Marshall v Police

[2012] NZHC 2739

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000203 [2012] NZHC 2739

BETWEEN  TEWIKI MARSHALL Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         9 October 2012

Appearances: P J B Winter for Appellant

E M Fitzherbert for Respondent

Judgment:      18 October 2012

JUDGMENT OF DUFFY J [Re Appeal Against Sentence]

This judgment was delivered by Justice Duffy on

18 October 2012 at 3.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140

Copy to:

P J B Winter, PO Box 105495, Auckland 1143 (DX CP 23517, Auckland)

MARSHALL V NEW ZEALAND POLICE HC AK CRI-2011-404-000203 [18 October 2012]

[1]      The  appellant,  Tewiki  Marshall,  was  sentenced  in  the  District  Court  at Waitakere following the entry of guilty pleas to charges of unlawful possession of a firearm; possession of less than one gram in total of the class A controlled drug methamphetamine; smoking a class C controlled drug, namely cannabis, and breach of   prison   release   conditions.      Mr   Marshall   was   sentenced   to   22   months’ imprisonment on the firearms charge; with concurrent sentences of three months’ imprisonment on the charges under the Misuse of Drugs Act 1975.  On the remaining charge of breach of release conditions he was convicted and discharged.   He now appeals against the sentences imposed on the firearms and drug offending.

[2]      I will deal with each offence in order of seriousness.

Firearm offending

[3]      The police summary of facts outlined the offending in this way.  On 11 March

2012, a friend of Mr Marshall received a text from a member of the Mongrel Mob stating that he was going to “hit” Mr Marshall and his family that night.  The friend went to Mr Marshall’s home and shortly afterwards Mr Marshall and his family left the address.  The summary of facts then states that Mr Marshall went to his garage and retrieved a pump action shotgun that he had acquired three days before.  It is not clear from the summary of facts whether Mr Marshall took these steps before leaving his home with his family, or whether he returned to his home at a later time and took these steps.  The summary of facts goes on to state that Mr Marshall took the firearm and buried it under some mulch in the backyard.  The summary of facts records that when Mr Marshall was questioned by the police, he spoke openly about the firearm and the problems he was having with the Mongrel Mob.  In explanation for having the firearm, he said that he wanted to protect his family; that the man who had threatened him was dangerous and that no harm was meant towards anyone else, except if his family’s safety became an issue.

[4]      During the course of the appeal hearing, counsel for the respondent very responsibly and properly drew my attention to the fact that when the police searched Mr Marshall’s property, they did not find the firearms. The respondent accepts that it was as a result of Mr Marshall telling the police where the firearm was hidden that

they were able to locate it.   This fact is relevant when it comes  to consider if Mr Marshall  should  have  received  a  sentencing  discount  to  recognise  his  co- operation with the police.

Charges under the Misuse of Drugs Act

[5]      At 10.39 pm on 24 December 2011, Mr Marshall was on Church Street, Waitakere City.  He was seen smoking a cannabis joint by the police.  He attempted to conceal it by throwing it into some grass.  The police approached him.  He was searched and was found to be in possession of four small bags containing less than one gram in total of methamphetamine.   He explained to the police that he uses drugs at the weekend.

Breach of release conditions

[6]      On 2 February 2011 Mr Marshall was sentenced to one year six months’ imprisonment for charges of remaining with intent and unlawful interference with a motor vehicle.  He was  released  from  prison  on  2  November 2011  with  release conditions.

[7]      Subsequent compliance issues arose with regard to those conditions.   Mr Marshall was reminded on more than one occasion of his need to comply with them. On 7 February 2012, he failed to report as directed to his Probation Officer.  He also failed to comply with a direction to engage with  alcohol and drug counselling. Accordingly, he breached his order pursuant to s 93 of the Sentencing Act 2002.

District Court decision

[8]      The Judge commenced his judgment by referring to the written submissions from the prosecution and from Mr Marshall.  The Judge then  outlined his intended approach, which was to identify a starting point, to confirm that Mr Marshall would receive a discount of 25 per cent for his guilty plea and co-operation and then to determine an uplift in order to reach a final result.  The Judge then stated that Mr Marshall would be sentenced to prison; the Judge declined Mr Marshall’s request for

leave to apply for home detention, or for a sentence that would enable Mr Marshall to attend a residential programme.

[9]      The Judge then referred to his having clarified the factual circumstances regarding the possession of the firearm.  The Judge did not expressly say what he thought required clarification.  However, it is clear from his sentencing notes that he took into account facts that were highly prejudicial to Mr Marshall but not contained in the agreed summary of facts.   The Judge appears to have obtained this factual information from the prosecutor’s submissions.   I will comment on this approach later.

[10]  At [4] of the sentencing notes the Judge described the events in this way:

[4]       On reading the prosecution submissions, it would appear that there were significant activities occurring, there were people placed at risk, and it appears in particular, there was an allegation of a woman being placed in the boot of a car.

The Judge then said that he had regard to Mr Marshall’s explanations regarding

possession of the firearm.

[11]     At [5] the Judge referred to how communities throughout New Zealand are “horrified, and in some places terrified, at what happens when members of gangs get into confrontation either with each other, other gangs or innocent members of the public”.  The Judge then said that if he accepted Mr Marshall’s explanation at face value, it meant that Mr Marshall had the firearm for his protection, which meant there was a real potential for a “firearms war or behaviour where people including innocent members of the public could find that their lives are at risk.”

[12]     At [6] the Judge referred to the presence of gang-related elements involved in the offending. The Judge viewed the statement that Mr Marshall was no longer part of the Mongrel Mob with “a great deal of cynicism”.  In reaching this view the Judge had regard to what he described as “evidence of paraphernalia in police photographs, in particular gang patches”.

[13]   The Judge then took note of Mr Marshall’s extensive list of previous convictions,  some  of which  had  resulted  in  lengthy sentences  of  imprisonment, before setting a starting point of two years’ imprisonment for the lead offence, being the firearm charge.   He then discounted this by six months (25 per cent) for the guilty plea. He then uplifted the sentence by four months to account for the other offences and for the offending while on bail.  This brought the sentence for the lead offence to 22 months’ imprisonment.   The sentences for the other offences were imposed concurrently.

[14]     The agreed summary of facts to which Mr Marshall had pleaded guilty said nothing about “significant activities” occurring at Mr Marshall’s address, nothing about people being placed at risk, nor a woman being put in the boot of a car. Nowhere in the summary of facts is anything stated about Mr Marshall being a gang member, or in any way associated with the Mongrel Mob.  There was no disputed facts hearing in which this additional material was produced and judicially determined.

[15]     For this appeal, counsel filed copies of the sentencing submissions made by the prosecutor and by Mr Marshall’s counsel in the District Court.  The prosecutor’s submissions contain highly prejudicial material, which  appears to be the source of the prejudicial information to which the Judge referred in his sentencing notes.  This information can only have been conveyed to the Judge as a submission from the bar.

[16]     The sentencing submissions for Mr Marshall in the District Court refer to the agreed summary of facts.   There is nothing that amounts to a concession that the factual information in the prosecutor’s submissions was accepted.

Submissions

Appellant

[17]     Mr Marshall submits that the two-year starting point was based on facts that were  outside  the  agreed  summary of  facts  and  involved  a  consideration  of  the

appellant’s list of previous convictions. Mr Marshall submits that this did not follow the accepted sentencing methodology as set out in Hessell v R1 and R v Clifford.2

[18]     Mr Marshall takes issue with the mentioning of the gang activities and the allegation of the woman being placed in the car boot in the car, which appeared to aggravate the starting point.

[19]     Mr Marshall points to the decisions of R v Richardson;3    Martel v Police;4 and Torea v R5 to support his submission that the starting point should have been 18 months’  imprisonment.     Further,  it  is  submitted  that  the  uplift  for  previous convictions  and  offending  on  bail  should  have  been  applied  as  a  personal

circumstance at stage 2.

[20]   Mr Marshall contends that discounts should have been afforded for “extraordinary remorse” and assistance provided to police in locating the buried firearm.  In this regard it needs to be recognised that it was Mr Marshall’s admission that brought the presence and whereabouts of the firearm to the attention of the police.

[21]     Accordingly,  Mr  Marshall  submits  that  the  end  sentence  of  22  months’

imprisonment was manifestly excessive in the circumstances.

Respondent

[22]     The respondent accepts that the sentencing methodology used by the Judge was not orthodox, but emphasises that it is the end result, not the process by which it is reached, that ultimately counts.   The respondent submits that the end result, 22

months’ imprisonment, was not manifestly excessive.

1      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

2      R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23.

3      R v Richardson CA450/02, 25 March 2003.

4      Martel v Police HC Hamilton CIV-2010-419-69, 4 October 2010.

5      Torea v R [2011] NZCA 96.

[23]     In relation to the Judge’s discussion of the influence of gang activities, the Crown submits that it was open to the Judge to make this assessment based on the police photographs supplied and the surroundings.

[24]     The respondent accepts that the guilty plea discount should have been applied at the last stage. However, it contends that no additional discount for remorse should be given, particularly in light of the comments made in the pre-sentence report that Mr Marshall has not displayed any remorse.

[25]     Finally, the  respondent  turns to consider the assistance that Mr Marshall provided to the police.  The respondent does not suggest that no discount should be given, but does point out that the co-operation was provided only after the police were called to his address.

Analysis

[26]     According to the approach in Austin, Nichols & Co Inc v Stichting Lodestar,6 the appellate court hearing a general appeal must reach its own opinion on the facts in dispute rather than defer to the opinion of the Judge at first instance.  In an appeal against sentence under s 121(3) of the Summary Proceedings Act 1957, the Appeal Court may re-exercise the sentencing discretion if there is an error of principle vitiating the lower Court’s sentence:  R v Shipton.7

Cumulative or concurrent sentences

[27]     Under s 84(1) of the Sentencing Act, cumulative sentences are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences. Conversely, under subsection (2), concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.

[28]     The  drug  offending  and  firearm  charges  are  different  in  kind.  This  is supported by Court of Appeal authority:

(a)      R v Drever:8   There, the appellant was apprehended after firing a gun in a residential street and, on searching his home under a warrant, a well-equipped  methamphetamine  laboratory  and  chemicals  were found together with other paraphernalia. A sentence of four years’ imprisonment was imposed on the manufacturing and possession of equipment charges plus a cumulative sentence of 18 months’ imprisonment on the Arms Act charges. The Court of Appeal upheld the decision to treat these cumulatively, although it did hold that the Judge had paid insufficient regard to totality.

(b)R v Bunning:9   In March 2003, the appellant was found in possession of   methamphetamine   for   supply,   precursor   substances   and   an offensive weapon. In March 2004, the appellant, together with his partner, was charged with production of a precursor substance, possession of equipment for manufacturing precursor substances, possession of utensils for smoking and possession of explosives. The Judge separated the offending into three distinct categories. One of the categories was specifically for Arms Act offences, which had a separate cumulative sentence attached.  This was affirmed on appeal.

[29]     On  that  basis,  I  believed  the  District  Court  Judge  erred  in  assigning concurrent sentences for each offence. The Arms Act charges are “different in kind” from the drug offending and so cumulative sentences should be imposed in respect of them.

Starting point

[30]     The penalty imposed for the drug offending is somewhat nominal, and so I shall focus on the sentence for the firearm charge as this forms the bulk of the sentence.

[31]     There is merit in Mr Marshall’s claims that the Judge has placed too strong an emphasis on things that were not incorporated in the agreed  summary of facts. Section 24 of the Sentencing Act governs “proof of facts”:

(1)       In determining a sentence or other disposition of the case, a court—

(a)       may accept as proved any fact that was disclosed by evidence at the hearing or trial and any facts agreed on by the prosecutor and the offender; and

(b)       must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.

(2)       If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,—

...

(c)       the  prosecutor  must  prove  beyond  a  reasonable doubt  the  existence  of  any  disputed  aggravating fact, and must negate beyond a reasonable doubt any disputed mitigating fact raised by the defence (other   than   a   mitigating   fact   referred   to   in paragraph  (d)) that is not wholly implausible or manifestly false.

(3)       For the purposes of this section,—

aggravating fact means any fact that—

(a)       the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and

(b)       the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case.

[32]     In  essence, s 24  requires facts that  are to be relied upon for sentencing, especially those that can be characterised as aggravating facts, to be accepted by the relevant parties in an agreed summary of facts, or where disputed, to be established by a disputed facts hearing.

[33]     It is reasonable to infer that the plea of guilty by the appellant was in reliance of the agreed summary of facts.  Any extraneous facts that aggravated the offending would, therefore, have to be proven beyond reasonable doubt by the prosecution.

[34]     I   consider   the   extraneous   material   in   the   prosecutor’s   submissions, particularly the parts referred to by the Judge in [4] to [6] of the sentencing notes, to be aggravating facts in terms of s 24(3).  Thus, if the prosecutor considered that this information was material to the sentencing of Mr Marshall, it should have been included in the summary of facts. Then if Mr Marshall had disputed the information, he could have sought a disputed facts hearing.  By not including the information in the summary of facts, the prosecutor deprived Mr Marshall of the opportunity to have a hearing on disputed facts that were adverse to the outcome of his sentence. This is a breach of s 24 and a procedural unfairness that constitutes a breach of the rules of natural justice.

[35]     Furthermore,  the  Judge  accepted  the  prejudicial  material  in  the  form  of evidence from the bar.   It is trite but nonetheless worth stating that without the consent of the opposing party, no counsel can give evidence from the bar.   Neither counsel who appeared before me was present at the District Court sentencing so no- one could inform me as to what objection, if any, was made by Mr Marshall’s counsel.  But even if no objection was made, I consider that the Judge should have cautioned the prosecutor for his inappropriate and procedurally unfair conduct and put him on notice that it was not to continue.   Instead, the Judge exacerbated its prejudicial  impact  on  Mr  Marshall  by  relying  on  this  material  to  arrive  at  the sentence imposed on him.

[36]     The way in which the prejudicial material came before the Judge is relevant to s 121(3) of the Summary Proceedings Act 1957 ; this provision allows this Court to quash a sentence under appeal where it was imposed without jurisdiction. To deny

someone a proper opportunity to be heard through a breach of s 24 alone entitles this

Court to set aside the sentence: see Lal’s Transport Ltd v Auckland Council.10

[37]     Moreover, here the wrongly admitted prejudicial material has influenced the Judge’s decision on the appropriate starting point to adopt.  The Judge made strong comments  to  the  effect  that  Mr  Marshall’s  offending  was  part  of  gang-related activity. Although not stated explicitly, the Judge clearly treated this as aggravating. However, the Judge was not entitled to take such a strong stance given that this information was not properly before him as it was not contained in the summary of facts. An equally available inference from the account given in the summary of facts is that Mr Marshall was a victim of gang activity, rather than an active participant in some sort of gang warfare.   I accept that there is a reasonable inference from the summary of facts that there was some element of gang-related activity, given that Mr Marshall had admitted he was arming himself to protect him and his family from a supposed “hit”, but I do not consider the inference can be made as strongly and be as aggravating as the understanding the Judge has expressed.

[38]     The Judge also refers to allegations of a woman being placed in the boot of a car, but it is unclear what account  the Judge gave to this other than mentioning it. However, whether this occurred is simply speculative. There is no such information contained in the summary of facts and so I consider it should not have been referred to in any way.

[39]     The facts of relevance are that Mr Marshall buried the gun under the mulch for easy accessibility as he felt concerned for his safety and wanted to protect his family. Those  are  the  facts  to  which  he  pleaded  guilty.    There  is  a  reasonable inference of some gang-related element but no more than that.  Also relevant, and aggravating, is the fact that the gun was found loaded.

[40]     As the starting point the Judge adopted was influenced by the prejudicial material that he erroneously took into account, it is necessary for me to look at comparable cases that might assist in ascertaining a starting point that accords with

the summary of facts.

10     Lal’s Transport Ltd v Auckland Council HC Auckland CRI-2011-404-16, 10 October 2011.

[41]     First, there is R v Richardson11 where a search warrant executed by the police revealed 3 firearms:   a Mossberg 12 gauge pump action shotgun; a military style semi-automatic AK47; and a pistol.  Three Arms Act charges were laid.  The case went to trial and the offender was found guilty of the charges in respect of the last two firearms. The s 45(1)(b) charge relating to the AK47 was the lead offence.  The sentencing Judge took a two-year starting point. The offender had said he carried the weapons as protection for himself and his family. There had been intimidation from gang members after he had been a Crown witness in a murder trial two years prior. The offender had no history of violence, but a significant criminal history. The Judge took a “merciful” approach by allowing a discount for assistance to authorities and previous history.  Nevertheless, the Court of Appeal upheld the decision.

[42]     Secondly, there is Torea v R12 where the police were called to a property the appellant was visiting. A search of the property revealed a pistol under the cushion of where the appellant had been sitting. The safety catch was disengaged and three bullets were in the chamber. One bullet was lined up in the firing position. The offender was also found in possession of ammunition. The offender was on bail at the time and had a “shocking history” of offending, both violent offending and drug dealing. A starting point of two years and six months was set, uplifted by six months for previous offending and a further two  months for breaching bail.  A 10 per cent guilty plea discount was given.   This gave an end sentence of two years and ten months’ imprisonment and a concurrent sentence of two years was imposed for the possession of ammunition.   On appeal, the Court said that the Judge correctly identified the aggravating features: firearm loaded and ready for use; firearm was kept at the appellant’s side while awaiting police; a relatively serious weapon was used;  gang overtones  were involved  and  there  was  potential  for the use of the weapon  in  that  context.  The  Court  of Appeal  did  not  think  the  sentence  was manifestly excessive.

[43]     Thirdly, there is the decision in Martel v Police,13  where search warrants were executed on a number of apartments.   The police found firearms in a very

11     R v Richardson CA450/02, 25 March 2003.

12     Torea v R [2011] NZCA 96.

13     Above n 4.

discreetly hidden bag (pump action 12 gauge shotgun, Remington .223 calibre scope rifle, and Marlin 30/30 calibre lever-action rifle).  The shotgun was loaded with four rounds in its magazine; there was an empty magazine attached to the Remington; and the Marlin magazine contained four rounds of ammunition.  Ammunition was also found.  One charge was laid under the Arms Act for all three weapons.  Mr Martel pleaded guilty and claimed he did not know of the contents of the bag, simply that his associates had asked him to hide it.  The starting point taken was two years and six months. This was influenced by the fact that there had been modifications to the weapons  and  the  Court  of Appeal’s  comments  in  recent  times  pointing  to  the seriousness of such offences. The High Court dismissed the appeal against sentence.

[44]     I am mindful of the comments of the Court of Appeal in Richardson at [33]:

Loaded firearms are anathema within our community. Every Court has a clear obligation to impose sentences which in unequivocal terms express society’s condemnation of their availability because of the potential for danger from their possession.

[45]     I  am  also  mindful  of  the  presence  of  at  least  a  limited  degree  of  gang influence and the fact that there were live rounds in the shotgun.  Mr Marshall argues that a starting point of 18 months’ imprisonment was appropriate.  I agree; I consider the offending on the Arms Act charge here is less serious than that of all three cases above.  There was only one firearm.  It was hidden and not on Mr Marshall’s person or close within his reach at the ready. It was loaded, which does aggravate the offending, but not to the extent of the other cases. Accordingly, I believe a starting point of 18 months’ imprisonment is appropriate.

[46]     It is clear that Mr Marshall has a significant history of previous offending which includes burglary, drug offending, threatening to kill, and injuring with intent to injure. He has spent a significant period of time in prison.  I believe an uplift of three months is justified to reflect the previous offending. Anything greater than that would  amount  to  the  imposition  of  a  double  penalty  for  the  earlier  offending. Mr Marshall committed these offences while on bail. As I consider a further uplift of three months is justified to reflect this the sentence before mitigating factors are taken into account comes to 24 months’ imprisonment.

[47]     Mr Marshall pleaded guilty at the earliest opportunity.  In Hessell v R14  the

Supreme Court stated that a guilty plea at this time could result in a discount of up to

25 per cent.   No-one has advanced any persuasive reason for why Mr Marshall should receive less than a 25 per cent discount.  Since the Sentencing Act provides that a Court should impose the least restrictive sentence, I can see no reason in the absence of reason to the contrary to apply anything less than a 25 per cent discount. I consider it would be arbitrary to do otherwise.

[48]     There is also the question of Mr Marshall’s assistance to the police, since had he not informed them about the firearm and its whereabouts this offence may not have been discovered.  Certainly the evidence that the respondent’s counsel drew to my attention shows that the police search of Mr Marshall’s property had not led to the firearm being found.  There is also the question of Mr Marshall’s expression of remorse which although not accepted by the pre-sentence report writer was pressed at the hearing before me.   I consider that Mr Marshall deserves  a 10  per cent discount for being so forthcoming to the police and to reflect some feelings of remorse which I accept he holds.  This brings the total discount to 35 per cent, which leads to an end sentence on the Arms Act offence of approximately 16 months.

