Taylor v R

1. [1]

   HOEBEN CJ AT CL: I agree with Johnson J and the order which he proposes.

2. [2]

   JOHNSON J: The Applicant, Kelly John Taylor, seeks leave to appeal with respect to a sentence imposed at the Tamworth District Court on 11 August 2017 for an offence of possessing more than three unregistered firearms, one being a prohibited firearm, without being authorised contrary to s.51D(2) Firearms Act 1996.

3. [3]

   Following a plea of guilty, the Applicant was sentenced by his Honour Judge McLennan SC to imprisonment for four years and six months comprising a non-parole period of two years and six months commencing on 15 March 2017 and expiring on 14 September 2019 with a balance of term of two years commencing on 15 September 2019 and expiring on 14 September 2021. An offence under s.51D(2) Firearms Act 1996 carries a maximum penalty of 20 years’ imprisonment and a standard non-parole period of 10 years.

4. [4]

   The Applicant requested the sentencing Judge to take into account on sentence on a Form 1, five other offences:

Grounds of Appeal

1. [5]

   By Notice of Application for Leave to Appeal filed on 11 January 2018, the Applicant communicated the following grounds of appeal:

2. [6]

   Ground 1 was abandoned at the hearing in this Court.

Facts of Offences

1. [7]

   A Statement of Facts was tendered without objection at the sentencing hearing from which the following narrative is drawn.

2. [8]

   On 1 October 2015, police applied for and were granted a search warrant to search the property “Baroo”, Dip Road, Curlewis. At the time, the Applicant was renting and living at that property. In the week commencing 23 September 2015, the Applicant was involved in a motor vehicle accident which resulted in him receiving treatment at John Hunter Hospital where he remained as at 1 October 2015.

3. [9]

   That day, police attended the property and were granted access to the house by the landlord. During the search, police located a number of firearms and a large quantity of ammunition and other items in different places inside the house.

4. [10]

   Police located in the lounge room, a 12 gauge Franchi model 48 self-loading shotgun leaning against a wall. The shotgun was loaded with a round in the chamber.

5. [11]

   Inside a wardrobe in the bedroom, police located underneath a blanket, the following items:

6. [12]

   Police seized the firearms and ammunition. Subsequent analysis confirmed that:

7. [13]

   All firearms were test fired and were found to be in working order.

8. [14]

   Around 10.00 am on Tuesday, 6 October 2015, the Applicant attended Gunnedah Police Station where he was arrested. He participated in an electronically recorded interview in which he admitted that the firearms were his. He said that they had belonged to his father who had died the previous year. He said the firearms had never been registered, but he knew they should have been registered. He said that he never held or applied for a firearms licence, but acknowledged that he should have obtained one. When questioned about the storage of the firearms, the Applicant said that he did not think it was “that bad”. He said that he had the ammunition for a number of years and that some of it was for firearms he did not own.

9. [15]

   Following his arrest and charging on 6 October 2015, the Applicant was granted bail on these offences. He failed to appear at the Local Court on 23 February 2016 and a warrant was issued for his arrest.

10. [16]

    The Applicant was arrested on 15 March 2017 and he was refused bail. He has remained in continuous custody since that date. As will be seen, the Applicant was sentenced to a term of imprisonment for unrelated matters which commenced on 14 March 2017.

The Applicant’s Subjective Circumstances

1. [17]

   The Applicant was born in March 1957. He was 58 years old at the time of the offences and 60 years old at the time of sentence.

2. [18]

   The Applicant has a prior criminal history. On 17 July 1979, the Applicant appeared before the Burwood Court of Petty Sessions upon charges of possession of a firearm whilst unlicensed, assault and possession of a loaded firearm for which he was fined and placed on a three-year good behaviour bond under s.558 Crimes Act 1900.

3. [19]

   On 10 December 2002, the Applicant appeared before the Narrabri Local Court for offences of possession of an unauthorised firearm, not keeping a firearm safely and possession of a firearm without being licensed for which fines of $500.00 were imposed for each offence.

4. [20]

   On 11 November 2004, the Applicant was sentenced at the Newcastle District Court for offences of using an offensive weapon with intent to commit an indictable offence, assault occasioning actual bodily harm and entering a building with a firearm. The Court imposed a suspended sentence of two years’ imprisonment and three-year good behaviour bonds under s.9 Crimes (Sentencing Procedure) Act 1999. Taken into account on sentence on a Form 1, were offences of common assault and possession of an unauthorised firearm.

5. [21]

   On 11 September 2008, the Applicant appeared at the Quirindi Local Court for an offence of assault occasioning actual bodily harm for which he was fined $500.00.

6. [22]

   In addition to the offences just mentioned, the Applicant has committed between 1980 and 2015 some 10 PCA or driving under the influence offences. Further, between 1981 and 2015, the Applicant committed five offences of driving whilst disqualified or driving whilst his licence was suspended.

7. [23]

   On 16 March 2017, the Applicant appeared before the Central Local Court with respect to two offences of driving whilst disqualified (committed on 25 June 2015 and 8 November 2015) and a high-range PCA offence (also committed on 8 November 2015). For the high-range PCA offence, the Applicant was sentenced to nine months’ imprisonment commencing on 14 March 2017 with a non-parole period of six months expiring on 13 September 2017. A concurrent term of imprisonment for one month was imposed on one count of disqualified driving with the Applicant being fined on the second count.

8. [24]

   A presentence report dated 13 July 2017 was tendered at the sentencing hearing. A reference from Mr Phillip Warmoll was tendered in the Applicant’s case on sentence.

9. [25]

   The presentence report indicated that the Applicant had been married for 13 years with the marriage having ended in 2009. There was one child of the marriage. The Applicant had resided predominantly by himself on the property near Curlewis since 2009. Mr Pitcher, Community Corrections Officer, noted that he had been in contact with the Applicant’s mother who had indicated that the Applicant maintains close and supportive relationships with his family despite the fact that most of the family reside in Tasmania.

10. [26]

    For the past 40 years, the Applicant has generally been self-employed in earth moving positions specialising in irrigation work.

11. [27]

    The Applicant gave evidence at the sentencing hearing.

Some Findings by the Sentencing Judge

1. [28]

   The sentencing hearing took place at the Tamworth District Court on 4 and 11 August 2017. At the conclusion of the hearing on 11 August 2017, the sentencing Judge proceeded immediately to sentence the Applicant.

2. [29]

   In light of the grounds of appeal, it is appropriate to set out parts of his Honour’s sentencing remarks.

3. [30]

   The sentencing Judge accepted the Applicant’s evidence with respect to his use of the firearms (ROS4):

4. [31]

   His Honour referred to public safety considerations in the following way (ROS4-5):

5. [32]

   Later in the sentencing remarks, his Honour referred to the Applicant’s possession of the firearms at a semi-remote rural location (ROS7-8):

6. [33]

   The Applicant’s attitude to the offences was a significant issue on sentence. In this respect, the sentencing Judge said (ROS5-6):

7. [34]

   His Honour emphasised the need for both specific and general deterrence to be reflected on sentence (ROS6):

8. [35]

   His Honour accepted that the Applicant was a hard-working man and that he was working productively in a mentoring capacity whilst in custody. He noted, as well, the positive reference from Mr Warmoll. His Honour said (ROS7):

9. [36]

   His Honour found special circumstances (ROS8-9):

10. [37]

    His Honour concluded with the following findings before passing sentence (ROS9):

11. [38]

    His Honour then imposed the sentence referred to earlier (at [3]) taking into account the five Form 1 offences.

Ground 2 - Claim of Error in Sentencing Judge’s Approach to Public Safety

1. [39]

   Ms Rodger, counsel for the Applicant, submitted that the sentencing Judge had erroneously had regard to the aggravating factor in s.21A(2)(i) Crimes (Sentencing Procedure) Act 1999 that the “offence was committed without regard to public safety”.

2. [40]

   Counsel referred to the sentencing Judge’s comments (at [31]-[32] above) and contended that his Honour had erroneously considered public safety as an aggravating feature over and above the inherent nature of the offence itself, relying upon MP v R [2009] NSWCCA 226.

3. [41]

   Whilst acknowledging that both the location of the property and the security under which the firearms were kept were relevant matters for the Court to consider in determining the objective seriousness of the offence, it was submitted that his Honour had erred in relying upon what were said to be anecdotal assertions from the Crown with respect to the theft of firearms from rural properties.

4. [42]

   It was submitted that the sentencing Judge had fallen into error in his approach to the issue of public safety in this case.

5. [43]

   The Crown submitted that the sentencing Judge did not make a finding pursuant to s.21A(2)(i) that the offence was aggravated in that it was committed without regard for public safety. It was submitted that his Honour’s comments about public safety were not treating that aspect as an aggravating feature over and above that which was inherent in the offence itself.

6. [44]

   The Crown submitted that his Honour’s approach (at [31]-[32] above) was entirely appropriate in the circumstances of the case.

7. [45]

   As counsel for the Applicant acknowledges, it was open to the sentencing Judge to have regard to the circumstances of the offence (and the Form 1 offences) involving the possession of several firearms at a semi-remote rural property held in an insecure manner. To consider these aspects was to have regard to the particular facts of the case for the purpose of considering an appropriate sentence to be imposed.

8. [46]

   The question of public safety lies at the heart of the Firearms Act 1996. Section 3 of that Act provides:

9. [47]

   During the sentencing hearing, discussion took place between the sentencing Judge and the legal representatives for the Applicant and the Crown concerning aspects relating to the possession of firearms in a semi-remote rural location and the relevance of that issue to sentence in this case. Counsel for the Applicant made submissions with respect to the result of the gun amnesty in the New England area (T 4, 11 August 2017) and the Crown made submissions that it was open to the Court to have regard to heightened community awareness in the district with respect to the possession and storage of firearms (T10-11, 11 August 2017).

10. [48]

    The sentencing Judge raised the location of the Applicant’s property with the Applicant’s legal representatives during submissions (T9, 11 August 2017):

11. [49]

    No submission was advanced to the sentencing Judge that it was inappropriate to have regard to particular risks which flow from the possession of firearms on a property in the present circumstances. Whilst it was submitted in the District Court that the aggravating factor in s.21A(2)(i) did not exist in this case (T6, 11 August 2017), it was not argued that the sentencing Judge should disregard issues concerning public safety arising from the circumstances of the offence itself.

12. [50]

    It was entirely appropriate for the sentencing Judge to hear submissions from practitioners appearing in a country court, and to have regard to his Honour’s own knowledge as a Judge sitting regularly at a (different) country court, when it came to the determination of sentence in a case such as this. As was raised with counsel during the hearing of the application in this Court, there are examples of firearms being stolen from remote rural properties by persons engaged in criminal activities: R v Naden [2013] NSWSC 759 at [143]; R v Gino Stocco; R v Mark Stocco [2017] NSWSC 304 at [39]. The concerns expressed by the sentencing Judge in this case are borne out by cases such as these which exemplify the risk to which his Honour adverted.

13. [51]

    It is noteworthy, in any event, that his Honour accepted the submission made for the Applicant at first instance and found that the offence in this case was “towards the lower end of the range of objective seriousness” (see [37] above).

14. [52]

    I do not consider that his Honour made a finding that the aggravating factor in s.21A(2)(i) existed in this case. Rather, his Honour was considering public safety issues inherent in the Applicant’s offence for the purpose of determining the objective seriousness of the offence. So much is borne out by a fair reading of his Honour’s comments set out at [31]-[32] above.

15. [53]

    I would reject the second ground of appeal.

Ground 3 - Claim of Manifest Excess

1. [54]

   Counsel for the Applicant submitted that the sentence imposed in this case was manifestly excessive, relying in particular upon sentencing statistics viewed in conjunction with the sentencing Judge’s finding as to the objective seriousness of the offence. Whilst accepting that the Applicant’s record was such that full-time custody was appropriate, it was submitted that a sentence of the order imposed in this case was not appropriate having regard to the sentencing Judge’s finding with respect to objective seriousness.

2. [55]

   The Crown submitted that the Applicant derived no assistance from sentencing statistics nor other sentencing decisions given statements of this Court that no discernible range of sentence has emerged for s.51D(2) offences.

3. [56]

   The Crown pointed to the Applicant’s criminal history for firearm offences as well as the circumstances of the present offence as warranting a sentence of the order imposed in this case. The Crown pointed, as well, to the fact that the Applicant received the benefit of an entirely concurrent sentence for his high-range PCA and drive whilst disqualified offences.

4. [57]

   The Crown submitted that the sentence imposed in this case was not manifestly excessive.

5. [58]

   To make good this ground of appeal, it is necessary for the Applicant to demonstrate that the sentence imposed was unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 370-371 [25], [27].

6. [59]

   The offence under s.51D(2) Firearms Act 1996 may be committed in a wide range of circumstances. The issue of public safety is a factor of significance with respect to offences under this section. The purpose of s.51D is not limited to the punishment of criminals who warehouse and harbor illegal firearms. The purpose of the prohibition is broader. It extends to the stockpiling of weapons by persons without any further criminal intent: R v Cromarty (2004) 144 A Crim R 515; [2004] NSWCCA 54 at 531 [86]. This is because of the risk that a stockpile, if vulnerable, may inadvertently feed the market in the illegal supply of firearms: R v Cromarty at 531 [86].

7. [60]

   The aspects of the offence referred to by the sentencing Judge (at [31]-[32] above) were relevant to an assessment of the objective seriousness of the offence and the need for general deterrence for persons possessing firearms illegally in rural areas.

8. [61]

   The Applicant had a significant criminal history for firearm offences. As the sentencing Judge found (at [33]-[34] above), there was a particular need for specific deterrence and general deterrence in this case. Courts have a duty to impose penalties for offences involving possession of firearms that conform with the legislative intention and operate as real disincentives to persons who may be attracted to the illegal possession of firearms: R v Mahmud [2010] NSWCCA 219 at [71]; R v Lachlan (2015) 252 A Crim R 277; [2015] NSWCCA 178 at 288 [68].

9. [62]

   The location of firearms in immediate proximity to additional rounds of ammunition was relevant to an assessment of the seriousness of the offending: R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170 at 320-321 [88]. The fact that all of the firearms were in working order and none were stored securely, with several being loaded, were factors relevant to the objective seriousness of the offence: R v Lachlan at 289 [73].

10. [63]

    Also relevant to the objective seriousness of the offence was the Applicant’s knowledge of the illegality of his behaviour. Not only was he aware that he should not have the firearms in his possession, but he was also aware that, if he applied for a licence, his application would be refused because of his criminal history. The fact that the offence was committed with the Applicant having knowledge of these aspects (and thus the policy considerations behind the law) was relevant to the objective gravity of the offence: Basedow v R [2010] NSWCCA 76 at [20].

11. [64]

    I do not consider that the sentencing statistics relied upon in this case are of any real assistance. There is a relatively small pool of cases involved and they are of little utility in this case: R v Why [2017] NSWCCA 101 at [61]-[63].

12. [65]

    The Applicant’s reliance upon the sentencing schedule published by the Public Defender’s office must also be viewed with caution. There are relatively few cases and the circumstances of these cases are, of course, varied. No sentencing range for s.51D(2) offences is discernible from these cases: R v Lachlan at 287-288 [63]. Caution is also required as a number of the cases contained in the Public Defender’s schedule predate the application of a standard non-parole period for this offence: R v Middlebrook [2004] NSWCCA 49; R v Cromarty; R v Brown [2006] NSWCCA 249 and Yammine v R [2010] NSWCCA 123. I do not consider that other sentencing decisions provide any real assistance in this case: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at 74 [40]-[41].

13. [66]

    What does emerge from a number of these decisions are sentencing principles which have some general application to s.51D(2) offences, as to which mention has been made earlier (at [59]ff).

14. [67]

    The Form 1 matters in this case were not insignificant offences and it was necessary for the sentence imposed to reflect the need for personal deterrence and retribution arising from the additional criminality involved in those offences: Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 at 425-426 [22]-[23].

15. [68]

    The sentencing Judge had regard to the Applicant’s work history and the fact that he was working productively in custody and was likely to continue to have a productive working life after his release.

16. [69]

    The sentencing Judge had regard to all objective and subjective factors relevant to the determination of sentence together with broader sentencing considerations including specific and general deterrence and rehabilitation of the Applicant.

17. [70]

    It is necessary to keep in mind, as well, that the Applicant’s sentence for this offence was entirely concurrent (but for one day) with the sentence of nine months’ imprisonment, with a non-parole period of six months, imposed on 16 March 2017 for his high-range PCA and drive whilst disqualified offences. It is the case that the Applicant has received no effective additional penalty for these summary offences for which he has a history of recidivism.

18. [71]

    The sentence imposed in this case was well open to the sentencing Judge in the exercise of discretion. It has not been demonstrated that the sentence was manifestly excessive.

Conclusion

1. [72]

   The Applicant has not made good either of his grounds of appeal.

2. [73]

   I propose the following orders:

3. [74]

   PRICE J: I agree with Johnson J.