not clear how the complainant would have been able to put them where they were found. Fourthly, whilst the evidence likely proved that the key to the house, which the complainant had, provided access to the garage, it was never put to the complainant that she knew that it did so, and her evidence was that she only went there if the applicant was in the garage, or he asked her to get something from the garage.

46. If the jury, as seems certain, rejected the allegation that the shotgun was planted in the garage by the complainant, the only rational explanation for her statement to the police at the railway station on 27 September, and for evidence, that the shotgun was wrapped in a T-shirt and put in the garage, was that the complainant had seen the applicant take the gun wrapped in a T-shirt to the garage. The fact that it was found by the police in that way was strong corroboration for her evidence that resulted in the guilty verdict on count 4.

47. From my examination of the whole of the evidence, I do not have a reasonable doubt about the guilt of the applicant in respect of count 4.

48. I would reject this ground.

Ground 2:   The convictions on sequences 4 and 5 on the s 166 certificate are unreasonable or cannot be supported having regard to the evidence.

Submissions

54. The applicant submitted that the only issue at trial in relation to the firearm in count 4 was possession. Since that was the same firearm in sequence 4, success or otherwise on this ground will follow the result for ground 1.

55. In relation to the charge of assault in sequence 5, the applicant relied on self-defence. He submitted to the trial judge that the charge should be dismissed because the jury could not have been satisfied that self-defence had been negatived in circumstances where what the applicant did formed part of the acts constituting count 1 where the applicant was acquitted. Nevertheless, the trial judge accepted the complainant’s account.

56. The applicant submitted that the trial judge did not address certain matters that impacted on the assessment of the credibility of the complainant. These included the difference between the complainant’s evidence where she said she left the relationship 50 times when her statement referred to 10 times; her evidence that the applicant was trying to remove the wheels from her motor bike, when in fact she could not see what the applicant was doing to her bike; and the removal by the complainant of almost $200,000 from the joint account where she asserted that it was done at the request of the applicant to enable him to avoid child support payments.

57. The applicant submitted that the trial judge gave a Murray direction to the jury regarding Count 1, but did not give himself a Murray direction in relation to the assault charge.

58. The applicant submitted that the judge’s evaluation of demeanour was not an advantage that was capable of overcoming the credibility issues which infected the complainant’s evidence. The applicant submitted that on an independent assessment of the evidence, this Court would conclude that the Crown had failed to prove beyond reasonable doubt that the applicant was not acting in self-defence.

Consideration

59. As counsel for the applicant appeared to accept, a determination in relation to sequence 4 will follow the result in respect of count 4, since the same firearm was involved, and the only extra element present (the firearm’s being unregistered) was not in dispute. At the sentence proceedings, where the s  166 matters were also being heard, the applicant conceded that, as a result of the jury’s verdict on count 4, the trial judge could be satisfied beyond reasonable doubt of his guilt on sequence 4.

60. Sequence 5 concerned the alleged assault of the complainant by pushing her out of the garage, following the applicant’s smashing of the car’s windows. This alleged assault formed part of count 1, where the applicant was acquitted.

61. The applicant effectively challenges the verdict on sequence 5 on two bases, which are related. Both involve the credibility of the complainant. The first is that the trial judge did not give himself a Murray direction. Secondly, the complainant’s evidence should not have been accepted. If the evidence was not accepted, the Crown could not have negatived self-defence on the applicant’s part.

62. In relation to the Murray direction, although this was sought at the trial and such a direction given to the jury, it was not sought at the hearing of the s 166 matters.

63. The submissions in relation to the s 166 matters on the applicant’s part were brief. In written submissions he submitted that the acquittals on count 1, 2, 3 and 5 suggested the complainant had not been believed. He submitted that the conviction on count 4 did not mean that the complainant had been accepted; rather the jury could have convicted merely on the basis that the gun was found in the applicant’s garage. He then said:

The Common Assault should be dismissed. The Court can not be satisfied that the Crown have proved this matter beyond a reasonable doubt. It was included in Count 1 which the jury were not satisfied was proven. It is entirely plausible that the jury were not satisfied that self defence had been negatived. The evidence of the offender was that he did grab her hands and push them away as she was punching him in the shoulder. The acquittal on Count 1 can not be seen to be only because of uncertainty over the purported removal of the motorbike tyres (sic).

64. In fact, contrary to that submission and to the submission made in this Court, self defence was never raised before the jury. It was, however, raised for the first time in relation to sequence 5.

65. Nothing additional was said in oral submissions at the sentence proceedings concerning sequence 5.

66. Three things can be said about the absence of a Murray direction by the trial judge when considering the s 166 matters. First, such a direction was sought by the applicant at the trial and was given by the trial judge to the jury. It is difficult to see why the trial judge would not have been aware of the issue when determining the s 166 matters. His Honour had presided over the trial, and it was clear that proof of the various charges depended largely on the evidence of the complainant. Secondly, there is no separate ground asserting error as a result of the trial judge not giving himself such a direction. The complaint appears to be that the trial judge could not have come to the credibility finding that he did. Thirdly, a party is ordinarily bound by decisions taken by their counsel: Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 95 ALJR 894 at [54]; Craig v The Queen (2018) 264 CLR 202; [2018] HCA 13 at [23].

67. In Dansie the High Court said at [7]:

[T]he function to be performed by the Court of Criminal Appeal when determining an appeal on the unreasonable verdict ground is not to determine whether there was error in the factual findings on which the trial judge relied in ultimately finding the accused guilty of the offence tried. The function to be performed by the Court of Criminal Appeal is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of that offence.

68. However, that does not mean that the trial judge’s findings on credibility are to be ignored, because the Court went on to say:

[8]   That understanding of the function to be performed by a court of criminal appeal in determining an appeal on the unreasonable verdict ground of a common form criminal appeal statute was settled by this Court in M. The reasoning in the joint judgment in that case establishes that “the question which the court must ask itself” when performing that function is “whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”, that question being “one of fact which the court must decide by making its own independent assessment of the evidence”.

[9]   The joint judgment in M made clear that “in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses”. The joint judgment equally made clear how those considerations are to impact on the court’s independent assessment of the evidence. That was the point of the carefully crafted passage in which their Honours stated:

“It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred [on the unreasonable verdict ground]. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by a jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

(citations omitted)

69. In relation to the number of times the complainant said that she had tried to leave the relationship, it may be accepted that there was a discrepancy, and it was a wide discrepancy, but the fact was that the parties had been together on and off for about six years. How many times a party may have intended to leave or attempted to leave, when there were multiple occasions, is not something a person would necessarily remember very well. Saying “probably 50 times” sounds like an exaggeration said out of frustration, and says little about her overall credibility.

70. In relation to the evidence about what the applicant was doing with the motorbike, a reading of that evidence leads me clearly to the view that, like so many lay witnesses, the complainant’s conclusion or belief about the matter was put forward by her as evidence of the act or matter occurring. The evidence demonstrates that the complainant really believed, in the heat of that moment, that the applicant was removing the wheels of her bike although, when pressed hard on the matter, she had to admit that she could not actually see what he was doing. Certainly, her conclusion without a proper evidentiary basis has to be considered in coming to a view about the complainant’s reliability. The jury may have concluded that she was mistaken although not dishonest.

71. The third area, relating to child support payments, was a case of clear conflict between the applicant and the complainant. To the extent that it was of importance to the issues in the trial, and not just a matter going to the complainant’s credibility, it was relevant only to the case of the applicant that the complainant had set him up with the guns to prevent him claiming back from her money which he asserted had been wrongly taken by her. Quite independently of the jury’s rejection of this claim by the applicant, I would not accept it for the reasons I gave earlier (at [50]). My reading of the complainant’s evidence leads me to the conclusion that there is no basis for the submission of the applicant that the complainant made constant reference to the child support issue in a non-responsive way when asked questions. Each time it was mentioned by the complainant, it was in response to a question about her dealings with the joint account.

72. When one turns to the evidence about the alleged assault itself, my own view largely accords with that of the trial judge. The complainant was said to be about 5 feet 4 or 5 inches tall whereas the applicant was 6 feet tall and weighed 100kgs. It does not seem at all likely that the complainant would have commenced to attack the applicant, particularly when he had just, in a violent rage, taken a walking stick and smashed windows in the car. It is apparent that the complainant was so scared of him that, contrary to what the police told her to do when she rang, she left the premises and went to the railway station nearby.

73. Her first account of the incident, one or two hours later to the police, was consistent with her evidence in court. The acceptance by the applicant of his rage and the damage he did to the car also provides some support for the complainant’s account.

74. As noted above when dealing with ground 1, the assessment of the reasonableness of the verdict proceeds on the assumption that the complainant is believed. I note three matters in that regard: first, the judge expressly accepted the complainant’s evidence in relation to sequence 5; secondly, the jury must have rejected the applicant’s assertions of a set-up of him by the complainant; and, thirdly, the jury thereby must have believed her account of the events of that morning. The jury could not have reached its verdict on count 4 solely on the basis that the gun was in the garage, because the dispute between the complainant and the applicant about how it got there cannot be extricated from where it was found.

75. The judge’s view and the jury’s view assist me in concluding that the guilt of the applicant in relation to sequence 5 was established beyond reasonable doubt.

76. I would reject this ground.

Sentence appeal

Ground 1:   The trial judge failed to take into account whether general and specific deterrence ought to be reduced on account of the applicant’s mental health issues

Remarks on sentence

77. His Honour set out the significant matters contained in the psychological report from Dr Rebecca Smith and considered the serious physical problems the plaintiff had from the accident which injured his left knee.

78. His Honour generally found no remorse except as a result of the plea in relation to counts 5 and 6 and to damaging the car. His Honour considered that the applicant’s prospects of rehabilitation were reasonable.

79. His Honour accepted that Bugmy principles (Bugmy v The Queen (1990) 169 CLR 525) were engaged to a material degree and that the applicant’s moral culpability was thereby reduced to some degree. His Honour found further that the applicant’s background interacted badly with his physical issues including ongoing pain and frustration with mobility, and this made him more prone to an aggressive outburst such as that which occurred when he smashed the complainant’s car and assaulted her.

80. In relation to delay, his Honour said at [57]:

There has been some delay in this matter, given that the Offender was arrested and charged almost 4 years ago. During that period he has not committed any other offences, which is a matter I have taken into account generally, and when assessing his future prospects.

His Honour said that the case was not one where the appropriate penalty should be mitigated to a substantial degree, but he had taken into account the undoubted stress and anxiety the applicant would have experienced since his arrest.

81. His Honour found that the applicant’s mental state involving depression, anxiety and stress would make any period of imprisonment very difficult for him.

82. His Honour said that he had given considerable weight especially in determining the non-parole period to the fact that the applicant's physical disabilities and chronic pain would make any period in custody considerably more difficult than for most inmates given the limited allowance that would likely be able to be made for his mobility issues. This is due to the likelihood that in a custodial environment he would not receive the type and level of pain relief that he was accustomed to. His Honour also took into account that his prison term would be served during the pandemic.

Submissions

83. The applicant submitted that before the sentencing judge his written submissions cited Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, and identified his mental health issues and said that there was a reduced need for general and specific deterrence. The applicant submitted further that the Crown had also raised the importance of specific and general deterrence, although it had done so to submit that those matters loomed large in sentencing for firearm offences. The applicant submitted that, despite those submissions, his Honour did not mention either specific or general deterrence in his remarks.

84. The Crown submitted that express consideration of De La Rosa was not required on the facts, and that the judge considered the applicant’s subjective case including his mental illness, generously and appropriately. The Crown accepted, however, that the sentencing judge did not expressly refer to consideration of general or specific deterrence.

85. The Crown submitted that there was no evidence of any relationship between the applicant’s condition and his offending. The Crown submitted that, if a person has capacity to control their impulses, and make informed choices about their criminal offending, they may be a suitable vehicle for general deterrence. Here there was no evidence, the Crown submitted, that would demonstrate any defect in reasoning or want of control in respect of the possession of firearms or other weapons. As such, there was no failure to consider any reduction in the general deterrence otherwise applicable in this case.

86. The Crown submitted that the issue of specific deterrence was also of considerable importance and might be appropriately weighed against the applicant in the circumstances of this case. The Crown submitted that the applicant had not accepted responsibility for the offending. He denied liability at the trial and raised a defence of fabrication. That was a consideration for the matter of specific deterrence.

Consideration

87. The sentencing judge had a report from a psychologist, Dr Rebecca Smith. The applicant gave evidence that what he told the psychologist was true. Dr Smith recorded that the applicant spoke only briefly about his family, and she noted that he did not wish to speak in depth about his childhood.

88. The applicant recalled being approximately 12 when his parents finally separated after years of violence and difficulties associated with his father’s outlaw motorcycle group affiliation. His mother “tried to kill herself three times” and “ended up in James Fletcher (Psychiatric Hospital)”. The applicant has not seen his mother since he was 12 years old. He told Dr Smith that as an adult he became aware of suffering “abandonment issues” after having been involved with psychological care.

89. The applicant and his siblings lived with their father after his parents separated, and the applicant recalled serious violence and abuse from his father.

90. The applicant told Dr Smith that he “turned his back” on his father and his associates at a young age and made decisions about how he would live his life when he was older. This caused problems and friction between himself and his father as well as the rest of the family. At the age of 18 he cut off all contact with his family.

91. He trained in mechanics and became a heavy vehicle mechanic working on vehicles in remote areas as a fly-in/fly-out worker. In April 2016, he suffered a serious accident in the course of his work. A heavy vehicle fell on his left knee causing significant injuries, and he suffers from permanent disabilities.

92. The applicant told Dr Smith that he struggled with adjusting to his injury and being unable to work. He commenced seeing a psychologist, John Grainger, who apparently noted that the applicant developed depression-related symptoms, including feeling irritable, down and frustrated, and struggled with developing alternative career ideas. Mr Grainger apparently diagnosed the applicant with an adjustment disorder with depressed mood, and recommended cognitive behavioural therapy. The applicant attended on Mr Grainger for 18 months, but he was reported as having consistently low mood, flattened affect, extremely severe anxiety, depression and stress. He had an elevated risk of suicide.

87. The applicant told Dr Smith that his mental health had deteriorated significantly when he was incarcerated (for the first time) for four months following his arrest.

88. A short report from his general practitioner in August 2022 said that the applicant suffered from chronic depression and some anxiety with some response to medications he was on, being Escitalopram (an antidepressant) and opiate pain killers such as Endone.

89. The evidence did not disclose any link between the applicant’s psychological issues and the offending. However, the sentencing judge was prepared to accept that Bugmy principles were engaged to a material degree, and that the applicant’s moral culpability was reduced to some degree.

90. Although the applicant did not have a strong case for a reduction in the importance of both specific and general deterrence, he had made a submission that, by reason of his mental health issues and what was said in De La Rosa, there was a reduced need for specific and general deterrence. Moreover, the Crown had cited a number of authorities to the sentencing judge to submit that general deterrence loomed large for both firearms and prohibited weapon offences.

91. Where one of the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) is to prevent crime by deterring the offender and other persons from committing similar offences, and where matters related to those considerations were put forward to the sentencing judge, it seems to me to be an error for no reference to be made to those matters in the remarks on sentence. It may be accepted that the sentencing judge made reference to the decision in R v Lachlan [2015] NSWCCA 178, a case cited by the Crown to submit that general deterrence loomed large, but his Honour neither related that reference to the issue of general deterrence, nor sought to explain how what was put forward by the applicant to reduce the significance of general deterrence was to be balanced against what was said in Lachlan.

92. While the applicant’s minimal criminal record did not point to any particular weight that needed to be given to specific deterrence, his Honour ought to have made some reference to it particularly where a submission had been made that its significance should be reduced. Whilst I do not suggest that what is contained in s 3A of the Sentencing Act should be regarded as a check list, the fact that deterrence is one of the purposes of sentencing means that a sentencing judge would ordinarily be expected to give consideration to the issue, both in relation to the crimes for which sentence is being imposed and in relation to the subjective features of the offender’s case.

93. I would uphold this ground of appeal.

94. Although the ground is not couched in terms of failure to give adequate reasons, the substance of the complaint is precisely that. In Lee, Matthew v R [2016] NSWCCA 146, the joint judgment of Basten JA and McCallum J (with whom I agreed), first made reference to what was said by the High Court in Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086 at [14] concerning the requirement for a judge in a judge alone trial to give proper reasons, and then went on to say:

[26]   Two propositions may be derived from this reasoning. First, the failure to give proper reasons is an error of law. Secondly, the reasons must be adequate to demonstrate the absence of a real “possibility” that the judge failed to apply correct legal principle. In other words, where the possibility of error was open, the appellate court should not have assumed that, because the legal principle was well known and indeed fundamental, it had been applied.

Ground 2:   The aggregate sentence imposed was manifestly excessive

101. Since error has been found in relation to ground 1, it is not strictly necessary to consider this ground of appeal, but submissions made in respect of it will be taken into account when considering what sentence this Court will impose.

Resentence

Submissions

102. Although counsel for the applicant on the appeal appeared to accept that a fulltime custodial sentence was required for the offence constituting count 4, a submission had been made before the sentencing judge that an aggregate sentence of three years or less was appropriate so that consideration could be given to an intensive correction order.

103. The applicant submitted that where the sentencing judge had found that the assault was towards the lower end of seriousness, it did not justify an indicative sentence of imprisonment. The applicant further submitted that the indicative sentence for damaging property was too high, considering the finding that the objective seriousness was in the mid-range and the range of sentences indicated in the statistics.

104. The applicant submitted that his subjective case was a particularly strong one, having regard to his physical injuries and disabilities arising from the work accident and as a result of the finding that the Bugmy principles were engaged to a material degree and that his moral culpability was reduced to some degree.

105. The applicant submitted that the delay of almost four years between arrest and finalisation should result in some mitigation of the sentence.

106. The applicant submitted that the aggregate sentence was too high because the sentencing judge determined that there needed to be some notional accumulation with respect to the damage property and assault offences, and the indicative sentences for those offences were too high.

107. The Crown submitted that the nature of the offence constituted by count 4 was particularly concerning, given that no lawful purpose exists for the possession of shortened weapons. Further, the firearm was functional, it had been possessed for some time and was not properly stored. The Crown drew attention to the maximum penalty of 14 years for the offence.

108. The Crown submitted that the offences were committed in the context of a domestic relationship, and drew attention to the evidence of the complainant that on other occasions the applicant had pointed firearms at her.

109. The Crown submitted that, notwithstanding the applicant's subjective case, no lesser sentence was warranted.

Consideration

110. In my opinion, the objective seriousness of count 4 was near the mid-range. I agree with the sentencing judge’s factual findings concerning this offence, including that the applicant’s possession of it was not for the purpose of intimidation. Nevertheless, where there cannot be a legal, legitimate purpose for possession of a shortened firearm, the fact that it had been possessed for some time, was functional, and was not stored safely, gives rise to the problems that the authorities have discussed, namely, that if it is not already in the wrong hands, it will more easily be in such circumstances.

111. I consider that the assault charge falls at the lowest end of objective seriousness – it amounted to nothing more than a push where no injuries were sustained.

112. The offences constituted by counts 6 and 7 were at the lower end of objective seriousness. I consider that the offence of damaging property was within the mid-range of objective seriousness.

113. The pleas in relation to counts 6 and 7, and the acceptance by the applicant that the car was damaged by him, are some indication of remorse for those offences. However, I do not find that there is any remorse in relation to the assault or the offences relating to the unregistered firearm.

114. There is no evidence to suggest any causal relationship between the applicant’s mental health issues and the offending. However, I accept that the Bugmy factors result in a modest reduction of the applicant’s moral culpability.

115. General deterrence is of some significance for the count 4 offence. I do not think such a finding should be modified when there is no link between the applicant’s mental health issues and the offending. While I take into account the very limited criminal record of the applicant, the number of offences for which he is to be sentenced suggests that specific deterrence must be taken into account.

116. I have taken into account the fact that the applicant was seeing a psychologist for an 18 month period, with some benefit from that treatment. I consider the applicant’s prospects of rehabilitation are reasonable and that his risk of re-offending is low.

117. I take into account the delay from his arrest to the initial sentence and the further delay until this Court’s determination, and also the more onerous nature of his custody, both by reason of his own physical disabilities, his mental health, and the fact that he has been in custody during some of the Covid pandemic with the limitations that that has entailed.

118. Whatever sentence is imposed in relation to the sequence 4 offence, it ought to be wholly comprehended by the sentence for the count 4 offence, since the weapon was the same.

119. On those bases, I would indicate the following sentences:

Count 4:   Three years’ imprisonment;

Counts 6 and 7, each with a discount of 25% for the pleas:   Six months’ imprisonment with a non-parole period of three months;

Sequence 1:   12 months’ imprisonment;

Sequence 4:   Two years’ imprisonment; and

Sequence 5:   One months’ imprisonment.

120. There must be some notional accumulation in respect of counts 6, 7 and sequence 1, although I consider it appropriate to make the sentences for sequences 4 and 5 wholly concurrent.

121. Bearing in mind those indicative sentences, and the notional accumulation required, I do not consider that any lesser sentence is warranted than that imposed by the sentencing judge.

Conclusion

122. I propose the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

123. FAGAN J:   I agree with Davies J.

124. YEHIA J:   I have had the advantage of reading the draft judgment of Davies J. With respect to the conviction appeal, having conducted an independent assessment of the trial evidence, I do not accept that the jury verdict on count 4 or the Judge’s verdict on sequences 4 and 5, are unreasonable. I agree with his Honour’s conclusion that grounds 1 and 2 be rejected. With respect to the sentence appeal, I agree that ground 1 should be upheld. Although specific error has been established, I agree with his Honour’s proposed orders and his Honour’s reasons.

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Decision last updated: 30 June 2023