Goldberg v R

1. [1]

   HOEBEN CJ at CL: I agree with Fullerton J and the orders which she proposes.

2. [2]

   WHITE JA: I have had the advantage of reading in draft the reasons for judgment of Fullerton J. Her Honour’s reasons allow me to go directly to the principal ground of appeal, namely that the sentencing judge erred in his assessment of the objective seriousness of the offence under s 51D(2) of the Firearms Act 1996 (NSW). Section 51D(2) provides:

3. [3]

   The applicant was charged with an offence under that section in that:

4. [4]

   It was an agreed fact that the four firearms of which the applicant was in possession were four prohibited pistols, one of which he had accidentally discharged on 3 November 2015 and which was the subject of a charge of firing a firearm in a public place contrary to s 93G(1)(b) of the Crimes Act 1900 (NSW).

5. [5]

   The applicant pleaded guilty at the first reasonable opportunity and was given the benefit of a 25 per cent discount on sentence. As Fullerton J observes, the offence under s 51D(2) carries a maximum sentence of 20 years’ imprisonment and a standard non-parole period of 10 years.

6. [6]

   The position initially taken by the Crown in its written submissions on sentence was that the s 51D(2) offence “… moves beyond the lower end of the scale”. The primary judge made it clear during the hearing that in his Honour’s view the case was well above the middle of the range of seriousness. This was because the applicant was holding the weapons for other criminals who were going to enter into serious crimes. In the course of submissions his Honour said that that was worse than holding the weapons for the purpose of selling them for profit.

7. [7]

   In his remarks on sentence the primary judge said:

8. [8]

   At the beginning of his remarks on sentence and again at the end of those remarks the primary judge had also described the offence under s 51D(2) as an offence of possessing three or more unregistered firearms, of which one was a prohibited pistol. His Honour said that the Form 1 offences attached to the offence of possessing the three or more firearms.

9. [9]

   The offence under s 51D(2) is not of possessing three or more unregistered firearms of which at least one is a pistol. The offence is of possessing more than three such firearms. This is material to an assessment of the objective seriousness of the offence. As Mr Game SC who appeared with Mr Barrow for the applicant submitted, it is difficult to say that the offence is above the mid-range of seriousness when the number of weapons involved is the bare minimum to meet the threshold of the offence. Moreover, as Fullerton J points out (at [78]), of the four pistols in question, one was not in working order and another fired only intermittently.

10. [10]

    I agree with Fullerton J (at [123]) that the applicant’s warehousing of the weapons for people whom he knew or believed were engaged in the commission of criminal offences was as serious as trading in unregistered firearms for profit. As Spigelman CJ said in R v Brown [2006] NSWCCA 249 at [22], the offence in s 51D is in a series of offences relating to firearms that are directed to persons who are engaged in the warehousing of firearms for sale (at [22]). This appears from the Second Reading Speech for the Firearms Amendment (Public Safety) Act 2002 (NSW) to which Spigelman CJ referred. However, the offences are not limited to being in possession of firearms for the purposes of sale. Warehousing firearms in the knowledge or belief that they will be used in the commission of crime is, as the sentencing judge said in the course of submissions, if anything more serious than holding them for sale where the purchaser might or might not use the weapons in the commission of crime.

11. [11]

    As is made clear in Fullerton J’s reasons, the evidence that the applicant knew or believed that the weapons would be used by those for whom he was holding them in the commission of crime was elicited by leading questions from the sentencing judge (at [47]). This was not a ground of appeal. Nonetheless, I have disquiet as to the way in which this evidence was obtained. It would have been better if the sentencing judge had left it to the Crown to pursue this question or had confined himself to non-leading questions. There is a real risk that an offender, knowing that he or she is shortly to be sentenced by the questioner, will feel constrained to give an answer that the questioner appears to expect. Because this was not a ground of appeal, it is unnecessary to take this aspect of the appeal further.

12. [12]

    The fact that the applicant was holding the weapons for the future use of criminals in the commission of crime certainly makes the offence serious. I do not think that on that account it takes the offence beyond the mid-range of seriousness. I think that it can be inferred that the holding of four or more unregistered weapons, one at least of which is a pistol or a prohibited firearm, would very often be for the purpose of the weapons being used in the commission of future crimes.

13. [13]

    I doubt that the primary judge impermissibly gave undue emphasis to the offending covered by the s 166 certificate, and in particular, the possession of a vast amount of ammunition. I think the primary judge was entitled to take that matter into account in assessing the context in which the weapons were held. No additional penalty was imposed in respect of the offence of possessing ammunition. But I agree with Fullerton J that in assessing the seriousness of the s 51D(2) offence the sentencing judge took into account that one of the pistols that was the subject of that offence was used to fire a round of ammunition in a suburban street. That was a separate offence for which a separate penalty was indicated prior to aggregation. Although the primary judge recognised it was important not to double-count, I think that his Honour did so. I agree with Fullerton J (at [77]) that there was a greater degree of notional accumulation than was warranted in the ultimate imposition of the aggregate sentence.

14. [14]

    Subject to these observations I agree with the reasons of Fullerton J and with the sentence that her Honour proposes.

15. [15]

    FULLERTON J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal an aggregate sentence imposed by Blackmore DCJ on 9 March 2017.

The proceedings on sentence

1. [16]

   On 24 August 2016, prior to his committal hearing, the applicant entered pleas of guilty to four offences committed between 3 November 2015 and 5 November 2015.

2. [17]

   After allowing a 25 per cent discount for the pleas of guilty the sentencing judge nominated the following indicative sentences for each of the four offences:

   1. (1)

      Discharge firearm in a public place, contrary to s 93G(1)(b) of the Crimes Act 1900 (NSW);

   2. (2)

      Against a maximum sentence of 10 years, a sentence of 3 years imprisonment was indicated.

   3. (3)

      Possess a prohibited weapon, namely knuckledusters, without a permit, contrary to s 7(1) of the Weapons Prohibitions Act 1988 (NSW);

   4. (4)

      Against a maximum sentence of 14 years and a standard non-parole period of 5 years, a sentence of 3 years imprisonment and a non-parole period of 2 years and 3 months was indicated (section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) required the indication of a non-parole period).

   5. (5)

      Possess unauthorised firearm, namely a bolt action repeat rifle, contrary to s 7A(1) of the Firearms Act 1996 (NSW);

   6. (6)

      Against a maximum sentence of 5 years, a sentence of 1 year and 3 months was indicated.

   7. (7)

      Possess more than three unregistered firearms, one of which is a prohibited pistol, contrary to s 51D(2) of the Firearms Act.

   8. (8)

      An offence under s 51D(2) of the Firearms Act carries a maximum sentence of 20 years imprisonment and a standard non-parole period of 10 years. For this offence his Honour nominated an indicative sentence of 10 years with a non-parole period of 7 years and 6 months.

3. [18]

   Four further offences on a Form 1 were taken into account in the indicative sentence nominated for the offence against s 51D(2) of the Firearms Act pursuant to s 32 of the Crimes (Sentencing Procedure) Act:

   1. (1)

      Knowingly make false statement to police, contrary to s 307B(1) of the Crimes Act;

   2. (2)

      Resist police officer in execution of duty, contrary to s 546C of the Crimes Act;

   3. (3)

      Have goods, which may reasonably be suspected of being stolen, on premises, contrary to s 527C(1)(c) of the Crimes Act; and

   4. (4)

      Possess anabolic or androgenic steroidal agent, contrary to s 16(1) of the Poisons and Therapeutic Goods Act 1996 (NSW).

4. [19]

   The applicant was sentenced to an aggregate term of imprisonment of 12 years, with a non-parole period of 9 years backdated to the date of his arrest.

5. [20]

   The applicant was also charged with possession of ammunition contrary to s 65(3) of the Firearms Act which was dealt with pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). He was convicted of that offence without the imposition of a further penalty.

The facts for sentencing purposes

1. [21]

   The offence the subject of the first count was committed on the evening of 3 November 2015 when the applicant discharged a .22 calibre pistol into his hand outside his home, severing part of his left ring finger. He attended Bankstown Hospital in the company of his wife. He told police at the hospital that he sustained the injury in a road rage incident.

2. [22]

   The following day police took a statement from the applicant. He said the road rage incident occurred near the intersection of Rookwood Road and Amy Street in Regents Park. Police attended the intersection but failed to locate any spent cartridges or other evidence in the area consistent with the applicant’s account.

3. [23]

   The statement to police was false. It gave rise to the first offence on the Form 1.

4. [24]

   At 3.00pm on 4 November 2015, police attended at the applicant’s home at 2 XX Street, Regents Park with the intention of conducting a door knock canvass. Shortly after arriving, police observed a taxi arriving at the applicant’s home. A passenger was seen to enter the house and leave shortly thereafter holding a small black bag which he placed into the front right pocket of his hoodie. Police followed the taxi. The man was searched and the black bag was retrieved. It contained a loaded gold-coloured pistol, together with several rounds of ammunition and two rings.

5. [25]

   That man was arrested. He told police that the applicant had told him that he shot himself on his driveway while racking a gun because he wanted to scare someone who had been riding a motorcycle along the street.

6. [26]

   Police subsequently recovered two telephone calls made by the applicant. In a telephone call to the man who had arrived in the taxi, the applicant provided instructions as to where he could locate the gold-coloured pistol. He was also recorded saying to his wife, “I know that they’re coming there okay! Alright, that’s why I sent someone”.

7. [27]

   On 5 November 2015 the applicant was discharged from hospital at which time police were conducting a line search of XX Street, Regents Park. On arriving at his home the applicant was spoken to by police and consented to police searching his car. He informed police that there was “something illegal in the car”. Police subsequently located a set of knuckledusters. This was the offence the subject of Count 2.

8. [28]

   Police also searched the applicant’s shoulder bag. A letter was located in the bag addressed to 1 XX Street. When questioned as to why the letter was addressed to 1 XX Street when the applicant resided at 2 XX Street, the applicant responded, “Yeah it’s a mistake”. A “for lease” sign was observed in the front yard of 1 XX Street. Police applied for a search warrant for 1 XX Street.

9. [29]

   Following the search of the applicant’s shoulder bag, the applicant was advised that police proposed to seize his mobile phone for the purpose of forensic analysis. The applicant surrendered the phone to police. Police also asked the applicant to surrender the additional phone in the front pocket of his pants. After removing the phone the applicant threw it to the ground. Police then restrained the applicant and ultimately forced him to the ground. He was arrested, conveyed to Auburn Police Station and charged with the second offence on the Form 1.

10. [30]

    At 6.50pm on 5 November 2015, police executed a search warrant at 1 XX Street, Regents Park, in the course of which they located three prohibited pistols in working order, together with a .32 calibre revolver which was missing essential parts. The applicant’s possession of these pistols gave rise to the fourth offence. In the search police also located an unregistered firearm, being a .243 Winchester calibre Tikka Model T3 bolt action repeating rifle. The applicant was not the holder of a firearms licence or permit which authorised him to possess or use firearms. The possession of the rifle was the subject of the third offence. The rifle had been reported as stolen by its registered owner following a break and enter on 8 May 2014. His possession of the rifle in these circumstances also gave rise to the third offence on the Form 1.

11. [31]

    Ammunition was located in the applicant’s vehicle, at his home, and at 1 XX Street, Regents Park. This attracted the offence dealt with by way of the s 166 certificate. Additionally, during the search of 1 XX Street, numerous vials of testosterone were located. They were the subject of the fourth offence on the Form 1.

12. [32]

    The applicant participated in an electronically recorded interview in which he denied any knowledge of the gold-coloured revolver retrieved from the man in the taxi, or why that man had attended his home. The applicant denied having ever owned a firearm. He denied ownership of the magazine clip located during the search of his home and denied having shot himself outside his home. He admitted to owning the knuckledusters, and admitted to having resisted handing over his mobile phone when requested to do so. He agreed that he was attempting to render his phone inoperable when he threw it at the ground.

The sentence hearing

1. [33]

   A statement of agreed facts was tendered at the sentencing hearing. The Crown also tendered photographs of the various firearms found in the applicant’s possession. A ballistics report identifying the distinguishing features of all four pistols the subject of the s 51D(2) offence was also tendered. They included the revolver taken from the man who had left the applicant’s house on 4 November 2015 and the three pistols located at 1 XX Street on 5 November 2015. The report included the following information in relation to the pistols:

2. [34]

   A pre-sentence report dated 7 March 2017 was prepared following an interview with the applicant and his brother. It included reference to the applicant’s criminal history, the police facts and Corrective Services records.

3. [35]

   The author of the report noted that the applicant had no prior contact with Community Corrections. He was reported to have had a stable childhood and home environment. It was noted that he was residing with his wife in Regents Park prior to his arrest, but had separated from her prior to sentence. The applicant expressed a wish to live with his parents upon his eventual release from prison. It was noted that the applicant retained the support of his parents despite his offending and the likely imposition of a lengthy term of imprisonment.

4. [36]

   In respect of his education and employment history, the applicant completed Year 10 before leaving school to pursue an apprenticeship as a panel beater. He subsequently purchased three cafes in Western Sydney which he managed. These cafes were sold after 12 months, after which the applicant purchased a warehouse from which he sold chemical cleaning products. At the time of his arrest the applicant was unemployed and living off his savings.

5. [37]

   In respect of any history of substance use, the applicant admitted to having previously used steroids, but said that he had been abstinent for a period of ten years. He denied owning the steroidal agent found in his premises.

6. [38]

   The applicant denied ownership of the four pistols seized by police on 4 and 5 November 2015, as he did the rifle the subject of the third offence (although somewhat less emphatically), but said that he would “rather go to gaol than be a snitch … always looking over my shoulder”. The author of the report considered it likely that the applicant was associating with people involved in criminal activity given his reluctance to nominate those on whose behalf he was storing the various firearms.

7. [39]

   The applicant told the author of the report that he was eager to “get on the right path” upon his release from prison, and agreed that employment and psychological counselling was integral to his rehabilitation.

8. [40]

   The applicant was assessed as being at a low/medium risk of reoffending and that he would benefit from a referral for psychological assessment and to an employment provider.

9. [41]

   The applicant tendered a letter from Mr Sam Fkiri, owner of Artstone Flooring, in which Mr Fkiri indicated that there was an offer of employment available to the applicant upon his release from prison. Mr Fkiri described the applicant as “trustworthy” and “industrious” with a commendable work ethic. The applicant had previously been employed by Mr Fkiri and had advanced to the position of team leader with a number of employees under his supervision as a foreman.

10. [42]

    The applicant also tendered a character reference from Mr James Nicopoulos, his solicitor. Mr Nicopoulos said that he has known the applicant for a period of five years, both in a social and professional capacity. He said that he regarded the applicant as one of his closest friends and, in spite of the matters with which he was charged, he believed the applicant was a person of good character, honesty and reliability. Mr Nicopoulos said that the applicant had informed him that at the time the offences were committed he was at “an all time low” and that he believed his thought processes were compromised. Mr Nicopoulos confirmed that the applicant has always been in gainful employment and that he has pursued a “number of successful business ventures” whilst caring for his sister and parents during periods of extended illness. Finally, he said that the applicant had expressed remorse for his actions and the embarrassment that he has brought upon himself, his family and the community in general.

The applicant’s evidence at the sentence hearing

1. [43]

   The applicant gave evidence at his sentence hearing. He acknowledged that he shot himself in the hand on the evening of 3 November 2015, but denied that he had been attempting to scare a motorcyclist. The reason the pistol was discharged was not further explained. An available inference arising from the ballistics report was that it discharged accidentally.

2. [44]

   The applicant gave evidence denying ownership of any of the firearms, but admitted that they were in his possession. In examination-in-chief he repeatedly denied having any intention to use any of them:

3. [45]

   The applicant said that he regarded firearms as “very dangerous” and that they “shouldn’t be in the community”. When asked by his counsel “… are you sorry for having possession of these items or what?”, he replied:

4. [46]

   As to his work history since entering custody, the applicant gave the following evidence:

5. [47]

   During cross-examination, the following questions were put by the Crown:

The findings of the sentencing judge

1. [48]

   The sentencing judge regarded the number and type of weapons in the possession of the applicant as reflecting the seriousness of his overall offending, which his Honour described as a “very serious course of conduct”. He considered the various maximum penalties that applied to each offence, and the standard non-parole period that applied to two of them, as a reflection of their seriousness. He treated the breach of s 51D(2) of the Firearms Act as the most serious of the four offences, an approach plainly open to him having regard to the maximum penalty of 20 years imprisonment against which a standard non-parole period of 10 years applied.

2. [49]

   His Honour regarded that offence as above the mid-range of objective seriousness for the following reasons:

3. [50]

   His Honour noted that the applicant was a relatively young man and that despite having separated from his wife he retained the support of his parents. He also noted that the applicant had committed no custodial infringements as a remand prisoner and that he had been offered employment upon his release from custody.

4. [51]

   His Honour regarded the applicant’s prospects of rehabilitation as difficult to assess notwithstanding that the author of the pre-sentence report assessed him to be at a low to medium risk of reoffending. In his Honour’s view, because the applicant refused to name the people with whom he was associating (being those for whom he was storing the firearms) he was exposed to the risk of being threatened upon his release from custody, thereby raising the prospect that he may be susceptible to reoffending in some unspecified way.

5. [52]

   His Honour regarded the applicant’s expressions of contrition and remorse as genuine. He also noted that the applicant had no relevant criminal record. However, he considered that the seriousness of the offences to which the applicant had pleaded guilty, together with the fact that he was storing weapons for criminals, disentitled him to a finding of good character.

