Lowe v R

1. [1]

   THE COURT: The applicant seeks leave to appeal against an aggregate sentence imposed by her Honour Judge Musgrave in the District Court on 1 May 2025. The applicant pleaded guilty to four firearms charges and two drug charges. He agreed to have three further offences taken into account on Form 1 schedules, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). For the pleas of guilty the learned judge allowed a discount of 25% in arriving at each indicative sentence.

2. [2]

   The offences were all committed on 21 November 2023, when firearms, ammunition and drugs were found by police at the applicant’s home. Particulars of each matter, the respective maximum penalties and the indicative sentences nominated by her Honour are as follows:

3. [3]

   The aggregate sentence fixed by her Honour was 3 years and 9 months imprisonment with a non-parole period of 2 years and 3 months, backdated to commence from the date of arrest on 21 November 2023. The grounds of appeal for which leave is sought are as follows:

Ground 1 – Form 1 charge considered in objective gravity of principal offence

1. [4]

   Ground 1 is concerned with the manner in which the learned judge assessed the objective gravity of Seq 1, being possession without a permit of the shortened Lithgow rifle exhibit no. 3304. The impugned passage of her Honour’s remarks on sentence is as follows:

2. [5]

   The seminal decision of this Court concerning the way in which a Form 1 offence may be taken into account in sentencing for a principal offence is Attorney General's Application Under s37 of the Crimes (Sentencing Procedure) Act 1999 No1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 (the Guideline Decision). Spigelman CJ, with whom the four other members of the Court agreed, stated the following principles:

3. [6]

   The applicant cited Stephens v R [2010] NSWCCA 93 as an illustration of what he submits is the error made by the learned judge in the present case. In Stephens v R, count 2 was a sexual assault aggravated by the infliction of actual bodily harm, with three counts of sexual assault against the same victim taken into account on a Form 1. Count 3 was another aggravated offence of the same kind, also against the same victim, with Form 1 matters of take and drive a conveyance, assault with act of indecency and resist police.

4. [7]

   The sentencing judge categorised count 2 as an offence of the worst type, stating that his conclusion was confirmed by “taking into account the three sexual assault offences on the Form 1”. He held that count 3 was also of the worst type “and was aggravated by offences on the Form 1”.

5. [8]

   Fullerton J held as follows (Latham and Schmidt JJ agreeing):

6. [9]

   The applicant also cited RO v R [2019] NSWCCA 183. There, count 1 was of aggravated sexual intercourse with a child aged between 10 and 12 years. The sentencing judge’s assessment of objective seriousness took into consideration the conduct of the applicant in a Form 1 offence, which was of sexual intercourse with the same child on a different occasion. Beech-Jones J (then a judge of the Common Law Division, Bathurst CJ and N Adams J agreeing) held that the Crown had properly conceded error, which his Honour identified at two levels. The second level was as follows:

7. [10]

   In Singh v R [2021] NSWCCA 96, also relied upon by the applicant, a number of sexual offences were committed against a female victim in a single episode during which she was detained for advantage. The sentencing judge expressly treated the objective seriousness of some of the counts as aggravated by other offences that were committed during the same episode and were included on Form 1 schedules. Beech-Jones J (Bathurst CJ and Wilson J agreeing) said that the Crown had properly conceded error of the second type referred to at [57] of RO v R.

8. [11]

   In Blackett v R [2021] NSWCCA 210, when assessing the objective seriousness of a principal offence of possessing child abuse material, the sentencing judge had included in her consideration some material that was only the subject of an offence of a similar kind on a Form 1. Basten JA (Adamson and Campbell JJ agreeing) said this:

9. [12]

   Judged by those consistent reiterations of the holding in the Guideline Decision, the impugned passage of the remarks on sentence in the present case appears to disclose clear error. However, the Crown has endeavoured to support the learned sentencing judge’s approach by reference to two further judgements of Beech-Jones J, as Chief Judge at Common Law, in Ragg v R [2022] NSWCCA 150 (N Adams and Lonergan JJ agreeing) and Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 (Garling and Yehia JJ agreeing).

10. [13]

    Ragg v R did not concern the proper use of Form 1 offences. It concerned four counts of violent sexual offending against a single victim. The applicant had pleaded guilty to all charges. One contention on the application for leave to appeal was that the sentencing judge had erred in assessing the objective seriousness of each count by having regard to the others. Beech-Jones CJ at CL held that the applicant’s reliance upon RO v R and Singh v R to support that argument was misplaced. His Honour noted that in RO v R the Form 1 offence concerned “other criminal conduct committed on a different occasion” from that of the principal offence and that in Singh v R the Form 1 offence “occurred at or around the same time as the substantive offence”.

11. [14]

    His Honour held as follows:

12. [15]

    His Honour referred to LN v R [2020] NSWCCA 131, where Basten JA held that, in assessing the objective seriousness of the murder of a child, reference could be made to a series of uncharged assaults in the period preceding the murder on the basis that they provided context. In LN v R Hamill J recognised four purposes for which the uncharged assaults could be taken into account, all of which are constituents of context. The purposes are: (1) to establish that the murder was not an aberration on the part of an offender otherwise of good character; (2) to dispel any suggestion that the murder was an isolated incident; (3 )to support a finding of motive and state of mind at the time of the murder and (4) to establish that the victim was vulnerable, having been made so by the prior uncharged assaults.

13. [16]

    In Ragg v R Beech-Jones CJ at CL held that in assessing the objective gravity of a proved offence, a sentencing judge could have regard to other proved offences in the same way that uncharged matters were considered in LN v R.

14. [17]

    In Director of Public Prosecutions (NSW) v TH the Crown appealed against the inadequacy of an aggregate sentence for four sexual offences committed against the respondent’s stepson over a period of four years. There was a Form 1 in relation to each of counts 2 and 3, in each case nominating one additional sexual offence against the same victim during the same period. Beech-Jones CJ at CL held as follows (some citations omitted or abbreviated):

15. [18]

    It is clear from the above extracts that the further expositions of principle in Ragg v R and Director of Public Prosecutions (NSW) v TH provide no support for the approach taken by the learned sentencing judge in the present case. The principal offence, Seq 1, was constituted by the applicant being in possession of the Lithgow firearm exhibit no. 3304 in circumstances where it answered the description of being shortened and where the applicant had no permit. The only “facts or circumstances” of the Form 1 offence were that at the time when the applicant was in possession of that firearm its serial number was defaced. The circumstance of defacement did nothing to “place in context” the substantive offence, nor was that circumstance relevant to assessing the objective gravity of the principal offence in any of the ways contemplated either in LN v R or in any other authority on the subject.

16. [19]

    Section 66(1)(b) of the Firearms Act, under which the Form 1 offence was charged, provides for a basis of criminality quite distinct from that which was charged in the principal offence, Seq 1. Section 66(1)(b) exposes a person in possession of a firearm to punishment on account of it being defaced, whereas Seq 1 was laid under s 62(1)(b) on account of it being shortened and its possession not being authorised by permit. Her Honour’s treatment of the Seq 1 offence as aggravated by the defacement effectively made the applicant liable to punishment for a discrete offence of which he had not been convicted and which the prosecution had elected not to include on the indictment but to place on a Form 1, subject to the well-established limitations upon how that could be used on sentence.

17. [20]

    The Crown also relies upon Flick v R [2023] NSWCCA 197. The applicant in that case was sentenced on a number of counts of aggravated break enter and commit larceny, contrary to s 112(2) of the Crimes Act. The particulars were that he broke into several premises and stole the keys to luxury motor vehicles that were parked on or near the respective properties. Associated with each s 112(2) count was a Form 1 on which the applicant admitted a further offence of stealing the motor vehicle to which the stolen key belonged.

18. [21]

    Wilson J (Meagher JA and Sweeney J agreeing) held that there was no error in the sentencing judge having taken into account the stealing of the motor vehicles when assessing the objective gravity of the principal break and enter offences. At [75] her Honour said that “[in] each instance the [motor vehicle theft] offence […] that had been placed on the individual Form 1 […] was inextricably linked to the principal offence”. That statement was treated by the Crown in the present application as if it were the formulation of a standalone test or principle. That is not the effect of her Honour’s reasons.

