Yammine v R

[2010] NSWCCA 123

New South Wales
Court of Criminal Appeal

CITATION:	Yammine v R [2010] NSWCCA 123
HEARING DATE(S):	08/06/2010
JUDGMENT DATE:	23 June 2010
JUDGMENT OF:	McClellan CJatCL at 1; Buddin J at 2; Barr AJ at 3
DECISION:	1. Grant leave to appeal against the sentence for the offence committed under s 51D(2) Firearms Act 1996. 2. Dismiss the appeal. 3. Refuse leave to appeal against the sentence for the offence committed under s 35 Crimes Act 1900.
CATCHWORDS:	Appeal against sentence - aggravated unauthorised possession of firearms - sentencing judge misinformed about standard non-parole period - error in sentencing - whether less severe sentence warranted in law - Application for leave to appeal against sentence - malicious wounding - knife used - sentence not manifestly excessive - sentence already expired - leave refused
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 - s 32 Firearms Act 1996 - s 51D(2) Crimes Act 1900 - s 35(1)(a) Crimes (Sentencing Procedure) Amendment Act 2008 - Sched 2 cl 17 Interpretation Act 1987 - ss 3, 34 Criminal Appeal Act 1912 - s 6(3)
CATEGORY:	Principal judgment
CASES CITED:	Harrison v Melhem[2008] NSWCA 67 R v Mack [2009] NSWCCA 216 R v Middlebrook [2004] NSWCCA 49 R v Gardiner [2006] NSWCCA 190 R v Brown [2006] NSWCCA 249 R v George (2004) 149 A Crim R 38 Nowak v R [2008] NSWCCA 89 R v Astill (No 2) (1992) 64 A Crim R 289 R v Simpson [2001] NSWCCA 534 R v Douar [2005] NSWCCA 455
PARTIES:	Norman Yammine v Regina
FILE NUMBER(S):	CCA 2007/11954; 2007/14352
COUNSEL:	S Dowling - Crown P Strickland SC - Applicant
SOLICITORS:	S Kavanagh - Crown Nyman Gibson Stewart Lawyers - Applicant
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2007/11954; 2007/14352
LOWER COURT JUDICIAL OFFICER:	Nield DCJ
LOWER COURT DATE OF DECISION:	19/12/2008

2007/11954
2007/14352

McCLELLAN CJ at CL
BUDDIN J
BARR AJ

WEDNESDAY 23 JUNE 2010

Norman YAMMINE v REGINA

Judgment

1 McCLELLAN CJ AT CL: I agree with Barr AJ.

2 BUDDIN J: I agree with Barr AJ.

3 BARR AJ: The applicant, Norman Yammine, seeks leave to appeal against sentences imposed by Judge Nield in the District Court. For the offence that on 6 November 2005 at Terrigal the applicant maliciously wounded Aaron Vickers, his Honour set a non-parole period of 2 years and 3 months, commencing on 2 May 2006 and a balance of term of 1 year and 1 month. For the offence that on 2 May 2006 at Auburn the applicant possessed more than 3 unregistered firearms without permit or licence, and taking into account 23 offences under s 32 of the Crimes (Sentencing Procedure) Act, his Honour set a non-parole period of 3 years and 6 months commencing on 2 August 2008 and a balance of term of 3 years and 3 months. The total effective head sentence was 9 years and the effective non-parole period was 5 years and 9 months.

4 At about 3.30am on 6 November 2005 Aaron Vickers and his friend Todd Wadey were sitting on the ground in a street in Terrigal. A car drove up and words were spoken by Mr Wadey and the applicant, who was seated in the front passenger’s seat of the car. The applicant opened the door and rushed towards Wadey. Mr Vickers stood up, put out his hands and asked what the applicant was doing and he told him that he had made a mistake. At that point the applicant was standing over Mr Wadey, threatening to punch him. The driver got out and moved towards Mr Vickers. He began punching Vickers, who fought back. The applicant joined in and stabbed Mr Vickers a number of times in the trunk with a knife, similar to a fish filleting knife, with a blade 8 to 10 centimetres long. Mr Vickers fell to his hands and knees. The applicant approached a number of security guards who were standing nearby. He was still holding the knife. One of them reported that he was “really irrational and seemed very angry”. Another said that both men who had come from the car were on some sort of drugs as they both looked “quite wired”. As a result of the attack Mr Vickers suffered multiple stab wounds, one of which punctured a lung.

5 Police attended and investigated. They took samples of blood shed at the scene. A DNA profile developed from the blood was later found to match the applicant’s.

6 The facts upon which the applicant was sentenced for the second offence were these. The applicant was a member of a motorcycle club called the Nomads. Tensions had arisen between the members of that club and those of another motorcycle club, the Hell’s Angels. Tensions were increasing at such a rate that police became concerned. They began to carry out lawful interception of telephone calls and to watch the movements of members of the clubs. On 16 March 2006 the offender was shot in the buttocks at a nightclub in Pitt Street, Sydney. Overheard telephone conversations made it clear that the applicant believed that he had been shot by a member of the Hell’s Angels Club. That led to other events. Early on 2 May 2006 the offender was recorded as saying, “They reckon he has put a fifty on my head …$50,000 to kill me …”.

7 On the morning of 2 May 2006 there was a drive-by shooting near the house of John Zaiter, a member of the Hell’s Angels Club. It was not reported to the police. It was suspected that the shooter was a man called Paul Younan, a member of the Nomads club. It was not suggested that the applicant was involved in that shooting. During the afternoon of the same day John Zaiter shot Younan. At 2.43pm the offender received a telephone call from a man the police believed was Younan. Younan said to the offender “…all get to my house now. I need you man …. They are driving a silver four-wheel drive”.

8 Zaiter was arrested not long afterwards, driving a silver four-wheel drive.

9 The offender telephoned Younan, who told him that “they” had hit his car and had shot at him three times. The offender asked who had done that and Younan told him that John Adelaide was one of those involved. Adelaide was a name used by Zaiter. The applicant told Younan to come to his house.

10 A little later the offender spoke to Younan again and said “Get here, get here …. You come here now. You stay with me …”

11 Police commenced surveillance of the applicant’s house. A number of men arrived and left.

12 The applicant telephoned a number of people requesting them to come to his house. He asked one of them whether he had his “girlfriend” with him. The man replied that he had. There were never any women at the applicant’s house at any relevant time. The Crown case was that the word “girlfriend” was code for firearm.

13 At 8.30pm police attended the house in numbers, ready to enter and execute a search warrant. At 8.35pm somebody telephoned the house and said that there were police outside and to get rid of the weapons.

14 Police entered the house and searched. The applicant and ten other men were arrested. A large number of firearms and associated items were found.

15 The second count was laid under s 51D Firearms Act 1996. By subs (2), a person who is in possession of more than 3 firearms any one of which is a prohibited firearm or a pistol is guilty of an offence under the subsection if -

(a) The firearms are not registered, and
(b) the person is not authorised by a licence or permit to possess the firearms.

16 There were 7 firearms answering the description in s51D (2), namely a prohibited pistol with magazine attached containing 15 rounds, a revolver loaded with six rounds of .22 ammunition, a handgun with a magazine inserted containing eight rounds and a spare magazine containing seven rounds, a handgun with an empty magazine inside, an assault rifle, which was not in working order, a Beretta handgun containing a magazine with eight rounds and a Chinese assault rifle with a shortened stock.

17 The 23 offences taken into account all related to things found during the search. They included possessing a prohibited weapon namely a bullet proof vest, several counts of not keeping a firearm safely, of possessing an unregistered firearm and of possessing a prohibited weapon, several counts of possessing ammunition without a permit and one count of having goods in custody reasonably suspected of having been stolen or unlawfully obtained. That offence concerned cash worth $5,700.

18 The maximum penalty for the offence of malicious wounding was 7 years imprisonment; see s 35(1)(a) Crimes Act 1900 now repealed.

19 The maximum penalty for the offence committed under s 51D(2) Firearms Act was imprisonment for 20 years.

20 No standard non-parole period applied to either offence, though the sentencing judge was told by the Crown and counsel for the defence that a standard non-parole period of 10 years applied to the firearms offence.

21 The applicant pleaded guilty to the firearms charge in the Local Court on 26 April 2007 and was committed to the District Court for sentence. He was committed to the District Court for trial on the malicious wounding charge and pleaded guilty in that court on 18 August 2008.

22 The applicant was born in 1984 and was not far short of his 25th birthday when sentenced. He had an unremarkable record of offending which his Honour considered not to be significant. His Honour thought that there was a reasonable chance that he would be rehabilitated and that there was a better than reasonable chance that he would not re-offend. His Honour found that the applicant had family support. It would appear that his Honour accepted a submission that the applicant had decided to have no more to do with the Nomads motorcycle club. He had participated in alcohol and other drug counselling courses while in custody.

23 The first ground of appeal is that his Honour erred in having regard to the standard non-parole period of 10 years.

24 A standard non-parole period of 10 years for an offence under s 51D(2), whenever committed, came into effect on 1 January 2008: Crimes (Sentencing Procedure) Amendment Act 2007. However, the standard non-parole period did not apply to any offence if the offender had pleaded guilty before that day and the plea had not been withdrawn: Sched 2 cl 17. It did not apply to the applicant because of his prior plea of guilty. The Crown accepted on appeal that his Honour was misled by counsel on both sides.

25 In the Remarks on Sentence his Honour said this -

Another factor to be taken into account in determining an appropriate sentence with a firearms offence is that the offence carries a standard non-parole period of ten years if it falls within the middle of the range of objective seriousness for offences of its kind. I have said already that I consider that the offence falls above the middle range of seriousness for offences of its kind. However, as the offender has pleaded guilty to the offence, I need not determine a sentence based upon the standard non-parole period of ten years, which would produce a sentence of thirteen years four months, although I should regard the standard non-parole period as a guidepost or benchmark.

26 In my opinion error has been shown.

27 The next three grounds of appeal concern the firearms offence. They may be dealt with together. They are -

Ground 2: His Honour erred in finding that the objective seriousness of the offence was above the middle of the range;

Ground 3: His Honour in failing to find that the applicant only possessed the weapons for a short period of time;

Ground 4: The sentence was manifestly excessive.

28 Counsel referred to portions of the second reading speech by the Minister for Police in introducing the Firearms Bill to the Parliament, in which the minister spoke of tougher firearms trafficking laws designed to inhibit the illegal supply of firearms and a further strengthening of the law so that criminals warehousing illegal guns for sale on the black market would be liable for up to 20 years in gaol if the firearms were prohibited firearms or handguns.

29 It was submitted that the applicant’s offence had nothing to do with the warehousing of illegal guns for sale or the illegal supply of firearms. Therefore it should be seen as one of the less serious of the offences contemplated by the subsection.

30 Relevantly, s 34 Interpretation Act, 1987 provides as follows -

34 Use of extrinsic material in the interpretation of Acts and statutory rules
(1) In the interpretation of any Act …, if any material not forming part of the Act … is capable of assisting the ascertainment of the meaning of the provision, consideration may be given to that material:
…
(b) to determine the meaning of the provision:
(i) if the provision is ambiguous or obscure, or
(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.
…

31 In Harrison v Melhem [2008] NSWCA 67 it was held that neither S 34(1) of the Interpretation Act nor the common law of statutory interpretation permits resort to a minister’s speech to guide the meaning of legislation beyond identifying its purpose. See the judgments of Spigelman CJ at [12] and of Mason P, with whom Beazley, Giles and Basten JJA agreed on this question, at [168]-[172].

32 In my opinion the court should not consider what the minister said on the occasion referred to because the purpose of the Act is plain. It may be found in s 3, which provides as follows -

3 Principles and objects of Act
(1) The underlying principles of this Act are:
(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and
(b) to improve public safety:
(i) by imposing strict controls on the possession and use of firearms, and
(ii) by promoting the safe and responsible storage and use of firearms, and
(c) to facilitate a national approach to the control of firearms.
(2) The objects of this Act are as follows:
(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,
(b) to establish an integrated licensing and registration scheme for all firearms,
(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,
(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,
(e) to ensure that firearms are stored and conveyed in a safe and secure manner,
(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.

33 The purpose of the Act that has importance is this case is to improve public safety by imposing strict controls on the possession of firearms.

34 It seems to me that the police were right to be concerned about the events that had taken place between the members of the two clubs. It was obvious from what the police had seen and heard that tension was rapidly building up. There had been a shooting of a clubhouse and a shooting of a car. There had reportedly been shootings of two people. The applicant was putting about his belief that Zaiter was going to have him killed and was asking for help. The events of the afternoon and evening of the day of the firearms offence made it obvious that unless something were not done to stop it there would probably be a gun fight between the protagonists. As a result there was a grave threat to public safety. That risk, it seems to me, was no less serious than the risk posed by the hypothetical arms dealers mentioned in the second reading speech.

35 It was submitted, partly in reliance on R v Mack [2009] NSWCCA 216, that these matters were relevant to any assessment of the objective seriousness of the applicant’s offence.

(a) the number of firearms
(b) the number of firearms that were prohibited or were pistols
(c) the nature and type of the firearms
(d) the purpose of the possession of the firearms
(e) the location of the property and the security under which the firearms were kept.
(f) the length of time during which the firearms were in the applicant’s possession; and
(g) the circumstances in which they came into his possession.

36 It was submitted that the number of firearms, namely seven, was not large. Only six of them were prohibited firearms or prohibited pistols. One of them was not in working order.

37 As to the Form 1 charges, 7 arose because the same firearms were not securely located.

38 It was submitted that the applicant possessed the firearms only because they were in or on his premises. He did not own them. They were brought on to his premises by other members of the Nomads motorcycle club in response to telephone calls.

39 It was submitted that his Honour erred in failing to recognise that the applicant was affected by drugs and that his motivation was fear.

40 The applicant wrote a letter to the sentencing court, Exhibit 1, and gave evidence. He said nothing in his letter or in his evidence in chief about the firearms offence. In cross-examination he said that he had been shot about six weeks before the day of the offence. The day before the offence he had made the telephone call referring to the $50,000 which he was asserting Zaiter had put up to have him killed. Earlier in the day “they” had shot up his mate’s car. He was paranoid. He was off his head on drugs. He was afraid for his own and his family’s lives. He had no intention of leaving the house. He thought that they would come and kill him. He could not “ring the law” because he would have been killed by his own club. He accepted that he was surrounding himself with people who were armed so that he would not get hurt or shot by the Hell’s Angels.

41 It is correct to say that his Honour did not state any conclusion about the offender’s motivation. The Crown had submitted that his Honour should find that the Nomads were preparing for an attack on the members of the Hell’s Angels. Counsel for the applicant had submitted that the applicant’s motivation was defensive. His Honour rejected the Crown’s submission and continued -

Frankly, I do not see that it matters much whether what the offender did was offensive or defensive.

42 In my opinion that was an apt observation. It is not the law of New South Wales, as I understand it, that a person who, contrary to s 51D(2), contrives to arm himself with a substantial number of firearms capable of being used to kill and maim others is less culpable if he affects to do so not for offence but for defence. Any finding that what the applicant did was done out of fear for the safety of himself or his family would not have assisted the applicant because it could not have led to a conclusion that his offence was thereby less serious.

43 Neither, in my opinion, could any finding that the applicant acted as he did under the influence of drugs have sounded in the sentence.

44 It was submitted on appeal that what the applicant did was “irrational”. As to that, there is and could have been no finding to that effect. What comes out clearly from this terrifying account of events is that the applicant acted purposefully throughout.

45 An attack was made upon his Honour’s failure to find that the applicant’s possession of the firearms was temporary. His Honour said this at paragraph 39 of the Remarks on Sentence -

Although I accept that the comings to and going from the offender’s home of men during the hours between 3.30pm and 8.30pm on 2 May 2006 may suggest that they brought the weaponry to the offender’s home, I am unable to say whether the offender’s possession of the weaponry was longstanding or temporary. The failure to find the offender’s fingerprints or DNA in any of the weaponry does not surprise me. Perhaps it does not matter whether the offender’s possession of the weaponry was longstanding or temporary, because what matters is that at the time when the police entered the offender’s home the weaponry was there and in his possession.

46 It was submitted that the intercepted telephone calls indicated that the firearms were taken to the applicant’s home by other members of the Nomads motorcycle club and that it followed that his possession of them was temporary. It was submitted that he was in possession of them from about 3.30pm on 2 May 2006 until the time of his arrest. That was such a short period of time that his offence was for that reason less serious.

47 The burden of proving that the period of his possession was so short as to make the offence objectively less serious than it would otherwise have appeared was on the applicant. He said nothing about the provenance of the firearms in his letter or in his evidence in chief. In cross-examination there was this evidence -

Q. … but the other people who were the members of the club that you belong to had come to your house?
A. They had come to my house, yes, that’s right.
Q. And they (brought) firearms with them?
A. Of course they have.

48 It seems to me that his Honour was entitled to make the limited finding that he did. His Honour accepted that men had come to the house during the afternoon and evening. It would not follow, however, that all the weapons possessed by the applicant were brought on the occasion he described. He did not plainly say so himself.

49 Reference was made to sentences in other cases decided under s 51D(2). Five such cases were cited. One was a crown appeal and I shall not refer to it again. The others are R v Middlebrook [2004] NSWCCA 49, R v Gardiner [2006] NSWCCA 190, R v Brown [2006] NSWCCA 249 and R v Mack. The head sentences after appeal were respectively 2 years, 5 years, 8 years and 6 years.

50 The submission was that only Brown has produced a longer head sentence than the present case, yet the facts of that case were far worse than those of the present case. The applicant was the warehouser or a large number of prohibited weapons which he was buying and selling to criminals. He was using profits to repay drug debts. He had a very serious criminal history.

51 The Court has pointed on a number of occasions to the difficulty of demonstrating error by reference to the facts and sentences in unrelated cases. In R v George (2004) 149 A Crim R 38 at [48] this Court, constituted by Wood CJ at CL, Adams and Kirby JJ said -

We are unable to gain any meaningful assistance from a reference to these cases. It is unnecessary to restate that the practice, which appears to have developed in recent times, of approaching sentence appeals by a search for, and comparison with, sentences passed in other cases, is neither helpful nor justified by authority: see R v Morgan (1993) 70 A Crim R 368; R v Salameh (unreported, Court of Criminal Appeal, NSW, Hunt CJ at CL, McInerney and Blanch JJ, No 60728 of 1993, 9 June 1994) and R v Trevenna [2004] NSWCCA 43 at [98]-[101] per Barr J. At the most, other cases can do no more than become part of a range for sentencing …

52 It appears that so few cases have been decided under s 51D(2) that no range of sentencing discretion is discernible. In my opinion error is not demonstrated by reference to those cases.

53 In my opinion this offence was productive of so much danger that it was well open to his Honour to assess its subjective seriousness as above the mid-range for offences of its kind.

54 Grounds 5 and 6 deal with the sentence imposed for the malicious wounding count. They may be considered together and are as follows -

Ground 5: His Honour erred in failing to find that the applicant was remorseful; and

Ground 6: The sentence was manifestly excessive.

55 The applicant’s letter to the Court included this passage -

I now realise my actions have caused a lot of distress to my family and fiancé and also the victim and his family and friends. I honestly know how it feels being a victim as I was shot in the leg from behind two months prior to my arrest on May 2, 2006.
I realise what pain I have caused and I regret this greatly. I would like to at some point at the earliest opportunity to apologise for my unorderly actions and stupidity.

56 In his evidence in chief he repeated that he was very sorry for what he had done. He continued -

…. “ ….I am very sorry for what I have done and if I could take it back, believe me I would”.

57 Later on he said that he understood the number of times Mr Vickers had been stabbed and that he regretted it. He also gave evidence, which his Honour otherwise accepted, that he had dissociated himself from the Nomads.

58 None of that evidence was challenged by the Crown.

59 In the Remarks on Sentence his Honour referred to the submissions of the Crown Prosecutor, to the effect that the claim of remorse should be assessed with caution. His Honour continued -

“Although I accept (that) an offender’s guilty plea to an offence may indicate remorse on the offender’s part in the offence, I doubt that the offender is remorseful for stabbing Mr Vickers. Frankly, I doubt that the offender has given a moment’s thought to what he did to Mr Vickers and to the effect of what he did upon him. …….I see the offender’s guilty pleas as recognising the strength of the Crown’s case.”

60 It was submitted that a plea of guilty in the face of a strong Crown case may be evidence of remorse, and that there was evidence independent of the plea on which his Honour was bound to find remorse.

61 It may be accepted that a plea of guilty may be evidence of remorse even when the Crown case is strong. When it is made as late as this one was, however, and in the face of a strong Crown case, a sentencing judge is obliged to approach cautiously an offender’s claim to be remorseful. The evidence of remorse came from the applicant himself, through his letter and through his sworn evidence. His Honour had the opportunity to assess the applicant, something that this Court does not have. The language of his Honour’s remarks shows that he was not impressed by what the applicant said.

62 Moreover, the finding of remorse on the firearms count, depending as it did upon the peculiar circumstances of that offence and of the recent dissociation of the applicant from the Nomads motorcycle club, did not necessitate a finding of remorse in the malicious wounding offence.

63 In my opinion it was open to his Honour to doubt that the applicant was remorseful.

64 It was submitted that the fact that the malicious wounding was unplanned, that the applicant pleaded guilty, that he had in his favour findings about the prospects of rehabilitation and that he would probably not re-offend, meant that the sentence was manifestly excessive. There was a submission also, of course, that he was remorseful.

65 It seems to me that the sentence of 3 years and 4 months, seen against a maximum sentence for the offence of 7 years’ imprisonment, is not manifestly excessive. As his Honour observed, there is a need for general deterrence in offences of that kind. A knife was used in a public place. In my view his Honour ought to have regarded that as an aggravating feature: Nowak v R [2008] NSWCCA 89 [14]-[18], per Buddin J with whom Bell JA and I agreed. The fact that the applicant was affected by drugs at the time does not seem to me to mitigate his criminality. In my opinion the offence was very serious and the sentence was within the proper range of the sentencing discretion.

66 These grounds of appeal have not been made good. In view of the fact that the sentence expired on 1 September 2009 I would refuse leave to appeal.

The Consequence of Error

67 Having found error in the imposition of sentence for the firearms offence, the Court must consider s 6(3) Criminal Appeal Act 1912, which is as follows -

6 Determination of appeals in ordinary cases
(3) On an appeal under section 5 (1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.

68 In R v Astill (No 2) (1992) 64 A Crim R 289 Lee AJ said at 303, 304 -

The fundamental function of the Court in an appeal under s 5(1) is to determine whether the sentence imposed by the sentencing judge is excessive or whether some other sentence is ‘warranted by law’. It is not I mention the practice of the Court to increase sentences. A proper sentence is one which takes into account the objective seriousness of the crime and any aggravating features and then the circumstances subjective to the applicant or extraneous to the crime itself which permit leniency. It is that mix of circumstances which the sentencing judge must evaluate and there is usually considerable scope for disagreement as to the weight or significance to be given to the factors which make up the total mix.
When an appeal is brought to the court under s 5(1) it may well be that the court will consider the sentence passed to be “warranted in law” even though the court may not be in agreement with the weight assigned by the sentencing judge to particular features, or his selection of the substantial matters which guide him to his conclusion. In such a case the appeal fails. Even where the court concludes that the judge has made a mistake of law, the court may still hold that the sentence is not excessive and should stand.

69 In R v Simpson [2001] NSWCCA 534 Spigelman CJ, with whom the other members of this Court agreed, said at [79] -

79 Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: “If it is of the opinion that error has occurred in the sentencing process.” That is not the statutory formulation. By s6(3) this Court must form a positive opinion that “some other sentence … is warranted in law and should have been passed”. Unless such an opinion is formed, the essential pre-condition for the exercise of the power to “quash the sentence and pass such other sentence in substitution therefore” is not satisfied. As the judgments in Dinsdale to which I have referred indicate, the exercise of the power in s6(3) further requires the identification of error in the requisite sense.

70 In addition Sully J said at [100] -

Error once demonstrated, it does not follow automatically that this Court will, without more, intervene in fact and resentence. Before that can happen properly in law, the condition specified in s6(3) of the Criminal Appeal Act 1912 (NSW) must be satisfied: that is to say, this Court must be persuaded, not only that error has been shown in the process of reasoning of the primary sentencing Court, but that some other sentence is "warranted in law" . I agree with the observations made in this connection by Lee AJ in Astill (No 2) [1992] 64 ACrimR 289 at 303, 304.

71 In R v Douar [2005] NSWCCA 455 this Court held that once error is established the Court may receive evidence of post-sentence conduct for the purpose of determining whether a less severe sentence is warranted in law and should be substituted for the sentence appealed from. See the judgment of Johnson J, with whom McClellan CJ at CL and Adams J agreed, particularly at [114]-[124].

72 Counsel for the applicant read the affidavit of Joanne Mikhael sworn on 3 June 2010 and submitted that the Court should consider it when deciding whether to intervene. I would receive the evidence for that purpose. The deponent is the applicant’s fiancée. She wrote a letter to the sentencing court on 23 September 2008 and set out some history of the relations between her and the applicant. She said something about his character and about events which had recently befallen him. She said something about his return to religion and a change which had taken place in his attitude to life, particular to work and to the desire to help others and generally rehabilitate himself. She said that she intended to continue her relationship with the applicant. She said something about the family support that the applicant had. His Honour accepted these statements and took them into account in imposing sentence.

73 The affidavit read in this Court deals with similar material. Ms Mikhael speaks favourably of the applicant’s Christian faith and his attitude to work and to the need to control his anger. Ms Mikhael says that the applicant is much calmer and patient than when he went into custody in 2006. Ms Mikhael lists the various courses, rehabilitative, occupational and religious, that the applicant has undertaken.

74 They plan to marry and hope to start a family. Ms Mikhael wishes to continue to work in her business as owner of a cake shop and the applicant wishes to work in the plumbing trade as before.

75 None of this material is significantly different from what was put before his Honour. It is no more than would be expected, given his Honour’s findings about the applicant’s prospects of rehabilitation.

76 There is another matter, however. Ms Mikhael says that the applicant has told her how sorry he is about what he did to Mr Vickers. She says that he has often spoken about the matter “and wishes he could turn back time so that the assault on Mr Vickers did not happen.”

77 I am prepared, in order to carry out the inquiry necessary under s 6(3), to accept all these matters except the last. I note his Honour’s doubt about remorse, having seen and heard the applicant. This Court has had no opportunity to assess the applicant for itself. I am not prepared to accept evidence of remorse given by hearsay 5 years after the event.

78 For reasons which I have set out above I consider that the firearms offence was a very serious one of its kind. The danger to the public was considerable and it is fortunate that the police stopped things when they did. Seen against a maximum sentence of 20 years’ imprisonment, the total term of 6 years and 9 months was, in my opinion, within the range of his Honour’s sentencing discretion. His Honour’s mistaken acceptance of the existence of a standard non-parole period did not, in my opinion, lead to the imposition of a sentence outside the proper range of sentencing discretion.

79 In my opinion his Honour’s partial accumulation of the sentences and the adjustment of parole and non-parole periods in recognition of the totality of criminality and the applicant’s need for assistance to promote his rehabilitation were open to his Honour.

80 I conclude that, notwithstanding that error attended the sentencing process, no lesser sentence is warranted in law. I propose following orders-

1. Grant leave to appeal against the sentence for the offence committed under s 51D(2) Firearms Act 1996;
2. Dismiss the appeal;
3. Refuse leave to appeal against the sentence for the offence committed under s 35 Crimes Act 1900.
**********