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Court of Criminal Appeal 17 April 2009

KC v R

[2009] NSWCCA 110

Firearms & weapons
SENTENCING PAROLE PERIOD APPLIED WHETHER SENTENCES MANIFESTLY EXCESSIVE

Citation: KC v R [2009] NSWCCA 110
Court: New South Wales Court of Criminal Appeal
Date: 17 April 2009
Judge(s): Grove J, Howie J, Buddin J

Background

The applicant pleaded guilty in the District Court to five firearm-related counts under the Firearms Act 1996. The offences involved selling a prohibited pistol to an undercover police officer, selling firearm parts, and possessing a further prohibited pistol, a silencer, and a spare barrel at a subsequent meeting. Two additional offences of possessing ammunition were taken into account on a Form 1 (a procedure that allows related offences to be considered at sentencing without separate conviction).

The applicant was 52 years old at the time of the offences and was working as a carpenter. A psychologist's report noted a depressive and dependent personality, though also observed that the applicant showed little insight into his behaviour. The sentencing judge in the District Court took into account that the applicant tended to blame the undercover officer and rationalised one of the possession offences on the basis that he had only intended to lend, not sell, the second firearm.

The District Court imposed a total effective sentence with a non-parole period of four years expiring 25 August 2011 and a total term of seven years expiring 25 August 2014. The applicant sought leave to appeal, arguing errors in the assessment of objective seriousness, the structure of the sentences, and that the sentences were manifestly excessive.

  • Whether the sentencing judge erred in assessing the objective seriousness of the offences, particularly by impermissibly inferring an illegal purpose beyond what was proven
  • Whether errors in identifying which counts attracted a standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 affected the sentencing outcome
  • Whether the overall structure of the sentences was erroneous or produced an unjust result
  • Whether the sentences were manifestly excessive in all the circumstances

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal in part, finding error only in relation to count 3 (possession of the second prohibited pistol). The sentencing judge had incorrectly structured the sentence for that count as a fixed term rather than a sentence with a distinct non-parole period and balance of term, which was a technical error requiring resentencing on that count. However, the Court found that this error did not infect the overall sentencing exercise.

On the question of objective seriousness, the Court found no impermissible reasoning. The sentencing judge's observation that prohibited weapons have no legitimate purpose and that the applicant must have known they were likely to be used in serious criminal activity was regarded as a proper characterisation of this class of offence, not an impermissible finding of an aggravating fact beyond what was proven.

The Court also noted that although the sentencing judge had erroneously believed a standard non-parole period applied to count 4 (possession of the silencer), no submission was made about the consequences of that error. The effective non-parole period imposed for that count fell below what the sentencing judge believed the standard non-parole period to be, and the nature of the offence (possession of a silencer, described as quintessentially associated with violent crime) made the sentence difficult to challenge in any event.

The overall sentence was not found to be manifestly excessive. The Court confirmed all other sentences and resentenced the applicant on count 3 to a non-parole period of two years and a total term of three years, finding special circumstances because of the accumulation of sentences. The earliest parole eligibility date remained 25 August 2011.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in part
  • Sentence for count 3 quashed
  • In substitution, the applicant sentenced on count 3 to a non-parole period of two years commencing 26 June 2008 and expiring 25 June 2010, with a total term of three years expiring 25 June 2011 (special circumstances found due to accumulation)
  • All other sentences confirmed
  • Earliest eligible release date on parole confirmed as 25 August 2011

Key Takeaways

  • A sentencing judge's observation that prohibited firearms have no legitimate purpose and are likely to be used in serious criminal activity does not constitute impermissible fact-finding about unproven aggravating circumstances; it reflects the inherent nature of this class of offence.
  • Where a standard non-parole period applies, structuring the relevant sentence as a fixed term rather than a non-parole period plus balance of term constitutes a sentencing error requiring correction on appeal, even where the overall sentencing outcome is otherwise sound.
  • An identified error in the application of a standard non-parole period will not necessarily produce a different result on resentencing if the effective non-parole period imposed was already below the standard non-parole period and the objective gravity of the offence supports the sentence imposed.
  • In dismissing the manifest excess argument, the Court of Criminal Appeal confirmed that the overall structure and length of the sentences (including findings of special circumstances to justify a non-parole period shorter than the statutory default proportion) were within the proper exercise of the sentencing judge's discretion.
  • Partial accumulation of sentences, producing a total non-parole period shorter than the standard statutory proportion, can constitute "special circumstances" justifying departure from the default ratio under the Crimes (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Firearms Act 1996 (NSW)

Cases:
- Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146
- Brown v R [2006] NSWCCA 249
- Graham v R [2008] NSWCCA 309
- McCullough v R [2009] NSWCCA 94
- Natoli v R [2009] NSWCCA 36
- R v AJP (2004) 150 A Crim R 575
- R v Cromarty (2004) 144 A Crim R 515
- R v Dunn [2003] NSWCCA 169
- R v Gent (2005) 162 A Crim R 29
- R v Howard [2004] NSWCCA 348
- R v Morgan (1993) 70 A Crim R 368
- R v Najem [2008] NSWCCA 32
- R v Sukkar (2006) 172 A Crim R 151
- R v Way (2004) 60 NSWLR 168
- SGJ v R; KU v R [2008] NSWCCA 258
- Veen v The Queen (No 2) (1988) 164 CLR 465