Neil Harris (a pseudonym) v Regina

1. [1]

   GLEESON JA: I agree with N Adams J.

2. [2]

   HARRISON J: I agree with N Adams J.

3. [3]

   N ADAMS J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon him by his Honour Judge Wilson SC in the District Court at Sydney on 8 June 2018.

4. [4]

   On 20 December 2017, the applicant pleaded guilty to two counts of supplying a pistol to a person not authorised to possess it contrary to s 51(1A) of the Firearms Act 1996 (NSW) and one count of not keeping a firearm safely under s 39(1)(a) of the Firearms Act. The maximum penalty for an offence contrary to s 51(1A) of the Firearms Act is 20 years imprisonment and a standard non-parole period of 10 years is applicable. The maximum penalty for an offence contrary to s 39(1)(a) of the Firearms Act is two years imprisonment.

5. [5]

   His Honour sentenced the applicant under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) to an aggregate sentence of 5 years imprisonment with a non-parole period of 3 years and 6 months. The sentence was imposed to commence on 8 June 2018 and expire on 7 June 2023. The indicative sentence for each of the two offences contrary to s 51(1A) of the Firearms Act was 3 years. In relation to the offence contrary to s 39(1)(a), the applicant was placed on a bond for 12 months under (then) s 10 of the Sentencing Act. Although not expressly stated in the Notice of Appeal, the applicant did not make any complaint concerning the sentence imposed on count 3; only the aggregate sentence imposed for the two s 51(1A) offences. I propose to proceed on the basis that the appeal only concerns that aggregate sentence.

6. [6]

   The applicant relies upon three grounds of appeal:

   1. (1)

      Ground 1: The sentence proceedings were affected by procedural unfairness constituting an error of law in that the learned sentencing judge led the applicant to understand that a certain course would be adopted, but in the event a sentence was imposed on the basis of a different course, adverse to the applicant, without the applicant being afforded an opportunity to be heard in the matter.

   2. (2)

      Ground 2: The learned sentencing Judge erred in law when assessing the objective seriousness of the offending by taking into account evidence that the applicant was aware that the person to whom he supplied the pistols was a person whom he knew was engaged in criminal activity.

   3. (3)

      Ground 3: The aggregate sentence is manifestly excessive.

7. [7]

   At the hearing of this application, senior counsel for the applicant sought orders that: the court be closed, a non-publication order made and the applicant be provided with a pseudonym. Although the Crown did not oppose the non-publication orders sought or the use of the pseudonym, there was opposition to the court being closed. After further submissions Gleeson JA, with whom Harrison J and I agreed, made all the orders sought. In order to ensure that these orders are effective I have changed or redacted some of the names and descriptions in the evidence. I am satisfied that doing so provides an appropriate balance between the safety of the applicant and principles of open justice: Darren Brown (a pseudonym) v R (No 2) [2019] NSWCCA 69.

Facts

1. [8]

   The applicant was sentenced on the basis of Agreed Facts. His Honour described those facts in his reasons for sentence as follows:

Proceedings on Sentence

1. [9]

   The Crown relied upon a bundle of documents on sentence which comprised, inter alia, the court attendance notices, Agreed Facts, and criminal history. A confidential affidavit was also tendered and marked Exhibit B. It was relevant to the sentencing judge’s consideration of s 23 of the Sentencing Act.

2. [10]

   The offender relied upon a character reference from his employer and a forensic psychologist’s report from Jason Borkowski of “Psychwest” Psychology & Consulting Group dated 12 March 2018. Although the Crown had requested that Mr Borkowski be available for cross-examination, he was not able to attend court that day. In order to avoid an adjournment, it was conceded on behalf of the applicant that only limited weight could be given to certain identified aspects of the report.

3. [11]

   Written submissions of the Crown and the offender as well as sentencing statistics were also provided to the court.

4. [12]

   The applicant’s personal circumstances were set out in the report of Mr Borkowski. The applicant came to Australia with his family as a refugee in 1989 when he was five years of age. His parents set up a small business. He described his father as an angry person with gambling problems who would physically and verbally abuse the other family members. He reported having a close relationship with his mother. He moved out of home when he was 25 years of age and moved in with his wife and her family. When that marriage ended in 2017 he moved back with his parents. He currently lives with his parents, sister, brother and brother’s children.

5. [13]

   Mr Borkowski noted that the applicant’s work history involved several “odd jobs” and then a more permanent position in the transport industry. During his time in the transport industry, the applicant established a successful business and maintained financial stability but when he lost his first full-time contract, he resorted to gambling to try to meet his financial needs. There was another decline in the transport industry after his marriage and he was unable to make enough money to support his family. The applicant then attempted to run a business selling food at local markets but he was still unable to meet the financial expectations of his now ex-wife and her family. He said that his gambling increased at this time. From March 2017, the applicant has been employed with a timber supplies company in a sales and transport role.

6. [14]

   The applicant explained to Mr Borkowski that he had accumulated gambling debts of approximately $100,000. He had ended up owing this money to his ex-wife’s family, who paid his original debts. He stated that some of his “former associates” offered him a chance to recoup some money by selling guns. He said that at this time he was “willing to do anything for money”. The applicant further stated that he was in a “dark place” due to the breakdown of his marriage.

7. [15]

   Mr Borkowski assessed the applicant’s risk of reoffending using the Level of Service Inventory-Revised (“LSI-R”). The LSI-R is an actual assessment tool designed to identify an individual’s risks and needs with regard to recidivistic criminal behaviour. Mr Borkowski indicated that the applicant is in the low risk category for future offending. He stated that the applicant has a demonstrated ability to maintain stable interpersonal relationship and has access to prosocial support networks. Mr Borkowski further indicated that the applicant has a positive attitude towards employment and prosocial values and beliefs.

8. [16]

   Mr Borkowski also identified several factors which needed to be addressed to reduce the applicant risk of reoffending. These were his gambling disorder and emotional inability, in the form of depression, self-deprecation and lack of confidence, all of which may have an adverse impact on his ability for rational problem-solving.

9. [17]

   Mr Borkowski was of the opinion that the applicant presents with comorbid DSM-5 Disorders which are effectively able to be managed through combined Cognitive-Behavioural Therapy (“CBT”) and psychosocial intervention. He specifically recommended CBT, motivational interviewing and motivational enhancement therapy to treat the applicant’s problem gambling. Mr Borkowski further indicated that a treatment plan for anxiety and depression would be helpful for the applicant. According to Mr Borkowski, the applicant had a number of factors which placed him as a low risk for reoffending, including his willingness to accept responsibility for his actions, as well as his expressed motivation to seek relevant assistance to address his presenting psychological and criminogenic needs.

10. [18]

    The applicant gave evidence at his proceedings on sentence about, inter alia, how he came to sell the firearms to “Peter”. His (then) counsel adduced the following explanation in evidence in chief:

11. [19]

    The applicant was later cross-examined. In cross-examination he stated that one of the guns cost him $2,000 and the other “would have been $1000”. He agreed that receiving $20,000 for those pistols was a “pretty good mark-up” and not the “market rate”. When the applicant was asked whether it struck him as “odd” that someone was willing to pay $20,000 in $50 notes for these guns, he replied to the effect that he was stuck for the money (given his gambling debts) and did not think of the consequences. He gave evidence that he had not thought about what Mr Roberts was going to use the guns for.

12. [20]

    When the ODPP solicitor suggested to the applicant that he must have been at least suspicious that the guns were not going to be put to “good use”, the sentencing judge started questioning the applicant and the following exchange took place:

13. [21]

    The cross-examination continued for some time after this. The applicant was asked about his gambling problems, what other options he had to raise funds, such as obtaining loans, and the size of his gambling debt. The applicant was then re-examined by his own counsel and the following questions and answers were provided:

14. [22]

    During oral submissions on sentence, counsel for the applicant conceded that the applicant had sold the firearms to a person who was unlicensed and who he knew was criminally involved. Despite this, it was submitted that the court would consider the criminality to be towards the lower end if not at the lowest end of objective seriousness. It was submitted that an Intensive Correction Order (“ICO”) would be an appropriate sentence. It was also submitted that, as a matter of general principle, a discount for assistance to authorities could be used to reduce not only the length of the penalty but also the form of a penalty. The Judicial Commission Statistics were relied upon to show that other offenders had received non-custodial sentences for the offence under s 51(1A) of the Firearms Act.

15. [23]

    As for rehabilitation, the applicant’s counsel submitted:

16. [24]

    The sentencing judge inquired of the applicant’s counsel whether the relationship between the applicant and the purchaser of the firearms was relevant to the objective seriousness of the s 51(1A) of the Firearms Act offences and counsel conceded that it did but that this would reduce the objective seriousness, although it was accepted there were arguments “to the contrary”.

17. [25]

    During the submissions made by the ODPP solicitor his Honour inquired whether she agreed that the applicant had shown remorse and the solicitor replied that she did. The following exchange then took place:

18. [26]

    In submissions in reply the applicant’s counsel addressed the questions of assistance and the prospect of the applicant being place under supervision. She did not return to the issues of reoffending and rehabilitation.

Remarks on Sentence

1. [27]

   After setting out the Agreed Facts, his Honour went on to assess the objective seriousness of the offences and stated the following:

2. [28]

   The sentencing judge then set out the applicant’s personal circumstances in some detail including the opinion of the psychologist. The psychometric testing revealed depression, stress, anxiety, worry and trauma. His Honour noted that these findings are “hardly surprising” given the legal predicament which the offender found himself in. His Honour then stated:

3. [29]

   His Honour went on to deal with the question of remorse. He noted that the psychologist was satisfied the applicant was remorseful. His Honour noted that this evidence in that report must be approached with caution. His Honour was not satisfied that the applicant suffered a deprived upbringing “within the usual meaning of those words”.

4. [30]

   His Honour went on to find that the applicant’s prospects of rehabilitation are “poor to moderate”. His Honour based this finding on the fact that the applicant had taken no formal steps to battle his gambling addiction, although he told the court that he was not currently gambling.

5. [31]

   As for the applicant’s risk of reoffending, his Honour found that the likelihood of reoffending was “moderate”. He went on to note that this increases the need for specific deterrence.

6. [32]

   His Honour went on to refer to the purposes for sentencing as well as the need for proportionality. He was satisfied that the threshold in s 5 of the Sentencing Act was passed. He applied a combined discount of 40% to the sentence in light of his plea of guilty and assistance to authorities and imposed the aggregate sentence that I have already set out above.

Ground 1: denial of procedural fairness

1. [33]

   The applicant contended under this ground that his Honour’s finding concerning the applicant’s risk of reoffending in his Reasons “differed significantly” from the view which he clearly expressed at the hearing. It was submitted that the applicant’s counsel was afforded “no opportunity” to provide further submissions to the court on this matter prior to the imposition of sentence.

2. [34]

   It was submitted that once his Honour stated that his “impression” was that the risk of reoffending was “minimal if at all” it was legitimate for the applicant to expect that the sentence would be imposed on the basis of this “view” expressed during submissions with the ODPP solicitor. This led to the applicant being denied procedural fairness. The decisions of DL v The Queen [2018] HCA 32, Brennan v R [2018] NSWCCA 22, Baroudi v R [2017] NSWCCA 48, Button v R [2010] NSWCCA 264 and Chong v R [2017] NSWCCA 185 were relied upon in support of this ground

3. [35]

   The Crown relied upon the transcript of the proceedings on sentence I have extracted above at [21] and [25] and submitted that the transcript does not reflect that the sentencing judge expressed any concluded view in this matter. On this basis, it was submitted, the cases relied upon by the applicant could be distinguished on their facts.

Consideration – Ground 1

1. [36]

   The determination of this ground turns on whether when the sentencing judge observed to the ODPP solicitor during her submissions “My impression is that the risk of reoffending is minimal if at all”, his Honour was expressing a finding he proposed to make, or, rather, he was indicating a preliminary view and seeking further submissions on the topic. If the sentencing judge had clearly stated that he proposed to make a finding that the applicant’s risk of reoffending was “minimal if at all” and the ODPP solicitor either agreed with that finding or said nothing them, then based on the relevant principles, the applicant would have been denied procedural fairness had his Honour gone on to make a different finding.

2. [37]

   The High Court recently confirmed the relevant principle in DL v The Queen [2018] HCA 32, where the Court (Bell, Keane, Nettle, Gordon and Edelman JJ) allowed an appeal against a sentence imposed by this Court on the basis that it had, inter alia, departed from an unchallenged factual finding made by the sentencing judge without notice to the appellant. This was held to be procedurally unfair and has occasioned a miscarriage of justice: at [44].

3. [38]

   The applicant relied upon a number of decisions of this Court where this principle has been applied. I have previously considered these authorities in Rodgers v R [2018] NSWCCA 47 at [123]-[126] where I stated:

4. [39]

   In Chong v R [2017] NSWCCA 185 it was contended that the offender had been denied procedural fairness concerning the finding as to his role in the drug supply. Harrison J (with whom Basten JA and Schmidt J agreed) observed at [38]:

5. [40]

   Thus, it can be seen that in order for an applicant to establish a denial of procedural fairness, he or she needs to identify the proposed finding from which the judge departed without notice to the applicant. During the hearing of this application, senior counsel for the applicant was asked to identify where in the transcript of the proceedings on sentence it can be seen that the sentencing judge made any finding in relation to which he later resiled. Senior counsel responded:

6. [41]

   This submission highlights the difficulty with the applicant’s position on this ground and why the authorities on which he relies are of little assistance. In the present matter, the “finding” relied upon is statement to the ODPP solicitor extracted above at [38]. The transcript reflects that the ODPP solicitor made no concession in this regard and in fact sought to dissuade his Honour from making such a finding. Although it is to be accepted that the applicant’s counsel did not address on that matter any further in her submissions in reply, and that this suggests she may have been under the impression that it was unnecessary for her to do so, that does not mean that she was not provided with an opportunity to do so.

7. [42]

   I do not consider that it places too heavy a burden on a representative of an offender that when a sentencing judge states a potential favourable finding to an ODPP solicitor who then seeks to dissuade him from that to clarify the position during submissions in reply. In the present case she was afforded the opportunity to do so but did not. Although representatives may on occasion believe that the judge is “hinting” that he or she will be going in a particular direction, unless that is expressly stated it should not be presumed. The applicant’s counsel may well have been under the misapprehension that the judge had not been dissuaded from his preliminary view but it was beholden on her to make further submissions to clarify this given the attitude taken by the Crown.

8. [43]

   Although I am not satisfied that the sentencing judge resiled from any “preliminary” finding, it is not apparent to me the basis upon which the sentencing judge found the applicant’s prospects of rehabilitation to be “poor to moderate”. The applicant’s counsel had submitted, consistent with Mr Borkowski’s report that the applicant’s risk of reoffending was “low to moderate” and dependent on his ability to overcome his gambling addiction. The same submission was made regarding his prospects of rehabilitation. As I recently observed in Gibson v Regina [2019] NSWCCA 221 at [56]:

9. [44]

   Although I am not satisfied that his Honour was bound by any preliminary observation that the applicant had “minimal if any” risk of reoffending, it was a significant step to go on to find that his prospects of rehabilitation were “poor to moderate” in circumstances were the Crown did not suggest such a finding nor is there a basis for it in the report before his Honour. It would also be inconsistent with the significant assistance offered by the applicant. Although his Honour was not bound by his observation that the risk of reoffending was “minimal if at all”, I am satisfied that if he proposed to in fact make a finding that his prospects of rehabilitation were “poor to moderate” he was required to raise this with the applicant’s counsel.

10. [45]

    I would uphold this ground.

Ground 2: error in assessment of objective seriousness

1. [46]

   It was submitted that there was no mention in the Agreed Facts that the applicant knew or suspected that “Peter” was engaged in illegal activity or was “criminally active”. It was the sentencing judge who did so in circumstances where he had before him the confidential affidavit tendered by the Crown to adduce information relevant to s 23 of the Sentencing Act. That affidavit disclosed that Mr Roberts was criminally active. The judge’s questioning of the applicant set out above at [21] was based on material in the confidential affidavit and should not have been used against the applicant when the sentencing judge was assessing the objective seriousness of the offending behaviour.

2. [47]

   Reliance was placed on the decisions in R v Bourchos (2002) 133 A Crim R 413 at [99]-[100], JMS v R (2010) NSWCCA 229 at [29] and Govinddaraju v R [2011] NSWCCA 55 at [66].

3. [48]

   The Crown submitted that it was the applicant’s counsel who had introduced this topic in the first place when adducing the applicant’s evidence as to the circumstances of the offence: see above at [20]. It was in response to those questions asked by his own counsel that the sentencing judge started questioning him about his knowledge of Mr Roberts. The applicant was cross-examined on this explanation for his offending and the sentencing judge again started questioning the offender about his knowledge of Mr Roberts.

4. [49]

   It was submitted that the authorities relied upon by the applicant all pertained to the use of induced statements being taken into account in sentencing. The evidence provided by this witness was not induced. Nor, it was submitted, did the applicant’s counsel seek any limitation on the use that could be made of the confidential affidavit or object to the sentencing judge’s questions arising out of what the applicant said to police as contained in the confidential affidavit thus no error is established. Reliance was placed on the decision of this court in Zreika v R (2012) 223 A Crim R 60.

Consideration Ground 2

1. [50]

   This ground concerns the use a sentencing judge can make of material tendered in a confidential affidavit to mitigate an offender’s sentence under s 23 of the Sentencing Act, in finding the relevant facts and then using those facts to assess the objective seriousness of the offending.

2. [51]

   The confidential affidavit, Exhibit B, was in a sealed envelope on the registry file. It was provided to this court for the purposes of this ground. It was sworn by a senior police officer. It did not contain the applicant’s police statements; rather, it contained a summary of them and an assessment of their value. It was common ground that none of the statements provided by the applicant were induced.

3. [52]

   The ODPP Prosecution Guidelines define an “induced statement” in Guideline 15 in these terms:

4. [53]

   That is, an induced statement clearly states in the opening paragraph that it has been made on the basis that the information provided in it will not be used against the person making the statement in any criminal proceedings. This protection extends to a situation where an offender’s induced statement is tendered at proceedings on sentence for the purposes of s 23 of the Sentencing Act.

5. [54]

   In R v Bourchos (2002) 133 A Crim R 413 an offender’s statement of assistance had been admitted over the objection of his counsel and then used by the judge to find facts more objectively serious. On appeal to this Court, Giles JA, with whom Levine and Sperling JJ agreed, summarised the relevant principles regarding the use that can be made of evidence put before a sentencing court for the purposes of s 23 of the Sentencing Act at [99] as follows:

6. [55]

   In JMS v R (2010) NSWCCA 229 the offender gave an induced statement to police which indicated criminal conduct beyond that contained in the agreed statement of facts. Although the court was not satisfied that the induced statement had been used in the assessment of his objective criminality, Hodgson JA, with whom Price and Fullerton JJ agreed, stated at [29]:

7. [56]

   In Govindaraju v R [2011] NSWCCA 255 the Crown tendered an ‘Assessment of Assistance’ prepared by the Australian Federal Police. This report included information about where the offender stood in the hierarchy of an organisation involved in the importation of drugs, how the offender became involved and the offender's state of mind. It was tendered in a sealed envelope. It was argued that the sentencing judge erred in using the evidence to determine the role that the applicant played in the importation and thereby the objective criminality of the applicant. At [66] Hall J, with whom Bathurst CJ and Harrison J agreed, observed:

8. [57]

   These cases all concern the situation where the offender’s statements to police were induced. The question is, to what extent do these principles apply when an offender’s police statement was not induced, as in the present case? It seems to me that the answer to this question depends on the expressed position taken by the offender in each case.

9. [58]

   In the applicant’s case it seems clear that the Agreed Facts were compiled on the basis that any reference to the identity of the purchaser of the firearms would be removed. By describing the purchaser as “Peter”, the impression was given in the Agreed Facts that the offender was not aware of the full identity of the purchaser.

10. [59]

    Exhibit B was then tendered which disclosed that the applicant clearly knew not only that the identity of his purchaser was Mr Roberts, but also that Mr Roberts was “criminally active”.

11. [60]

    The transcript of the proceedings on sentence discloses that the sentencing judge, who had before him in Exhibit B the criminal background of Mr Roberts, put matters to the applicant about Mr Roberts that came solely from Exhibit B. No complaint was made by the applicant’s counsel to this approach. In fact, when his Honour inquired of the applicant’s counsel whether evidence that Mr Roberts was criminally active could be used in the fact finding process, she agreed that it could.

12. [61]

    Although the principles derived from Bourchas v R arose in the context of the use of induced statements, I am satisfied that the same caution should be exercised when any letter of assistance is tendered for the sole purposes of s 23 of the Sentencing Act. As this court noted in Bourchas v R, when an affidavit of assistance is tendered, the basis of the tender should be agreed and clearly stated and the question of whether there is any restriction on its use identified. This did not occur in this case.

13. [62]

    I am satisfied that these sentencing proceedings miscarried as a result of the way in which the confidential affidavit Exhibit B was used against the applicant in his sentence following cross-examination of the applicant by the sentencing judge based on the content of the Exhibit B.

14. [63]

    It is to be accepted, as was submitted by the Crown on this appeal, that an offender is bound by the conduct of his counsel. In Zreika v R (2012) 223 A Crim R 60 Johnson J observed at [80]:

15. [64]

    His Honour went on to observe at [81] that an application for leave to appeal against sentence to this court:

16. [65]

    Having regard to these principles, if I was satisfied that the applicant’s counsel had made a considered decision to put before the court evidence that Peter Roberts was criminally active, then the principles in Zreika v R would apply. The reason why I cannot be satisfied of this fact is that the sentencing judge did not make any inquiry at the time as to what purpose Exhibit B could be put. The procedure that the judge should have adopted was to clarify the admissibility of the contents of Exhibit B to the fact-finding exercise. This is especially so in circumstances where there was an apparent conflict between the Agreed Facts and the contents of Exhibit B. It is to be noted that, despite the apparent inconsistency, the ODPP solicitor did not refer to any of the contents of Exhibit B in her cross-examination of the applicant. She went no further than testing the applicant’s evidence that he was not even suspicious about what the guns might be used for.

17. [66]

    I would allow Ground 2 as well.

18. [67]

    In circumstances where I have found error in the sentencing process, I am required to discharge the obligation imposed by s 6(3) of the Criminal Appeal Act which provides that:

19. [68]

    Given that I am required to re-exercise the sentencing discretion having upheld Ground 1 and 2, I do not consider it necessary to go on to consider whether the sentencing was also manifestly excessive (Ground 3).

Re-sentence

1. [69]

   In exercising the sentencing discretion afresh, I do so consistent with the relevant principles as recently stated by Beech-Jones J in RO v R [2019] NSWCCA 183 at [79]-[89] (with whom Bathurst CJ and I agreed). Although there was one discrete matter in RO v R where I respectfully disagreed with his Honour, that matter does not arise in the present case (see at [123]).

2. [70]

   In determining the facts on sentence, I have put to one side the contents of the confidential affidavit, Exhibit B and confined the fact finding to the Agreed Facts tendered.

3. [71]

   Even putting to one side the contents of Exhibit B, the explanation provided by the applicant for selling the firearms was so inherently implausible that I am not satisfied of its truth on the balance of probabilities. The applicant’s explanation was that he sold two firearms with a combined value of $3,000 to “Peter” and it was proposed that Peter would just keep them for him until he was able to buy them back. The applicant’s evidence was that it was agreed that he would buy them back from Peter for $25,000 when he had the money. Why, at a time when the applicant owed $100,000 in gambling debts, he would spend $25,000 on firearms worth $3,000 was never explained.

4. [72]

   I am not satisfied on the balance of probabilities that “Peter” was going to hold the firearms for the applicant as some sort of “loan shark” and then sell them back to him at a higher price. The price differential between their $3,000 value and the purchase price of $20,000 was sufficient to put the applicant on notice that the firearms must have been going to be used for some illegal purpose. In that respect, although I have put to one side the relationship between Mr Roberts and the applicant for the purpose of assessing the objective seriousness of the offence, I am nonetheless satisfied that the applicant was at the very least reckless as to whether the firearms would be used for criminal activity.

5. [73]

   Thus, I would make a finding as to objective seriousness in the same terms as was submitted by the Crown to the sentencing judge – slightly below mid-range of objective seriousness.

6. [74]

   These were very serious offences. They carried a maximum penalty of 20 years imprisonment and a SNPP of 10 years. As the Crown submitted, the clear intention of the Firearms Act is to remove firearms from the community unless possession is expressly authorised: El Jamal [2017] NSWCCA 243 at [23], as well as to deter and punish possession of firearms: Athos v R [2013] NSWCCA 205 at [39]: Johan v R [2015] NSWCCA 58 at [121]. General deterrence is an important factor when sentencing for firearm offences given the prevalence of illegal firearms in the community: El Masri v R [2014] NSWCCA 13 at [14]. In Laspina v R [2016] NSWCCA 181 Rothman J observed at [6]:

7. [75]

   Turning to the applicant’s subjective case, I have set out his background and mental state in some detail above. It is to be noted that when he was arrested, he immediately admitted to the offences and provided assistance to the authorities. Without disclosing the contents of Exhibit B, I am satisfied that the assistance he has provided is extensive. During the hearing, counsel for the Crown was asked whether, in the event that error was established and this court came to re-sentence, she wished to be heard against the court finding that the combined value of the plea of guilty and discount for assistance to authorities would be 50% rather than the 40% found by the sentencing judge. The Crown did not wish to be heard against this finding.

8. [76]

   Insofar as the other findings made by the sentencing judge are concerned, I would not interfere with a finding of special circumstances for the reasons provided by his Honour. In relation to the applicant’s prospects of rehabilitation and risk of reoffending I would arrive at a slightly different finding to that of the sentencing judge. I would find that the prospects of rehabilitation are moderate and the risk of reoffending low to medium. Both of these matters are dependent on resolution of the applicant’s gambling problem.

9. [77]

   Having regard to all of these matters, I would propose the following orders:

   1. (1)

      The applicant be granted leave to appeal.

   2. (2)

      The appeal be allowed.

   3. (3)

      The aggregate sentence imposed by Wilson SC DCJ on the applicant on 8 June 2018 be set aside.

   4. (4)

      In lieu thereof: