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Court of Criminal Appeal 9 June 1999

R. v Brown

[1999] NSWCCA 143

Firearms & weapons
APPEAL AGAINST SEVERITY OF SENTENCE POSSESSING A SHORTENED FIREARM POSSESSING AN UNREGISTERED FIREARM LONG CRIMINAL RECORD PROSPECTS OF REHABILITATION POOR

Citation: R v Brown [1999] NSWCCA 143
Court: NSW Court of Criminal Appeal
Date: 9 June 1999
Judge(s): Grove J; Carruthers AJ

Background

The applicant pleaded guilty in the District Court to two firearms offences: possessing a shortened (sawn-off) .22 calibre rifle under s 62(1)(b) of the Firearms Act 1996, and possessing an unregistered firearm under s 36(1) of the same Act. Police had observed him drop a backpack in a residential front yard in the early hours of the morning; the backpack contained the modified rifle. A balaclava with eye holes cut out was found nearby.

The applicant had a lengthy criminal record dating back to 1973, a long history of heroin addiction, and poor prospects of rehabilitation. He had originally been charged with being armed with a weapon with intent to commit an indictable offence, but that charge was not proceeded with. The firearms matters were ultimately dealt with in the District Court, where the maximum penalty was ten years imprisonment, rather than in the Local Court, where summary conviction carried a maximum of two years.

The applicant sought leave to appeal against the severity of the sentences imposed by Viney DCJ, who had ordered a minimum term of 18 months and an additional term of 6 months on the principal count.

  • Whether the sentencing judge erred in the length of the sentence imposed for possessing a shortened firearm
  • Whether the fact that the matter could have been dealt with summarily in the Local Court was a relevant consideration in the District Court's approach to sentencing
  • Whether an inference of hostile or unlawful purpose could properly be drawn from the applicant's possession of a sawn-off rifle, given that he had exercised his right to silence during police questioning
  • How concurrent sentences for unrelated offences (shoplifting and larceny) affected the overall sentence structure

Decision

The Court of Criminal Appeal allowed the appeal and reduced the sentence on the principal count. Carruthers AJ found it relevant that the matter would likely have been dealt with in the Local Court, where the maximum penalty was two years, had the applicant not originally been committed to the District Court on the more serious charge that was ultimately not proceeded with. The effective sentence imposed was close to that Local Court maximum, which weighed in favour of reduction.

On the right to silence question, the Court noted that Viney DCJ had not in fact drawn any adverse inference against the applicant by finding he possessed the weapon for a hostile or unlawful purpose. The sentencing judge had explicitly proceeded on the basis of bare possession. Carruthers AJ declined to accept the Crown's submission that the judge could or should have drawn such an inference, and left the broader right to silence question for a future case.

Grove J agreed with the proposed orders but added a separate observation. He expressed the tentative view that the nature of a sawn-off rifle, being an inherently illegitimate implement with no demonstrated lawful purpose, could itself provide a sufficient basis for inferring improper or hostile possession, without that being inconsistent with a defendant's right to silence. This view was expressed without deciding the point finally.

The Court reduced the minimum term from 18 months to 12 months (dating from 2 October 1998) and the additional term from 6 months to 4 months, ordering that the applicant be released to parole supervision on 1 October 1999.

Orders Made

  • Leave to appeal granted
  • Sentence on the s 62(1)(b) count quashed
  • In substitution: minimum term of 12 months from 2 October 1998, expiring 1 October 1999; additional term of 4 months from 2 October 1999, expiring 1 February 2000
  • Applicant to be released to parole on 1 October 1999, subject to supervision by the Probation and Parole Service
  • Sentence on the s 36(1) count (fixed term of 6 months) not disturbed

Key Takeaways

  • The fact that a matter could have been dealt with summarily is a relevant consideration in District Court sentencing, particularly where the accused ended up in the higher court only because of a more serious charge that was subsequently not proceeded with.
  • A sentencing court is not obliged to infer hostile or unlawful purpose solely from bare possession of a firearm, especially where the sentencing judge has explicitly proceeded on the basis of possession alone.
  • Grove J's observation introduced, without finally resolving, the question of whether the inherently illegitimate nature of a sawn-off rifle could itself support an inference of improper purpose, independently of any right to silence considerations.
  • Concurrent sentences for separate matters served during the same period required careful accounting in the overall sentence structure, including the relationship between minimum and additional terms under the statutory ratio.
  • Poor rehabilitation prospects, a lengthy criminal record, and drug addiction history were acknowledged as relevant background, but did not prevent a finding that the original sentence was excessive in the specific circumstances of this case.

Legislation and Cases Referenced

Legislation:
- Firearms Act 1996 (NSW), ss 36(1), 62(1)(b)
- Firearms and Dangerous Weapons Act 1973 (NSW), s 25
- Sentencing Act 1989 (NSW), s 5(2)

Cases:
- Thurgar (1990) 41 A Crim R 109
- Simpson (1992) 61 A Crim R 58