R v Nash - [2008] SASC 48

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NASH
[2008] SASC 48
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice David)
29 February 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE - POWER TO IMPOSE
Crown application for permission to appeal against sentence - respondent pleaded guilty to five offences committed contrary to the Firearms Act 1997 (SA), involving the supply of 15 firearms and possession of one silencer - respondent also pleaded guilty to 14 offences committed contrary to the Australian Crime Commission Act 2002 (Cth), in relation to giving false or misleading information to an Australian Crime Commission examiner - respondent was fined $56,000 and ordered to pay $15,600 compensation in respect of the State offences - in respect of the Commonwealth offences, the respondent was sentenced to 18 months imprisonment, to be released after six months pursuant to a recognizance release order in the amount of $10,000 to be of good behaviour for two months - Crown application for permission to appeal against the penalties imposed in respect of the State offences - no objection taken to the sentence imposed in respect of the Commonwealth offences - whether permission to appeal should be granted in order to maintain sentencing standards - whether penalties imposed for State offences manifestly inadequate - whether penalties imposed adequately reflect the need for general deterrence and the seriousness of the offending.
Held: Permission to appeal granted in order to maintain sentencing standards - appeal allowed - penalties imposed manifestly inadequate - fines imposed in the lower court set aside - compensation order affirmed - respondent re-sentenced to three years imprisonment with a non-parole period of 20 months, to commence on 26 May 2008.
Australian Crime Commission Act 2002 (Cth) s 33; Crimes Act 1914 (Cth) s 4AA; Criminal Law Consolidation Act 1935 (SA) s 352; Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 32; Firearms Act 1997 (SA) s 14A, s 29A, referred to.
R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212, applied.
Everett v The Queen (1994) 181 CLR 295; Offe v Police (2002) 84 SASR 1, discussed.

R v NASH
[2008] SASC 48
Court of Criminal Appeal: Doyle CJ, Bleby and David JJ

DOYLE CJ. I agree with the orders proposed by David J and with his reasons. I have nothing further to add.
BLEBY J. I agree with the orders proposed by David J and with his reasons. I have nothing further to add.
DAVID J.
Introduction
This is an application by the Director of Public Prosecutions (SA) for permission to appeal against a sentence imposed by a District Court judge, following the respondent’s pleas of guilty to five offences contrary to the Firearms Act 1997 (SA). At the same sitting, the respondent also pleaded guilty to a number of Commonwealth offences, however no objection has been taken to the sentence imposed for those offences.
Charges and Penalties
The respondent pleaded guilty to charges laid on two separate Informations.
The first Information was laid by the Director of Public Prosecutions (SA) and charged five offences contrary to the Firearms Act, namely:
1.taking part in the supply of a prescribed firearm (an Uzi 9 mm submachine gun) between 21 October 2003 and 27 October 2003;
2.taking part in the supply of six Class H firearms (a 9 mm pistol, a .357 magnum revolver and four semi‑automatic pistols) between 21 October 2003 and 27 October 2003;
3.taking part in the supply of two Class D firearms (two .223 semi‑automatic repeater rifles) on 3 May 2004;
4.taking part in the supply of six Class H firearms (two 9mm double action semi‑automatic pistols, three .22 single action semi-automatic pistols, and a 9 mm single action semi-automatic pistol) on 3 May 2004; and
5. possessing a silencer on 11 June 2004.
Counts one to four were committed contrary to s 14A(1)(b) of the Firearms Act. Section 14A(6) of the Firearms Act provides the maximum penalty for offences against that section as being:
…
(a)where the firearm is a prescribed firearm—$75 000 or imprisonment for 15 years;
(b)where the firearm is a class C, D or H firearm—$50 000 or imprisonment for 10 years;
(c)where the firearm is any other kind of firearm—$35 000 or imprisonment for seven years.
Count five was committed contrary to s 29A(1) of the Firearms Act. The maximum penalty for that offence is $10,000 or two years imprisonment.[1]
[1] Firearms Act 1977 (SA) s 29A(1).
There were two other offences which had been committed contrary to s 29(A)(1) of the Firearms Act, which it was agreed between the parties were to be taken into consideration, even though they were not charged. Those offences were:
1.possessing seven silencers between 24 October 2003 and 27 October 2003; and
2.possessing three silencers on 3 May 2004.
The penalties imposed in relation to the State offences were :
·a $40,000 fine in relation to counts one and two;
·a $15,000 fine in relation to counts three and four;
·a $1,000 fine in relation to count five; and
·compensation in the sum of $15,600.
The Director of Public Prosecutions (SA) now seeks leave to appeal against the adequacy of those penalties.
The second Information was laid by the Commonwealth Director of Public Prosecutions and charged 14 counts of giving false or misleading information before an examiner, contrary to s 33(1) of the Australian Crime Commission Act 2002 (Cth). The maximum penalty for that offence is five years imprisonment or 200 penalty units,[2] with each penalty unit equalling an amount of $110.[3]
[2] Australian Crime Commission Act (Cth) s 33(2).
[3] Crimes Act 1914 (Cth) s 4AA(1).
In respect of the 14 Commonwealth offences, the judge sentenced the respondent to 18 months imprisonment, with the respondent to be released after six months, pursuant to a recognizance release order in the amount of $10,000, to be of good behaviour for two years. That sentence was deemed to have commenced on 26 November 2007, the day the respondent was taken into custody. He will therefore be due for release on 26 May 2008. As previously stated, there is no appeal against that sentence.
Facts
It was not disputed that, during the years 2003 and 2004, the respondent was involved in selling or supplying firearms, ammunition and silencers to a man (herein referred to as “Mr X”) and an undercover police officer.
The first transaction between the respondent and Mr X occurred in early 2003 when Mr X travelled from Melbourne to Adelaide on the instructions of another man, Mr Condello, and purchased six or seven handguns from the respondent, for which he paid approximately $12,000 or $13,000. No charges were laid in relation to that transaction, but these facts were presented to the court to demonstrate that the offences with which the respondent was charged were not isolated.
On 22 October 2003, Mr X flew to Adelaide and attended at the respondent’s premises. Mr X was shown a number of firearms and he arranged to come back at a later date. On 25 October 2003, under instructions from Mr Condello, Mr X returned to Adelaide and paid $25,000 to the respondent, in exchange for a number of firearms and silencers, namely an Uzi submachine gun, a 9 mm pistol, a .357 magnum revolver, four semi-automatic pistols, a 12 gauge pump action shotgun and seven silencers. Ammunition was also supplied, but at no cost. The supply of these firearms (excluding the 12 gauge pump action shotgun) resulted in the respondent being charged with counts one and two on the Information laid by the Director of Public Prosecutions (SA). As agreed by the parties, the possession, and supply, of the seven silencers was a factor to be taken into consideration, but was not the subject of any charge. There was no charge laid with respect to the 12 gauge pump action shotgun.
The day after the purchase, the respondent drove Mr X to the railway station. Mr X was subsequently apprehended by the police, who had him under surveillance. The police took possession of the firearms, and Mr X agreed to assist them with their investigation.
On 22 April 2004, Mr X again flew to Adelaide to meet with the respondent at his premises. Mr X inspected a number of firearms, which he agreed to buy. He arranged with the respondent for another person to attend at a later date to pay for, and collect, the firearms. The respondent was unaware that the other person was an undercover police officer. On 3 May 2004, the undercover police officer, who was wearing a recording device, attended at the respondent’s premises. The respondent sold him four semi‑automatic pistols and three silencers, for $9,000. After this transaction, but on the same day, in another part of the premises, the respondent sold the undercover officer two rifles, a semi‑automatic pistol and a large amount of ammunition, for $3,000. Later, but again on the same day, the undercover officer was shown a further semi‑automatic pistol, which he bought from the respondent for $3,000. In relation to the supply of the eight firearms, the respondent was charged with counts three and four on the Information laid by the Director of Public Prosecutions (SA). As agreed by the parties, the possession, and supply, of the three silencers was not the subject of any charges but was a matter to be taken into consideration.
On 11 June 2004, the respondent was found with a silencer in his possession while attempting to board a plane to Melbourne. This conduct is the subject of count five on the Information.
The Commonwealth offences related to allegations that the respondent had failed to truthfully answer questions when examined by members of the Australian Crime Commission in late 2004. The circumstances of this offending are succinctly set out in the judge’s reasons:
The Commission was conducting an investigation into the sale and supply of illegal firearms from South Australia to members of organised crime networks in Victoria. You were required to attend for examination before the Commission. You failed to truthfully answer questions. In particular, you failed to identify the source of the firearms that you had sold and your false answers prevented the investigation into the supply of illegal firearms.
The answers which you gave were deliberate lies made under oath and were in defiance of the possible consequences. You had been advised of your rights. Answers which you gave on 26 October 2004, which give rise to counts 6 to 14, were made after you had an opportunity to reflect on the false answers which you had provided at the earlier examination on 15 and 16 September 2004.
There is no dispute that some of the firearms in the respondent’s possession, which were sold to Mr X and the undercover police officer, were stolen. There is also no dispute that a number of the firearms had been modified. Most of the firearms had been modified to allow silencers to be attached to them. A number of them also had their serial numbers obliterated, presumably to prevent the weapons being traced. In addition, the barrel of the .22 single action semi‑automatic pistol, the subject of count four on the Information laid by the Director of Public Prosecutions (SA), had been cut down. However, there is no evidence that the modifications were carried out after the respondent obtained the firearms.
The basis on which the guilty pleas were made, as agreed by the parties, was set out in a letter from the respondent to the sentencing judge. The letter, tendered to the sentencing judge, stated that the respondent:
1.did not specifically know what the guns were to be used for;
2.did not know that they were going to be given to Mr Condello;
3.had some doubts about Mr X and what Mr X could possibly do in the future with some, or all, of the guns; and
4.chose not to ask any questions of Mr X.
It was further submitted that the respondent was a collector of firearms, of the type supplied to Mr X and the undercover police officer. He had been collecting such items for about 30 years but, other than this offending, he had not participated in the supply of such firearms in the last 15 years. In relation to the transactions which are the subject of the charges, he did not enter into them for profit, but merely to divest himself of the firearms, because of changes in the law and the attitude of the community towards such weapons.
The judge sentenced on the basis that the respondent did not specifically know that the guns were going to Mr Condello, but that he had refrained from making further enquiries. In so doing, he was reckless.
Appeal
A Crown application for permission to appeal against a sentence imposed by a judge should not be considered lightly. It will only be granted in rare and exceptional circumstances.
The principles relevant to Crown appeals against sentence are well established. In Nemer,[4] Doyle CJ summarised those principles as follows:
The Director’s right to seek leave to appeal against sentence, and the court's power to interfere, are found in s 352(1)(a)(iii) of the Criminal Law Consolidation Act 1935 (SA). Similar provisions exist in other States.
The High Court has determined that the court should grant leave to the Director to appeal against sentence “only in the rare and exceptional case”: Everett v The Queen (1994) 181 CLR 295 at 299.
The result of the principles established by the High Court is that, to obtain leave to appeal against sentence, the Director must do more than satisfy the court that an error may have occurred. The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”: see R v Osenkowski (1982) 30 SASR 212 at 212-213 per King CJ; Everett (at 300). Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case. There is a question of degree and a subjective assessment involved here, and that makes it difficult to apply this criterion.[5]
That authority makes it clear that while an error must be identified before a sentence may be interfered with, a mere error is insufficient to allow interference. There must be an additional reason to intervene, such as the need to establish a sentencing principle or to maintain sentencing standards. So, for example, this Court could allow a Crown appeal if the sentence imposed by the lower court was so far below the appropriate range of sentences, that it would shock the public conscience were it allowed to stand.[6]
[4] R v Nemer (2003) 87 SASR 168.
[5] Ibid, 172.
[6] R v Nemer (2003) 87 SASR 168, 172; R v Osenkowski (1982) 30 SASR 212, 213.
The Crown submits that the sentence imposed is manifestly inadequate and fails to reflect both general and specific deterrence, and the seriousness of the offending. In support of this submission, the applicant points out the nature of the weapons and the respondent’s recklessness in failing to enquire into their future destination and use. The applicant also places emphasis on the inference that could be drawn from the fact that the firearms had been modified; that inference being that they were to be used for a “sinister purpose”. The applicant argues that a fine is totally inadequate in these circumstances.
The respondent argues that he made no real profit as a result of these transactions. As such, he argues that the fines were not insignificant and, combined with the term of imprisonment imposed for the Commonwealth offences, reveal no error in principle. In addition, counsel for the respondent submitted that the penalties were appropriate, given the agreement that the judge should sentence on the basis that there was no specific knowledge as to what these weapons were to be used for; that his state of mind, as to the possible future use of the weapons, was one of recklessness.
In my view, even allowing for the agreed basis of the plea, namely, a reckless state of mind, this offending was a very serious breach of the Firearms Act. As Gray J said in Offe v Police:[7]
General deterrence is of great importance in cases of this kind. The community must not be complacent about the dangers of firearms and the damage that can be caused when they are not kept in accordance with the legislative requirements.[8]
[7] (2002) 84 SASR 1.
[8] Offe v Police (2002) 84 SASR 1, 9.
The gravity of this particular offending is obvious. The nature of the firearms involved, and the modifications made to them, cause great concern. All but one were in working order, and they were supplied together with ammunition and silencers. Weapons of this type put members of the public in great danger. It is clear that the respondent acquired the firearms illegally, failing to comply with the legislative provisions relating to acquisition of weapons. Even though the plea was made on the basis of recklessness, it is difficult to imagine that these firearms were to be used by the purchasers for anything other than a “sinister purpose”. Despite the basis of the plea, to allow the dissemination of such dangerous weapons, with silencers and ammunition, to persons the respondent knew little about, makes this an example of serious offending against the Firearms Act.
I agree with the Crown submission that, in the circumstances of this case, a fine does not give proper effect to the importance of general deterrence. I would classify the sentence appealed against as one which falls so far below what is an appropriate sentence, for this type of offending, that it is in error and requires this Court intervene in order to maintain sentencing standards.
I would therefore grant permission to appeal. It does not automatically follow that the appeal itself should be granted. However, to allow this particular sentence to stand would undermine public confidence in the administration of justice. I would therefore also allow the appeal.
Re-sentencing

In re-sentencing, I have taken into account a range of factors, including the personal circumstances of the respondent, the circumstances of the offending, the maximum penalties applicable to these offences and the respondent’s pleas of guilty.
The respondent is a 62 year old man who suffers from diabetes, high cholesterol, anxiety, asthma, back problems and glaucoma. He is experiencing increasingly poor short‑term memory. He also suffers from depression as a result of his father’s suicide eight years ago. He has a Bachelor of Applied Science and at some point worked as an industrial chemist. He has never been married or lived in a de facto relationship, and he has no children. He is financially stable and owns a small business. A number of personal references were provided on his behalf, as well as reports from a psychologist and two treating medical practitioners. I have read these and have taken them into account.
However, the respondent also has a long criminal history dating back to 1966, particularly involving firearm and drug offences. In the 1970s, he was convicted of seven counts of possessing a pistol without a licence and one count of owning, using, carrying or possessing an unregistered firearm. In the 1980s, he was convicted of attempting to produce, prepare or manufacture LSD, cultivating Indian hemp and possessing a firearm without a licence. Finally, in the 1990s, he was convicted of possessing amphetamines and cannabis, possessing an unregistered firearm without a licence and possessing a silencer.
It is also to be noted that the respondent has previously served terms of imprisonment. In 1977, he was sentenced to three years imprisonment for committing offences of common assault and wounding with intent to do grievous bodily harm. Then, in 1984, he was sentenced to eight years imprisonment with a non‑parole period of four year and six months for committing ten offences of receiving. In addition, in 1996, he was sentenced to three years imprisonment with a non‑parole period of 18 months, for committing the offence of possessing cannabis for supply.
In all the circumstances, I would set aside the fines imposed for all five offences charged on the Information laid by the Director of Public Prosecutions (SA), but would not interfere with the compensation order. I would impose one sentence for the five offences, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA). Given the seriousness of the offending, as a starting point, I would impose a sentence of imprisonment for a term of three years and nine months as a head sentence. I indicate that I have arrived at this amount by setting a notional sentence of two years imprisonment for counts one and two, to be made cumulative upon a sentence of 18 months imprisonment for counts three and four, and three months imprisonment for count five. However, taking into account the respondent’s pleas of guilty, I would reduce that sentence to three years. I would set a non‑parole period of 20 months.
As the respondent has already been sentenced to a Commonwealth sentence of 18 months imprisonment, to be released on a recognizance release order after serving six months, the head sentence will start from the time of release under his recognizance release order for the Commonwealth offences. The commencement of his non‑parole period is governed by s 32(1)(c) of the Criminal Law (Sentencing) Act, which states:
(1)Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must—
…
(c) if the person is serving a minimum term imposed in respect of an offence against a law of the Commonwealth or is liable to serve such a term on the expiry of an existing non-parole period—fix a non-parole period in respect of the sentence, or sentences, to be served upon the expiry of that minimum term.
Therefore, both the head sentence and non‑parole period for the State offences will commence upon the expiry of the minimum period set for the Commonwealth offences, namely six months from 26 November 2007, which is on 26 May 2008.
Conclusion
I would grant permission to appeal and allow the appeal. I would set aside the fines imposed for the State offences but not interfere with the compensation order. I would sentence the respondent to three years imprisonment, with a non‑parole period of 20 months, both commencing on 26 May 2008.