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Court of Criminal Appeal 27 May 2010

Adam Joseph BASEDOW v R

[2010] NSWCCA 76

Firearms & weapons
CRIMINAL LAW SENTENCE APPLICANT A COLLECTOR NO CRIMINAL INTENT WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Adam Joseph Basedow v R [2010] NSWCCA 76
Court: New South Wales Court of Criminal Appeal
Date: 27 May 2010
Judge(s): McClellan CJ at CL; Simpson J; Hidden J

Background

The applicant, a 46-year-old rural resident with a lifelong passion for firearms, pleaded guilty in the District Court to the unauthorised possession of firearms in aggravated circumstances under s 51D(2) of the Firearms Act 1996. Police searching his Cobar home found seven firearms, including a prohibited pistol and two prohibited self-loading rifles, none of which were stored in an approved cabinet or safe as required by law. Other firearms found on the premises were held lawfully.

The sentencing judge accepted that the applicant was a collector, not a criminal. The firearms were found in wardrobes and drawers, ammunition was absent or unsuitable for most weapons, and there was no evidence of any intent to use them. Two of the weapons had sentimental value, having belonged to the applicant's deceased father.

The District Court sentenced the applicant to three years' imprisonment comprising a non-parole period of two years and a balance of term of one year, starting from a four-year head sentence that was reduced for a guilty plea. The applicant sought leave to appeal, arguing the sentence was manifestly excessive and that the sentencing judge misused his prior firearms convictions.

  • Whether the sentencing judge erred by treating the applicant's prior knowledge of his firearms obligations, and his choice to disregard them, as bearing on the objective seriousness of the offence rather than on sentencing purpose.
  • Whether the prior convictions for firearms offences in 1999 were given too much weight in the sentencing exercise.
  • Whether the overall sentence of three years, with a two-year non-parole period, was manifestly excessive given the applicant's collector status, absence of criminal intent, and general good standing.

Decision

Hidden J (with whom Simpson J agreed on the outcome) concluded that no error had been established in the sentencing judge's approach to the prior convictions. While the applicant's counsel raised the distinction articulated in R v Way between objective seriousness and the purposes of punishment, Hidden J found that the sentencing judge had not conflated these two categories. The prior convictions were given no more weight than they deserved, and the judge's comments about the applicant's knowledge of his obligations were properly directed to why no special leniency was warranted, rather than inflating the objective seriousness of the offence.

On the question of manifest excess, Hidden J acknowledged that the sentence was severe for a person of the applicant's background and standing. However, having regard to the statutory maximum of 20 years and the standard non-parole period of 10 years, the three-year sentence with a two-year non-parole period could not be characterised as falling outside the legitimate exercise of sentencing discretion. The non-parole period represented only 20 per cent of the standard non-parole period.

Hidden J expressly declined to characterise the sentence as markedly lenient, noting that no argument had been put about emerging sentencing patterns for s 51D(2) offences and that his conclusion rested solely on the failure to demonstrate manifest excess. McClellan CJ at CL dissented from the grant of leave, regarding the application as entirely without merit. Simpson J agreed with the orders proposed by Hidden J but observed that, given the standard non-parole period and the prior firearms offences, the sentence was in fact very lenient.

Orders Made

  • Leave to appeal granted (by majority).
  • Appeal dismissed.

Key Takeaways

  • A sentence significantly below the standard non-parole period for s 51D(2) of the Firearms Act 1996 is not automatically manifestly excessive or immune from scrutiny; its validity is assessed against the full statutory framework, including the 20-year maximum and the 10-year standard non-parole period.
  • Under the distinction drawn in R v Way, sentencing courts must keep the assessment of objective seriousness separate from considerations relevant to the purposes of punishment; conflating these two matters can constitute a sentencing error, though no such error was found on the facts here.
  • Prior convictions for similar firearms offences can legitimately inform the extent to which a court exercises special leniency, particularly where the offender acknowledged awareness of the relevant legal obligations at the time of reoffending.
  • Collector status and the absence of criminal intent are relevant mitigating circumstances, but they do not necessarily displace the weight that Parliament has assigned to serious firearms offences through the standard non-parole period regime.
  • In dismissing the appeal, the Court of Criminal Appeal noted that the case R v Cromarty, which involved more serious facts and a comparable sentence, was decided before the introduction of standard non-parole periods and also carried a double jeopardy discount that no longer applies following the insertion of s 68A into the Crimes (Appeal and Review) Act 2001.

Legislation and Cases Referenced

Legislation
- Firearms Act 1996 (NSW), ss 4C, 51D(2), Sch 1
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A(2)
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A

Cases
- R v Way [2004] NSWCCA 131, 60 NSWLR 168
- R v Cromarty [2004] NSWCCA 54, 114 A Crim R 515
- R v McNaughton [2006] NSWCCA 242, 66 NSWLR 566
- R v JW [2010] NSWCCA 49