19. [22]

    After referring to Ragg v R and Director of Public Prosecutions (NSW) v TH, Wilson J held as follows:

20. [23]

    That reasoning is a direct application of the essential principle established by LN v R, Ragg v R and Director of Public Prosecutions (NSW) v TH. The fact that in each case the vehicle stolen in the Form 1 offending was the vehicle that could be opened and driven with the key that had been obtained in the principal break and enter offence was a contextual circumstance relevant to the gravity of the break and enter. It showed that each break and enter was not perpetrated as an isolated crime. It revealed a motive for each of the principal offences, namely, that each was undertaken with a view to facilitating the commission of the further crime of motor vehicle theft.

21. [24]

    In Tukuafu v R [2024] NSWCCA 84 at [129], Huggett J (Ward P and Chen J agreeing) summed up the authorities down to and including Flick v R as establishing that where a Form 1 offence is to be taken into account in respect of the principal offence, it may be used to:

22. [25]

    In that list, point 1 comes from the Guideline Decision. Points 3-7 are all aspects of “context” as referred to in point 2. Points 2-7 derive from Ragg v R – and from LN v R as considered by Beech-Jones CJ at CL in Ragg v R. We would respectfully add that what may be used in the ways listed at points 2-7 is not the legal fact of the commission of the Form 1 offence of itself but, rather, any fact or circumstance of the Form 1 offending that may be relevant to the context etc of the principal matter. That is a distinction drawn in the passages cited at [14] and [17] above, where Beech-Jones CJ at CL referred to a Form 1 offence “per se” or “of itself”.

23. [26]

    On the present application the Crown endeavoured to persuade the Court that defacement of the serial number on the Lithgow rifle exhibit no. 3304 was “inextricably linked” to the applicant’s possession of that firearm with its shortened barrel and without a permit. The argument is unsustainable. It takes Wilson J’s phrase in Flick v R out of context and attempts to give it a field of operation beyond what her Honour could be said to have intended. The question is whether the characteristic of defacement provided relevant context for assessing the criminality of the applicant’s possession of the shortened firearm without a permit – and the answer is no, it did not.

24. [27]

    Hudson v R [2025] NSWCCA 194 is a recent example of a case like Flick v R where some of the facts and circumstances of Form 1 offending provided context that was relevant to determining the objective seriousness of the principal offence, in contrast with the present case.

25. [28]

    As the error alleged in ground 1 has been established, leave to appeal must be granted. After consideration of the other grounds it will be necessary to examine whether any lesser aggregate sentence is warranted in law. It must be said that the error was manifestly of negligible significance in her Honour’s determination of the indicative sentence for Seq 1. Proceeding in accordance with the Guideline Decision, the objective seriousness of the principal offence would not have been regarded as aggravated by the fact that the applicant possessed the firearm in a defaced condition but, on the other hand, her Honour would have had to consider an uplift in the indicative sentence to provide additional deterrence and retribution on account of the admitted Form 1 offence.

26. [29]

    Sequence 2 concerns a firearm in working order, which made it to some extent objectively more serious than Seq 1. There was no Form 1 offence to be taken into account on Seq 2. Had the error in ground 1 not been made, it could reasonably have been expected that the indicative sentences for Seq 1 and Seq 2 would have been the same. Greater objective gravity for Seq 2 would balance out against the influence of the Form 1 offence for Seq 1. The sentences that her Honour in fact indicated for Seq 1 and Seq 2 were the same. The possibility that her Honour’s aggregate sentence would have been any different if the error had not occurred seems remote.

Ground 2 – finding that ammunition compatible with firearms

1. [30]

   In the statement of agreed facts the ammunition that was the subject of the possession charge in Seq 5 (taken into account in sentencing for Seq 13) was listed as follows:

2. [31]

   The two shortened firearms which were the subject of Sequences 1 and 12 (the Lithgow rifle, exhibit no. 3304) and Sequences 2 and 13 (the Anschutz rifle, exhibit no. 0769) were both identified in the statement of agreed facts as being of “.22 Long Rifle calibre”.

