R v Howard

[2004] NSWCCA 348

CITATION:	REGINA v HOWARD [2004] NSWCCA 348
HEARING DATE(S):	6 October 2004
JUDGMENT DATE:	12 October 2004
JUDGMENT OF:	Spigelman CJ at 1; Grove J at 68; Smart AJ at 69
DECISION:	Leave to appeal granted; appeal dismissed
CATCHWORDS:	CRIMINAL LAW -- Sale of unauthorised firearms to undercover police officer -- appeal against sentence -- objective of general and personal deterrence entitled to substantial weight when sentencing for firearms offences which pose major threat to the community
LEGISLATION CITED:	Firearms Act 1996 Crimes (sentencing and Procedure) Act 1999 Criminal Appeal Act 1912
CASES CITED:	R v Taouk (192) 65 A Crim R 387
PARTIES :	Kevin John HOWARD REGINA
FILE NUMBER(S):	CCA 2004/1818 CCAP
COUNSEL:	Mr P Byrne SC (Appellant) Mr P Miller (Crown)
SOLICITORS:	T O'Gorman (Appellant) S Kavanagh (Crown)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/51/0070
LOWER COURT JUDICIAL OFFICER :	Ducker ADCJ

2004/1818

SPIGELMAN CJ
GROVE J
SMART AJ

12 OCTOBER 2004

REGINA v Kevin John HOWARD

Judgment

1 SPIGELMAN CJ: The applicant pleaded guilty to two charges of selling unauthorised pistols contrary to s51(1A) of the Firearms Act 1996. The first charge involved an actual sale. The second involved an agreement to sell.

2 Acting Judge Ducker of the District Court imposed concurrent sentences of three years and six months on the first charge, with a non-parole period of two years. On the second charge his Honour imposed a head sentence of two years and six months, with a non-parole period of eighteen months. The maximum penalty for each offence was 20 years imprisonment.

3 The offence was committed at Beerwah in the State of Queensland where an undercover police officer from New South Wales met the applicant with a view to obtaining pistols. On 9 September 2002 the applicant sold two pistols to the undercover police officer, the subject of the first charge. Subsequently, the applicant offered to sell two other pistols, one with a silencer, to the same police officer. This was the subject of the second charge.

4 It was expressly stated in each of the charges, to which the applicant pleaded guilty, that the applicant knew that the pistols would be taken to New South Wales.

5 Subject to certain particular matters which arise on specific grounds of appeal, and which I will further discuss below, the basic sequence of events is not challenged. His Honour set out his findings as follows:-

“On 13 June 2002 an undercover Police Officer met with a person named Lionel Ross Death (not an inappropriate sobriquet) and purchased from him a number of prohibited firearms. During that meeting Death placed a telephone call to the present offender and a conversation was had between them relating to the availability of handguns. Death was thus used by the undercover operative as a means of gaining access to the present offender. Death was himself later dealt with in this Court by the Chief Judge in relation to a large number of similar offences to the present.

On 14 June 2002 the undercover operative, using the name ‘Joe’, telephoned the offender who apparently had two telephone numbers. On one of those numbers he was able to reach the offender and an arrangement was made for the purchase of a handgun which the offender said he would put aside to wait for ‘Joe’s’ visit. This was a BRNI CZ85 self-loading pistol.

Between 14 June and 9 September 2002 several calls were made to the offender by the undercover operative during which further negotiations took place leading to the completion of a sale of the CZ85 self-loading pistol to the undercover operative. There were also further discussions about the availability of other firearms.

On 9 September 2002 the undercover operative travelled to the offender’s home address at 22 Katherine Street Beerwah, an outer suburb of Brisbane. The undercover operative there met with the offender and in a nearby shed the offender showed the undercover operative a number of firearms following which the undercover operative purchased the CZ85 self-loading pistol from the offender for the sum of $2500 and also, in a separate but closely connected agreement, purchased a 9 millimetre Smith & Wesson self-loading pistol for the sum of $2000.

This controlled meeting between the offender and the undercover police operative was monitored by way of a lawfully obtained listening device which was used to pick up and record a number of phone calls between the offender and the undercover operative relevant to this transaction.

The offender is not and was not at the material time a licensed firearms dealer in either State.

During conversations with the offender the undercover operative represented to the offender that he was from New South Wales and intended to return to New South Wales with any firearms purchased. Neither of the two firearms purchased from the offender was registered in either State. The undercover operative did not hold any license or permit to have such weapons. His visit to the offender was authorised as a controlled meeting.

Between 9 February (sic, September?) and 15 October 2002 several further telephone calls were lawfully recorded between the offender and the undercover operative during which further negotiations took place regarding the availability of more firearms. During these conversations the offender agreed to supply the undercover operative with two further pistols, one of which was fitted with a silencer. The undercover operative closed this conversation by informing the offender that he would travel to the offender’s property on 16 or 17 October 2002 to collect the two firearms and the silencer and to pay over the agreed sum of $4600 as the purchase price.”

6 Subsequently search warrants were executed at the applicant’s residence and place of business. Firearms matching the description of those which the applicant had offered to sell were located. A number of other unregistered firearms were also located during the search. The last mentioned firearms were the subject of charges pursued in the State of Queensland.

7 In the course of his remarks on sentence, Ducker ADCJ quoted from the remarks on sentence of Chief Judge Blanch of the District Court when his Honour was sentencing Lionel Ross Death in relation to similar offences. His Honour generally adopted those remarks, although indicating that the criminality of Death was much greater than that of the applicant. Ducker ADCJ distinguished the particular factual situations of the two offenders. His Honour adopted the observations of the Chief Judge about the seriousness of the offence concerning the sale of handguns. His Honour also adopted, as applicable to the present case, the observations by Blanch J that the individual he was sentencing had no prior criminal history and was going to gaol for the first time at the advanced age of 60, and the good character of the accused. The higher criminality of Death was manifest in the fact that the sentence imposed in that case was imprisonment for 10 years with a non-parole period of six years.

8 After making reference to the strength of the applicant’s subjective case Ducker ADCJ said:-

“This offender’s crimes are extremely serious. I regard this offender’s claim of gullibility as palpable nonsense. Like others of his ilk, he regards personal financial gain as of more importance than the safety of the community.
I am totally satisfied that he knew exactly what he was doing; that he was deeply steeped in his love for firearms and felt no sense of responsibility, so long as he did not pull the trigger. Indeed there are passages recorded in the phone tapped conversations in which the offender clearly shows his awareness of what these weapons can be used for. He speaks in the most derogatory terms of ‘fucking undercover officers’. He also says, in the face-to-face conversation, things such as ‘yeah, there was quite a bit of stuff but most of that has disappeared’. He refers to the number of back-stabbers in the game. And he gave evidence here in this court, when asked what he thought would happen to these weapons, where did he think they would go; he said ‘I didn’t really think about it’
…
This offender though is not being dealt with because of how he speaks nor for anything other than the charges here before this court. The effect of what I have read from the excerpts of the tapes does take some of the gloss off the references that have been furnished. They show a side to this offender that is not referred to in any of the many references.”

9 His Honour noted that the pistols involved could be easily hidden and could be produced suddenly and unexpectedly. His Honour referred to the considerations set out in s21A of the Crimes (Sentencing and Procedure) Act 1999, identifying the relevant aggravating and mitigating circumstances. His Honour assessed the full range of mitigating circumstances as entitling the applicant to a discount of 20 per cent. His Honour also made a finding of special circumstances, on the basis of the applicant’s age and prospects of rehabilitation.

10 The first ground of appeal is:-

“In considering whether the objective criminality of the applicant’s conduct should be reduced by reason of the principles relating to entrapment, the learned Judge failed to have proper regard to the respective conduct of the applicant on the one hand and the police undercover officer, Joe, on the other.”

11 Mr P Byrne SC, who appeared for the applicant, relied on the judgment of this Court in R v Taouk (1992) 65 A Crim R 387 especially at 403. He submitted that it was open for the sentencing judge to have concluded that the sale by the applicant to the undercover officer would probably not have occurred but for the actions of the undercover officer. This submission was, in large measure, based on an answer given by the applicant in the course of his evidence. He referred to the undercover officer and added:-

“…but if he had not come along to me and offered to buy these things they would probably have still been in a cupboard where they have been for years.”

12 It was submitted by Mr Byrne that all of the contact promoting the sale was initiated by the undercover officer and that there was little or no encouragement given by the applicant. He submitted that there was a “strong impression that the moving party in both transactions subject of the charges was the undercover officer”.

13 Mr P Miller, who appeared for the Crown, submitted that no issue of entrapment had been raised in the sentence proceedings. Accordingly, the proposition now advanced was never explored in argument, nor referred to directly in the remarks of the sentencing judge. For that reason, no doubt, his Honour did not deal expressly with the evidence that, but for the approach of the undercover officer, the guns may have stayed in a cupboard where, according to the applicant, they had been for some years. His Honour, of course, was not obliged to accept this evidence. The issue arises on this appeal for the first time.

14 His Honour made findings to the effect that the applicant, like his associate Mr Death, had a strongly held view that the legal restrictions on firearm ownership were wrong in principle and, in part for that reason, the applicant was prepared to commit offences which were, in the light of his personal history, out of character. His Honour’s findings as to the background to the applicant’s participation in criminal conduct are set out above. I refer particularly to the references to the applicant being “deeply steeped in his love for firearms” and to the absence of any sense of responsibility for the use to which firearms are put.

15 It does not appear on the evidence that the applicant required any encouragement to participate in this criminal conduct. The original approach to the applicant was made by his associate Mr Death inquiring about the availability of handguns over and above those which Death was himself supplying to the undercover police officer. When the police officer contacted the applicant on 14 June, the applicant was immediately receptive to the inquiries. When the police officer said, referring to a firearm, “can you put that model 85 away for me?”, the applicant replied “Yeah, no worries, I stacked that in a crack for you last night”. This indicated that the applicant had prepared to supply on the basis of the contact by Mr Death, not on the basis of the direct approach to him by the undercover police officer.

16 In any event, the applicant went on to indicate quite clearly his preparedness to make available further firearms without any request by the police officer. He said:-

“Yeah, there is a lot of stuff up here floating around but it does not come cheap because it is hard to get and good quality, but I will tell you more when I see you. It is just a bit hard over the phone, that is all.”
The applicant then went on to say:-

“Yeah, there is another bloke near here that got some small stuff, I don’t know if that is what you want … and also a shiny thing with one hole if you know what I mean?”

And furthermore:-

“There is another bloke out west of here that has got a lot of stuff, I was actually talking to him last night.”

17 Furthermore, when the police officer met the applicant on 9 September 2002, the recorded conversation contains references which indicate that the applicant took the initiative. Without prompting he referred to another person who had contacted him “just after you rang” adding:-

“They sort of come out of the woodwork all over the place … but he’s got a twenty two Ruger.”

18 Furthermore, during the meeting the applicant showed the police officer a Beretta pistol and said:-

“If you are interested in it next time you can come back … I might even part with it.”

19 Similarly, in a taped conversation of 25 September, after the police officer had thanked him for supplying the two pistols on 9 September, the applicant said, without prompting:-

“Oh, we might find a couple more sometime.”

20 There was nothing in any of these conversations which suggested a level of encouragement on the part of the Police Force to which an appellation like “entrapment”, however applicable it may be in another context, would be appropriate. This was a case in which the applicant was prepared to deal in firearms and apparently would have done so on a financial basis with any person who approached him. As his Honour found: “He regards personal financial gain as of more importance than the safety of the community”. The involvement of an undercover police officer in the particular circumstances did not diminish the culpability of the applicant.

21 The second ground of appeal is as follows:-

“The learned judge failed to have regard, in assessing the objective criminality of the applicant’s conduct, to the fact that the guns that he sold had been in his possession for many years and that he had sold them at the same price that he had paid for them. There was accordingly no profit made by the applicant on the sale.”

22 Again this was not an issue raised in the course of the sentencing proceedings. His Honour made no relevant finding of fact. There was no reason in the circumstances why his Honour would necessarily have accepted the applicant’s evidence to the effect that all four of the guns were in his possession for a long time and that he had made no profit on the sale.

23 As quoted above, his Honour made a finding that the sale was “for financial gain”. It was open to him to make that finding. I do not find it pertinent, if it be the fact, that the sale did not involve a profit. The applicant was in possession of illegal firearms. He should not have had them. In the circumstances sale at the original cost was a significant financial advantage.

24 The applicant did give evidence that he had possessed all four weapons for a substantial period. However, there was evidence to the contrary.

25 In a telephone conversation of 30 July the police officer followed up a conversation in which the applicant had said he had one of the two pistols that were actually sold. The officer asked: “Do you have anything else?” the applicant replied: “I don’t but there is a shit load around.”

26 During the actual meeting on 9 September the applicant referred to a pistol of the kind of one of those subject to the agreement to sell charge as being in the possession of a third party. The applicant had originally sold the pistol to that third party, who now wished to sell it.

27 In a telephone conversation of 25 September, after the police officer asked about “any chance of you getting your hands on them so I could start getting some money together”, the applicant indicated he could do so in “a couple of weeks”.

28 In a further conversation of 1 October the police officer asked with reference to obtaining firearms: “How much notice do you need?” the applicant replied: “oh just a matter of a call”.

29 This evidence prevents this Court acting on the basis that his Honour had to accept the applicant’s evidence that he had been in possession of the two pistols for many years. His Honour was not obliged to act on any such basis.

30 The third ground of appeal is:-

“The learned Judge failed to have regard to the fact of the applicant’s residence in Queensland, the different rules governing the illegal possession and transfer of guns applying in Queensland, and found in the absence of evidence that the applicant must have know the more serious penalties applicable to offences involving the sale of firearms in New South Wales.”

31 This ground of appeal relies on certain observations made by Ducker ADCJ with regard to other offences charged in the state of Queensland. However, these observations were made by his Honour during the course of submissions, not in his remarks on sentence. During the course of submissions his Honour had said:-

“… What he was involved in was an activity which he knew to be criminal in its nature and even those who know nothing about firearms are well aware of the sort of penalties that now exist for the supplying of firearms, other than through registered dealers to persons authorised by law to have those weapons. Your client was handing out weapons to a man he had never met before, who appeared to be reasonably respectable. How did he know?”

32 The particular reference to persons being “well aware of the sorts of penalties that now exist” was not a matter referred to in his Honour’s remarks on sentence. There is no reason to believe that his Honour relied on this consideration when he came to sentence the applicant.

33 Mr Byrne referred to a statement in the remarks on sentence to the effect that the sentence imposed for the subsequent firearm offences by a Queensland magistrate were such as to suggest that such offences were dealt with “extreme leniency”. He submitted that the fact that the offences were regarded less seriously in Queensland was relevant to the sentence to be imposed under New South Wales law.

34 No authority was cited for this proposition. Nor does his Honour’s reasons indicate anything about the degree of leniency that such matters are actually dealt within Queensland. His Honour’s reference was preceded by the words “if the sentence imposed upon this offender … is any indication”. He made no finding as to what the position was. There is no proper basis for an inference that offences of this character are in fact treated with greater leniency in Queensland. No material was presented to the Court to suggest that that is so. Even if it were the case, I would not regard it as a relevant consideration when determining the severity of the offence against New South Wales law, with respect to weapons which were to be sent to New South Wales, a matter considered under the next ground.

35 The next ground of appeal is:-

“The learned Judge wrongly concluded that the evidence established that the applicant knew that the guns that he sold to the undercover officer would be returned to New South Wales.”

36 Each of the charges to which the applicant pleaded guilty contained in the charge a statement that the applicant acted “knowing that the pistols (firearms) would be taken to New South Wales”. This submission canvasses the plea of guilty to the charge.

37 In any event the finding of fact, referred to on this ground, does not support the submission. His Honour said:-

“During conversations with the offender the undercover operative represented to the offender that he was from New South Wales and intended to return to New South Wales with any firearms purchased.”

38 This finding was clearly open to his Honour. Indeed the particular sentence in his Honour’s judgment was a precise recitation of a statement in the Facts Sheet tendered before his Honour without objection.

39 The evidence that the undercover police officer intended to return to New South Wales with the firearm was overwhelming. His Honour was not called upon, by reason of the plea, to make any formal finding of fact in this regard. If he had been called upon to do so, it is clear that his Honour could only have found that the firearms were destined for New South Wales to the knowledge of the applicant.

40 Mr Byrne SC relied on some observations in the course of the applicant’s evidence where he had said that no one had actually said to him “that they were going to New South Wales”. It was put to him in cross examination by the Crown that the applicant “did not know specifically where they were going, but you did not particularly care either”. The applicant replied: “Well I never really thought too much about it”.

41 It was submitted that the question was some sort of a “concession” made during the course of cross-examination by the Crown prosecutor. This was not a concession. The question flowed on from the assertion by the applicant, in answer to a previous question, that no one had actually told him where the guns were going. Whether that was said does not affect the only possible inference on the facts.

42 If this Court were called upon to make a finding of fact beyond reasonable doubt that he knew they were going to New South Wales I would have no hesitation in doing so. The purchaser rang from New South Wales, travelled from New South Wales to Queensland for the sole purpose of obtaining the firearms and was returning to New South Wales, as all the conversations made clear. The applicant would have been in no doubt about the destination of the firearms, notwithstanding his assertion that no one told him, in terms, where they were going. In any event, the plea to the charge as expressed was determinative.

43 The fifth ground of appeal is:-

“The observations regarding the connection between the applicant and Lionel Ross Death were unfairly prejudicial to the applicant. The evidence established no more than that they were well known to each other and that they both had a common interest in firearms and were gun enthusiasts. Good friends but not necessarily criminally connected. To the extent that the applicant may have had any knowledge of Death’s illegal activities, that did not involve, much less establish, the applicant’s participation in those activities.”

44 It was submitted that the applicant was only involved in an isolated pair of transactions with the same undercover officer. There was no evidence of the applicant being involved in a “syndicate” of any character.

45 His Honour did not sentence the applicant on any basis that he was regularly involved in the trade in illegal firearms. His Honour’s references to Mr Death concerned the contact that he had made with the applicant on behalf of the undercover police officer, as quoted above. There was nothing unfairly prejudicial in this or in any other reference to Mr Death, including his Honour’s reliance on the sentence remarks by Blanch J about Death, the circumstances of whose case his Honour relevantly distinguished. His Honour made no finding that the applicant was in any way involved in Mr Death’s illegal activities.

46 The sixth ground of appeal is:-

“The sentencing Judge erred in concluding of the applicant that: ‘if you read the transcripts of the tapes that were taken on the telephone, he reveals intimate knowledge of the operation of the sale of illicit firearms, it talks all about the police officers, in somewhat derogative [sic] terms, he talks about others who have been caught. He knows perfectly well what the score is’.”

47 This is a reference to some observations made by his Honour in the course of argument. Those particular observations are not repeated in his remarks on sentence. The particular matters do not appear to have been taken into account in any adverse way. A trial judge is entitled to put propositions during the course of argument and to modify those propositions, either as a result of submissions or in the light of further consideration of the relevant material.

48 His Honour did make reference to some matters of the general character identified in the matter complained of, including a finding of fact that the applicant “knew exactly what he was doing” and in the applicant’s references to undercover officers and other indications of knowledge of the existence of a trade in illicit firearms. These findings were open to his Honour. If his Honour had made further findings of the particular character complained of, his Honour would have been perfectly justified in doing so.

49 The seventh ground of appeal is:-

“The learned trial judge failed to have sufficient regard to the strong subjective case presented by the applicant.”

50 Reliance is placed on the fact that the applicant was 63 years, had no prior convictions and had a range of positive attributes, including community service. His Honour made observations about all of these matters in his remarks on sentence. His Honour clearly understood the applicant’s prior good character. There is no indication that his Honour failed to give these matters appropriate weight. They were not such as to overcome the objective seriousness of the offence.

51 The eighth ground of appeal is:-

“The learned Judge permitted extraneous views about “the firearms lobby”, not based on the evidence in the applicant’s case, to influence his assessment of the objective seriousness of the applicant’s conduct and accordingly to influence the sentence ultimately imposed on the applicant.”

52 Reliance was placed on a number of observations during the course of argument. For the reasons I have mentioned above, these are not observations that can be relied upon as a ground of appeal. His Honour was perfectly entitled to advance such considerations in the course of argument.

53 His Honour did make an analogous reference at the commencement of his remarks on sentence. He referred to the identification by the New South Wales Police of what appeared to be systematic trade in illegal firearms from the general area of northern New South Wales and southern Queensland. His Honour also referred to the existence of a group of people, of whom the applicant was one, but his Honour rejected the use of the word “syndicate” and even the use of the word “network”. His Honour added:-

“It is my impression that the most usual offenders in this loose group are persons of rural background and people who have had a keen interest in firearms, many of them since their early youth, and who harbour considerable resentment about the change that was made to the firearms laws throughout Australia, but to differing extents, following the appalling murders perpetrated in Tasmania …” [a reference to the Port Arthur killings.]

54 His Honour went on to say:-

“It seems to me that there is a group of people in northern New South Wales and southern Queensland who would not ordinarily commit other crimes, who are, in many instances, well and favourably known by many of their fellow citizens, who would not themselves consider turning a firearm onto another human being, but who seem to have a complete blind spot of dangerous proportions when it comes to dealing in firearms and see nothing wrong with defying the firearms legislation and selling lethal weapons to people who are not authorised to have them, including known criminals.”

55 This was set out as relevant background. In my opinion, it was.

56 In these respects his Honour was drawing on his own experience, and the evidence in the particular case, that persons of otherwise good character become involved in offences of this type because of their attitude to firearms. The contact made by Mr Death and the applicant’s numerous references to other persons involved in trade in illegal firearms, and their own attitudes to firearms, all affirm his Honour’s analysis.

57 Nothing in his Honour’s remarks on sentence suggested that this material was relevant to the objective seriousness of the offence. The references were of significance in the sentencing exercise because they put the applicant’s reliance on his good character in its proper context. That was perfectly appropriate. Persons who would not offend in other ways would commit this crime because they did not believe that such conduct should be criminal. That does not work for drug users. It does not work for arms traders.

58 The next ground of appeal is:-

“The learned Judge failed to have sufficient regard to the fact that the evidence disclosed that the sales between the applicant and the undercover officer were the only transactions in which the applicant was involved over a lengthy period and at no time had the applicant tried to refer the undercover officer to any other person or tell any other person of existence of the undercover officer, that is to say there is no evidence of ‘syndicating’ or ‘net working’ on the applicant’s part.”

59 Reliance is placed on his Honour’s remarks on sentence in the passage which I have quoted above, where his Honour set out the background to the police operation which identified a particular problem with respect to the availability of firearms in southern Queensland and northern New South Wales. His Honour made no finding that the applicant was in any respect a member of a “syndicate” or a “network”. Indeed he rejected those terms. He did refer to a “loose group” of persons with a similar attitude to firearms. This attitude explained the applicant’s particular offending and was relevant in the determination of the applicant’s culpability. It was perfectly appropriate for his Honour to find, as he did, in a passage, not hitherto quoted:-

“It seems that this offender fits the description of so many of these people who are responsible for selling to unauthorised people lethal weapons. I note that a great many of the referees in the references that are tendered in these cases are people connected with the ‘gun lobby’. Well, that is something that one would expect in some ways. People generally make their friends by mixing with those who have similar interests to themselves.”

60 There was a body of evidence in the materials before the Court indicating the applicant’s preparedness to become involved in other transactions. I have set out some such references above. However, nothing in his Honour’s remarks on sentence suggest that he dealt with the offender on any basis other than that the particular matters charged, were the only relevant transactions. His Honour expressly said, as quoted above:-

“This offender though is not being dealt with … for anything other than the charges here before this Court.”

61 The final ground of appeal is:-

“The learned trial judge erred by failing to give the applicant an appropriate discount for his pleas of guilty.”

62 His Honour made an express reference to s22 of the Crimes (Sentencing Procedure) Act and indicated that the plea of guilty must be recognised. His Honour made no separate allowance for the plea. As quoted above, his Honour referred to a reduction of 20 per cent of the sentence for a range of mitigating circumstances, which included the plea. It appears from the structure of his Honour’s reasons that factors such as the good character of the applicant, remorse and his good prospects for rehabilitation were also factors taken into account in reaching a discount of 20 per cent.

63 In the light of this Court’s indication that a discount for the utilitarian value of the plea should be in the range of 10 to 20 per cent, it does appear that his Honour failed to give this aspect as much weight as would ordinarily be given. In this regard alone, a relevant error has been identified.

64 Nevertheless, this is a case to which I would apply the test in s6(3) of the Criminal Appeal Act 1912. I am not satisfied that some other sentence is warranted.

65 These were, in my opinion, very serious offences, for all the reasons given by his Honour, to which I have referred above. I would give weight to one factor not highlighted by Ducker ADCJ. One of the pistols, the subject of the second charge, was equipped with a silencer. No doubt some recreational gun users have silencers. However, this is quintessentially a feature of weapons used in violent crimes. For a person to deal in weapons of the character not to have any concern about the identity of the purchaser is an aggravating feature.

66 Where it appears that there are elements within the community who refuse to accept that firearms offences must be regarded as serious, the objectives of general and personal deterrence are entitled to substantial weight in sentencing for such offences. The availability of such weapons poses a major threat to the community particularly where, as here, an accused is completely indifferent to the persons who were to acquire them. The community has determined that trade in such weapons on any other than a strictly regulated basis is to be regarded as a serious offence. That must be reflected in the sentence imposed. His Honour’s sentence should be upheld.

67 In my opinion all grounds of appeal should be dismissed. The orders of the Court should be:-

(1) Leave to appeal granted

(2) Appeal dismissed.

68 GROVE J: I agree with Spigelman CJ

69 SMART AJ: I agree with Spigelman CJ

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Last Modified: 10/18/2004