Drug offending

[49]     As I stated above, I consider the drug offending charges should be served cumulatively.    The  offending  was  at  the  low  end  of  the  scale;  nonetheless  the sentence of imprisonment on the Arms Act charge means that there is no other option for the drug offending but to impose a sentence of imprisonment.  Mr Marshall did not address any argument regarding this matter.

[50]     The Judge adopted concurrent sentences with a four month uplift for the drug offending and offending while on bail.   I have already made allowance for the offending while on bail as an aggravating factor relating to Mr Marshall which justified an uplift in the Arms Act sentence.  No-one addressed how I should deal with the drug offending.  Mr Marshall has a history of drug offending.  I consider a starting point of three months’ imprisonment for the class A offending with an uplift

to four months to reflect the class C drug offending and his previous offending is appropriate.   I consider a 25 per cent discount, to reflect the early guilty pleas, is appropriate, which brings the sentence back to three months’ imprisonment.  Whilst three months’ imprisonment is appropriate for the class A drug offence, for the class C offence it would amount to imposing the maximum penalty when the offending is not at that level.  I consider that concurrent sentences of three months’ imprisonment for the class A drug offending and one month’s imprisonment for the class C drug offending  are  appropriate  sentences.     These  concurrent  sentences  would  be cumulative on the sentence for the Arms Act offending.

[51]     There remains the offending of breach of prison conditions.  I consider that there is no reason to differ from the approach the Judge adopted here, which was to convict and discharge Mr Marshall on this offending.

Totality

[52]     The  16  months’  imprisonment  for  the  Arms  Act  offending,  and  the cumulative  three  month  sentence  for  the  class A drug  offending  leaves  a  total sentence of 19 months’ imprisonment.  I consider that this total sentence accurately reflects the totality of the offending and no adjustment is needed in that respect.  The outcome of the process I have followed is a total sentence of 19 months’ imprisonment instead of the sentence of 22 months’ imprisonment that the Judge imposed.   I consider that the difference in result is such as to make the sentence imposed in the District Court one that is manifestly excessive.

[53]     This is especially the case here because the Judge reached a sentence that was manifestly excessive through a failure to follow a correct sentencing process.  The process established by the Court of Appeal in R v Taueki15  requires the sentencing Judge to identify a starting point that represents the seriousness of the offending, then to make an uplift to reflect any aggravating features of the offender such as additional offending or criminal history and only then to discount for mitigating

factors such as an early guilty plea and co-operation with the police.

[54]     Here the Judge made the following errors:

(a)      He incorporated factors relevant to the offending and the offender in setting the starting point (see [7] and [8] of the sentencing notes);

(b)The uplift of four months came after the guilty plea discount.  Thus the discount for mitigating factors was not as great as it would have been had it been applied in the correct order.

(c)      The uplift was seemingly for totality but this is not explicitly made clear.  The uplift also includes an apparent breach of bail which goes more to an aggravating feature of the offending than the aspect of totality;

(d)The   sentences   imposed   for   the   drug   offending   were   imposed concurrently. This is despite the offending being of a different type from firearm possession and occurring more than two months earlier.

[55]     Failure to follow appropriate sentencing process will not always result in a sentence being overturned on appeal.   Ultimately the appellate court looks at the final outcome.  If it is within the range of sentences it will stand.  Often whether the failure to  follow  a proper sentencing process  has  resulted  in  a sentence that  is manifestly excessive can only be shown by analysing what the likely outcome might have been had a proper process been followed.   Here, I consider the difference is enough for the appeal to be allowed.

Conclusion

[56]     I am satisfied that for a number of reasons Mr Marshall has established the basis for an appeal against sentence as provided for in s 121(3) of the Summary Proceedings Act.  The sentences imposed in the District Court are quashed.  In their place Mr Marshall is sentenced as follows:

(a)      On the offence under s 45 of the Arms Act he is sentenced to 16 months’ imprisonment;

(b)On  the  offence  under  s  7  of  the  Misuse  of  Drugs Act  involving possession  of the class A controlled  drug methamphetamine he is sentenced to three months’ imprisonment cumulative on the sentence imposed for the Arms Act offending.   He is also sentenced to one months’ imprisonment on the class C drug offending concurrent with the sentence for the class A drug offending;

(c)      On the offences of breach of prison release conditions he is convicted and discharged.

Duffy J