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Court of Criminal Appeal 14 September 2001

R v Reed

[2001] NSWCCA 364

Firearms & weapons
SENTENCING POSSESSION OF OFFENSIVE WEAPON PROVOCATION AS A MITIGATING FACTOR

Citation: Reed v R [2001] NSWCCA 364
Court: Court of Criminal Appeal, New South Wales
Date: 14 September 2001
Judge(s): Sully J; Carruthers AJ

Background

The applicant pleaded guilty in the District Court to possessing an offensive weapon, specifically a loaded and shortened .22 calibre rifle, with intent to commit an indictable offence, contrary to s 33B(a) of the Crimes Act 1900. The maximum penalty for that offence is 12 years imprisonment. Four additional related charges were taken into account on a Form 1 (a procedural mechanism by which a sentencing court considers other offences without formally convicting the offender of them).

The circumstances were serious. After being severely assaulted by another man who had also previously behaved violently toward the applicant's recently deceased elderly mother, the applicant returned home, armed himself with the rifle, and sought out the man with a stated intention to shoot and kill him. He took aim but withdrew when the man used two women as a human shield. The applicant then drove away and voluntarily surrendered to police, making full and frank admissions.

The sentencing judge in the District Court imposed a head sentence of four years and six months with a non-parole period of two years and eight months, commencing 25 September 2000. The applicant sought leave to appeal on the ground that the sentence was manifestly excessive.

  • Whether the head sentence and non-parole period were manifestly excessive in light of comparable sentencing statistics for the same offence.
  • Whether the sentencing judge gave sufficient weight to the significant mitigating factors present, including provocation, the applicant's mental health conditions, his remorse, and his cooperation with police.

Decision

The Court found the objective circumstances of the offence were undeniably serious. The applicant had armed himself with a loaded firearm while intoxicated, pointed it in a public area, and would have fired but for the presence of innocent bystanders. Counsel for the applicant realistically conceded before the Court of Criminal Appeal that the sentencing judge's characterisation of the offence as high-level seriousness was open on the facts.

However, the Court identified a critical problem in the sentencing statistics supplied by the Judicial Commission, covering eight comparable cases between April 1993 and March 2000. Of the six offenders who received full-time custody, the longest head sentence was 36 months and the longest minimum term was two years. The sentence imposed on the applicant was approximately 50 per cent greater than any comparable case in both the head sentence and the non-parole period.

The Court acknowledged the sample was small but concluded that the disparity was so significant that appellate intervention was warranted, particularly when balanced against the substantial mitigating factors. Those factors included the extreme provocation from Cameron's conduct toward the applicant's dying mother and the assault on the applicant himself, the applicant's borderline personality disorder, his depressive illness, his genuine remorse, his voluntary surrender, and his positive conduct while in custody. The 25 per cent discount for the utilitarian value of the guilty plea was not disturbed.

The Court also confirmed the sentencing judge's special circumstances finding, citing the applicant's need for rehabilitation, mental health treatment, and supervision to address alcohol and drug dependency. This finding supported the extended ratio of parole supervision relative to the non-parole period.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed; sentence imposed by Price DCJ quashed.
  • New head sentence of 4 years imprisonment, commencing 25 September 2000 and expiring 24 September 2004.
  • Non-parole period of 2 years, commencing 25 September 2000 and expiring 24 September 2002.
  • The sentencing judge's recommendation that the applicant be permitted to take his prescribed antidepressant medication (Cipramil) in accordance with his general practitioner's directions was confirmed.

Key Takeaways

  • A sentence approximately 50 per cent greater than any comparable case disclosed in sentencing statistics may constitute manifest excess, even where the objective circumstances of the offence are serious.
  • Provocation, though not a defence to possessing an offensive weapon with intent, remained a significant mitigating factor in the sentencing calculus, particularly where the provocation was extreme and directed at a vulnerable family member.
  • Special circumstances justifying a longer parole period relative to the non-parole period were established by reference to the applicant's mental health needs, substance dependency, and prospects of rehabilitation.
  • The Court of Criminal Appeal confirmed that the utilitarian discount for a guilty plea entered on arraignment (rather than at the earliest opportunity) was appropriately set at 25 per cent and did not warrant further reduction.
  • Positive conduct during pre-sentence custody, including steps toward rehabilitation and a measured response to further provocation while on bail, was treated as relevant and encouraging evidence before the appellate court.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33B(a) (possession of offensive weapon with intent to commit an indictable offence)

Cases:
- Regina v Salt (Unreported, NSWCCA, 26 August 1994)