6. [53]

   In that regard he said:

The sentence appeal

1. [54]

   The applicant relies on four grounds of appeal:

   1. (1)

      The sentencing judge erred in his assessment of the objective seriousness of the offence contrary to s 51D(2) of the Firearms Act (Count 4 on the indictment).

   2. (2)

      The sentencing judge erred in applying the principle of general deterrence.

   3. (3)

      The sentencing judge erred in:

   4. (4)

      The aggregate sentence is manifestly excessive.

Ground 4: The aggregate sentence was manifestly excessive

1. [55]

   It is convenient to deal with these two grounds together, it being the applicant’s contention that it was largely the result of error in his Honour’s approach to indicating the sentence for the fourth offence (including his approach to the appointment of that offending as above the mid-range) which has resulted in an aggregate sentence that is unreasonable and plainly unjust.

2. [56]

   In Hughes v R [2018] NSWCCA 2 at [86], the Court (Payne JA, RA Hulme & Garling JJ) succinctly summarised the relevant principles that apply when it is contended that a sentence is manifestly excessive as follows:

The applicant’s submissions

1. [57]

   Mr Game SC accepted that because the indicative sentences are not amenable to appeal, it is the aggregate sentence that the applicant must persuade the Court was “unreasonable” or “plainly unjust”. He submitted, however, that in an appropriate case (and, in his submission, this was one such case) an indicative sentence may be a guide to whether there is error in the imposition of the aggregate sentence. He also accepted that even were the indicative sentence the subject of the fourth offence considered to be excessive, that will not necessarily result in the Court being satisfied that the aggregate sentence is of that order (see JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [40] per RA Hulme J, with whom Hoeben CJ at CL and Adamson J agreed).

2. [58]

   Mr Game also submitted that the nominal starting point of 13 years and 4 months with a non-parole period of 10 years for the sentence ultimately indicated for the fourth offence was further suggestive of the aggregate sentence being manifestly excessive, although he also accepted that was not determinative. Mr Game submitted that utilising the nominal starting point for an individual sentence was not contrary to Elsaj v R [2017] NSWCCA 124 where at [56] Hoeben CJ at CL criticised a submission where the “starting point” of an aggregate sentence was called in aid of a ground of appeal asserting manifest excess. His Honour said:

3. [59]

   Finally, Mr Game submitted that the sentencing judge’s assessment of the objective seriousness of the fourth offence as falling above the mid-range of objective seriousness was not open on the available evidence. He submitted that the factors to which the sentencing judge referred when making that assessment were insufficient, both singularly and/or in combination, to support a finding that the offending was above the mid-range, and that the sentence indicated for that offence has resulted in an aggregate sentence that is unreasonably excessive as a result.

4. [60]

   A challenge to a sentencing judge’s assessment of where particular offending fits in a spectrum of seriousness was considered in R v KB; R v JL; R v RJB [2011] NSWCCA 190, where Bathurst CJ (with whom Buddin and Harrison JJ agreed) said:

5. [61]

   The question that arises squarely on the appeal is whether the applicant has demonstrated error in his Honour’s assessment of the objective seriousness of the offending the subject of the fourth offence as above the mid-range in circumstances where this Court is obliged to exercise caution before disturbing the discretionary assessment of objective seriousness made by a sentencing judge.

6. [62]

   In its initial submissions, prior to the sentence hearing, the Crown submitted that the offence was a serious example of a breach of s 51D(2) of the Firearms Act and that in respect of objective seriousness, it “moves beyond the lower end of the scale”. After the applicant gave his evidence, and after the sentencing judge expressed the view that it was offending well above the mid-range, the Crown revised its assessment and submitted that it was open to the sentencing judge to find the offending “moved well beyond the lowest end of the scale”.

7. [63]

   In the course of the sentencing hearing his Honour was referred to R v Lachlan [2015] NSWCCA 178; 252 A Crim R 277 in support of the applicant’s submission that the offence attracted a finding of objective seriousness within the mid-range and not “well above the mid-range” as his Honour had intimated would be his finding. In Lachlan, Gleeson JA considered a number of criteria identified in Mack v R [2009] NSWCCA 216 at [40] as bearing on an assessment of the objective seriousness of a breach of s 51D(2) of the Firearms Act as a useful indication of objective seriousness.

8. [64]

   Although Blackmore DCJ was not taken in terms to each of them, and in his sentencing remarks, delivered ex tempore, he did not refer to them in terms, these criteria have been featured in a number of cases, both before and after Lachlan, in this Court’s assessment of the objective seriousness of an offence against s 51D(2) of the Firearms Act when reviewing sentencing decisions at first instance.

9. [65]

   In this case, according to that criteria, the following analysis is available:

   1. (1)

      The number of firearms: There were four firearms in the applicant’s possession, the threshold number for the offence.

   2. (2)

      The number of firearms that were prohibited or pistols: Each of the firearms was a prohibited pistol.

   3. (3)

      The nature and type of the firearms: Two of the four firearms were in working order. A third fired intermittently, and the fourth was inoperable as it was missing certain parts

   4. (4)

      The purpose for which the firearms were in the applicant’s possession: The applicant gave evidence that all four firearms were held on behalf of people he knew were involved in criminal activity.

10. [66]

    His Honour was invited to find that, unlike in Lachlan where the firearms in the offender’s possession were his stock in trade and sold by him for profit, there was no evidence that the applicant was in possession of the pistols for any commercial purpose, or for the purpose of supplying them to anyone other than those who had the right to claim ownership of them (being people who, on his own admission, were in the criminal milieu) and, for that reason, his offending should be regarded as less objectively serious than those who profit from the trade in weapons. His Honour responded to that submission as follows:

11. [67]

    Other criteria relevant to an assessment of objective seriousness identified in Lachlan and also the subject of submissions before Blackmore DCJ included:

    1. (1)

       Any relationship between the possession of the firearms and the drug industry: There was no evidence of any such relationship or any connection with criminal offending of any particular kind.

    2. (2)

       The location of the property and the security under which the firearms were stored: The three pistols were kept at 1 XX Street where they were not securely stored. The fourth firearm (which it would seem had been kept at those premises before it was given to the man who was arrested leaving the applicant’s property) was loaded.

12. [68]

    On the appeal it was submitted that in the absence of any evidence that the applicant had any intention to use any of the firearms personally (save for the occasion on which he discharged the pistol causing injury to himself, as to which there was no reliable explanation) or to sell them, and no evidence that the firearms had ever been used in the commission of any offences or any evidence as to the ultimate use to which the pistols would in fact be put, his Honour’s view that the applicant’s possession of the pistols on behalf of people who he knew or believed were involved in the commission of serious crimes was worse than holding them for profit was not open.

13. [69]

    Mr Game submitted it is not to the point that his Honour did not repeat that view in his ex tempore sentencing remarks, or that this Court should limit itself to considering errors of sentencing principle or errors in a sentencing judge’s approach in a published sentencing judgment as the Crown submitted it should (see Dang v R [2014] NSWCCA 47 at [32]; RCW v R (No 2) [2014] NSWCCA 190; 244 A Crim R 541 at [37]; Gal v R [2015] NSWCCA 242 at [39]). Mr Game submitted his Honour’s attitude to the applicant’s admitted purpose in having possession of the pistols, and the appointment of mid-range offending because of it, leaves no room to doubt that his Honour’s strongly expressed views informed his ultimate findings of fact, including, in particular, that the offending against s 51D(2) was above the mid-range.

14. [70]

    Mr Game submitted the same must be said of his Honour’s further observations in response to the further submissions advanced on the applicant’s behalf in the sentencing hearing:

15. [71]

    Mr Game submitted that an appropriate characterisation of the applicant’s conduct was as a warehouser, and while of itself that reflected serious criminality, it was of a different order to possessing large numbers of weapons for sale or otherwise profiting from large scale supply. Moreover, it was not suggested that the applicant was involved with the people on whose behalf he held the weapons (other than as a storeman) or that he had the responsibility of holding the weapons on behalf of those with whom he was actively engaged in the commission of criminal offences.

The Crown’s submissions

1. [72]

   On the appeal, the Crown submitted that it was open to his Honour to appoint the offending the subject of the s 51D(2) offences as above the mid-range and to have indicated a sentence of 10 years imprisonment and a non-parole period of 7 years and 6 months for the following reasons:

   1. (1)

      The circumstance of aggravation in s 51D(2) is that at least one of the firearms is a pistol or prohibited firearm. In the present case all four firearms were prohibited pistols.

   2. (2)

      The gold-coloured pistol seized from the man who had visited the applicant on 4 November 2015 was fully loaded and the pistols seized on 5 November 2015 were in proximity to ammunition.

   3. (3)

      Two of the pistols were in full working order. A third was found to have an intermittent fault during the cocking and firing process with the pistol occasionally discharging without pulling the trigger.

   4. (4)

      The firearms were not stored in an appropriate manner and were easily accessible to others, including the applicant’s criminal associates.

   5. (5)

      The applicant was storing the firearms for criminal associates knowing that the firearms were to be used to commit "serious crimes".

   6. (6)

      The sentence to be indicated had to reflect the need for personal deterrence and retribution arising from the additional criminality involved in the Form 1 offences (see Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, Re [2002] NSWCCA 518; 56 NSWLR 146 at [42]).

2. [73]

   The Crown further submitted that the challenge to the aggregate sentence as excessive was not made out given that the aggregate sentence had to comprehend the totality of the applicant’s criminality in possessing and using unregistered firearms and prohibited weapons, together with the need for the aggregate sentence to denounce the offending conduct and to reflect the need for general deterrence.

3. [74]

   The Crown emphasised the importance of general deterrence as a consideration in sentencing for offences involving the possession of firearms. In R v Mahmud [2010] NSWCCA 219, RS Hulme J (Giles JA and Latham J agreeing) said (at [71]):

4. [75]

   In short, the Crown submitted that the overall gravity of the offending in the four offences which attracted the aggregate sentence of 12 years with a non-parole period of 9 years is consistent with the proper exercise of a sentencing discretion and that it is a sentence that has not otherwise been shown to be "unreasonable" or "plainly unjust" when viewed in the context of the legislative guidance afforded by the maximum penalties provided for in the Crimes Act and the standard non-parole period that applied to two of the offences pursuant to s 54 of the Crimes (Sentencing Procedure) Act, together with the limited weight that could properly have been afforded to the applicant's subjective circumstances.

Consideration of Grounds 1 and 4

1. [76]

   I am satisfied that his Honour’s assessment of the objective seriousness of the fourth offence as above the mid-range was not a finding open to him having regard to the available evidence. I am also satisfied that after appropriate consideration is given to all relevant circumstances bearing upon the commission of that offence, and after appropriate weight is afforded to the applicant’s subjective circumstances, that an indicative sentence of 10 years with a non-parole period of 7 years and 6 months was unjustifiably excessive and that the indicative sentence for that offence has been productive of an aggregate sentence that is both “unreasonable” and “plainly unjust”.

2. [77]

   Although his Honour was concerned not to sentence the applicant twice for the offending the subject of the first offence or for the offending covered by the s 166 certificate when indicating the sentence for the fourth offence, in my view he gave undue emphasis to that conduct when otherwise permissibly referring to the context of the applicant’s possession of the four pistols. This has not only impacted on his Honour’s assessment of that offending as above the mid-range, but it has resulted in a greater degree of notional accumulation than was warranted in the ultimate imposition of the aggregate sentence. For that additional reason, I am driven to the conclusion that his Honour’s assessment of the objective seriousness of the fourth count was flawed and productive of an aggregate sentence that was “unreasonable or plainly unjust”.

3. [78]

   While the applicant’s possession of pistols on behalf of people he knew were involved in a criminal milieu was an obvious feature of the offending which merited a finding that the breach of s 51D(2) of the Firearms Act was serious, in assessing the offending conduct as above the mid-range his Honour appears to have been overwhelmed by that fact without taking into account that of the four pistols in the applicant’s possession (four being the threshold number for the offence), one was not in working order and a third fired only intermittently. Further, while the failure to securely store the firearms is a material consideration in the appointment of the offending across a spectrum of seriousness, the fact that the pistols were stored in unoccupied rental premises used, it would appear, as a “safe house” for the owners of the weapons, at least militated against the risk of the firearms being accessed by anyone other than the people who he was holding them for, or their nominees.

4. [79]

   On the appeal the applicant referred to a number of authorities, not for the purpose of suggesting that there is a settled range of sentences for a breach of s 51D(2) of the Firearms Act (there being, it was conceded, too few cases for that purpose), but to reveal, in a meaningful way, the breadth of offending constituted by a breach of the prohibition against the possession of more than three unregistered pistols, and to exemplify the need for features of the offending that sometimes pull in different directions to be factored into a sentence that must ultimately be proportionate to the particular offending under consideration.

5. [80]

   This Court has considered five cases concerning breaches of s 51D(2) of the Firearms Act since Muldrock v R [2011] HCA 39; 244 CLR 120: Dionys v R [2011] NSWCCA 272; 217 A Crim R 280; El Jamal; Lachlan; Taylor v R [2013] NSWCCA 157 and Cornish v R [2015] NSWCCA 256.

6. [81]

   In Dionys the applicant pleaded guilty to:

   1. (1)

      The sale of firearms on five occasions to police undercover operatives (s 51B(1) of the Firearms Act); and

   2. (2)

      Possession of five firearms, one being a prohibited firearm (s 51D(2) of the Firearms Act).

7. [82]

   Both offences carried a 20 year maximum sentence and a 10 year standard non-parole period.

8. [83]

   179 additional offences were dealt with on a Form 1 of which 89 related to possession of unregistered firearms in a storage facility. This Court found the storage facility was, in effect, a cache of weapons maintained by the applicant for the purposes of him supplying them to others.

9. [84]

   After applying a 25 per cent discount for the pleas of guilty, an effective sentence of 15 years with a non-parole period of 10 years and 6 months was imposed. This Court reduced that sentence to 13 years with a non-parole period of 8 years and 6 months. The Court did not uphold the ground of appeal that alleged manifest excess but found error in the approach taken by the sentencing judge to the standard non-parole period and his Honour’s analysis of the facts.

10. [85]

    The non-parole period of 5 years and 6 months with a balance of term of 3 years and 6 months for the first count was left unchanged. With regard to the s 51D(2) offence charged as the second count, a non-parole period of 7 years and 6 months with a balance of term of 4 years and 6 months was imposed. Following an order for partial accumulation, a non-parole period of 8 years and 6 months was imposed with a balance of term of 4 years and 6 months.

11. [86]

    At the time of sentence Dionys was about 60 years old. He had diabetes and related eye sight problems. He also had post-traumatic stress disorder as a result of two car accidents.

12. [87]

    The primary judge found that applicant was prepared to sell firearms to anyone who was prepared to pay for them, irrespective of the use to which they might be put. He assessed objective seriousness at a very high level with the first offence above the mid-range and the second offence (including the Form 1 matters) well above the mid-range.

13. [88]

    When considering re-sentence at [67]-[68], Hoeben J described the offences as follows:

14. [89]

    In Taylor the applicant was sentenced for what the Court described as “a staggering range of criminal activity”, including:

15. [90]

    There were a number of related offences on a Form 1 taken into account.

16. [91]

    The offence contrary to s 51D(2) was referred to by RA Hulme J at [23]-[24]:

17. [92]

    The applicant had a criminal record but it was “not one of great significance”. He was on two good behaviour bonds at the time of the offending. He had been abusing ice from 2005 but had sought rehabilitation. He had a supportive family and had been a model prisoner. He was to some degree remorseful and had good prospects of rehabilitation.

18. [93]

    After reducing the sentence by 25 per cent, a non-parole period of 4 years was imposed with a balance of term of 3 years and 6 months. The primary judge was not satisfied that the applicant was selling firearms or that they were linked to drug dealing or other unlawful activity. He did find there was no innocent explanation for the applicant’s possession of them.

19. [94]

    After partial accumulation a total effective term of 12 years with a non-parole period of 8 years and 6 months was imposed.

20. [95]

    The sentence appeal was dismissed as “entirely unmeritorious” but for a technical error in the commencement date for the sentences.

21. [96]

    In El Jamal, the applicant pleaded guilty to one offence contrary to s 51D(2) involving possession of four firearms, two of which were prohibited firearms and one a prohibited pistol.

22. [97]

    A non-parole period of 4 years and 5 months was imposed with a balance of term of 2 years and 4 months. The severity appeal was dismissed.

23. [98]

    The applicant was sentenced on the basis that he was a storeman for firearms, weapons and ammunition in a storage unit at Hoxton Park in which police located the following weapons:

    1. (1)

       A shortened (stock) .22 calibre Winchester Model 69 bolt action repeating rifle. There was no serial number and no magazine. This weapon was test fired and found to be in working order. Portions of the barrel and buttstock were removed with the resultant overall length being 34.3cm. This was identified as a prohibited firearm.

    2. (2)

       A homemade .22 calibre single shot pen gun. This was test fired and was in working order. It was capable of propelling a projectile by means of an explosive. This was identified as a prohibited firearm.

    3. (3)

       A 6mm airsoft calibre Galaxy model G6 repeating pistol. This was tested and deemed to not be working due to an unknown internal fault. This was identified as a prohibited firearm.

    4. (4)

       A small silver 6.35mm calibre Webley and Scott model hammerless self-loading pocket pistol – serial number 67785. This was not working due to having a worn hammer spring. A substitute spring was inserted and it was then capable of firing. The barrel length was approximately 6cm. This was identified as a prohibited pistol.

24. [99]

    A bag in the unit also contained the items which were set out on a Form 1:

    1. (1)

       Possess ammunition without holding a license or permit (s 65(3) of the Firearms Act).

    2. (2)

       Possess a prohibited weapon, namely a flick knife (s 7(1) of the Weapons Prohibition Act).

    3. (3)

       Possess a prohibited weapon, namely a taser (s 7(1) of the Weapons Prohibition Act).

    4. (4)

       Possess a prohibited weapon, namely an extendable baton (s 7(1) of the Weapons Prohibition Act).

    5. (5)

       Possess a prohibited weapon, namely a firearm silencer (s 7(1) of the Weapons Prohibition Act).

25. [100]

    The applicant was 29 years old at the time of the offence. He had a criminal record including a sentence of imprisonment for using a weapon to intimidate. He was on bail at the time of his arrest. The applicant had a loving and caring home environment as a child however his parent’s marriage had broken down and he had abused drugs, including ice.

26. [101]

    At [34] Hoeben CJ at CL set out his reasons for rejecting a ground of appeal asserting manifest excess:

27. [102]

    In Lachlan, the respondent was re-sentenced after a successful Crown appeal against the inadequacy of a sentence incorporating a non-parole period of 3 years and a balance of term of 2 years and 3 months for a breach of s 51D(2) involving the possession of a rifle and three shotguns, each of which was a prohibited firearm. A second offence, contrary to s 7(1) of the Prohibited Weapons Act, involved the unauthorised possession of a prohibited weapon, being a stun gun. Related offences were taken into account on a Form 1. They included additional prohibited weapons (another stun gun, an extendable baton, two tasers, two pairs of knuckledusters – see Schedule 1, cll 2(17A), 2(18), 2(18A) and 2(19) of the Weapons Prohibition Act), ammunition, firearms magazines, a firearm bolt, a knife and two balaclavas. (The possession of four prohibited weapons and the ammunition constituted five of the offences on the Form 1.) The police also found two paintball guns under the bed.

28. [103]

    The facts relating to the s 51D(2) offence were as follows:

29. [104]

    The respondent was 19 years old when the offences were committed. He had experienced a disrupted childhood and had been using drugs since he was 13. He had a criminal record that included possession of a shortened shotgun. He was on a good behaviour bond for a driving offence at the time of his arrest.

30. [105]

    Gleeson JA reviewed the offence against s 51D(2) as follows:

31. [106]

    At [96] Gleeson JA concluded:

32. [107]

    A review of these authorities further fortifies my view that the first and fourth grounds of appeal have been made out and that the Court should re-sentence the applicant.

33. [108]

    I would wish to emphasise, however, that I am not persuaded that intervention is warranted merely because the sentence imposed on the applicant is different, even markedly so, from the comparative cases the applicant furnished with his written submissions, some of which I have summarised in the preceding paragraphs. I am acutely conscious that the decisions to which I have referred are not determinative of either the upper or lower limits of a sentencing discretion for a breach of s 51D(2) of the Firearms Act. My conclusion that the aggregate sentence imposed is manifestly excessive is not based on a comparison between the sentences imposed in other cases but because I am satisfied that, having regard to the overall offending and the personal circumstances of the applicant, the aggregate sentence exceeds a sentence properly available to encompass the overall criminality. As I have been at pains to emphasise, I consider that the sentencing error in the aggregate sentence is to a large extent informed by his Honour's approach to the assessment of the objective seriousness of the fourth offence.

34. [109]

    After taking into account the relatively few prohibited pistols in the applicant's possession (in contrast to the sheer number of both unregistered and prohibited weapons in the possession of Dionys and Taylor - the former unquestionably for the purposes of supply and profit and the latter an available inference even if there were no direct evidence of it) and after taking into account the considerable additional criminality revealed on the Form 1 offences in the sentence imposed on both of those offenders, I am driven to the conclusion that the aggregate sentence imposed on the applicant is unreasonably excessive. Furthermore, after taking into account what I consider to be the applicant's more favourable subjective circumstances, that he should be sentenced to a more severe sentence than each of those offenders cannot, in my view, be accounted for as legitimate exercise of the sentencing discretion that is always to be afforded a judge at first instance.

35. [110]

    I am also satisfied that the error the subject of the third ground of appeal has been established. I would not have found the error the subject of the second ground made out. However, I do not consider it necessary to do more than endorse the views of this Court earlier referred to in Mahmud at [74] in rejecting that ground.

(b) disregarding the applicant’s prior good character as provided for in s 21A(3)(f).

1. [111]

   Section 21A(3) of the Crimes (Sentencing Procedure) Act enumerates the factors which, if established by the evidence, are available to be taken into account in mitigation of sentence. They include that an offender has no significant record of previous convictions (s 21A(3)(e)), and that s/he was a person of prior good character (s 21A(3)(f)).

2. [112]

   The applicant submitted that the failure on the part of the sentencing judge to meaningfully differentiate in the passage extracted at [53] between the applicant’s absence of a criminal record and his prior good character, and to treat an absence of the former only for the purposes of determining whether he would afford any weight to the latter, was an error of sentencing principle.

3. [113]

   The applicant submitted that despite the objective seriousness of the offences to which he pleaded guilty (including some of the offences on the Form 1) and even accepting that it was open to the sentencing judge to find that the course of criminal conduct comprehended by those offences disentitled him to a positive finding that he was a person of established good character, he was nevertheless entitled to have taken into account in mitigation of sentence that he had not previously offended against the criminal law to any relevant extent.

4. [114]

   It is a settled sentencing principle that when an offender’s prior good character (whether because the offender has no prior criminal record and/or because he calls positive evidence to attest to the fact of his good character) is relied on in mitigation of penalty, the weight to be attributed to it might be diminished, even significantly diminished, when the character or type of offences for which the offender is to be sentenced demonstrates a pattern of offending (see Aoun v R [2007] NSWCCA 292). It is also accepted that the categories of offending where good character may attract little weight are not closed. In Athos v R [2013] NSWCCA 205, Price J noted that the rationale behind reducing the weight of good character in certain circumstances was discussed by Howie J in R v Kennedy [2000] NSWCCA 527 where, at [21] - [22], Howie J said:

5. [115]

   Of note, the offending being considered in Athos was the possession of a prohibited firearm. While Price J considered it inarguable that general deterrence has an important role to play in offences involving the possession of prohibited firearms, he found error in the sentencing judge’s approach to the assessment of the applicant’s good character when sentencing him for conduct of that kind. At [45] Price J said:

6. [116]

   The applicant submitted that there was nothing in the circumstances of his offending, or his criminal antecedents, which so diminished the weight of the evidence of his good character that it should be neutralised entirely. In short, it was submitted that his limited criminal record, coupled with the fact that he had not previously come to the attention of the police, having lived an apparently pro-social life as revealed in the pre-sentence report and the two character references tendered on sentence, were matters that should have been taken into account in mitigation of sentence and that his Honour erred in not doing so.

7. [117]

   The Crown submitted that the sentencing judge’s remarks do not disclose error. His Honour noted the absence of any criminal record and acknowledged its mitigating potential. The Crown further submitted that it should be assumed that his Honour took that fact into account in the synthesis of factors integral to the sentencing process, affording it the weight he considered it deserved as part of that process.

8. [118]

   I do not read his Honour’s remarks in the way contended for by the Crown. It is one thing to note that the applicant is a person without a criminal record, a fact that can inform the question whether he is of prior good character, but that is not its only significance. In Weininger v R [2003] HCA 14; 212 CLR 629 at [58]-[59], Kirby J said:

9. [119]

   Although his Honour was entitled to regard the weight of the applicant’s good character as diminished by his association with criminals in the course of the index offending, his lack of criminal antecedents was worthy of some weight as an indication that his offending was “out of character”, in turn supporting a finding that he is unlikely to reoffend, thereby reducing the need for the sentence to reflect the need for specific deterrence (see Ryan v R [2001] HCA 21; 206 CLR 267 at [29] and [34]), while also operating independently of the issue of good character in mitigation of sentence.

Re-sentence

1. [120]

   Since error has been identified, it is necessary to move to re-sentence in accordance with Kentwell v R [2014] HCA 37; 252 CLR 601. In doing so, I am obliged to make my own assessment of the facts and to take into account any developments that have occurred since sentence was imposed in the District Court. In this case, additional evidence was tendered in the form of a confidential affidavit sworn by Detective Superintendent Bennett, Commander of the New South Wales Terrorism Investigations Squad. He attached a report furnished to him by Detective Sergeant Hallett and requested the Court take into account the matters outlined in that report in the event of re-sentence.

2. [121]

   Section 23 of the Crimes (Sentencing Procedure) Act provides that a court may impose a lesser penalty than it would otherwise impose having regard to the degree to which an offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of the index offence or any other offence. In determining whether to impose a lesser penalty, and the extent of any discounted penalty, the Court is obliged to consider the following matters:

3. [122]

   Given the confidential nature of the information in the report and the views expressed by Detective Sergeant Hallett as to its utility, amongst other considerations bearing upon its “truthfulness, completeness and reliability”, it is unnecessary to do more than record that I propose to take into account the assistance the applicant has provided to police by allowing a discount of 40 per cent for each offence (that is inclusive of the 25 per cent for the pleas of guilty) in indicating the sentences on each of the four offences. In the appointment of the aggregate sentence the discount for assistance will naturally have a flow on effect.

4. [123]

   I consider the objective seriousness of the offending the subject of the fourth count as within the mid-range of offending against s 51D(2), but not exceeding it. In making that assessment I am guided by the approach taken by this Court in the authorities to which I have referred. While no single feature of the conduct which constitutes a breach of s 51D(2) of the Firearms Act is determinative of the level of objective seriousness for sentencing purposes, the number of weapons is a significant factor as is the purpose for which the weapons are possessed. I regard the applicant’s warehousing of the four pistols for people who he knew or believed were engaged in the commission of criminal offences as not relevantly different from someone who trades in unregistered firearms for profit. In each case, it is the associated risk, if not the certainty of the proliferation of weapons which renders the offending objectively serious and which requires the imposition of a sentence (calibrated referable to the maximum penalty and the standard non-parole period) of sufficient severity to deter others from similar conduct and to denounce the conduct itself. These objectives, coupled with the need to protect the community, are in conformity with the sentencing principles in s 3A of the Crimes (Sentencing Procedure) Act.

5. [124]

   On the other hand, the number of pistols in the applicant's possession is also relevant in determining his culpability in objective terms.

6. [125]

   I also consider it is appropriate that the sentences to be indicated for each of the four offences to take into account the applicant's lack of criminal record as a mitigating factor under s 21A(3)(e) of the Crimes (Sentencing Procedure) Act. I am not persuaded, however, that in the circumstances of the applicant‘s offending any significant weight attaches to the statements of Mr Fkiri and Mr Nicopoulos, each of whom gave a positive assessment of his prior good character, although I would not discount his previous good character entirely. I am, however, of the view that the applicant currently has demonstrated prospects of rehabilitation which can be fairly described as reasonable with what I am prepared to accept is a gathering insight into his offending as he continues to serve his sentence, reflected in the assistance he has provided to the authorities.

7. [126]

   The combined weight of these factors has been accounted for in the appointment of each of the indicative sentences in the following table:

8. [127]

   In applying the principle of totality, and conscious of the need for the reduction in the indicative sentences for the applicant’s assistance not to be productive of an aggregate sentence that is unreasonably disproportionate to the nature and circumstances of those offences, I propose an aggregate sentence of 8 years and 6 months comprised of a non-parole period of 6 years and 4 months and a balance of term of 2 years and 2 months.

Orders:

1. [128]

   I propose the following orders: