Jones (a pseudonym) v R

1. [1]

   BASTEN JA: I agree with Davies J.

2. [2]

   DAVIES J: The applicant was charged with the following offences:

3. [3]

   The applicant pleaded guilty to these offences in the District Court on 25 September 2018, at about the time his trial was due to commence.

4. [4]

   Sentence proceedings took place on 11 December 2018 and 7 February 2019 before Judge Colefax SC who sentenced the applicant on 7 February 2019: R v Jones (a pseudonym) [2019] NSWDC 40.

5. [5]

   Two offences on a Form 1 document were taken into account in relation to count 3 as follows:

6. [6]

   Judge Colefax SC sentenced the applicant to an aggregate sentence of eight years’ imprisonment commencing 1 November 2017 and expiring 31 October 2025 with a non-parole period of five years expiring 31 October 2022. The indicative sentences were as follows:

7. [7]

   His Honour discounted the sentence which he would otherwise have been imposed by 20%, made up of 15% for the plea of guilty and 5% for past assistance pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”).

8. [8]

   The applicant now seeks leave to appeal on the following grounds:

The offending

1. [9]

   On 13 October 2016 at about 11.30pm, police were conducting patrols in the suburb of Homebush, having obtained intelligence that there was a drug house operating in that vicinity. The police observed a vehicle in which the applicant was a passenger leaving the street of the suspected drug house.

2. [10]

   The police searched the vehicle on the suspicion that it may contain prohibited drugs. A Samsung Galaxy S7 mobile telephone belonging to the applicant was found and seized by the police. As a result of those events, the applicant was served with a Firearms Prohibition Order on 8 December 2016.

3. [11]

   On 16 March 2017 the police proposed to execute a Firearms Prohibition Order at the applicant’s premises at Eugowra. When the police attended the premises they were told that the applicant was at work. They then attended his place of work at Gooloogong. The police conducted a search of the applicant’s vehicle at his workplace because the applicant was behaving suspiciously in relation to his iPhone 4. The police inspected that phone and observed a number of text messages which contained references to prohibited firearms.

4. [12]

   The police then returned with the applicant to his Eugowra address, and continued with the execution of the Firearms Prohibition Order search. During the search, police located A4-sized hand sketches of firearm parts. The applicant was arrested and taken to Orange police station where he participated in an ERISP.

5. [13]

   During that interview the police found on the applicant’s phone two photographs and text messages between the applicant and various men in relation to the negotiation of the sale of six firearms for the price of $60,000. Those firearms included four 45 calibre pistols, one AK 47 assault rifle, and one Uzi with a suppressor. The applicant was to broker the supply of the firearms between persons named AA and BB, and was to receive about $20,000 for so doing. The applicant told the police in the interview that AA worked with an outlaw motorcycle gang, and he named the gang.

6. [14]

   From the photographs on the phone, a ballistics expert was able to conclude that both the Uzi and the AK 47 were, at the very least, imitations of prohibited firearms, and in that way they were prohibited weapons pursuant to the Firearms Act. The ballistic expert was unable to conclude whether the firearms were capable of being fired, or whether they were real or imitation.

7. [15]

   Those matters constituted count 1 on the indictment.

8. [16]

   During the search of the applicant’s Eugowra property on 16 March 2017, police located a black bag inside a shed on the property. Inside the bag were two metal firearm parts, later identified by a ballistics expert to be a .22 calibre pistol barrel and frame assembly.

9. [17]

   That constituted count 2 on the indictment.

10. [18]

    During the search of the applicant’s Eugowra property, police also located four A4 size hand drawn sketches of firearm parts and construction instructions. A ballistics expert identified those pages as containing handwritten instructions, illustrations and measurements relating to the manufacture of a MAC-10 styled firearm.

11. [19]

    An examination of the applicant’s Samsung Galaxy phone seized by the police on 13 October 2016 confirmed that the applicant had made searches on the internet between 3 and 13 October 2016 using search terms such as “How to make handgun plans”, “Plans to build handguns”, “Replica firearms” and “mac 10”.

12. [20]

    During the applicant’s ERISP he admitted that he had built a MAC-10 firearm and that it would have worked.

13. [21]

    That constituted count 3 on the indictment.

14. [22]

    An examination of the applicant’s Samsung phone disclosed that on 4 October 2016, he had sent a message to a person, CC, containing an image depicting a hand holding a Smith & Wesson .45 calibre pistol. The image was accompanied by a message saying, “I wish you didn’t fuck me over marv”.

15. [23]

    That constituted the offence of intimidation on the Form 1.

16. [24]

    Between 8 September 2016 and 7 October 2016 a series of text messages on one of the applicant’s phones disclosed that he was to receive various amounts of money in relation to the purchase and sale of prohibited drugs. The evidence disclosed that between those dates the applicant received some $3,100.00 into his bank account.

17. [25]

    That constituted the offence of dealing with the proceeds of crime, also on the Form 1.

18. [26]

    On 1 November 2017, the applicant was arrested as a result of the matters found on his telephone that constituted the offences on the Form 1.

Assistance

1. [27]

   After the applicant’s arrest on 16 March 2017, the applicant provided the names of persons known to him who may have access to firearms. The applicant agreed to participate in a controlled operation authority, sending text messages and making phone calls to BB in an attempt to make arrangements for the supply of firearms. The police did not oppose bail when the applicant appeared before the Local Court on 17 March for that reason.

2. [28]

   Through those text messages and phone calls, the applicant attempted to put pressure on BB to make arrangements to meet up for the purpose of supplying firearms. The applicant travelled from Eugowra to the greater Newcastle area on 1 April 2017 to meet him in an attempt to put pressure on him to source the firearms and supply them to the applicant. BB failed to meet the applicant because he had not yet sourced the firearms. Unfortunately, BB was inadvertently arrested by local police on that evening on an outstanding first instance warrant. That brought the controlled operation to an end.

3. [29]

   The police provided a letter to the Court, detailing the assistance the applicant had provided. The letter became exhibit B. It set out the matters referred to in the preceding paragraphs. It noted that the applicant also provided the names of two other persons known to him who may have access to firearms, but said that no further detailed information was provided. The letter said that the applicant made continuing communications with BB in an effort to arrange the supply of the firearms, but no further information or evidence was obtained.

4. [30]

   When setting out the information required to be considered by the Court in s 23(2) of the CSPA, the letter said this in respect of paragraph (g):

5. [31]

   It was those actions on behalf of the applicant that were put forward to the sentencing judge to obtain a discount under s 23 of the CSPA.

Sentence proceedings

1. [32]

   On the first day of the sentence hearing the Crown prosecutor tendered the Crown bundle and said there was a further matter relating to s 23 of the CSPA. His Honour asked if the matter could be dealt with in open court or whether the court needed to be closed. The applicant’s barrister said that there was no need to close the court at that stage. The letter from the police, which became exhibit B, was then tendered.

2. [33]

   When the applicant was in the witness box, the barrister led from him the following evidence concerning the assistance given:

3. [34]

   The sentence proceedings were adjourned at the completion of the applicant’s evidence in chief.

4. [35]

   When they resumed on 7 February 2019 the applicant was cross-examined, but no questions were asked in relation to the assistance provided by the applicant.

5. [36]

   The applicant’s counsel had prepared written submissions. Those written submissions, as far as they concerned the assistance, were these:

6. [37]

   After the sentencing judge had read the written submissions on behalf of the applicant, debate ensued between his Honour and the applicant’s barrister concerning the appropriate discount for the assistance. In the light of the allegations of incompetence, it is important to set out the whole of that debate.

7. [38]

   In the material tendered on behalf of the applicant, there was a report from a psychologist, Jason Borkowski. In that report, the following appeared:

8. [39]

   The matters enumerated in this ground of appeal are the complaints made by the applicant which are said to give rise to a finding of incompetence on the part of his lawyers. Affidavits were read on behalf of the applicant in relation to this ground of appeal. Those affidavits were from his Legal Aid solicitor at the time, from the barrister who appeared for the applicant before Judge Colefax, from the applicant’s present solicitor, and from the applicant himself.

9. [40]

   In the affidavit from the applicant’s solicitor who acted at the time of the sentence, the solicitor said that he received the letter just prior to Court commencing on the day of the sentence; (that should be understood as meaning the first of two days on which the sentence hearing took place). He said he was not given a copy of the letter. He was allowed to read it but did not have the opportunity to do so, he was not given an opportunity to take notes as to its content, and he did not show the letter to the applicant or explain the contents to him due to the sensitive nature of the document, and he did not have the time to do so. He said that he did not take any instructions from the applicant about the letter.

10. [41]

    The affidavit from the barrister said that he read the letter and, although permitted to take notes from it, he did not do so. He said he did not show the letter to the applicant nor explain its contents to him. He said that he was of the view that both the confidentiality of the document, and the applicant’s interests, were met by him [the barrister] having access to it. He said he did not take any instructions from the applicant about the letter.

11. [42]

    The barrister subsequently swore another affidavit, and in it he explained that the earlier affidavit was prepared only from answers to particular questions he had been asked by the applicant’s present solicitor. The further affidavit expanded on those matters. Amongst other things, the barrister’s further affidavit said this:

12. [43]

    In his affidavit read at the hearing of the appeal, the applicant set out the assistance that he said he provided to the police. In relation to the controlled operation the applicant said this:

13. [44]

    The applicant said that what he undertook to do was a seriously risky thing. He found providing assistance very stressful because the people he was associated with were dangerous. He said he was giving this assistance over about eight months and he was ‘stressed out’ the whole time. He said he was really worried he’d be caught out and his family could be hurt if things went wrong.

14. [45]

    The applicant also said:

15. [46]

    The applicant submitted that he was not told about the contents of the letter of assistance, that instructions were not taken from him about the contents, that complete evidence was not adduced from him concerning his assistance including evidence of the consequences for him of the assistance he provided, that he did not have the opportunity to give evidence about those matters in the letter with which he disagreed, and that the police officer who wrote the letter was not required to be present for cross-examination. He submitted that the lawyers’ incompetence resulted in a miscarriage of justice.

16. [47]

    The applicant submitted further the incompetence denied the applicant procedural fairness as set out in HT v The Queen (2019) 374 ALR 216 at [57].

17. [48]

    Mr Fernandez of counsel for the applicant at the hearing of the appeal identified paragraphs 12, 13, 17, 18, 19, 20 and 21 of the applicant’s affidavit read at the hearing of the appeal as the key paragraphs identifying the assistance provided by the applicant.

18. [49]

    What the applicant said in those paragraphs was as follows:

19. [50]

    The difficulty for the applicant is that what is set out in those paragraphs was, with one exception, all set out in Exhibit B. The one exception is the statement in the last sentence of paragraph 19 that “The police were going to bust in during the handover”. Nothing, however, turns on that. That would ordinarily have been the expected conclusion of the controlled operation; it adds nothing to the value of what the applicant offered and did. As the affidavit makes clear, the pressure on him came from the involvement in the operation, and the extent of his involvement was set out in Exhibit B. Further, it should be accepted that the sentencing judge understood how the controlled operation was expected to work.

20. [51]

    As Mr Crawford-Fish makes clear in his affidavit, the applicant had provided him with instructions of the assistance he offered and gave. On reading Exhibit B, Mr Crawford-Fish saw that what was contained in it accorded with the applicant’s instructions. In that way, the applicant was not sentenced on the basis of any information he was not aware of, nor was there any failure by his lawyers to obtain effective instructions from him: cf HT at [57].

21. [52]

    On the instructions the applicant had given, his troubles in custody were related to matters other than the assistance, so that the statement in the letter that the applicant would not suffer harsher conditions in custody as a consequence of the assistance was not contradicted by events. Evidence was led from the applicant about the period during which the assistance was provided. There was nothing about which to cross-examine the police officer.

22. [53]

    Mr Crawford-Fish made submissions in writing about the risk of personal harm to the applicant by reason of the assistance. He argued strongly for a discount of 20% for the assistance, but through no fault of his the sentencing judge awarded only a 5% discount. Nothing flows from the decision not to show the letter to the applicant in those circumstances.

23. [54]

    Mr Crawford-Fish made an assessment that the applicant was an unreliable witness. That was perhaps not surprising, given an exchange between the sentencing judge and the applicant on the first day of the sentence proceedings, when the applicant was unable to say why he had manufactured the prohibited firearm. The transcript reads:

24. [55]

    The critical issue, where incompetence of counsel is alleged, is not whether counsel erred, but whether a miscarriage of justice has occurred. That involved two issues; first, did counsel’s conduct result in a material irregularity, and secondly, is there a significant possibility that the irregularity affected the outcome: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [79]; see also Nauer v R [2020] NSWCCA 174 at [49] – [52]. There is the further matter of whether the alleged errors concerned forensic choices upon which there may be competing views: TKWJ at [81].

25. [56]

    In my opinion, the applicant does not demonstrate that the lawyers erred in the approach taken regarding the assistance issue. Counsel had taken instructions on the matter, he read the letter from the police, it accorded with his instructions, it did not contain information inconsistent with those instructions, there was nothing in it that required challenge in the form of cross-examination, and counsel was no doubt anxious to limit evidence from the applicant that might have detracted from that material, in the light of the barrister’s assessment of the applicant’s unreliability.

26. [57]

    Taking the material put forward on the appeal most favourable to the applicant, the applicant fails to show that any miscarriage of justice occurred as a result of the approach taken by Mr Crawford-Fish at the sentence proceedings.

27. [58]

    There was a faint suggestion made on behalf of the applicant at the hearing of the appeal that the highlighted passage (at [37] above) showed that Mr Crawford-Fish had not turned his mind to the quantification of the discount before the sentencing judge asked him about it. I do not read the exchange in that way. Rather, Mr Crawford-Fish had not considered what percentage of the discount was relevant to the future – that was the issue apparently raised by the sentencing judge with him. In any event, the subsequent exchanges show that submissions were made by him on the overall discount that should be applied. There was nothing in the material suggesting future assistance. Nothing flows from this matter.

28. [59]

    I would reject this ground.

29. [60]

    In his sentencing remarks, the sentencing judge first gave a 15% deduction for the applicant’s plea of guilty. His Honour then said:

30. [61]

    His Honour offered no reason for his assessment of the assistance at 5%, but that may be because of an exchange which had occurred with counsel earlier that day when submissions were being made. His Honour expressed a preliminary view that the assistance was not worth more than 5%. The following exchanges then occurred:

31. [62]

    The applicant submitted that his Honour’s statement that it was the value of the actual assistance that had to be regarded was a House v The King error, because it did not have regard to the other considerations in s 23.

32. [63]

    The Crown submitted that a discount to be given for assistance is within the area of the exercise of judicial discretion. Reference was made to Hutchinson v R [2014] NSWCCA 317 at [32]. The Crown submitted that it was open to the sentencing judge to regard the assistance that eventuated as limited.

33. [64]

    Section 23 of the CSPA provides:

34. [65]

    The Court is obliged to consider all of the matters in sub-s (2). To the extent that the sentencing judge’s reasons are encapsulated in the exchange set out, his Honour appears to have confined himself to the consideration in par (b) of sub-s (2). Having regard only to the value of the actual assistance does not take account of matters such as those contained in pars (c), (d) and (e).

35. [66]

    The matters about which his Honour had evidence were that the assistance was offered from the outset of his arrest when he was interviewed, that names were provided, that he took part in a controlled operation, and that some small assistance was offered in the months following the unsuccessful controlled operation.

36. [67]

    Inasmuch as his Honour focused only on paragraph (b) of sub-s (2), an error of a House v The King type is shown. It is necessary, in those circumstances, to resentence the applicant.

Re-sentence

1. [68]

   I agree with the sentencing judge’s assessment of the objective seriousness of the offending. I agree also with his Honour’s assessment of the evidence concerning the applicant’s subjective matters. Like the sentencing judge, I have reservations about the remorse expressed by the applicant where his evidence concerning his reason for manufacturing the prohibited firearm was entirely unsatisfactory, but I accept that his prospects of rehabilitation are reasonable and he would be assisted by a longer period on parole than the statutory ratio would allow.

2. [69]

   Although the plea itself came late, early admissions were made by the applicant in March 2017 which led to the assistance that was provided. In those circumstances a discount for the plea of 15% is appropriate.

3. [70]

   Having regard to the mandatory considerations in s 23 of the CSPA, I consider that a discount of 15% for the applicant’s assistance is warranted. It may be accepted that the overall result of the assistance was small, but that was no fault of the applicant. He provided names of alleged offenders, including after the time of the aborted controlled operation. He played his part in the controlled operation.

4. [71]

   That, and the provision of information, potentially placed him at personal risk. Persons who trade in firearms are serious criminals. It may be accepted, as the applicant says, that he suffered stress over an extended period because of the assistance he provided. Whilst I accept that the applicant suffered a number of assaults whilst in custody, there is no evidence to support his latterly held belief that there may have been a connection between those assaults and the assistance he provided.

5. [72]

   What the applicant told the psychologist about being assaulted in gaol is set out at [38] above. This was entirely consistent with what he told his barrister prior to the sentence proceedings (set out at [42] above – par 11 of the barrister’s affidavit).

6. [73]

   There is no evidence to suggest that what was set out in paragraph (g) of the letter of comfort (at [30] above) was not accurate. If the controlled operation had gone ahead, the applicant’s assistance would have been exposed, but the contact with whom the applicant was dealing was arrested beforehand. There was nothing in the nature of the assistance provided by the applicant to suggest that his co-operation with the police would have been known beyond those involved in the investigation.

7. [74]

   The result is that an overall discount of 30% should be accorded to the proposed sentences.

8. [75]

   In my opinion, the indicative sentences for the three offences should be:

9. [76]

   I would impose an aggregate sentence of seven years commencing 1 November 2017 and expiring 31 October 2024 with a non-parole period of four years and five months expiring 31 March 2022.

Conclusion

1. [77]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Allow the appeal.

   3. (3)

      Quash the sentence imposed by Judge Colefax SC in the District Court on 7 February 2019.

   4. (4)

      In lieu, sentence the appellant to an aggregate sentence of seven years commencing 1 November 2017 and expiring 31 October 2024 with a non-parole period of four years and five months expiring 31 March 2022.

2. [78]

   BUTTON J: I agree with Davies J.