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Court of Criminal Appeal 25 August 2004

Regina v Goktas

[2004] NSWCCA 296

Firearms & weapons
CRIMINAL LAW AND PROCEDURE SENTENCE PROHIBITED FIREARM WHETHER SENTENCE EXCESSIVE

Citation: Regina v Goktas [2004] NSWCCA 296
Court: New South Wales Court of Criminal Appeal
Date: 25 August 2004
Judge(s): Grove J, Sully J, Kirby J

Background

The applicant pleaded guilty in the Sydney District Court to one count of possession of a prohibited firearm, a Cobray sub-machine gun, under the Firearms Act 1996. The maximum penalty for the offence is 14 years' imprisonment. The Director of Public Prosecutions elected to prosecute the matter on indictment rather than in the Local Court.

The agreed facts showed that the applicant drove a co-offender, Elrich, to the residence of another man, Kucuk, where an undercover police operative was negotiating the purchase of two sub-machine guns. Once inside the house, the applicant witnessed the weapon produced from a toolbox and made an offer to supply ammunition magazines. The applicant gave evidence that he was unaware the toolbox contained a firearm until it was opened inside the premises.

The sentencing judge, Hock DCJ, rejected the applicant's claim that he had no prior knowledge of the weapon, finding instead that he was in joint possession with Elrich from the time Elrich was picked up. Her Honour imposed four years' imprisonment with a non-parole period of two years and six months. The applicant sought leave to appeal on the ground that the sentence was excessive.

  • Whether the sentencing judge correctly assessed the applicant's degree of criminality, given that he was not involved in the sale of either firearm and that the Crown expressly did not rely on the sale as an aggravating factor against him.
  • Whether the sentence of four years' imprisonment with a non-parole period of two years and six months was excessive in the circumstances.
  • Whether the sentencing judge drew impermissible adverse inferences from the guilty plea and from the offer to supply ammunition magazines, in circumstances where the applicant had not been cross-examined on key aspects of his evidence.

Decision

Grove J found that the sentencing judge had fallen into error in several respects. Her Honour conflated the applicant's involvement with that of the co-offenders Elrich and Kucuk, both of whom faced charges arising from the sale of the weapons. The Crown had expressly conceded that the sale was not an aggravating factor for the applicant, and the agreed statement of facts made no allegation that the applicant had handled the toolbox containing the weapon.

Grove J also found it was not established that the applicant's offer to supply magazines demonstrated prior knowledge of the weapon, as the sentencing judge had reasoned. The offer was made only after the weapon was produced inside the house, and the judge made no finding on whether the applicant could actually have fulfilled the offer. The difference between ammunition and ammunition magazines was also noted as a minor but indicative imprecision in the sentencing remarks.

On the question of the period of possession, Kirby J took a somewhat different approach. His Honour agreed that the sentencing judge had rejected the applicant's account of when he became aware of the weapon, and that this rejection was open without cross-examination. However, he considered that the applicant's criminality should be assessed neither by enlarging it with adverse assumptions about his role nor by favourably narrowing the time span of possession beyond what the agreed facts disclosed.

The Court allowed the appeal, finding the original sentence was excessive when the applicant's limited and distinct role was properly measured against that of the co-offenders. Fresh evidence of progress towards rehabilitation was also before the Court on appeal.

Orders Made

  • Application for leave to appeal against sentence granted.
  • Appeal allowed.
  • Sentence imposed in the District Court quashed.
  • In substitution, the applicant sentenced to two years' imprisonment dating from 7 May 2003, with a non-parole period of fifteen months and twenty days commencing 7 May 2003 and expiring 26 August 2004.
  • The applicant to be released to parole on 26 August 2004.

Key Takeaways

  • A sentencing court must assess each offender's criminality individually, even where multiple co-offenders are involved in the same transaction. Conflating an offender's role with that of co-offenders who faced more serious charges (here, charges relating to the sale itself) constitutes an error in the sentencing exercise.
  • Where the Crown expressly disavows reliance on a particular aggravating factor against a specific accused, the sentencing court is not free to treat that factor as bearing on sentence for that accused.
  • Adverse inferences drawn from a guilty plea are not unlimited. Hock DCJ's reasoning that the applicant's in-house offer to supply magazines proved prior knowledge of the weapon was found to be a step too far on the available facts.
  • The Court of Criminal Appeal confirmed that a sentencing judge may reject uncontradicted evidence given by an offender, but that rejection must not be used to enlarge the offender's criminality beyond what the agreed facts and the charge itself establish.
  • Possession of a prohibited firearm, even for a short period and even without involvement in its sale, remains an offence of a serious character under the Firearms Act 1996. However, the degree of that seriousness must be calibrated to the particular offender's actual conduct.

Legislation and Cases Referenced

Legislation:
- Firearms Act 1996 (NSW), including s 4A (definition and proof of possession of a firearm)

Cases cited:
No cases were cited in the portions of the judgment provided.