Kember v R

1. [1]

   SIMPSON AJA: I agree with Bellew J.

2. [2]

   BELLEW J:

INTRODUCTION

1. [3]

   Shane Alan Kember (the applicant) pleaded guilty in the District Court of New South Wales to the following offences:

   1. (1)

      On 31 August 2016, at Kembla Grange in the State of New South Wales, knowingly took part in the supply of a pistol, namely a Ruger brand pistol, to a person not authorised to possess the pistol by licence or permit (Count 1).

   2. (2)

      On 31 August 2016, at Kembla Grange in the State of New South Wales, did possess a prohibited weapon, namely a silencer, without being authorised to do so by licence or permit (Count 2).

2. [4]

   The offending in Count 1 was contrary to s 51(1A)(a) of the Firearms Act 1996 (NSW) which carries a maximum penalty of 20 years’ imprisonment, and a standard non-parole period of 10 years’ imprisonment. The offending in Count 2 was contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW) which carries a maximum penalty of 14 years’ imprisonment and a standard non-parole period of 5 years’ imprisonment.

3. [5]

   In respect of Count 1 the applicant asked the sentencing judge to take into account eight additional matters listed on a Form 1, namely:

4. [6]

   The sentencing judge gave the following indicative sentences:

5. [7]

   The sentencing judge imposed a total aggregate sentence of 2 years and 9 months’ imprisonment, with a non-parole period of 1 year and 5 months’ imprisonment.

6. [8]

   The applicant now seeks leave to appeal against that sentence on the grounds more fully discussed below.

7. [9]

   Two co-offenders Warren Barry Ayre (Ayre) and Stephen Lawrence (Lawrence) also pleaded guilty to offences arising out of the offending in Count 1. The sentences imposed on each of those co-offenders are discussed below in the course of considering the second ground of appeal.

Count 1

1. [10]

   The elements of the offending in Count 1 were admitted by the applicant's plea of guilty. [1] In addition, there were matters which were not in dispute, the majority of which arose from recorded telephone conversations to which the applicant was a party. His Honour summarised those conversations as follows: [2]

2. [11]

   His Honour subsequently concluded: [3]

3. [12]

   Notwithstanding these matters, there remained a factual dispute as to the applicant's role in the offending in Count 1. Although that dispute was initially wide-ranging, it was ultimately reduced to three issues, namely:

4. [13]

   Lawrence gave evidence in the offender’s sentence proceedings in relation to these issues. That evidence was summarised by the sentencing judge as follows: [5]

5. [14]

   Darryl Austin (Austin), a friend and associate of the applicant, also gave evidence relevant to these issues which his Honour summarised as follows: [6]

6. [15]

   His Honour analysed the evidence of Lawrence and Austin as follows: [7]

7. [16]

   Following that analysis, his Honour made the following findings in respect of the circumstances of the offending in Count 1: [8]

Count 2

1. [17]

   The facts in respect of Count 2 were agreed and were summarised by his Honour as follows: [9]

Count 1

1. [18]

   In determining the objective seriousness of the offending in Count 1, the sentencing judge observed that the supply of any firearm involves a significant breach of the Firearms Act 1996 (NSW), which makes it clear that the use, possession and sale of firearms is both strictly regulated, and a privilege which is conditional on the overriding need to ensure public safety. [10] His Honour found that the applicant’s involvement had no legal justification and that it posed a significant risk to the safety of the community. [11] He expressly rejected the proposition that the applicant thought he was arranging the supply of a registered pistol from a licenced dealer. [12] His Honour was not satisfied that the pistol was ever in the applicant’s personal possession. [13]

2. [19]

   His Honour went on to say: [14]

3. [20]

   His Honour specifically addressed the matters contained in the Form 1: [15]

4. [21]

   His Honour also noted that matters on a Form 1 generally operate to increase the sentence that would otherwise be appropriate. [16]

Count 2

1. [22]

   His Honour found the objective seriousness of the offending in Count 2 to be as follows: [17]

THE APPLICANT'S SUBJECTIVE CASE

1. [23]

   At the date of sentence, the applicant was 48 years of age and lived on a semi-rural property with his mother. He had previously worked in a variety of occupations but had since started his own building business. [18] A report of Ross Backen, Clinical Psychologist, dated 12 February 2020 was before the sentencing judge. Mr Backen had been treating the applicant since 20 February 2017, when the applicant had presented with a long-term pattern of anxiety, low mood, and vulnerabilities and difficulties arising from his previous career as a police officer. Between 20 February 2017 and 12 February 2020 the applicant underwent 24 counselling sessions with Mr Backen. [19]

2. [24]

   Although Mr Backen reported that the applicant continued to struggle with ongoing mood and anxiety difficulties, he said that over the past 12 months the applicant had undergone only two sessions of counselling as he had been progressing very well, and was coping with managing his ongoing symptoms. [20] Mr Backen expressed the view that the applicant would experience significantly reduced levels of stress following the completion of the Court proceedings, and would have a consequent ability to manage his anxiety and mood. [21] His Honour made specific reference to these aspects of the report of Mr Backen when sentencing the applicant, and appears to have generally accepted them. [22]

3. [25]

   His Honour noted that the applicant had a criminal record, which denied him the leniency given to first offenders. [23] However, he observed that a previous firearms offence had been committed a long time ago, and that the applicant had not offended since 2004, and even then only in respect of minor offences.

4. [26]

   His Honour specifically referred to the fact that the proceedings brought against the applicant had been protracted, and accepted that the real possibility of a custodial sentence had impacted on the applicant’s mental health. He accepted that the applicant’s anxiety and depression would increase if a full-time custodial sentence was imposed because his recovery would be delayed as a consequence. [24] His Honour allowed a discount of 10% to reflect the utilitarian value of the applicant’s plea of guilty. [25]

5. [27]

   The written submissions of senior counsel for the applicant did not challenge any of the findings of the sentencing judge, [26] be they as to the objective seriousness of the offending, or the applicant’s subjective case.

THE REASONS OF THE SENTENCING JUDGE

1. [28]

   In considering a submission advanced on behalf of the applicant that an Intensive Correction Order (ICO) should be imposed in lieu of a full-time custodial sentence, and having made a number of references to the importance of community safety in the context of assessing the objective seriousness of the offending, [27] his Honour said the following: [28]

2. [29]

   Having made those observations, his Honour then said: [29]

Submissions of the applicant

1. [30]

   Senior counsel for the applicant submitted that when considering the imposition of an ICO, it was necessary for the sentencing judge to follow the three step process required by the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act). Senior counsel took no issue that the first two steps in that process had been properly addressed in the present case by the sentencing judge determining:

2. [31]

   However, senior counsel submitted that the sentencing judge had failed to take the final step in the process, and consider how any sentence should be served. It was submitted, in particular, that his Honour had failed to provide clear reasons for declining to impose an ICO, to the point where there was a “paucity of reasoning” in that respect.

3. [32]

   Senior counsel further submitted that to the extent that sentencing judge had considered the imposition of an ICO, he had erred by “overvaluing” the question of community safety. As I understood it, senior counsel submitted that the sentencing judge had done so essentially to the exclusion of other relevant considerations.

Submissions of the Crown

1. [33]

   The Crown took no issue with the fact that the correct approach to be taken by the sentencing judge involved the three step process outlined by senior counsel for the applicant. However, the Crown submitted that it was evident from the reasons of the sentencing judge that his Honour had:

2. [34]

   The Crown pointed, in particular, to the emphasis which had been given by the sentencing judge to the objective seriousness of the applicant’s offending, as well as the substantial weight which was required to be given to both general and specific deterrence in sentencing the applicant. It was submitted that his Honour’s reasons left no doubt as to why he had declined to impose an ICO.

CONSIDERATION

1. [35]

   There are a number of provisions of the Sentencing Act which bear upon this ground of appeal.

2. [36]

   To begin with, s 3A is in the following terms:

3. [37]

   Section 5(1) is in the following terms:

4. [38]

   Part 5, [30] which governs the imposition of an ICO, includes s 66 which is in the following terms:

5. [39]

   There is no doubt that when considering the imposition of an ICO, a sentencing judge must follow a three step process. The first step is to determine, pursuant to s 5 of the Sentencing Act, that no penalty other than imprisonment is appropriate. The second step is to determine the length of the sentence. The third and critical step is to determine whether the sentence should be served by way of an ICO. [31]

6. [40]

   In taking the third step, and although s 66 mandates (inter alia) that community safety is the paramount consideration, a sentencing judge must weigh and assess that consideration against the entirety of the facts, matters and circumstances which are relevant to the sentencing task, applying the instinctive synthesis approach. [32] In my view, in sentencing the present applicant, the sentencing judge did precisely that in those passages of his judgment set out above. [33] Having expressly considered community safety and the risk of reoffending, [34] his Honour proceeded to take into account a range of factors, including:

7. [41]

   It is evident from the structure of his Honour’s reasons that his consideration of all relevant factors led him to conclude that he could not do justice to the objective seriousness of the offence by imposing anything other than a full-time custodial sentence. The balanced approach taken by his Honour is evident from those passages of his reasons to which I have referred, and tends wholly against the proposition that he “overvalued” the issue of community safety.

8. [42]

   It is equally evident, in my view, that in addressing those matters, there was no failure on the part of the sentencing judge to complete the final step in the process and consider how the sentence of imprisonment should be served. Contrary to the submission advanced on behalf of the applicant, the reasons that his Honour reached the conclusion that he did are abundantly clear from the passages to which I have referred.

9. [43]

   In written submissions, senior counsel for the applicant relied upon the decisions of this Court in Brown v R; Reid v R [35] and Campbell v R [36] as support for the proposition that the sentencing judge had failed to properly consider how the sentences of imprisonment should be served. [37] In my view, neither authority supports the applicant’s position in respect of this ground.

10. [44]

    In Brown, James J (with whom the other members of the Court agreed) confirmed the necessity for a sentencing judge to give proper consideration to whether, in the exercise of discretion, a sentence which was deemed appropriate should be suspended. [38] There is no doubt that the same general principle applies when considering the imposition of an ICO. The Court ultimately concluded that the sentencing judge in that case had not given proper consideration to that question. However, the circumstances in Brown are wholly distinguishable from the present case. In particular, the reasons given by the sentencing judge in that case were somewhat perfunctory, [39] particularly when compared with the reasons given by his Honour when sentencing the present applicant.

11. [45]

    In Campbell Hamill J (with whom the other members of the Court agreed) observed that compliance with s 5 of the Sentencing Act was a mandatory requirement and that where alternatives are available, the preferable course is to make it clear that such alternatives have been considered, and to explain why they are not appropriate. [40] That observation provides no support to the applicant in the present case, for the simple reason that the sentencing judge did precisely what Hamill J had outlined. In my view, the care and detail with which his Honour addressed these issues is at odds with the proposition that there was a paucity of reasons, or that his Honour’s reasons were otherwise unclear.

12. [46]

    It follows that this ground is not made out.

The co-offender Ayre

1. [47]

   Ayre appeared before his Honour Judge McLennan SC in the District Court having pleaded guilty to the following offences:

2. [48]

   It was the offending in (iv) which stemmed from the same facts as those referable to Count 1 against the applicant.

3. [49]

   His Honour gave the following indicative sentences: [41]

4. [50]

   His Honour imposed a total aggregate sentence of 5 years’ imprisonment with a non-parole period of 3 years’ imprisonment.

5. [51]

   In sentencing Ayre, his Honour found the objective seriousness of his offending in (iv) to be as follows: [42]

6. [52]

   In addressing Ayre’s subjective case, [43] his Honour noted that he was 46 years of age and was entitled to a discount of 25% on account of the utilitarian value of his early plea. His Honour also noted that Ayre had a criminal history extending from 1989 to 2016 involving offences for dishonesty, drugs and firearms as well as stalking and intimidating. [44]

7. [53]

   In reference to a report of Sarah Brann, Forensic Psychologist, [45] his Honour noted that Ayre had been a heavy user of amphetamines for the majority of his life, to the point where he had become dependent upon that drug over time. Ayre had expressed to Ms Brann that he was willing to take part in drug and alcohol rehabilitation, Ms Brann noting that his attitude appeared to be generally motivated towards participation in treatment. His Honour generally accepted the report and opinions of Ms Brann and in doing so, accepted that Ayre had prospects of rehabilitation, although he concluded that to describe such prospects as good might be “somewhat debatable”. [46] His Honour concluded that he could not be persuaded that it was more likely than not that Ayre would not reoffend in light of his criminal history as well as these offences, but took the view that a finding of special circumstances was justified.

The co-offender Lawrence

1. [54]

   Lawrence appeared before his Honour Judge Ellis in the District Court having pleaded guilty to the following offences, namely:

2. [55]

   It was the offending in (ii) which stemmed from the same facts as those referable to Count 1 against the applicant. Lawrence also asked the sentencing judge to take into account an offence of possessing an unauthorised pistol on a Form 1 (that being the same Ruger pistol which was the subject of the offending in Count 1 against the applicant).

3. [56]

   His Honour gave the following indicative sentences: [47]

4. [57]

   His Honour then imposed a total aggregate sentence of 5 years’ imprisonment with a non-parole period of 3 years’ imprisonment.

5. [58]

   In assessing the objective seriousness of the offending in (ii), the sentencing judge said: [48]

6. [59]

   His Honour also found that Lawrence's involvement in supplying the Ruger pistol “was at the behest of the co-offenders”. [49]

7. [60]

   His Honour applied a combined discount of 40%, 25% of which was attributable to Lawrence's plea of guilty, and the remaining 15% attributable to his past and future assistance.

8. [61]

   In terms of Lawrence’s subjective case, his Honour noted that the offender had undertaken a number of different courses since being in custody, and had been the subject of a favourable reference from a Catholic chaplain at the Correctional Centre in which he was housed. [50] He also noted that the applicant had been working in various roles in custody, including within the maintenance section and in the capacity of a sweeper.

9. [62]

   In reference to a psychological report of Dr Rebecca Smith which was before him, his Honour found that the applicant was a non-assertive individual who had been assessed as suffering from a moderate level of depression, a severe level of anxiety, and a moderate level of stress. [51] His Honour also made reference to Lawrence having a “relatively meek personality" which caused him difficulties dealing with his psychological issues and that his cognitive function, although not assessed, had been estimated to fall within the low-average range. [52] This was a result of poor education, Lawrence describing himself as almost illiterate.

10. [63]

    His Honour noted that a risk summary had concluded that Lawrence had a low to moderate risk of re-offending, and that he would benefit from ongoing counselling to assist in his emotional and stress management, as well as his self-esteem and confidence building. [53] In all of these circumstances, his Honour made a finding of special circumstances. [54]

THE REASONS OF THE SENTENCING JUDGE

1. [64]

   His Honour initially addressed the issue of parity in the following terms: [55]

2. [65]

   His Honour then returned to the issue: [56]

3. [66]

   Having noted aspects of the sentencing remarks in relation to Ayre and Lawrence, his Honour went on to say: [57]

Submissions of the applicant

1. [67]

   Counsel for the applicant submitted that the fact that the three co-offenders were sentenced by three different judges had acted to the applicant's detriment, and that in circumstances where it was desirable that all co-offenders be sentenced by one judge, there was a lack of transparency which had led to an error in the present case.

2. [68]

   Senior counsel further submitted that on a proper reading of the sentencing judgments in each case, all three offenders should be taken to have been assessed as having the same degree of criminality. Accepting this to be the case, it was submitted that a comparison of all relevant factors left the applicant with a justifiable sense of grievance.

Submissions of the Crown

1. [69]

   The Crown submitted that in order to succeed on this ground, it was incumbent upon the applicant to demonstrate a justifiable sense of grievance, which was, in turn, to be assessed by reference to objective criteria.

2. [70]

   The Crown helpfully provided a table annexed to the written submissions which set out, in summary form, a comparison of various matters as between the three offenders. No issue was taken with the contents of that table which was in the following terms:

3. [71]

   The Crown submitted that the sentencing judge had considered the charges for which all offenders were sentenced and had noted that the respective discounts applied to each sentence for early guilty pleas, as well as in the case of the co-offender Lawrence, on account of assistance. It was submitted that the considerations of the sentencing judge in relation to the roles and seriousness of the respective offending, and his ultimate finding that an ICO was not appropriate, could not raise any justifiable sense of grievance.

Consideration

1. [72]

   In WM v R [58] I summarised the parity principle in the following terms: [59]

2. [73]

   It is also important to bear in mind that the relevant grievance is not one that is in the mind of the offender. It arises where there is appearance of injustice in the mind of a hypothetical bystander. [60]

3. [74]

   Although it is desirable that co-offenders be sentenced by the one sentencing judge, that course was not followed in the present case. Why that is so is not apparent. However, this ground must obviously be determined according to what was done, rather than what may have been desirable. I am unable to accept the submission advanced on behalf of the applicant that there was a lack of transparency in the reasons of the sentencing judge as to parity which has led to the applicant having a justifiable sense of grievance. His Honour specifically addressed considerations of parity in those parts of his reasons which I have previously set out. [61] No complaint has been made regarding his Honour's articulation of the relevant principles.

4. [75]

   Further, I am not persuaded that there was any error in the manner in which those principles were applied by the sentencing judge. In considering the issue of parity, his Honour appropriately had regard to what the applicant had actually done in the course of his offending. In doing so, he found (inter alia) that the applicant's role was integral to the transaction. [62] That role was greater than that of either Ayre (described by Judge McLennan SC as a “go-between”) or Lawrence (described by Judge Ellis as a “delivery boy"). Whilst the use of labels to describe the role played by an offender in a criminal enterprise has been eschewed, it is clear that his Honour had the benefit of the sentencing remarks of both of the co-offenders and was fully appraised of the entirety of the findings which had been made. [63] His Honour’s findings as to the applicant’s role, and the findings made as to the respective roles of the co-offenders, tend completely against a conclusion that all three offenders were found to have had equal degrees of criminality.

5. [76]

   Another important distinction between the case of the applicant and those of the two co-offenders was the respective discounts applied on sentence. The utilitarian value of the applicant's late plea of guilty attracted a discount of 10%. Ayre received the benefit of a 25% discount for his early plea of guilty, whilst Lawrence had the benefit of a total discount of 40%, taking into account his early plea of guilty and the fact of his assistance to the authorities, part of which was constituted by giving evidence in the sentence proceedings against the applicant.

6. [77]

   It is also important to bear in mind that the applicant asked the sentencing judge to take into account eight additional matters on a Form 1. Seven of those eight matters involved the possession of firearms without authorisation. There was no Form 1 in Ayre’s case, and Lawrence asked the Court to take into account one additional matter, namely possessing an unauthorised pistol. The fact that matters on a Form 1 are taken into account means that greater weight is to be given to personal deterrence and retribution. The purpose of the process is to impose a longer sentence than if the primary offence(s) had stood alone, and any additional penalty will not necessarily be small. [64] The approach taken by the sentencing judge was in accordance with these principles. [65]

7. [78]

   This Court has previously observed that “considerable obstacles” are placed before an applicant who contends error on a parity basis where a sentencing judge is fully aware of the sentences imposed upon co-offenders and the reasons for those sentences, and provides reasons for departing from those sentences. [66] The sentencing judge in the present case was so aware, and his reasons explain why he reached the conclusions that he did. In the circumstances I am not persuaded that the applicant has any justifiable sense of grievance arising from sentences imposed upon the co-offenders.

8. [79]

   It follows that this ground is not made out.

GROUND 3 - In the premises the sentence imposed was too severe.

1. [80]

   Given that senior counsel for the applicant accepted that ground 3 depended upon the Court upholding one or other of grounds 1 and 2, and in view of the conclusions that I have reached, it is not necessary to consider ground 3.

ORDERS

1. [81]

   I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.

2. [82]

   WILSON J: I agree with the orders proposed by Bellew J for the reasons his Honour has given.