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11
Court of Criminal Appeal 19 August 2010

Tran v R

[2010] NSWCCA 183

Firearms & weapons
CRIMINAL LAW SENTENCE FIREARMS PROHIBITED WEAPON STATUTORY DISCOUNT FOR GUILTY PLEA RESENTENCE.

Citation: Tran v R [2010] NSWCCA 183
Court: New South Wales Court of Criminal Appeal
Date: 19 August 2010
Judge(s): McClellan CJ at CL, Hislop J, Barr AJ

Background

In the early hours of 10 June 2008, police stopped a vehicle containing four occupants after observing suspicious behaviour at traffic lights. A search of the vehicle revealed a Taser-type device on the appellant, a .25 calibre pistol with six live rounds in the footwell near where he had been sitting, and a copper-coloured bullet in his pocket. Other occupants were found in possession of additional prohibited firearms, a machete, and a small quantity of methylamphetamine.

The appellant pleaded guilty in the Local Court to three offences: possessing a prohibited weapon (the Taser-type device) under the Weapons Prohibition Act 1998, possessing a prohibited pistol under the Firearms Act 1996, and possessing an unregistered firearm under the same Act. He was committed to the District Court for sentencing.

In the District Court, King DCJ sentenced the appellant in June 2009, applying a 20 percent discount for the guilty pleas. The appellant sought leave to appeal, arguing the sentencing judge had applied the wrong discount rate, had incorrectly assessed the objective seriousness of the firearms offence, and that the sentences were manifestly excessive.

  • Whether the sentencing judge was required under the Criminal Case Conferencing Trial Act 2008 to apply a mandatory 25 percent discount for a guilty plea entered before committal for sentence, rather than the 20 percent discount actually applied
  • Whether the sentencing judge correctly assessed the objective seriousness of the firearms offence
  • Whether the sentences imposed were manifestly excessive

Decision

The central ground of appeal succeeded on the basis of a concession by the Crown. Section 17(1) of the Criminal Case Conferencing Trial Act 2008 applied to this case and required the sentencing court to apply a discount of 25 percent where a guilty plea was entered before committal for sentence. The sentencing judge applied only 20 percent, having not been directed to the relevant provision. The Crown accepted this constituted a material error.

Because a material error was established, the Court of Criminal Appeal quashed all three sentences and proceeded to resentence the appellant. Given the error was determinative, the Court found it unnecessary to address the other two grounds of appeal concerning objective seriousness and manifest excess.

On resentencing, the Court considered the appellant's personal circumstances, including his refugee background, intermittent employment history, prior criminal record (including a prior term of imprisonment for grievous bodily harm), and a period of approximately six years before the subject offences during which his only transgressions were traffic matters. The Court noted some prospect of rehabilitation.

The count 1 offence (the Taser-type device) was assessed as significantly below the middle range of objective seriousness given the nature of the weapon. Partial accumulation was applied between counts 1 and 2 to reflect that the Taser and the pistol were separate and distinct weapons, even though they were found on the same occasion. The resulting sentences under each count were reduced to reflect the correct 25 percent guilty plea discount.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences quashed and the appellant resentenced as follows:
  • Count 1: Non-parole period of six months commencing 10 June 2008, expiring 9 December 2008, with a balance of term of two months expiring 9 February 2009
  • Count 2: Non-parole period of three years two months commencing 10 September 2008, expiring 9 November 2011, with a balance of term of one year one month expiring 9 December 2012
  • Count 3: Fixed term of two years two months commencing 10 September 2008, expiring 9 November 2010
  • Earliest parole eligibility date: 9 November 2011

Key Takeaways

  • Under s 17(1) of the Criminal Case Conferencing Trial Act 2008, a sentencing court was required to apply a mandatory 25 percent discount to the term of imprisonment where an offender pleaded guilty before being committed for sentence. The provision allowed no discretion to apply a lesser rate.
  • Failure to apply the correct statutory discount constituted a material error warranting the quashing of all sentences, even where other grounds of appeal were also raised.
  • Where a material sentencing error is established, the Court of Criminal Appeal will proceed to resentence rather than remit the matter, making it unnecessary to resolve remaining grounds of appeal.
  • Partial accumulation of sentences can be appropriate even where offences arise from a single occasion, where distinct weapons are involved and separate criminality can be identified.
  • A period of relative offence-free conduct in the years before the subject matter offences, combined with background circumstances such as refugee status and claimed drug rehabilitation, may be relevant to a finding of some prospects of rehabilitation at sentencing.

Legislation and Cases Referenced

Legislation:
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Firearms Act 1996 (NSW), ss 4, 4C(1), 7(1), 36(1), 65(3)
- Criminal Case Conferencing Trial Act 2008 (NSW), s 17(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 47

Cases:
- R v Mitchell [2007] NSWCCA 296; (2007) 177 A Crim R 94
- Micklesson v R [2009] NSWCCA 61