R. v Brown

[1999] NSWCCA 143

CITATION:	R. v Brown [1999] NSWCCA 143
FILE NUMBER(S):	CCA 660658/99
HEARING DATE(S):	9 June 1999
JUDGMENT DATE:	9 June 1999
PARTIES :	Regina v Richard Brown
JUDGMENT OF:	Grove J at 18-19; Carruthers AJ at 1-17

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	98/11/0572
LOWER COURT JUDICIAL OFFICER:	Viney DCJ

COUNSEL:	P.G. Berman for the Crown R. Burgess for the Applicant
SOLICITORS:	C.K. Smith for the Crown T.A. Murphy for the Applicant
CATCHWORDS:	Appeal against severity of sentence; Possessing a shortened firearm; Possessing an unregistered firearm; Concurrent sentences for shoplifting & larceny; Long criminal record; Long history of drug abuse including addiction to heroin; Prospects of rehabilitation poor; Relevance of the fact that the matter could have been dealt with in Local Court
ACTS CITED:	s 62(1)(b) of Firearms Act 1996 s 25 of Firearms & Dangerous weapons Act 1973
CASES CITED:	Thurgar (1990) 41 A Crim R 109 Simpson (1992) 61 A Crim R 58
DECISION:	Appeal for leave to appeal and appeal allowed.; Resentenced. (Paras 17 & 19)

- 9 -

IN THE COURT OF
CRIMINAL APPEAL

No 60658/98

GROVE J
CARRUTHERS AJ

WEDNESDAY 9 JUNE 1999

REGINA V RICHARD BROWN.

JUDGMENT:

1 CARRUTHERS AJ: Richard Brown seeks leave to appeal against sentences imposed upon him by Viney DCJ QC at the Sydney District Court on 16 October 1998 when the applicant pleaded guilty to one count of possessing a shortened firearm under s 62(1)(b) of the Firearms Act 1996 which carries a maximum penalty of ten years imprisonment, and one count of possessing an unregistered firearm under s 36(1) of that Act which carries a maximum penalty of five years imprisonment.
2 His Honour sentenced the applicant in relation to the first count to a minimum term of eighteen months imprisonment to date from 2 October 1998 and to expire on 1 April 2000. The sentence was backdated to 2 October 1998 to take into account two weeks pre-sentence custody and his Honour imposed an additional term of six months to commence on 2 April 2000 and to expire on 1 October 2000. In relation to the second count his Honour sentenced the applicant to a fixed term of six months imprisonment to date from 2 October 1998 and to expire on 1 April 1999.
3 It is convenient to note at this stage that the applicant was arrested on 31 May 1998 and refused bail. On 15 November 1998 he began serving concurrent sentences for shoplifting and larceny, the longest of which was to expire on 14 December 1998. Accordingly, two months and twelve days were served in relation to the subject offences concurrently with the sentences for shoplifting and larceny which dated from 15 June 1998, but one has to balance against that the fourteen days which were taken into account for the pre-sentence custody.
4 The applicant, who is represented by the Legal Aid Commission was born on 8 September 1959. He has a long criminal record, unhappily, which goes back to September 1973 but,realistically,so far as this case is concerned, no relevant previous offences involving the possession or use of firearms. Unhappily, he also has a long history of drug abuse involving addiction to heroin. Again one has to express regret that the evidence before his Honour indicated that his prospects of rehabilitation were poor. At the time of the commission of the subject offences the applicant was unemployed.
5 The relevant facts may be briefly stated as follows: on 31 May 1998 police in an unmarked car at Chippendale observed the applicant and a second male walk across an intersection in front of the police car, the applicant carrying a small backpack. The applicant was shortly thereafter seen to remove the backpack and drop it in the front yard of a nearby home. The police stopped and inspected the backpack which was found to contain a .22 calibre rifle which had been modified with a shortened barrel and sawn stock. A further search of the area resulted in the location of a black wool beanie with two eye holes cut out within ten metres of where the applicant was ultimately detained by the police.
6 When interviewed electronically by the police the applicant exercised his right to silence and declined to answer any questions regarding his possession of the firearm, which was admitted.
7 He was originally charged with being armed with a weapon with intent to commit an indictable offence. He was committed for trial to the District Court in relation to that matter but it was not proceeded with. It is submitted on behalf of the applicant that if he had not been charged with this particular offence the matter would in all probability have been dealt with in the Local Court where the maximum penalty under both section 62(1)(b) and section 36(1) of the Firearms Act 1996 on summary conviction is two years imprisonment. Thus effectively it is submitted the applicant was sentenced to the maximum penalty available for those offences in the Local Court. That is not completely correct because one has to take into account the effective two months concurrent sentence with the shoplifting and larceny matters.
8 The search for comparable cases has been a somewhat futile one. Counsel for the Crown has referred to the decision of this court in Thurgar (1990) 41 A Crim R 109 which is authority for the proposition that the objective gravity of an offence of possessing a firearm depends on the purpose of the possession. A purpose connected with proposed criminal activities would be likely to lead to the imposition of a penalty at the higher end of the range.
9 It was submitted by the Crown that Viney DCJ appears to have sentenced the applicant on the basis of bare possession of the firearm. However, it is contended that his Honour would have been entitled to take into account that no innocent explanation for the possession had been advanced by the applicant. This submission by the Crown was supported by observations which have been made by Gleeson CJ in Thurgar. That was a case in which the court was dealing with the charge of being in possession of an unlicensed pistol contrary to the provisions of s 25 of the Firearms And Dangerous Weapons Act 1973. In that case the then Chief Justice said:

"It is not accurate to say, as is submitted on behalf of the appellant, that the learned Judge was obliged to sentence the appellant on the basis that there was nothing more to the second charge than the bare fact of possession of an unlicensed pistol. There is also the circumstance that no innocent explanation for such possession has been advanced by the appellant".

10 Ms Burgess in her helpful submissions on behalf of the applicant has submitted that it would be an affront to the right to silence for Viney DCJ and/or this Court to infer from the applicant's possession of the subject shortened weapon that he was possessing it for a hostile or unlawful purpose. This submission gave rise to a very interesting debate and I have, speaking for myself, no doubt that the problem will arise in future cases. It is interesting to note that the right to silence will be considered by the High Court in cases which are presently listed for hearing before it. However, it really is not a question that has to be resolved in the instant matter. In fact Viney DCJ did not infer against the applicant that the applicant was in possession of this weapon for any hostile or unlawful purpose. His Honour said (at the foot of page 2 and over on to page 3) in his remarks on sentence:

"Mr Shaw also points out that despite his lengthy record there is nothing there to indicate he has ever used firearms in any criminal offence nor in any way at all. So one is simply left with the fact that at 1.25am he was carrying a back pack with this weapon in it."

11 It would not be fair to the applicant if this Court were to adopt, if I may respectfully say so, the submissions on behalf of the Crown that it was open to his Honour to infer that the applicant was in possession of this weapon for a hostile purpose and this is one aspect of the submissions before us which can be put to one side.
12 The other major point that was debated before this Court arises from the fact that the matter was dealt with in the District Court when it was open for it to have been dealt with summarily in the Local Court. If the applicant had not been committed for trial to the District Court on the indictable matter. the s 62(1)(b) matter and the s 36(1) matter would have been dealt with in the Local Court only if there had been a positive election to that effect by the Director of Public Prosecutions. Whether that election would have been made is one which will never be known because of the circumstances that did arise.
13 Mr Berman in his helpful submissions on behalf of the Crown was unable to refer to any instance where there had been a matter dealt with in the District Court under s62(1)(b) and s 36(1) independently of any other charges.
14 In my view it would not be appropriate for this Court to resolve this application on the basis that realistically the maximum penalty which was available to Viney DCJ was two years. However, I do consider that the fact that it could have been dealt with in the Local Court, and obviously the majority of single instance offences under the Firearms Act independently of other charges are dealt with in the Local Court, is a factor which this court should take into consideration.
15 Having carefully considered the submissions which have been put to this Court on behalf of the applicant and the Crown and having considered the statistical material that has been placed before this Court, I am driven to the conclusion that the sentences imposed by his Honour exceeded the discretion which was available to him. I do feel, if I may respectfully say so, that this is probably accounted for by the fact that his attention was not drawn to the fact that the matter could have been dealt with in the Local Court and, provided with the helpful statistics of which this Court has the benefit. One must, of course, be sensitive to the remarks which his Honour made about the grave public concern that is felt in this community about the use of firearms in the commission of crime and the objective seriousness of possession of a shortened firearm. No one has been able to propose a satisfactory illustration of what would be a reasonable excuse for being in possession of a weapon which has been deliberately shortened. One does not have to spend much time in the criminal courts to realise why there is concern about the presence within the community of shortened firearms.
16 These are matters which this court is entitled to take into account in resentencing when balancing the subjective and the objective considerations. One must, of course, take into account the views expressed by Wood J in Fernando a judgment which has been cited on more than one occasion by this Court with approval.
17 Thus, in my view, it would be appropriate, and I so propose, that the application for leave to appeal against the sentence imposed in relation to the possession of a shortened firearm under s 62(1)(b) of the Firearms Act be granted, that the sentence imposed by his Honour be quashed and in lieu thereof I would impose a minimum term of twelve months to date from 2 October 1998 and to expire on 1 October 1999. I would propose an additional term of four months to date from 2 October 1999 and to expire on 1 February 2000. I am sensitive, in proposing that additional term, to the submissions that were put to us by Ms Burgess based on Simpson's case (1992) 61 A Crim R 58, to the effect that the accumulation of sentences such as happened here can create problems insofar as the relationship between the minimum term and the additional term is concerned and what is referred to commonly as ‘the statutory ratio’ under s 5(2) of the Sentencing Act 1989. However, as counsel for the Crown has pointed out, Simpson's case has to be viewed in the light of recent cases which, amongst other things, have emphasised the necessity for the minimum term to reflect the criminal seriousness of the subject offence. Thus, in my view, taking all matters into consideration, the relationship between the minimum term which I have proposed and the additional term is a fair and just and appropriate relationship.
18 GROVE J: I agree with the orders proposed by Mr Justice Carruthers and generally with the reasons which he has given. I would record that like his Honour I do not regard it as necessary for this court in this case to make any findings or final observations concerning what has been said in the case of Thurgar (1990) 51 A Crim R 109. However, I would further record that I do not see, as presently advised, any inconsistency with the exercise of the right to silence by a suspect later accused and the drawing of an inference by a court of an improper or hostile purpose by mere possession of a sawn off rifle. A weapon of that sort is of itself illegitimate and there has, as yet, been demonstrated no legitimate purpose for such an implement. Hence, I think it itself provides a sufficient source of inference.
19 The orders of the court will be as proposed by Mr Justice Carruthers and in addition, having regard to the length of term, we would order that the applicant be released to parole on 1 October 1999 and while on parole he is to be subject to the supervision of the Probation and Parole service.
oOo