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16
Court of Criminal Appeal 21 November 2005

R v Dusan Krstic

[2005] NSWCCA 391

Firearms & weapons
SENTENCE ONLY SPECIAL CIRCUMSTANCES.

Citation: R v Dusan Krstic [2005] NSWCCA 391
Court: New South Wales Court of Criminal Appeal
Date: 21 November 2005
Judge(s): Sully J, Hulme J, Latham J

Background

The applicant pleaded guilty in the Wollongong Local Court to possessing a prohibited pistol, a Thompson brand Colt .45 calibre self-loading handgun found in the unlocked console of his locked vehicle. The weapon was loaded with seven rounds and in working order. Police also found stolen property in the vehicle and, upon searching the applicant's home, located additional ammunition, steroids, and a small quantity of methylamphetamine.

At the time of the offence, the applicant was on conditional release from immigration detention having entered Australia illegally, and was subject to supervision by the Department of Immigration pending a spouse visa application. He was arrested as he entered Wollongong Police Station, where he was required to report under immigration conditions.

District Court Judge Phelan sentenced the applicant to a non-parole period of two years with an additional period of eight months on the firearms charge, alongside minor penalties for the remaining offences dealt with on a sentencing certificate. The applicant sought leave to appeal against those sentences.

  • Whether the sentencing judge incorrectly assessed the objective gravity of the firearms offence by treating the accompanying offences as aggravating factors
  • Whether the sentencing judge erred by failing to find special circumstances, which would justify a lower proportionate relationship between the non-parole period and the total head sentence

Decision

On the first ground, the Court of Criminal Appeal examined the sentencing judge's remarks, which described the applicant as moving "on the fringe of criminality" and characterised his possession of a loaded firearm, combined with his refusal to explain it to police, as "consistent with a sinister rather than an innocent purpose." The applicant argued the accompanying offences could not aggravate the firearms charge, and that the Crown had effectively accepted his explanation that he carried the weapon for personal protection following threats. The Court rejected this characterisation of the Crown's position, noting the Crown had in fact invited an inference that the weapon was possessed to assist criminal activity, which the sentencing judge declined to accept.

The Court found the sentencing judge was entitled to doubt the applicant's explanation, which was hearsay in nature and given against a background of drug possession. In any event, the Court observed that possessing a loaded firearm for self-protection carries little or no mitigating weight, given that the legislature's purpose in enacting the offence, with a maximum penalty of 14 years' imprisonment, is to deter and punish firearms possession as such. Critically, the applicant's own counsel conceded the sentence was not manifestly excessive. That concession was determinative: even if some error existed in the judge's reasoning, no lesser sentence was warranted in law.

On the second ground, the applicant relied on his age (38 at sentence), the difficulty of finding employment in the Wollongong area upon release close to his 40th birthday, and the fact that this was his first experience of custody. The Court found none of these matters compelled a finding of special circumstances. The evidence indicated the applicant had no intention of entering the labour market upon release, and instead planned to rely on his godfather to finance a business. A non-parole period of two years was comfortably within the sentencing discretion, and the eight-month additional term provided adequate scope for supervision on release given the applicant's stated plan to return to his family.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Possessing a loaded firearm for personal protection carries little or no mitigating weight, because the legislative purpose behind the offence is to deter and punish firearms possession as such, regardless of the reason for it.
  • Where an applicant concedes a sentence is not manifestly excessive, the appeal against that sentence will fail even if a specific error in the sentencing judge's reasoning is established, since no lesser sentence could be said to be warranted in law.
  • A sentencing judge is entitled to doubt a hearsay explanation for firearms possession, particularly where that explanation sits alongside other offending conduct disclosed by the facts.
  • In dismissing the special circumstances ground, the Court of Criminal Appeal confirmed that the question of whether to find special circumstances is a matter for the sentencing judge's discretion, and an appellate court should be slow to interfere unless the non-parole period is manifestly excessive: applying R v Simpson (2001) 53 NSWLR 704.
  • First-time custody status and anticipated employment difficulties on release do not automatically generate a finding of special circumstances, particularly where the evidence reveals limited connection to the labour market and an independent support structure.

Legislation and Cases Referenced

Legislation
- Firearms Act 1996 (NSW), ss 4(1), 4C, 7(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 54A–D
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- R v Simpson (2001) 53 NSWLR 704
- R v Fidow [2004] NSWCCA 172
- R v Martin [2005] NSWCCA 381