Citation: Regina v Mark Isaac Shane Brown [2006] NSWCCA 249
Court: New South Wales Court of Criminal Appeal
Date: 17 August 2006
Judges: Spigelman CJ, Howie J, Rothman J
Background
The appellant pleaded guilty in the District Court to possessing more than three unregistered firearms without a licence, contrary to s 52D(2) of the Firearms Act 1996. The offence carried a maximum penalty of 20 years imprisonment. A further six offences, including drug offences and possession of prohibited articles, were taken into account on a Form 1.
The facts disclosed a serious commercial operation. The appellant was warehousing a cache of weapons, including 16 keyring pistols and an automatic rifle, in a storage unit. Intercepted phone calls indicated he stood to make $10,000 from selling the pistols alone. His explanation was that he had accumulated significant drug debts and turned to firearms sales to repay criminal associates.
District Court Judge Latham sentenced the appellant to eight years imprisonment with a non-parole period of five years. The appellant, who had an extensive prior record for dishonesty, property and drug offences (though not firearms), appealed on the ground that the sentence was excessive. He also raised a number of additional grounds by way of an amended notice of appeal at the hearing.
Legal Issues
- Whether the sentencing judge failed to give adequate weight to the appellant's personal circumstances, including his drug debts, mild intellectual disability, and the need to serve time in protective custody
- Whether the sentencing judge failed to give adequate weight to the appellant's capacity for remorse and to his willingness to assist authorities
- Whether the sentencing judge erred by not personally hearing from the appellant
- Whether the sentence was excessive having regard to comparable cases decided under the Firearms Act 1996
- Whether there was a technical error in the form of the sentence arising from the failure to express it in the order required by s 44 of the Crimes (Sentencing Procedure) Act 1999
Decision
The Court rejected all additional grounds of appeal. On the subjective circumstances, the Court found that Latham DCJ had expressly addressed each matter raised, including the appellant's drug debts, his time in protective custody, the disclosure of childhood sexual abuse, and his intellectual disability. The weight to be given to those factors was a matter for her Honour, and no error was demonstrated.
On the remorse ground, the Court noted the clinical psychologist's assessment of the appellant's disability as "mild" and found no reason to conclude it impaired his capacity to show contrition. On the assistance ground, the Court noted that no assistance had been given or offered at the time of sentencing, and that any subsequent assistance was relevant only to executive decision-making, not to an appeal against sentence.
On the question of procedural fairness, the Court found no basis for complaint. The appellant had been represented throughout, had given evidence at an earlier stage of proceedings before a different judge, and that transcript was before Latham DCJ. Counsel had confirmed the appellant was in a position to proceed on the day.
The Court then considered the Crown's submission that the sentence contained a technical error. Section 44 of the Crimes (Sentencing Procedure) Act 1999 required the court to set a non-parole period first and then a balance of term, because the principal offence was committed after 1 February 2003. Latham DCJ had not expressed the sentence in that form. The Court treated this as a technical error only, not requiring intervention on the merits of the sentence, but sufficient to warrant resentencing to correct the structure of the orders.
Orders Made
- Time to apply for leave to appeal extended to 18 July 2005
- Leave to appeal granted
- Sentence of 22 October 2004 set aside
- Appellant resentenced to a non-parole period of five years commencing 20 September 2003 and expiring 19 September 2008, with a balance of term of three years commencing 20 September 2008 and expiring 19 September 2011
Key Takeaways
- The Court of Criminal Appeal confirmed that the heavy maximum penalty under s 51D of the Firearms Act 1996 (20 years) reflects a deliberate legislative intention that commercial firearms offences of this character be treated more seriously than under earlier provisions.
- Earlier sentencing decisions under provisions with lower maximum penalties, such as s 51A(2) (maximum five years), are of limited assistance when sentencing under s 51D, given the qualitative difference in the statutory framework.
- A drug addiction that drives a person into crime to repay debts may explain the conduct but does not excuse it; this principle was applied without alteration by the Court.
- Section 44 of the Crimes (Sentencing Procedure) Act 1999 requires a sentencing court to impose a non-parole period first and then a balance of term for offences committed after 1 February 2003; failure to do so in the correct form constitutes a technical error, though one that may warrant resentencing to correct the structure of the orders.
- No error was established in the exercise of the sentencing discretion; the Court observed that a case could be made that the original sentence of eight years was at the low end of the available range for an offence of this gravity.
Legislation and Cases Referenced
Legislation
- Firearms Act 1996 (NSW), ss 51A(2), 51D, 52D(2)
- Firearms Amendment (Public Safety) Act 2002 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Cases
- Itaoui v R [2005] NSWCCA 415
- Mohamad v R [2005] NSWCCA 406
- R v Dunn [2003] NSWCCA 169
- R v NP [2003] NSWCCA 195
- R v Cramp [2004] NSWCCA 264
- R v Cromarty [2004] NSWCCA 54