R v Farrell

[2015] NSWCCA 68

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Farrell [2015] NSWCCA 68
Hearing dates:	18 March 2015
Date of orders:	21 April 2015
Decision date:	21 April 2015
Before:	Simpson J at [1] Rothman J at [2] Bellew J at [14]
Decision:	The Crown appeal is dismissed
Catchwords:	CRIMINAL LAW – Appeal – Crown appeal against inadequacy of sentence imposed for the possession of an unauthorised pistol – Where sentencing judge found that the respondent had come into possession of the firearm essentially by chance and not as a consequence of deliberately sourcing it – No evidence that the respondent possessed the firearm for any intended criminal purpose – No evidence that he was intending to use it – No evidence that he was proposing to sell it – Where sentencing judge found no evidence to support the conclusion that the offending was objectively serious or grave – Where sentencing judge found the offending fell below the mid-range of objective seriousness - Where respondent was sentenced to 2 years imprisonment to be served by way of Intensive Correction Order – Where respondent had already spent 9½ months in custody solely in respect of the same charge – Sentence not manifestly inadequate – Crown appeal dismissed.
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW)
Cases Cited:	Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579 CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 317 ALR 308 Cranssen v The Queen [1936] HCA 42; (1936) 55 CLR 509 Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 Everett v R [1994] HCA 49; (1994) 181 CLR 295 Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462 Griffiths v R [1977] HCA 44; (1977) 137 CLR 293 House v the King [1936] HCA 40; (1936) 55 CLR 499 R v Farrell [2014] NSWCCA 30 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 R v MD and ors [2005] NSWCCA 342; (2005) 156 A Crim R 372. R v Thalari [2009] NSWCCA 170; (2009) 75 NSWLR 307
Category:	Principal judgment
Parties:	Regina – Appellant
Representation:	Counsel: Mr K McKay – Appellant Mr G James QC and Mr E James - Respondent Solicitors:
File Number(s):	2013/36983
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Date of Decision: / Before: Hanley SC DCJ

Judgment

1. SIMPSON J: I agree with Bellew J.

2. ROTHMAN J: I have had the benefit of the reasons for judgment of Bellew J and his thorough analysis of the issues. I agree with his conclusion that the appeal should be dismissed, but I do so on a different basis.

3. The offence with which the respondent was charged is the possession of an unauthorised pistol, the maximum sentence for which is 14 years’ imprisonment, with a standard non-parole period of 3 years. Each is a guidepost to the sentence to be imposed. There are other guideposts and factors to which Bellew J has referred.

4. This pistol has been described. While it is possible to imagine a more dangerous weapon, it is very difficult to imagine a more dangerous pistol.

5. A canon, for example, would be a more dangerous weapon. The ability to imagine a more dangerous weapon does not detract from the characterisation of the pistol as in the worst category. Its possession was not “wholly innocent” in that, as is required by the offence, the respondent was aware of its existence. Further, the respondent had handled the weapon. The sentencing judge took into account that there was no evidence to suggest possession for an intended criminal purpose to be executed by (by either himself or others) or that he discharged the pistol (or allowed its discharge by others). At the same time, there was no evidence to the opposite effect.

6. If the respondent had discharged the pistol or been complicit in its discharge, a different and more serious offence would have been committed. I do not accept that the lack of evidence of the commission of a more serious offence is an ameliorating factor in this offence. Evidence that positively establishes it had not been and was not the respondent’s intention to discharge the weapon or to use it in a criminal enterprise may be ameliorative in that it proves an innocent purpose.

7. Nevertheless, the pistol is an extremely dangerous weapon and the legislature has understandably treated the possession of such weapons as, of itself, serious, whether or not it is presently intended to be used for another criminal offence. It certainly had the potential to be so used.

8. The Crown relies on manifest inadequacy. It is traditional or conventional to rely on that ground because of the manner in which the provisions of s 5D of the Criminal Appeal Act 1912 have been understood to apply: see Cranssen v The Queen [1936] HCA 42; (1936) 55 CLR 509 at 519-201; Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579 at [6]-[8]. In order to persuade the Court of that ground, the Crown must establish to the Court’s satisfaction that the sentence was unreasonable or plainly unjust: Carroll v The Queen, ibid; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.

9. Even allowing for the respondent having served 9 ½ months on remand, a sentence of 2 years imprisonment is, in my view, unreasonably inadequate and plainly unjust. Further, there is an additional inherent leniency in serving the sentence by way of Intensive Correction Order.

10. If this sentence is within the existing range for possession of this type of weapon, then the range is inadequate, even allowing for the subjective circumstances of the offender.

11. Having expressed that view, it would be inappropriate and unjust in the present circumstances to alter retrospectively the relevant range in such a way as to prejudice the current respondent. The purpose of a Crown appeal against sentence is primarily to establish principles for the governance and guidance of sentencing courts: Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462.

12. I have expressed my view on the only principle that has been raised. I am not satisfied that the Crown has satisfied the burden of “establishing that the [residual] discretion conferred…should be exercised to vary the sentence imposed by the court of trial”: CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 317 ALR 308.

13. I agree with the orders proposed by Bellew J.

14. BELLEW J: On 1 July 2013 Shannon Bernard Farrell (“the respondent”) pleaded guilty to a charge of possessing an unauthorised pistol contrary to s. 7(1) of the Firearms Act 1996 (NSW) (“the Act”). The maximum penalty for that offence is imprisonment for 14 years. A standard non-parole period of 3 years is prescribed.

15. When the matter came before his Honour Judge Hanley SC in the District Court, the respondent asked his Honour to take into account four additional matters contained in a Form 1 namely:

1. possessing ammunition without authority;

2. possessing unregistered firearms;

3. not keeping firearm safely; and

4. possessing firearm with defaced identification.

16. On 19 September 2014 his Honour sentenced the respondent to imprisonment for 2 years, to be served by way of an Intensive Correction Order to date from 19 September 2014 and to expire on 18 September 2016.

17. On 16 October 2014, pursuant to s. 5D of the Criminal Appeal Act 1912 (NSW), the Director of Public Prosecutions filed a notice of appeal to this Court against the sentence imposed on the respondent, on the ground that it is manifestly inadequate.

THE HISTORY OF THE PROCEEDINGS

18. The respondent was refused bail when initially arrested. By the time the sentence proceedings first came before his Honour on 21 November 2013 the respondent had spent almost 9 ½ months in custody. On that day, his Honour dealt with the matter pursuant to s. 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and released the respondent on conditional bail. In doing so his Honour said (at ROS 1-2):

“I am satisfied that the material before me is that important surgery should take place and part of the granting of the Griffith Remand under s 11 is pursuant to subs(1)(c) of the Act to allow the surgery on the offender's hand to take place. I note that there is evidence before me that suggests that if it is not done at some stage in the near future the damage could be permanent and debilitating to him.

Additionally I also have material before me that suggests that it would be appropriate to give him the opportunity to undertake further supervised rehabilitation outside of that available in the correctional services. It has been my experience, particularly since my very short time on the Bench that there is little or not (sic) availability of drug rehabilitation programs in cusotdy (sic) prior to sentencing. There is (sic) no appropriate programs for people on remand when one would think this is the most appropriate time for them to be available. Those people suffer an unfair disadvantage to those who have been granted bail and on remand who can undertake rehabilitation and therefore present a far more favourable picture to the Court in sentencing.”

19. The Crown lodged an appeal to this Court on the grounds that the sentence imposed by his Honour was manifestly inadequate: R v Farrell [2014] NSWCCA 30. R A Hulme J (with whom Hoeben CJ at CL and Adams J agreed) concluded (at [67]) that the sentencing discretion had miscarried but that in circumstances where the matter was expected to come before the sentencing judge again in a short time, it was impractical to make the orders sought by the Crown. For that reason, although error was found, the Crown appeal was dismissed (at [69]).

20. In reaching his conclusions, R A Hulme J said the following about the nature of the offence with which the respondent had been charged (at [63]-[64]):

“[63] Relevant matters to take into account in an assessment of the objective seriousness of the offence will include the nature of the weapon; the circumstances attending the respondent's possession of it; the fact that it was loaded and its identification information had been defaced; and that further ammunition was found with it. Obviously relevant as well is the seriousness with which Parliament has indicated that such offences are, given the prescription of a 14 year maximum penalty and a 3 year standard non-parole period.”

21. The matter came back before the sentencing judge on 4 July 2014. Having heard further submissions from the parties, his Honour adjourned the matter to 18 July 2014. On that day, his Honour concluded that the respondent should be sentenced to a term of imprisonment not exceeding two years. Having made that determination, he considered whether there were any alternatives to a full time custodial sentence and adjourned the proceedings to allow the respondent to be assessed as to his suitability for an Intensive Correction Order.

22. The matter then came back before his Honour on 19 September 2014. A favourable assessment having been made, the Intensive Correction Order was imposed, subject to various conditions.

THE FACTS

23. His Honour summarised the facts as follows (commencing at ROS 4):

“The offender Shannon Farrell has regularly attended "Elite Car Audio", a commercial building at 33 Queen Street, Campbelltown. The business is registered in his de facto partner's name. The statement of facts refers to her as Amanda Peach but I think it is Leach. The offender is not the holder of a firearms licence or permit.

The offender registered the company, was the sole director, shareholder and secretary thereof until 5 November 2012. After this date, those positions were transferred to his de-facto wife.

On 31 January 2013 police executed two search warrants authorising them to search Elite Car Audio and the home premises at 193 Longhurst Road, Minto, respectively. Those warrants were simultaneously executed about 8.37 on 1 February 2013.

The offender had the nature of the warrant explained to him, he was handed a copy, and the entirety of the search warrant was recorded on video. The offender was asked whether there were any items that were listed on the search warrant (drugs, drug paraphernalia, drug ledgers, mobiles, scales, money). The offender said there was nothing. A systematic search of the premises yielded no results.

The workshop that was located at the rear of the store and separate to the main showroom or retail section of the store. Whilst searching the rear of the building, police observed a "show car" that was partially disassembled and in the process of being restored. Most of the interior of the panels of the car were removed and stacked inside the car. Police searched the car. A bundle of cloth taped together with black electrical tape was located in the wall panel of the rear left passenger door. The find was photographed in situ. The item was removed, and after the cloth and tape was removed, there was revealed a 9 millimetre Uzi machine pistol with an attached magazine containing 15 rounds of ammunition. The serial numbers of the Uzi had been defaced rendering it unreadable. The Uzi was located with a box containing 40 rounds of 9 millimetre live ammunition.

The offender was cautioned and questioned in relation to the firearm and ammunition but denied any knowledge. He stated the car did not belong to him. It was handed over along with the business when purchased by the offender in October 2012. He was questioned as to whether his DNA would be on the gun and responded, "No, no way."

Police located the engine for that car in the offender's garage during the search warrant executed at his home.

CCTV footage was retrieved from within the business premises. This was from a computer tower that was seized at the search warrant. Ms Leach supplied the password to police and CCTV was retrieved covering days 23 January 2013 to 1 February 2013 inclusive.

On 23 January 2013 cameras entitled 31 and 32 captured images of the offender talking to two other unknown men. One of these men approached the left rear passenger door of the "show car" and was looking through it. The offender did so as well and reached in through the window and moved an object that had a similar shape and size to the Uzi that had been located. The offender approached the workshop station near the boot of the car with the object that was covered with a light-coloured cloth. He did this in the company of the other men. A few minutes after that, he manipulated the object in a manner consistent with wrapping it in a fashion as it was found by police. He then placed the object in what appeared to be the panel of the left rear passenger door.

On 24 January 2013 cameras entitled 31 and 32 captured the image of the offender standing outside the left rear passenger door reaching through the window and fumbling around. Shortly thereafter he retrieves an object that was similar to the size of the Uzi and examines it. A minute later, he leaves the area without the object. He returns shortly thereafter and reaches in through the car and talks to an unknown man who was present. They then look through and rummage through the car. The offender finds an object that again has a similar appearance to the Uzi and leaves the area.

Police conducted forensic procedures and obtained fingerprints and DNA from the offender. Subsequent forensic testing identified fingerprints belonging to the offender on the Uzi, as well as his DNA that was found on the trigger, trigger guard and handgrip, bolt handle, and external surfaces of the box containing the ammunition.

Ballistic forensic testing identified that the Uzi had been altered to operate in a fully automatic firing mode. The prohibited firearm is deemed to be a 9 millimetre Luger calibre IMI manufactured selective fire submachine gun, serial number obliterated. It was test fired in working order and was capable of propelling, by means of an explosive, a projectile that could inflict a lethal wound upon a human being. It was capable of propelling projectiles in rapid succession during one push of the trigger. Analysis by ballistics had identified that the firearm fires at a rate of 1,700 rounds per minute with a muzzle velocity of 345 metres per second. The effective range of the firearm is 100 metres. The cartridges found are designed for use in firearms chambered for 9 millimetre Luger calibre cartridges.

Around 8.30 on 6 February 2013, the offender was arrested and conveyed to Campbelltown Police Station where he was offered the opportunity to be interviewed, but after speaking to his barrister, he declined to do so.”

HIS HONOUR’S FINDINGS AS TO THE RESPONDENT’S OFFENDING

24. In considering the objective seriousness of the respondent’s offending, his Honour (commencing at ROS 7) referred at length to what he described to as the “inherent nature of the firearm”. He noted, in particular, that the firearm was:

1. incapable of being registered;

2. in working order;

3. loaded;

4. capable of firing a large number of projectiles within a short period of time;

5. kept in close proximity to other ammunition;

6. defaced, in the sense that the serial number had been removed;

7. secreted in the shell of the show car as opposed to being kept under lock and key; and

8. small and easily secreted.

25. His Honour noted (at ROS 8) that there were no other items such as a silencer secreted with the firearm, and that the respondent had been in possession of it for a relatively short period of time. Whilst his Honour acknowledged that criminality of this nature was not necessarily affected by the period of possession, he observed that a short period of possession may, in some circumstances, be capable of reducing the objective seriousness of the offence.

26. His Honour then turned (commencing at ROS 8) to the circumstances in which the respondent came into possession of the firearm and found (at ROS 10) that he possessed it as a result of unexpectedly finding it in the show car. His Honour contrasted such circumstances with those in which an offender might deliberately obtain an unauthorised firearm for a particular purpose. He concluded (at ROS 10) that the respondent did not plan to come into possession of the firearm, but that once he located it he had decided to retain it.

27. His Honour found (at ROS 11) that there was no evidence before the court to suggest that the respondent:

1. possessed the firearm for any intended criminal purpose;

2. was intending to hand over the firearm to others for any intended criminal purpose;

3. was proposing to sell the firearm;

4. had discharged the firearm; or

5. had permitted others to discharge it.

28. Having cited these matters his Honour said (at ROS 11):

“Importantly, there is no evidence of this type that critically goes to the nature of his possession that could characterise it as objectively serious or grave.”

29. That finding represented a rejection of the Crown submission on sentence that the offending fell above the mid-range of objective seriousness.

30. His Honour went on to note (at ROS 11) that the respondent had told Professor Woods, whose reports were tendered on sentence, that he had no intention of ever selling or using the weapon. His Honour expressly accepted Professor Woods’ evidence (at ROS 14).

31. Ultimately his Honour concluded (at ROS 12):

“(12) In determining the objective gravity of the offender's criminality by reference to all of the factors relevant to such a determination, I am satisfied that it is below the midrange for such offending. Despite the presence of factors that are relevant to the inherent nature of the firearm, I am satisfied that those factors that characterise the nature of the possession and the manner in which the offender came into possession are well below the midrange of seriousness.

The circumstances of the latter two factors are somewhat unique when compared to the facts for other offences of this kind and underline the importance of each sentence being apposite to the particular facts before the Court.”

THE RESPONDENT’S SUBJECTIVE CASE

32. A number of reports of Professor Stephen Woods, Psychologist, were tendered in the respondent’s case on sentence. As I have noted, his Honour accepted the evidence of Professor Woods who documented the respondent’s previous illicit use of drugs, secondary to injuries sustained in a motor vehicle accident.

32. In a report of 1 October 2013 Professor Woods said:

“When questioned about the circumstances surrounding the offence Mr Farrell explained that he suffered quite serious injuries in a motor cycle accident in September 2011. I understand that Mr Farrell was unconscious for an unspecified period of time and that he was transferred by ambulance to Liverpool Hospital. Further, that upon discharge after three (3) days, he was advised the continuing severe shoulder and hand pain was not due to fractures and that “it would heal on its own”.

…

Mr Farrell stated that the severe nature of his hand and shoulder pain resulted in him being prescribed the opiate medication Oxycontin.”

He stated that failure of this medication to alleviate the major part of his pain, along with boredom in response to not being able to return to work or engage in preferred pasttimes, caused him to become depressed and in this regard (he) stated:

“I wanted to sleep through it”.

I understand that Mr Farrell subsequently “obtained” the prescription medication Xanax in an attempt to better control the pain and enable him to sleep. His reliance on this medication rapidly escalated to at least five (5) tablets daily (i.e. at least two [2] at night and three [3] during the day). Mr Farrell disclosed that he also became increasingly reliant on a cocktail of illicit drugs that included crystal methamphetamine and cannabis; he stated:

“I used anything I could get my hands on.”

When it became apparent he would never be able to return to his trade, Mr Farrell and his partner “took over” and acquired existing stock as well as other assets of the motor vehicle accessory business “Extreme Audio”. The business name was later changed to Elite Audio. Mr Farrell explained that the owner/proprietor of Extreme Audio was subject to ongoing police investigations and was awaiting trial in relation to charges involving the sale of firearms.

Mr Farrell explained that his increasingly heavy use of prescription and illicit drugs resulted in a constant state of intoxication with loss of awareness of reality. He reported to have begun to sleep in the garage at his home, and to have effectively ceased associating (except at the most basic level) with his family.”

…

Assessment of Mr Farrell in 2005 documented a disturbing history of heavy chronic illicit drug use and depression secondary to aggravating a pre-existing hand injury in a motor vehicle accident. Substance abuse related to brain damage was felt to be a possibility.

34. Professor Woods also gave oral evidence in the sentence proceedings. He expressed the opinion (at T34 L18 on 21 November 2013) that the respondent’s judgment was “grossly impaired” at the time of the offending.

35. The respondent had a criminal history which included a conviction in 2012 for possession of ammunition without authority. His Honour found (at ROS 18) that such history was not particularly lengthy or significant, but that it disqualified the respondent from receiving the benefit of any particular leniency that might have been available to him had he had no history at all. His Honour did not identify any other aggravating factor(s).

36. In terms of mitigating factors, his Honour firstly noted the respondent’s early plea of guilty which entitled him to a discount of 25%. Although the respondent did not give evidence in the sentence proceedings, his Honour relied upon Professor Woods’ reports and opinions, as well as evidence from the respondent’s partner, to support a conclusion that there was “some remorse” demonstrated. Consistent with his findings as to the circumstances of the offending, his Honour concluded (at ROS 19) that the respondent’s possession of the firearm was not planned, and appeared to have come about “as a matter of chance”. Based largely upon the evidence of Professor Woods, along with evidence of the respondent’s abstinence from illegal drugs for a significant period, his Honour concluded (at ROS 22) that the respondent was unlikely to re-offend providing he continued to pursue his various courses of study and continued his rehabilitation.

SUBMISSIONS OF THE CROWN

37. As I have noted, the Crown relied upon a single ground of appeal, namely that the sentence was manifestly inadequate. In order to succeed on the appeal the Crown must establish that the sentence was unreasonable or plainly unjust: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321. The Crown relied upon a number of matters which, it submitted, demonstrated the seriousness of the offending and the manifest inadequacy of the sentence imposed.

38. Firstly, the Crown relied upon the nature and characteristics of the firearm. The Crown emphasised, at some length, that the firearm had been modified to enable it to fire multiple rounds upon a single depression of the trigger and submitted that this, combined with the fact that it was fully functional, greatly increased the seriousness of the respondent’s possession of it. It was submitted that his Honour “appeared to have overlooked” these matters.

39. Secondly, the Crown pointed to a number of other circumstances surrounding the respondent’s possession of the firearm, all of which were said to increase the objective seriousness of the offending. These included the fact that the respondent handled the firearm on two occasions, that it was not stored securely, and that it was found loaded and in close proximity to additional rounds of ammunition.

40. Thirdly, the Crown submitted that the combination of these various circumstances with the respondent’s illicit drug use had given rise to a “very dangerous situation” which warranted significant weight being attached to both specific and general deterrence.

41. Fourthly, the Crown relied on the fact that the weapon had been defaced and its identification removed. This, it was submitted, was “consistent with its use for a criminal purpose”. In this regard the Crown submitted that there was unchallenged evidence that in 2013 the respondent was a member of an outlaw motorcycle gang. As I understood it, the fact of the respondent’s membership of such a gang (if it was a fact) was relied upon to support the proposition that the firearm was being used, or was intended to be used, for some criminal purpose. That proposition was, of course, directly contrary to the unchallenged findings made by the sentencing judge.

42. Fifthly, the Crown submitted that although the matters on the Form 1 necessarily overlapped with the substantive charge, they reinforced the need for personal deterrence and retribution.

43. Finally, the Crown submitted that the sentence imposed reflected little or no weight having been given to the relevant purposes of sentencing for offences against s. 7(1) of the Act. In written submissions, the Crown went so far as to submit that the sentencing judge had been “distracted” throughout the sentencing process by the appellant’s subjective case and had “unduly focussed on the standard non-parole period and did not have proper regard to the maximum penalty as part of his intuitive synthesis”. It was submitted that as a consequence of these factors a manifestly inadequate sentence had been imposed.

SUBMISSIONS OF THE RESPONDENT

44. The respondent submitted that it was evident from the remarks on sentence that the sentencing judge was aware of the necessity to undertake an assessment of the relevant criminality, bearing in mind both the maximum penalty and the prescribed standard non-parole period. It was also submitted that it was appropriate for his Honour to have regard, when determining sentence, to the fact that the respondent had served a 9½ month period of actual custody prior to the imposition of the sentence.

45. It was submitted that the sentence imposed was within the appropriate range, particularly having regard to the factual findings of the sentencing judge regarding the circumstances of the respondent’s possession of the firearm, and his personal circumstances. It was further submitted that in order to establish that the sentence was manifestly inadequate, it was incumbent upon the Crown to identify error of the kind discussed in House v the King [1936] HCA 40; (1936) 55 CLR 499. It was submitted that the Crown had failed to do so, and that the appeal should be dismissed.

PRINCIPLES APPLICABLE TO A CROWN APPEAL AGAINST INADEQUACY

46. The right of appeal by the Crown against a sentence which is said to be manifestly inadequate is an exceptional one. It must be exercised with restraint, in order to allow the Court to lay down sentencing principles: Griffiths v R [1977] HCA 44; (1977) 137 CLR 293; Everett v R [1994] HCA 49; (1994) 181 CLR 295; R v MD and ors [2005] NSWCCA 342; (2005) 156 A Crim R 372. In Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462 French CJ, Crennan and Kiefel JJ put the matter in this way (at [1] and [36], citations omitted):

[1] The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions (“Crown appeals”) under s 5D of the Criminal Appeal Act 1912 (NSW) (“the Criminal Appeal Act”) is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.” That purpose distinguishes Crown appeals from appeals against severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases. The Court of Criminal Appeal of New South Wales, in the exercise of its jurisdiction under s 5D, has a discretion to decline to interfere with a sentence even though the sentence is erroneously lenient. That discretion is sometimes called the “residual discretion”.

….

[36] A primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, is “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.” That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion.”

CONSIDERATION

47. In considering the submissions of the parties two matters must be emphasised at the outset.

48. Firstly, the inherently serious nature of offending against s. 7(1) of the Act is reflected in the maximum penalty set by Parliament. In the present case, the Crown placed significant reliance upon the nature and characteristics of the firearm to demonstrate what was said to be the seriousness of the offending and the manifest inadequacy of the sentence. However, they were not the only factors which were relevant in determining the seriousness of the offending. Given the charge, the nature and circumstances of the respondent’s possession of the firearm were obviously relevant.

49. Secondly, none of the factual findings of the sentencing judge were the subject of any challenge by the Crown before this Court. This included his Honour’s findings as to:

1. the circumstances in which the respondent came into possession of the firearm;

2. the absence of any evidence that he intended to use it; and

3. his low level of moral culpability.

50. It is plain from his Honour’s observations (at ROS 7-8) that he was aware of, and took into account, the various characteristics of the firearm. His analysis of those characteristics was lengthy and detailed. In those circumstances it was not, in my view, open to the Crown to submit to this Court that the seriousness of the respondent’s possession arising from the nature of the firearm was something that his Honour “appeared to have overlooked”.

51. Further, his Honour dealt at length with the circumstances in which the respondent came into possession of the firearm. As I have noted, he found (at ROS 10) that such possession arose from unexpectedly finding the firearm in the show car. His Honour concluded that the respondent did not plan to come into possession of the firearm but that having done so, he had decided to retain it. All of these findings were consistent with his Honour’s conclusion that the offending fell below the mid-range of objective seriousness.

52. The location of the firearm in immediate proximity to additional rounds of ammunition was relevant to an assessment of the seriousness of the offending: R v Thalari [2009] NSWCCA 170; (2009) 75 NSWLR 307 at [88]. However, that factor was rendered of less significance in the present case in light of his Honour’s findings set out at [27], [28] and [31] above.

53. There was, as I have outlined, evidence that the respondent was in the habit of using illicit drugs at or about the time of the offending. In other circumstances, that may have supported the Crown’s submission that a position of particular danger had been created as a consequence of the respondent’s possession of the firearm. However, leaving aside the fact there was no evidence that the respondent was under the influence of any drug at a time when he handled the firearm, the fact of his addiction is of less significance in light of his Honour’s finding that there was no evidence to support the conclusion that he had any intention of using it.

54. There is no doubt that the identification markings of the firearm had been defaced. In some circumstances, that may well be consistent with the intended use of the weapon for a criminal purpose. However, and again leaving aside the fact that his Honour found no evidence to support any intention on the part of the respondent to use the firearm, he also found (at ROS 7) that there was no evidence that the respondent was responsible for defacing it.

55. In support of the proposition that the respondent’s possession of the firearm was linked to some criminal purpose, the Crown submitted that there was “unchallenged” evidence of the respondent’s previous membership of an outlaw motorcycle gang. In this regard, the Crown pointed to a report of Professor Woods of 1 July 2014 which stated (inter alia):

“Mr Farrell is making excellent therapeutic progress and in this regard –

a)…

b)…

c) no longer views himself as being a member of the Rebels O.M.C.G. and in fact now regrets having become a member of the O.M.C.G.;

d)…

e)…”

56. To the extent that this may have constituted evidence that the respondent had in fact been a member of an outlaw motorcycle gang at some point, there was no evidence that such membership coincided with the time of his offending.

57. An assertion was made by the officer in charge of the investigation when giving evidence in the sentence proceedings that the respondent was a member of an outlaw motor cycle gang (commencing at T13 L33 on 21 November 2013):

“Q: Is it your understanding the offender is a member of an outlaw motorcycle gang?

A: Yes, the Rebels.

CROSS-EXAMINATION BY MR JAMES

Q: In relation to that last matter you spoke about, is your information concerning that as reliable as the evidence that you have given of the two earlier matters that you spoke about?

A: So the evidence in relation to the charge against Mathew Farrell?

Q: Firstly, you read somebody else’s statement of facts?

A: Yes.

Q: And you have an understanding of that statement of facts that you gained from reading it?

A: Yes.

Q: And you’re giving evidence as though it were, as far as you’re concerned, representing the truth. Is that right?

A: Well the information that I’ve given is only from what I have read from the facts sheet, as I said.

Q: And your understanding?

A: Yes.

Q: Which may or may not be accurate?

A: Yes.”

58. Contrary to the submission advanced by the Crown, there was clearly a challenge to this evidence. There was an equally clear concession by the witness that his “understanding” the respondent may have been a member of the Rebels Outlaw Motorcycle Gang he may not have been accurate. The Crown’s reliance, before this Court, upon such evidence was in my view misplaced.

59. In respect of the matters contained in the Form 1, his Honour said (at ROS 1-2):

“I propose, as advocated by the solicitor for the DPP, to take these four offences on the Form 1 into account when assessing the objective seriousness of the principal offence. I shall not take them into account again, as is the practice, where the sentencing process involves offences included on a Form 1. To do so would be to double count their respective impact in the sentencing process. I understand the solicitor advocate for the DPP agrees with this approach.”

60. It is evident from that passage that his Honour was aware of those matters and that he took them into account in the sentencing process. It is also evident, from his express reference to it at the commencement of his sentencing remarks, that his Honour was aware of the maximum penalty and the prescribed standard non-parole period.

61. The respondent had the benefit of a series of favourable findings made by the sentencing judge as to the nature and extent of his possession and the level of his moral culpability. None of those findings were challenged on this appeal. They support the conclusion reached by the sentencing judge that the offending fell below the mid-range of seriousness.

62. Moreover, the sentence imposed was one of imprisonment for a lengthy period, albeit one which was to be served other than in full time custody. It was also relevant that the respondent had spent almost 9 ½ months in custody in relation to this matter when his bail had been refused.

63. In all of these circumstances, I am not persuaded that the sentence is unreasonable or plainly unjust.

ORDERS

64. For the forgoing reasons I propose the following order:

1. The Crown appeal is dismissed.

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Decision last updated: 21 April 2015