R v Farrell

1. [1]

   SIMPSON J: I agree with Bellew J.

2. [2]

   ROTHMAN J: I have had the benefit of the reasons for judgment of Bellew J and his thorough analysis of the issues. I agree with his conclusion that the appeal should be dismissed, but I do so on a different basis.

3. [3]

   The offence with which the respondent was charged is the possession of an unauthorised pistol, the maximum sentence for which is 14 years’ imprisonment, with a standard non-parole period of 3 years. Each is a guidepost to the sentence to be imposed. There are other guideposts and factors to which Bellew J has referred.

4. [4]

   This pistol has been described. While it is possible to imagine a more dangerous weapon, it is very difficult to imagine a more dangerous pistol.

5. [5]

   A canon, for example, would be a more dangerous weapon. The ability to imagine a more dangerous weapon does not detract from the characterisation of the pistol as in the worst category. Its possession was not “wholly innocent” in that, as is required by the offence, the respondent was aware of its existence. Further, the respondent had handled the weapon. The sentencing judge took into account that there was no evidence to suggest possession for an intended criminal purpose to be executed by (by either himself or others) or that he discharged the pistol (or allowed its discharge by others). At the same time, there was no evidence to the opposite effect.

6. [6]

   If the respondent had discharged the pistol or been complicit in its discharge, a different and more serious offence would have been committed. I do not accept that the lack of evidence of the commission of a more serious offence is an ameliorating factor in this offence. Evidence that positively establishes it had not been and was not the respondent’s intention to discharge the weapon or to use it in a criminal enterprise may be ameliorative in that it proves an innocent purpose.

7. [7]

   Nevertheless, the pistol is an extremely dangerous weapon and the legislature has understandably treated the possession of such weapons as, of itself, serious, whether or not it is presently intended to be used for another criminal offence. It certainly had the potential to be so used.

8. [8]

   The Crown relies on manifest inadequacy. It is traditional or conventional to rely on that ground because of the manner in which the provisions of s 5D of the Criminal Appeal Act 1912 have been understood to apply: see Cranssen v The Queen [1936] HCA 42; (1936) 55 CLR 509 at 519-201; Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579 at [6]-[8]. In order to persuade the Court of that ground, the Crown must establish to the Court’s satisfaction that the sentence was unreasonable or plainly unjust: Carroll v The Queen, ibid; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.

9. [9]

   Even allowing for the respondent having served 9 ½ months on remand, a sentence of 2 years imprisonment is, in my view, unreasonably inadequate and plainly unjust. Further, there is an additional inherent leniency in serving the sentence by way of Intensive Correction Order.

10. [10]

    If this sentence is within the existing range for possession of this type of weapon, then the range is inadequate, even allowing for the subjective circumstances of the offender.

11. [11]

    Having expressed that view, it would be inappropriate and unjust in the present circumstances to alter retrospectively the relevant range in such a way as to prejudice the current respondent. The purpose of a Crown appeal against sentence is primarily to establish principles for the governance and guidance of sentencing courts: Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462.

12. [12]

    I have expressed my view on the only principle that has been raised. I am not satisfied that the Crown has satisfied the burden of “establishing that the [residual] discretion conferred…should be exercised to vary the sentence imposed by the court of trial”: CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 317 ALR 308.

13. [13]

    I agree with the orders proposed by Bellew J.

14. [14]

    BELLEW J: On 1 July 2013 Shannon Bernard Farrell (“the respondent”) pleaded guilty to a charge of possessing an unauthorised pistol contrary to s. 7(1) of the Firearms Act 1996 (NSW) (“the Act”). The maximum penalty for that offence is imprisonment for 14 years. A standard non-parole period of 3 years is prescribed.

15. [15]

    When the matter came before his Honour Judge Hanley SC in the District Court, the respondent asked his Honour to take into account four additional matters contained in a Form 1 namely:

16. [16]

    On 19 September 2014 his Honour sentenced the respondent to imprisonment for 2 years, to be served by way of an Intensive Correction Order to date from 19 September 2014 and to expire on 18 September 2016.

17. [17]

    On 16 October 2014, pursuant to s. 5D of the Criminal Appeal Act 1912 (NSW), the Director of Public Prosecutions filed a notice of appeal to this Court against the sentence imposed on the respondent, on the ground that it is manifestly inadequate.

THE HISTORY OF THE PROCEEDINGS

1. [18]

   The respondent was refused bail when initially arrested. By the time the sentence proceedings first came before his Honour on 21 November 2013 the respondent had spent almost 9 ½ months in custody. On that day, his Honour dealt with the matter pursuant to s. 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and released the respondent on conditional bail. In doing so his Honour said (at ROS 1-2):

2. [19]

   The Crown lodged an appeal to this Court on the grounds that the sentence imposed by his Honour was manifestly inadequate: R v Farrell [2014] NSWCCA 30. R A Hulme J (with whom Hoeben CJ at CL and Adams J agreed) concluded (at [67]) that the sentencing discretion had miscarried but that in circumstances where the matter was expected to come before the sentencing judge again in a short time, it was impractical to make the orders sought by the Crown. For that reason, although error was found, the Crown appeal was dismissed (at [69]).

3. [20]

   In reaching his conclusions, R A Hulme J said the following about the nature of the offence with which the respondent had been charged (at [63]-[64]):

4. [21]

   The matter came back before the sentencing judge on 4 July 2014. Having heard further submissions from the parties, his Honour adjourned the matter to 18 July 2014. On that day, his Honour concluded that the respondent should be sentenced to a term of imprisonment not exceeding two years. Having made that determination, he considered whether there were any alternatives to a full time custodial sentence and adjourned the proceedings to allow the respondent to be assessed as to his suitability for an Intensive Correction Order.

5. [22]

   The matter then came back before his Honour on 19 September 2014. A favourable assessment having been made, the Intensive Correction Order was imposed, subject to various conditions.

THE FACTS

1. [23]

   His Honour summarised the facts as follows (commencing at ROS 4):

HIS HONOUR’S FINDINGS AS TO THE RESPONDENT’S OFFENDING

1. [24]

   In considering the objective seriousness of the respondent’s offending, his Honour (commencing at ROS 7) referred at length to what he described to as the “inherent nature of the firearm”. He noted, in particular, that the firearm was:

2. [25]

   His Honour noted (at ROS 8) that there were no other items such as a silencer secreted with the firearm, and that the respondent had been in possession of it for a relatively short period of time. Whilst his Honour acknowledged that criminality of this nature was not necessarily affected by the period of possession, he observed that a short period of possession may, in some circumstances, be capable of reducing the objective seriousness of the offence.

3. [26]

   His Honour then turned (commencing at ROS 8) to the circumstances in which the respondent came into possession of the firearm and found (at ROS 10) that he possessed it as a result of unexpectedly finding it in the show car. His Honour contrasted such circumstances with those in which an offender might deliberately obtain an unauthorised firearm for a particular purpose. He concluded (at ROS 10) that the respondent did not plan to come into possession of the firearm, but that once he located it he had decided to retain it.

4. [27]

   His Honour found (at ROS 11) that there was no evidence before the court to suggest that the respondent:

5. [28]

   Having cited these matters his Honour said (at ROS 11):

6. [29]

   That finding represented a rejection of the Crown submission on sentence that the offending fell above the mid-range of objective seriousness.

7. [30]

   His Honour went on to note (at ROS 11) that the respondent had told Professor Woods, whose reports were tendered on sentence, that he had no intention of ever selling or using the weapon. His Honour expressly accepted Professor Woods’ evidence (at ROS 14).

8. [31]

   Ultimately his Honour concluded (at ROS 12):

THE RESPONDENT’S SUBJECTIVE CASE

1. [32]

   A number of reports of Professor Stephen Woods, Psychologist, were tendered in the respondent’s case on sentence. As I have noted, his Honour accepted the evidence of Professor Woods who documented the respondent’s previous illicit use of drugs, secondary to injuries sustained in a motor vehicle accident.

2. [33]

   In a report of 1 October 2013 Professor Woods said:

3. [34]

   Professor Woods also gave oral evidence in the sentence proceedings. He expressed the opinion (at T34 L18 on 21 November 2013) that the respondent’s judgment was “grossly impaired” at the time of the offending.

4. [35]

   The respondent had a criminal history which included a conviction in 2012 for possession of ammunition without authority. His Honour found (at ROS 18) that such history was not particularly lengthy or significant, but that it disqualified the respondent from receiving the benefit of any particular leniency that might have been available to him had he had no history at all. His Honour did not identify any other aggravating factor(s).

5. [36]

   In terms of mitigating factors, his Honour firstly noted the respondent’s early plea of guilty which entitled him to a discount of 25%. Although the respondent did not give evidence in the sentence proceedings, his Honour relied upon Professor Woods’ reports and opinions, as well as evidence from the respondent’s partner, to support a conclusion that there was “some remorse” demonstrated. Consistent with his findings as to the circumstances of the offending, his Honour concluded (at ROS 19) that the respondent’s possession of the firearm was not planned, and appeared to have come about “as a matter of chance”. Based largely upon the evidence of Professor Woods, along with evidence of the respondent’s abstinence from illegal drugs for a significant period, his Honour concluded (at ROS 22) that the respondent was unlikely to re-offend providing he continued to pursue his various courses of study and continued his rehabilitation.

SUBMISSIONS OF THE CROWN

1. [37]

   As I have noted, the Crown relied upon a single ground of appeal, namely that the sentence was manifestly inadequate. In order to succeed on the appeal the Crown must establish that the sentence was unreasonable or plainly unjust: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321. The Crown relied upon a number of matters which, it submitted, demonstrated the seriousness of the offending and the manifest inadequacy of the sentence imposed.

2. [38]

   Firstly, the Crown relied upon the nature and characteristics of the firearm. The Crown emphasised, at some length, that the firearm had been modified to enable it to fire multiple rounds upon a single depression of the trigger and submitted that this, combined with the fact that it was fully functional, greatly increased the seriousness of the respondent’s possession of it. It was submitted that his Honour “appeared to have overlooked” these matters.

3. [39]

   Secondly, the Crown pointed to a number of other circumstances surrounding the respondent’s possession of the firearm, all of which were said to increase the objective seriousness of the offending. These included the fact that the respondent handled the firearm on two occasions, that it was not stored securely, and that it was found loaded and in close proximity to additional rounds of ammunition.

4. [40]

   Thirdly, the Crown submitted that the combination of these various circumstances with the respondent’s illicit drug use had given rise to a “very dangerous situation” which warranted significant weight being attached to both specific and general deterrence.

5. [41]

   Fourthly, the Crown relied on the fact that the weapon had been defaced and its identification removed. This, it was submitted, was “consistent with its use for a criminal purpose”. In this regard the Crown submitted that there was unchallenged evidence that in 2013 the respondent was a member of an outlaw motorcycle gang. As I understood it, the fact of the respondent’s membership of such a gang (if it was a fact) was relied upon to support the proposition that the firearm was being used, or was intended to be used, for some criminal purpose. That proposition was, of course, directly contrary to the unchallenged findings made by the sentencing judge.

6. [42]

   Fifthly, the Crown submitted that although the matters on the Form 1 necessarily overlapped with the substantive charge, they reinforced the need for personal deterrence and retribution.

7. [43]

   Finally, the Crown submitted that the sentence imposed reflected little or no weight having been given to the relevant purposes of sentencing for offences against s. 7(1) of the Act. In written submissions, the Crown went so far as to submit that the sentencing judge had been “distracted” throughout the sentencing process by the appellant’s subjective case and had “unduly focussed on the standard non-parole period and did not have proper regard to the maximum penalty as part of his intuitive synthesis”. It was submitted that as a consequence of these factors a manifestly inadequate sentence had been imposed.

SUBMISSIONS OF THE RESPONDENT

1. [44]

   The respondent submitted that it was evident from the remarks on sentence that the sentencing judge was aware of the necessity to undertake an assessment of the relevant criminality, bearing in mind both the maximum penalty and the prescribed standard non-parole period. It was also submitted that it was appropriate for his Honour to have regard, when determining sentence, to the fact that the respondent had served a 9½ month period of actual custody prior to the imposition of the sentence.

2. [45]

   It was submitted that the sentence imposed was within the appropriate range, particularly having regard to the factual findings of the sentencing judge regarding the circumstances of the respondent’s possession of the firearm, and his personal circumstances. It was further submitted that in order to establish that the sentence was manifestly inadequate, it was incumbent upon the Crown to identify error of the kind discussed in House v the King [1936] HCA 40; (1936) 55 CLR 499. It was submitted that the Crown had failed to do so, and that the appeal should be dismissed.

PRINCIPLES APPLICABLE TO A CROWN APPEAL AGAINST INADEQUACY

1. [46]

   The right of appeal by the Crown against a sentence which is said to be manifestly inadequate is an exceptional one. It must be exercised with restraint, in order to allow the Court to lay down sentencing principles: Griffiths v R [1977] HCA 44; (1977) 137 CLR 293; Everett v R [1994] HCA 49; (1994) 181 CLR 295; R v MD and ors [2005] NSWCCA 342; (2005) 156 A Crim R 372. In Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462 French CJ, Crennan and Kiefel JJ put the matter in this way (at [1] and [36], citations omitted):

CONSIDERATION

1. [47]

   In considering the submissions of the parties two matters must be emphasised at the outset.

2. [48]

   Firstly, the inherently serious nature of offending against s. 7(1) of the Act is reflected in the maximum penalty set by Parliament. In the present case, the Crown placed significant reliance upon the nature and characteristics of the firearm to demonstrate what was said to be the seriousness of the offending and the manifest inadequacy of the sentence. However, they were not the only factors which were relevant in determining the seriousness of the offending. Given the charge, the nature and circumstances of the respondent’s possession of the firearm were obviously relevant.

3. [49]

   Secondly, none of the factual findings of the sentencing judge were the subject of any challenge by the Crown before this Court. This included his Honour’s findings as to:

4. [50]

   It is plain from his Honour’s observations (at ROS 7-8) that he was aware of, and took into account, the various characteristics of the firearm. His analysis of those characteristics was lengthy and detailed. In those circumstances it was not, in my view, open to the Crown to submit to this Court that the seriousness of the respondent’s possession arising from the nature of the firearm was something that his Honour “appeared to have overlooked”.

5. [51]

   Further, his Honour dealt at length with the circumstances in which the respondent came into possession of the firearm. As I have noted, he found (at ROS 10) that such possession arose from unexpectedly finding the firearm in the show car. His Honour concluded that the respondent did not plan to come into possession of the firearm but that having done so, he had decided to retain it. All of these findings were consistent with his Honour’s conclusion that the offending fell below the mid-range of objective seriousness.

6. [52]

   The location of the firearm in immediate proximity to additional rounds of ammunition was relevant to an assessment of the seriousness of the offending: R v Thalari [2009] NSWCCA 170; (2009) 75 NSWLR 307 at [88]. However, that factor was rendered of less significance in the present case in light of his Honour’s findings set out at [27], [28] and [31] above.

7. [53]

   There was, as I have outlined, evidence that the respondent was in the habit of using illicit drugs at or about the time of the offending. In other circumstances, that may have supported the Crown’s submission that a position of particular danger had been created as a consequence of the respondent’s possession of the firearm. However, leaving aside the fact there was no evidence that the respondent was under the influence of any drug at a time when he handled the firearm, the fact of his addiction is of less significance in light of his Honour’s finding that there was no evidence to support the conclusion that he had any intention of using it.

8. [54]

   There is no doubt that the identification markings of the firearm had been defaced. In some circumstances, that may well be consistent with the intended use of the weapon for a criminal purpose. However, and again leaving aside the fact that his Honour found no evidence to support any intention on the part of the respondent to use the firearm, he also found (at ROS 7) that there was no evidence that the respondent was responsible for defacing it.

9. [55]

   In support of the proposition that the respondent’s possession of the firearm was linked to some criminal purpose, the Crown submitted that there was “unchallenged” evidence of the respondent’s previous membership of an outlaw motorcycle gang. In this regard, the Crown pointed to a report of Professor Woods of 1 July 2014 which stated (inter alia):

10. [56]

    To the extent that this may have constituted evidence that the respondent had in fact been a member of an outlaw motorcycle gang at some point, there was no evidence that such membership coincided with the time of his offending.

11. [57]

    An assertion was made by the officer in charge of the investigation when giving evidence in the sentence proceedings that the respondent was a member of an outlaw motor cycle gang (commencing at T13 L33 on 21 November 2013):

12. [58]

    Contrary to the submission advanced by the Crown, there was clearly a challenge to this evidence. There was an equally clear concession by the witness that his “understanding” the respondent may have been a member of the Rebels Outlaw Motorcycle Gang he may not have been accurate. The Crown’s reliance, before this Court, upon such evidence was in my view misplaced.

13. [59]

    In respect of the matters contained in the Form 1, his Honour said (at ROS 1-2):

14. [60]

    It is evident from that passage that his Honour was aware of those matters and that he took them into account in the sentencing process. It is also evident, from his express reference to it at the commencement of his sentencing remarks, that his Honour was aware of the maximum penalty and the prescribed standard non-parole period.

15. [61]

    The respondent had the benefit of a series of favourable findings made by the sentencing judge as to the nature and extent of his possession and the level of his moral culpability. None of those findings were challenged on this appeal. They support the conclusion reached by the sentencing judge that the offending fell below the mid-range of seriousness.

16. [62]

    Moreover, the sentence imposed was one of imprisonment for a lengthy period, albeit one which was to be served other than in full time custody. It was also relevant that the respondent had spent almost 9 ½ months in custody in relation to this matter when his bail had been refused.

17. [63]

    In all of these circumstances, I am not persuaded that the sentence is unreasonable or plainly unjust.

ORDERS

1. [64]

   For the forgoing reasons I propose the following order:

   1. (1)

      The Crown appeal is dismissed.