R v "White"

[2003] NSWCCA 135

CITATION:	R v "White" [2003] NSWCCA 135
HEARING DATE(S):	30 April 2003
JUDGMENT DATE:	13 May 2003
JUDGMENT OF:	Wood CJ at CL at 1; Simpson J at 2
DECISION:	Leave to appeal granted, but appeal dismissed.
CATCHWORDS:	appeal against sentences - plea of guilty
LEGISLATION CITED:	Crimes Act 1900 (NSW), s178BA Firearms Act 1996 (NSW), s7(1) Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3 Division 3, s44
CASES CITED:	R v Thomson ad Houlton [2000] NSWCCA 309; 49 NSWLR 383
PARTIES :	Crown - Respondent "White" - Applicant
FILE NUMBER(S):	CCA 60059/03
COUNSEL:	LMB Lamprati - Crown SC Russell - Applicant
SOLICITORS:	SE O'Connor - Crown DJ Humphreys - Applicant

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/11/0217
LOWER COURT JUDICIAL OFFICER :	Woods DCJ

60059/03

WOOD CJ at CL
SIMPSON J

Tuesday 13 May 2003

REGINA v “WHITE”

Judgment

1 WOOD CJ at CL: I have read in draft form the judgment of Simpson J. I agree with the orders proposed, and with the reasons of her Honour.

2 SIMPSON J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court on 2 August 2002 following his pleas of guilty to a series of charges. Two charges were of obtaining financial advantage by deception, brought pursuant to s178BA of the Crimes Act 1900, which carry a maximum term of imprisonment for five years; and twelve were counts of possession of firearms without a licence, brought pursuant to s7(1) of the Firearms Act 1996, which section prescribes a maximum penalty of imprisonment for ten years. In addition, the applicant asked that four additional offences be taken into account pursuant to Part 3 Division 3 of the Crimes (Sentencing Procedure) Act 1999 (“the Form 1 offences”). These offences involved possession of a Police Service badge, police uniform and police identification badge, and another of obtaining a financial advantage by deception. On each of the deception offences the applicant was sentenced to imprisonment for two and a half years with a non-parole period of eighteen months, both to commence on 2 August 2002 and be served concurrently. A non-parole period of eighteen months was specified, to expire on 1 February 2004. The judge stated that he had taken one of the Form 1 offences into account on one of these charges. He did not otherwise indicate how he took into account the remaining Form 1 offences. On each of the firearms charges the applicant was sentenced to imprisonment for five years with a non-parole period of three years, these sentences all to be served concurrently with one another, but cumulatively upon the non-parole period specified in respect of the sentences previously imposed and therefore to commence on 2 February 2004. The total head sentence was therefore six and a half years, with an effective non-parole period of four and a half years. Pursuant to s44 of the Crimes (Sentencing Procedure) Act, the judge found special circumstances warranting departure from the ratio between the head sentence and the non-parole period otherwise specified in the section. The reason he gave for his determination was that the applicant will be required to serve his sentences in protective custody, under more onerous than normal conditions.

facts

3 The facts of the offences may be stated briefly. On the afternoon of 29 November 2000 the applicant, accompanied by his son, aged seven, flew to Brisbane. There he obtained a hire car. The following day, with his son, he drove south from Brisbane. Early in the afternoon, at Murwillumbah, he was stopped by police and the vehicle was searched. Located in the vehicle were eight semi-automatic handguns and four revolvers. The serial numbers of all firearms had been removed by drilling or machining in an apparently professional and skilful fashion. All were unregistered. It was his possession of these items that gave rise to the twelve firearms charges. Also located in the vehicle were a number of other items, including a NSW police identification badge and various documents (NSW and Queensland drivers’ licences, credit and charge cards, a birth certificate and an Australian Taxation Office Tax File Number Advice) all in the name of James Luciano. The NSW driver’s licence and birth certificate had been used by the applicant to obtain the credit card. The credit card had been used for a number of transactions amounting to almost $30,000. Some payments had been made on the accounts. The use of the false driver’s licence and birth certificate to obtain the credit card gave rise to the two deception charges. Possession of the regalia of the Police Service constituted three of the Form 1 offences.

4 From the facts put before the sentencing court it is apparent that a police surveillance operation had been in place since at least 24 November and a number of telephone conversations in which the applicant had taken part had been intercepted. These gave some indication of the applicant’s participation in the obtaining of the firearms. The conversations were with Edwin Miller and plainly implicated Miller as involved in the illegal supply of firearms. A search warrant was subsequently executed at the applicant’s home. Substantial quantities of ammunition were found.

5 The applicant gave evidence in the sentencing proceedings. He did not deny that he had participated in the intercepted telephone conversations but maintained that Miller’s occupation was in the pyrotechnics business and the sale of jewellery and antiques. He said that from about 1997 he had been involved with Miller in selling jewellery, principally on consignment. He said that his trip to Brisbane on 29 November was for the purpose of obtaining jewellery and that, instead of giving him jewellery to sell, Miller gave him a plastic bag containing the firearms. He said that he knew that it was not jewellery and the first thing he thought of was guns.

6 The applicant gave some other evidence in relation to this issue which was dealt with by the sentencing judge in a confidential addendum to his remarks on sentence and which I propose to treat in a similar way.

7 The picture the applicant sought to present was, in effect, that Miller quite unexpectedly thrust the firearms upon him when what he anticipated receiving was jewellery to sell. The applicant said that, had he been aware that guns were involved, he would not have been accompanied by his stepson. The sentencing judge rejected his account. He held that there was no doubt that the applicant intended to sell the guns, and that there was a commercial purpose associated with the weapons. He rejected the applicant’s contention that he was unaware, until presented with the plastic bag, that he was to be provided with firearms, and rejected the contention that the presence of the child with the applicant was indicative of innocent intent. There is no challenge to these findings of fact.

subjective circumstances

8 The applicant was born on 21 February 1966. He was therefore thirty-four years of age at the time of the offences. He had only a minor criminal record, with two charges of driving whilst his licence was cancelled, and one of stating a false name. He is in a stable domestic relationship (as to whether marriage or de facto, the evidence is conflicting) and has a daughter (now about thirteen years of age) from a previous marriage and two small children (aged four years and eight months, as at June 2002) from his current relationship. He also has responsibility for a stepson and his partner has another daughter who was then residing with her father. There were obvious problems between the father of these children and the applicant but these were never dealt with with any clarity.

9 The applicant’s evidence was given on 7 June 2002 on which date sentencing was adjourned to 12 June. For some reason it did not occur on that day, and when the matter resumed on 26 June the applicant gave further evidence that the father of his partner’s two children had been killed the previous week in a motor vehicle accident.

10 A psychological report was placed before the sentencing judge and this disclosed that the applicant, while described as:

“a basically well adjusted ‘core’ personality … warm, outgoing, quite assertive, practical with conservative values”

stood in the severe range for clinical anxiety, had expressed suicidal ideation, and had recently been diagnosed with mild Tourette’s syndrome. He was born in Macedonia and migrated to Australia at the age of three years. He is the elder of two children. The family was stable and he appears to have had an uneventful childhood and adolescence. He had held employment of a variety of kinds, most recently as a security advisor and licensed private investigator business consultant.

11 He produced evidence demonstrating that he had been actively involved in community work as a volunteer fire fighter and had been awarded a medal for bravery following the 2001 bush fires.

12 The sentencing judge imposed the sentences I have already outlined. The overall effective sentence was imprisonment for six and a half years with a non-parole period of four and a half years. In relation to the deception charges (on which the head sentence was two and a half years, the non-parole period eighteen months), the sentencing judge stated that but for the plea of guilty (and the subjective considerations to which I have referred) the head sentence would have been three years; that is, he allowed a discount of twenty per cent for those considerations. In relation to the firearms offences, his Honour stated that he had begun with a notional head sentence of seven years which he reduced by one year, again in respect of the plea of guilty and the subjective considerations; he then further reduced those sentences by another year to allow for the matters referred to in the confidential addendum to his remarks on sentence.

13 The total discount thus applied was a little under twenty-nine per cent.

14 The principal challenge to the sentences is that the overall discount was inadequate in the circumstances. The applicant was undoubtedly entitled to some discount on his sentences as a result of his pleas of guilty. The Crown case on the firearms charges was overwhelming but the strength of the Crown case is not a factor in the assessment of the utilitarian value of the plea. That is concerned with matters such as the saving to the state of the cost of a trial, and of the trauma and disruption to witnesses who are saved the inconvenience of having to give evidence, and, in respect of some offences, relive their experiences of criminal behaviour. The timing of the pleas is a significant factor, as it is integrally connected with the saving of costs of preparation and prosecution. The applicant’s pleas were entered in the Local Court on 28 February 2002. There was no suggestion that the pleas should be regarded as other than entered at an early opportunity. Here the dishonesty offences may be differentiated from the firearms offences. The witnesses in the prosecution of the firearms offences would almost all, if not all, have been police officers, experienced in giving evidence and detached from the experience of crime. It is unlikely that a trial would have been a lengthy one. The applicant could not possibly have claimed, in relation to those sentences, discount at the upper end of the range promulgated in R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383. The discount allowed on the firearms offences was of one year from a starting point of a seven year sentence. This represents a discount of a little over fourteen per cent. Although it would have been open to his Honour to have allowed more, I do not see any error in his discretionary judgment.

15 That is not the case in respect of the dishonesty offences which would have required a number of bank officers and others to give evidence, including a certain amount of documentary evidence establishing the manner in which the applicant obtained the credit cards. It is postulated that a trial, had it eventuated, could have been expected to occupy something in the order of one to two weeks. The Crown accepted this as a reasonable estimate.

16 In my opinion a discount of twenty per cent in respect of the pleas for the dishonesty offences, even taking into account additional subjective consideration, was appropriate.

17 For reasons given in the confidential addendum to these reasons, I would reject the remaining matters advanced on behalf of the applicant. I propose that leave to appeal be granted, but that the appeal be dismissed.

18 The material in the sealed envelope will be resealed and returned to the Crown on delivery of the judgment.

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Last Modified: 05/22/2003