AXR (a pseudonym) v R

1. [1]

   GARLING J: I agree with the Orders proposed by Adamson J and with her Honour’s reasons.

2. [2]

   ADAMSON J: AXR (a pseudonym) (the applicant) seeks leave to appeal against the aggregate sentence imposed on him by Hock DCJ [in] 2021. The sole ground of appeal, if leave is granted, is that the aggregate sentence is manifestly excessive. The sentence imposed was an aggregate sentence of 5 years’ imprisonment with a non-parole period of 3 years. The applicant’s earliest release date is, accordingly, [in] 2024.

3. [3]

   Following pleas of guilty, the aggregate sentence was imposed for offences committed over three separate days: [the first in] 2019 (Exhibit A offences), [the second in] 2020 (Exhibit B offences) and [the third later in] 2020 (Exhibit C offences). The offences included offences under the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA) and offences of possess firearm while subject to Firearm Prohibition Order (FPO) under the Firearms Act 1996 (NSW).

4. [4]

   When the applicant committed the Exhibit B offences, he was on bail for the Exhibit A offences and was also subject to an Intensive Correction Order (ICO) which commenced [in] 2020 and expired [in] 2022. When he committed the Exhibit C offences, he was on bail for the Exhibit A and Exhibit B offences and was still subject to the ICO.

5. [5]

   The offences for which the applicant was sentenced, the applicable maximum penalties, any applicable standard non-parole periods (SNPP) and the indicative sentences are set out in the table below. As the applicant was found to have been entitled to a discount of 40% (25% for the plea of guilty and the balance for assistance), I have also included a column which sets out the indicative sentence before the discount was applied.

6. [6]

   What follows is a summary of her Honour’s narration of the circumstances of the offending by reference to the statement of agreed facts.

7. [7]

   [In] 2019, the applicant supplied MDMA contained in Cryovac packaging to a person described as a “witness”, whom her Honour inferred was either an undercover police officer or a police informant. The amount paid for the drugs was [an amount of cash].

8. [8]

   A co-offender had negotiated the supply but the co-offender told the witness that he could not do the supply and was sending the applicant (whom the witness described as “100% safe”) instead.

9. [9]

   [In] 2019, the applicant was arrested and charged with the supply offence. The applicant’s home was searched on the day of his arrest. Police found [prescription medication] and [an amount of cash]. These items are the subject of the offences in the Form 1.

10. [10]

    By reason of the applicant’s late involvement in the offence, her Honour assessed the objective seriousness of the supply offence as “low level”.

11. [11]

    [In] 2020, police conducted a FPO compliance search of the applicant's home. They found a tray containing [an amount] of cocaine of untested purity (sequence 14) and a receptacle which contained [an amount] of cocaine of 27.5% purity (sequence 13). Police also found scales, a glass dish and spoon as well as a residue of white powder. A CCTV monitor [in a specified location] was connected to a camera in the garage. A vacuum sealing machine was found inside the wardrobe.

12. [12]

    The Form 1 offences concerned the presence of [prescription medications] and a doctor’s prescription pad.

13. [13]

    Her Honour assessed the objective seriousness of sequence 13 as “just below the midrange”. In making that assessment, her Honour took into account that the indictable quantity for cocaine is 5g. The quantity involved in sequence 13 was [an amount], which was close to the threshold of 250g for a commercial quantity. Her Honour found that the objective seriousness of sequence 14 (which involved [an amount]) was “at a slightly lower level”. Although her Honour noted the items found at the applicant’s house, which indicated that he was directly involved in supply, her Honour declined to make that finding as she was not satisfied beyond reasonable doubt that he was a direct supplier. Her Honour found, as part of the assessment of objective seriousness, that the applicant was supplying not only because he was a heavy user of cocaine but also for financial gain.

14. [14]

    [Later in] 2020, police went to the applicant's home to arrest him for a breach of bail. An FPO compliance search of his home was conducted as well as a search pursuant to a warrant. Police found, under storage shelves beneath the house, two firearms. The first, a [r]ifle, was a self-loading and centre-file rifle of a type used or adapted for military purposes. It was a prohibited firearm (sequence 1) and was in working order. There was no record of the rifle ever having been registered in NSW. The second, a shotgun (sequence 3), was also in working order. It was registered to a person in [Sydney] and was listed as stolen [in] 2019. Both firearms were not secured in safes. They were not loaded.

15. [15]

    A quantity of cocaine (sequence 7) was found in a plastic bag in the garage on a bench near the applicant’s wallet. The applicant’s DNA was detected on the knot of the bag containing the cocaine.

16. [16]

    Packages and bags of ammunition were also found in a plastic container under a bench in the garage (sequence 5 on the Form 1). Some of the ammunition was suitable for use in the two firearms found under the house. An empty rifle magazine was found on the garage bench top (sequence 9 on the Form 1).

17. [17]

    It was an agreed fact (confidential exhibit I) that the firearms and ammunition had been dropped off at the applicant’s address [in] 2020 and that the applicant “intended to hand in the firearms and ammunition”. The time at which the applicant intended to do so was neither the subject of evidence nor an agreed fact. It was common ground that the applicant had already spoken to police about handing in firearms but no agreement had been made.

18. [18]

    The sentencing judge assessed the objective seriousness of the firearms offences as “at a low level of objective gravity” having regard to the fact that the applicant’s possession of the guns was “fleeting, for less than a day” and was “for the specific purpose” of handing them in.

19. [19]

    Her Honour accepted that the gravity of the offence was aggravated by the proximity of suitable ammunition but was not satisfied that the applicant had intended to place the ammunition in the firearms.

20. [20]

    Her Honour assessed the objective seriousness of the cocaine supply (sequence 7) as “at a low level” and took into account the applicant’s addiction, as well as his motive of financial gain, and the “reasonably small quantity” of the drug.

21. [21]

    The applicant was [in his late 20s] when the sentence was imposed [in] 2021. His criminal history dated from [year] and included the following convictions: break enter and steal [year]; possess unauthorised firearm (x 2), supply prohibited drug (x 2); damage property by fire or explosives (and possess ammunition on a Form 1) [year]; stalk/intimidate and have custody of offensive weapon in a public place [year]; contravene Apprehended Violence Order (AVO) [year]; and drive whilst suspended, police pursuit, dishonestly possess interfered with unique identifier (x 2) [year].

22. [22]

    The background to the offences of which the applicant was convicted in 2020 is as follows. [In] 2018, he was charged with drive whilst suspended and police pursuit. [Later in] 2018, he dealt with the proceeds of crime. [In] 2019 he committed the offences of dishonestly possess interfered with unique identifier (x 2). [In] 2019, he was charged with the offences he had committed [in] 2018 and [in] 2019.

23. [23]

    [In] 2019, he committed the Exhibit A offences. He was arrested and charged with these offences [later in] 2019. [In] 2020, he was released on bail for these offences.

24. [24]

    As referred to above, [in early] 2020, the applicant was sentenced for the offences committed [in] 2018 and [in] 2019. He was sentenced to 2 years’ imprisonment to be served by way of an ICO commencing [in] 2020 and expiring [in] 2022.

25. [25]

    [In] 2020, he committed the Exhibit B offences. He was arrested and charged on that day. At that time, he was on bail for the Exhibit A offences and subject to the ICO. [In] 2020, the applicant was released to bail on strict conditions for the Exhibit B offences.

26. [26]

    [Later in] 2020, the applicant committed the Exhibit C offences (while on bail for the Exhibit A and Exhibit B offences and while he was still subject to the ICO). He was bail refused in respect of the Exhibit C offences. [In] 2021, an order was made revoking the ICO effective from 2020. Thus, the time which the applicant spent in custody between 2020 and 2022 was referable to that sentence. By backdating the commencement date for the aggregate sentence for the Exhibits A, B and C offences, her Honour took into account the principle of totality.

27. [27]

    Her Honour found that the applicant’s criminal history disentitled him to leniency. Her Honour also found that the fact that the applicant was on conditional liberty (bail and an ICO) when he committed the Exhibit B and Exhibit C offences was an aggravating factor to be taken into account on sentence.

28. [28]

    The applicant relied on a report of [a] psychologist, dated 19 October 2021. Her Honour noted, on the basis of the report, that the applicant had had a “stable upbringing in a prosocial family” but that he had experienced learning difficulties and had been bullied at school. He left school in Year 10 to undertake an apprenticeship as a [labourer]. Although he experienced difficulty with instructions, he ultimately qualified as a [labourer].

29. [29]

    The applicant began using drugs (cannabis) at about the age of 15 and became a regular drug user by the time he was 18 when he was also using cocaine. He used drugs to reduce his anxiety.

30. [30]

    The applicant told [the psychologist] of an incident which increased his anxiety and post-traumatic stress disorder. This led to an increase in cocaine use, which resulted in substance abuse disorder. [The psychologist] also diagnosed attention deficit disorder, stress related and depressive disorder, and gambling disorder.

31. [31]

    [The psychologist] considered there to be a causal link between the applicant’s offending and his mental illnesses as his mental illnesses contributed to his drug use. Her Honour accepted [the psychologist’s] opinion and found that the applicant’s moral culpability was somewhat reduced. Her Honour, however, considered protection of the community to be an important factor.

32. [32]

    Her Honour considered that it would be unrealistic to be other than “guarded” about the applicant’s prospects of rehabilitation, which would depend on his capacity to refrain from drug use and gambling. Her Honour noted the absence of evidence to establish that, as had been submitted on his behalf, he had not taken drugs since his arrest in 2020.

33. [33]

    Her Honour accepted that the applicant’s conditions of custody were “extremely onerous” because of his past associations. Her Honour found special circumstances because of the benefit to be gained from a longer period of “intense supervision” on parole.

34. [34]

    Her Honour determined that a combined discount of 40% (for a plea of guilty and assistance to authorities) was appropriate. There is no challenge to this figure.

Consideration

1. [35]

   Whether a sentence is manifestly excessive is a conclusion and does not depend on the demonstration of patent error: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J). Since an appeal lies against the sentence imposed (in this case, an aggregate sentence), not a sentence which has been indicated pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), it is necessary to have regard to the aggregate sentence to discern whether it is manifestly excessive.

2. [36]

   However, indicative sentences are relevant, including to an assessment of manifest excess since they may reveal that an aggregate sentence is manifestly excessive as a consequence of manifest excess in the indicative sentence or sentences: JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40] (11) and (12) (R A Hulme J, Hoeben CJ at CL and myself agreeing). An excessive indicative sentence may not result in an aggregate sentence which is manifestly excessive: Kerr v R [2016] NSWCCA 218 at [114] (Bathurst CJ, Hoeben CJ at CL and Price J agreeing).

3. [37]

   Mr Odgers SC, who appeared for the applicant, argued that the indicative sentences for the firearms offences (sequences 1 and 3 for the Exhibit C offences) were excessive, thereby inflating the aggregate sentence such that it became manifestly excessive. He submitted that the assessment of their objective seriousness at a “low level” (which was based on the applicant having the firearms for the purpose of handing them to authorities), together with the applicant’s favourable subjective circumstances put each of the indicative sentences for sequences 1 and 3 outside the range of sentencing discretion.

4. [38]

   Mr Odgers relied on what he described as a “concession” made by the Crown at the sentence hearing in the highlighted passage below in the Crown’s written submissions to the sentencing judge:

5. [39]

   The written submissions of the applicant in the Court below had also highlighted the purpose and duration of the applicant’s possession of firearms. The applicant had submitted:

6. [40]

   At the proceedings on sentence, the Crown made the following oral submissions:

7. [41]

   Mr Odgers accepted that, although there had been contact between the applicant and police prior to the time at which the firearms were located at his premises, there was no agreement as to when they would be handed in and in what circumstances. However, he submitted that, in the circumstances of the firearms offences, he should not have received a sentence of even a day.

8. [42]

   I accept the Crown’s submission that, when determining the indicative sentences for the firearms offences in Exhibit C (sequences 1 and 3), her Honour was required to take into account the applicant’s significant criminal history, including for possessing firearms, the respective maximum penalties (as set out in the table), the significance of general deterrence in sentencing for firearms offences, as well as the Form 1 matters. The facts, matters and circumstances in this case mean that it is important for the Court to emphasise generally that interacting with police in such a way as to attract a discount pursuant to s 23 of the Crimes (Sentencing Procedure) Act outside a controlled operation, did not confer an immunity from either prosecution or criminal penalty. As referred to above, the time at which the applicant intended to hand in the firearms was neither the subject of evidence nor an agreed fact. Nor was there an agreement between the applicant and police as to this matter.

9. [43]

   Further, although the applicant was entitled to, and was granted, a discount pursuant to s 23 of the Crimes (Sentencing Procedure) Act (which was not challenged), her Honour was obliged by s 23(3) to ensure that the lesser penalty was not unreasonably disproportionate to the nature and circumstances of the offences.

10. [44]

    In these circumstances, I consider the indicative sentences for each of sequences 1 and 3 for the Exhibit C offences to be within the range. Thus, I do not regard the indicative sentences as tending to suggest that the aggregate sentence was manifestly excessive.

11. [45]

    Her Honour, in imposing the aggregate sentence, plainly took into account the principle of totality in three respects: first, when having regard to the sentence which the applicant was serving following the revocation of the ICO; secondly, in viewing the strict conditions of bail as amounting to quasi-custody (both of which affected the commencement date); and, thirdly, in ensuring that the criminality of the whole of the offending conduct was reflected in the aggregate sentence imposed. The aggregate sentence was, in all the circumstances, low, having regard to the nature and extent (over a period of over a year) of the criminal conduct, even taking into account the extent of the discount.

12. [46]

    Although I am wholly unpersuaded that the appeal ought be allowed, I consider that leave ought be granted because of the issues raised on behalf of the applicant concerning the implications on sentence of the circumstances surrounding the discovery of the firearms by Police.

Non-publication orders

1. [47]

   The parties and the Commissioner for Police asked this Court to defer publishing the reasons for decision to allow them the opportunity of proposing redactions to the reasons to prevent publication of the assistance given to authorities by the applicant. I propose the orders and notation set out below to address this matter.

Proposed order

1. [48]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

   3. (3)

      If either party, or the Commissioner of Police, wishes to seek any orders with respect to:

   4. (4)

      Any recipient of the filed documents who wishes to oppose the orders sought is, within ten days of receipt of the filed documents, to file and serve any affidavit and outline of submissions on the party seeking the order and the other party or parties and the Commissioner of Police, as the case may be.

   5. (5)

      Any application made in accordance with order (3) above will be determined on the papers unless the Court determines that it requires a hearing.

   6. (6)

      Note that the publication of the judgment on Caselaw will be deferred until the determination of any such application.

2. [49]

   BUTTON J: I agree with Adamson J.