3. [32]

   Ground 2 is directed to the following passage of the learned judge’s remarks on sentence:

4. [33]

   In that passage her Honour probably intended to say “compatible with the .22 shortened rifles”, as both of them were of the same calibre. The applicant submits that there was no direct, explicit opinion evidence about compatibility of the ammunition with the firearms. He submits that, as this was a matter adverse to him in the assessment of objective gravity, it had to be established by the Crown beyond reasonable doubt. He complains that the Crown had not raised any allegation of compatibility and that he therefore had no opportunity to adduce evidence or otherwise to be heard on whether the ammunition could have been used in the working firearm. In written submissions, counsel for the applicant put the following:

5. [34]

   In common usage the calibre of a firearm refers to the internal diameter of the bore of the barrel and the calibre of a live round of ammunition refers to the diameter of its projectile. In the absence of any further evidence on the subject, it was open to the learned sentencing judge to conclude that ammunition described in the statement of agreed facts as .22 calibre could be discharged from a shortened rifle, in working order, also described as .22 calibre. Nothing in the statement of facts or in other evidence before her Honour raised any doubt about compatibility in that sense.

6. [35]

   In ordinary usage, a .22 rifle would be understood as one from which there could be fired a bullet of diameter .22 of an inch, or 5.7 mm.

7. [36]

   That is sufficient to dispose of the applicant’s argument on ground 2. Although not necessary to the Court’s decision on this ground, it is noted that the applicant’s argument overlooks the agreed facts that the calibre of most of the ammunition was not merely “.22” but “.22 Long Rifle”. “Long Rifle” is part of the calibre classification, designating a standard type of ammunition with uniform specifications additional to the diameter of the projectile. The full designation of the calibre of each firearm was “.22 Long Rifle calibre”, which matched exactly the full designation of 32 of the seized rounds of ammunition, indicating that each rifle would accept ammunition of this standard type. This is ballistics terminology used in a statement of facts upon the basis of which the applicant agreed to be sentenced.

Ground 3 – the effect of mental health making custody burdensome

1. [37]

   The applicant was 35 years old at the date of the offences. In the sentence hearing there was tendered on his behalf a report of a psychologist, Ms Grujoska. The history she obtained from the applicant on 4 March 2025 included that he had been physically abused during childhood by his mother and stepfather. The applicant informed Ms Grujoska that he had also been a member of an outlaw motorcycle gang and that he had suffered heightened anxiety and concern for his physical safety upon separating from the gang.

2. [38]

   Ms Grujoska administered a 20 minute test to measure symptoms of post traumatic stress disorder (PTSD) and found the following:

3. [39]

   The report does not identify any specific “stressful experience” or “event” that Ms Grujoska thought might have been the cause of the possible PTSD. The history she took only refers to excessive physical discipline by his parents, which does not seem to have been by any means extreme and in which no specific incidents, or any degree of severity, are described.

4. [40]

   Ms Grujoska gave the following further opinions:

5. [41]

   Those passages are the high point of evidence on sentence concerning the possible relevance of PTSD symptoms to the applicant’s well-being in custody. He was bail refused from his arrest on 21 November 2023. When interviewed by Ms Grujoska he had been on remand for 16 months. He did not suggest to her that his PTSD symptoms had made his time in custody more difficult than otherwise it would have been. He gave no account of any stimulation or exacerbation of symptoms by reason of any aspect of his experience in prison. In particular, noting [24] of Ms Grujoska’s report, the applicant did not describe to her any sense or experience of threat in the prison environment.

6. [42]

   In written submissions to her Honour it was not contended that the PTSD symptoms would exacerbate the burden of imprisonment. In the course of oral submissions her Honour pointed out that [30] of the psychologist’s report is “such a general statement” and asked counsel for the applicant how that paragraph could assist. Counsel said this:

7. [43]

   Her Honour accepted that the applicant “has post-traumatic stress disorder or the symptoms of this” but she was not able to determine whether the cause lay in childhood experiences or in more recent adult experiences with outlaw motorcycle gangs and drugs. The applicant’s complaint in ground 3 is that it “was at least open” to the learned judge to conclude that his time in custody would be more onerous by reason of the PTSD symptoms but that her Honour “failed to consider” the matter. Contrary to that submission, there was in reality no evidence upon which the learned judge could have drawn a conclusion as to an increased burden of imprisonment. The faint oral submission of counsel who appeared for the applicant in the sentence proceedings all but conceded that. There is no merit in ground 3.

Orders

1. [44]

   The Court’s conclusion on ground 1 makes it necessary to consider whether, on the whole of the objective circumstances of the totality of the offending and taking into account the applicant’s subjective case, any lesser sentence than the aggregate imposed by the learned judge is warranted in law. Having considered all sentencing factors the Court is satisfied no lesser sentence is warranted.

2. [45]

   The orders of the Court are: