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Court of Criminal Appeal 16 November 2006

WHITFIELD v REGINA

[2006] NSWCCA 362

Firearms & weapons
CRIMINAL LAW POSSESSION OF A FIREARM WITHOUT A LICENCE OR PERMIT UNREGISTERED PROHIBITED FIREARM ALTERATION OF STATUTORY RATION

Citation: Whitfield v Regina [2006] NSWCCA 362
Court: New South Wales Court of Criminal Appeal
Date: 16 November 2006
Judge(s): McClellan CJ at CL, Adams J, Latham J

Background

The appellant was convicted following trial on two charges arising from the discovery of a loaded .22 calibre self-loading pistol in her bedroom wardrobe. The firearm was a prohibited weapon held without a licence or permit, and its serial number had been obliterated. At the time of the offences, the appellant was on bail for a separate drug supply offence, for which she was subsequently sentenced to a term of imprisonment commencing in February 2004.

The District Court sentenced the appellant to an overall term of four years' imprisonment with a three-year non-parole period on the primary firearm charge, with a concurrent fixed term of twelve months on the unregistered firearm charge. The three-year non-parole period corresponded exactly to the standard non-parole period prescribed under the Crimes (Sentencing Procedure) Act 1999 for offences at the middle of the range of objective seriousness.

Because the firearms sentence was accumulated on the earlier drug sentence, the appellant's effective non-parole period became three years and seven months, representing approximately 78 percent of her total effective sentence. The appellant sought leave to appeal, arguing the sentencing judge had failed to consider special circumstances.

  • Whether the sentencing judge erred by failing to consider adjusting the standard non-parole period in light of the appellant's subjective circumstances and the accumulation of sentences.
  • Whether the accumulation of sentences, taken alone or in combination with other factors, constituted special circumstances warranting a variation of the statutory sentencing ratio.
  • Whether the sentencing judge had properly considered the psychologist's report diagnosing the appellant with a dysthymic depressive disorder.

Decision

Adams J, with whom McClellan CJ at CL and Latham J agreed, held that the sentencing judge had erred by treating the applicability of the standard non-parole period as a conclusion that no downward adjustment was appropriate. Even where a sentencing court places an offence in the middle of the objective range of seriousness, it must still separately consider whether the standard non-parole period requires adjustment because of subjective features or special circumstances.

On the accumulation point, the Court followed the reasoning in R v Henry [2004] NSWCCA 306, which established that the accumulation of sentences resulting in a disproportionately short parole period can, of itself, be sufficient to warrant a finding of special circumstances. The Court found the sentencing judge had not turned his mind to this matter.

The Court also found that the sentencing judge had not properly engaged with the psychologist's report. The report diagnosed a dysthymic depressive disorder causally linked to the tragic death of the appellant's son, and neither party had challenged its currency or relevance. The sentencing judge's apparent attribution of the appellant's condition solely to the experience of imprisonment was inconsistent with the psychologist's diagnosis and with how the case had been conducted.

Adams J identified four features as constituting special circumstances in combination: the accumulation of sentences, the appellant's age of 60 years, the fact that this was an extension of her first experience of custody, and her diagnosed depressive disorder. These matters warranted a downward departure from the standard non-parole period.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Non-parole period reduced to two years and three months, commencing 7 September 2004 and ending 6 December 2006.

Key Takeaways

  • A sentencing court's finding that an offence falls in the middle of the objective range of seriousness does not end the inquiry. The standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 remains subject to adjustment where subjective features or special circumstances are established.
  • The Court of Criminal Appeal confirmed that accumulated sentences producing a disproportionately short parole period can constitute special circumstances warranting variation of the statutory ratio, consistent with the approach taken in R v Henry.
  • Where a psychologist's report is tendered without objection and neither party challenges its currency or accuracy, a sentencing court should not dismiss or reinterpret its findings without a proper basis in the record.
  • Relevant subjective features identified in this decision as capable of supporting a special circumstances finding include advanced age, a first or early experience of imprisonment, a clinically diagnosed depressive disorder, and accumulation with a pre-existing sentence.
  • Error is established for appellate intervention by demonstrating that a material consideration was not addressed by the sentencing judge, without the need to show the judge would have been obliged to reach a particular outcome.

Legislation and Cases Referenced

Legislation:
- Firearms Act 1996 (NSW), ss 7(1), 36(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A

Cases:
- R v Henry [2004] NSWCCA 306
- R v Simpson (NSW CCA, unreported, 18 June 1992)
- R v Clark (1995) 78 A Crim R 226
- R v Clissold (Ian Raymond) [2002] NSWCCA 356