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14
Court of Criminal Appeal 14 December 2011

Dionys v R

[2011] NSWCCA 272

Also reported as (2011) 217 A Crim R 280
Firearms & weapons
CRIMINAL LAW SENTENCE APPEAL APPLICATION OF STANDARD NON PAROLE PERIOD LEGISLATION TO OFFENCES NEED TO RE SENTENCE APPLICANT

Citation: Dionys v R [2011] NSWCCA 272
Court: Court of Criminal Appeal, NSW
Date: 14 December 2011
Judge(s): McClellan CJ at CL, Adams J, Hoeben J

Background

The applicant faced charges under the Firearms Act 1996 relating to the sale and possession of unauthorised firearms. The sale charge (count 1) and the possession charge (count 2) involved the same weapons. A further 179 firearm offences were listed on a Form 1 attached to the possession charge, meaning the applicant admitted those offences and asked the court to take them into account without recording separate convictions for each.

At first instance, sentences were imposed on both counts and ordered to run concurrently. The applicant sought leave to appeal, contending that the sentences were manifestly excessive and that the sentencing judge had not proceeded on a correct factual basis.

The Court of Criminal Appeal granted leave on both counts. Leave on count 1 was granted but the appeal on that count was dismissed. The appeal on count 2 was allowed and the Court re-sentenced the applicant.

  • Whether the sentencing judge had sentenced the applicant on a correct factual basis, particularly regarding the Form 1 offences
  • Whether the standard non-parole period provisions under the Crimes (Sentencing Procedure) Act 1999 had been correctly applied, in light of Muldrock v The Queen [2011] HCA 39
  • What principles govern sentencing when Form 1 matters are attached to a principal charge, and specifically whether a sentencing court imposes punishment for Form 1 offences
  • Whether the sentences for counts 1 and 2 should be wholly concurrent, given that both counts involved the same firearms

Decision

The Court confirmed the established principle, drawn from the earlier guideline judgment in Attorney General's Application No 1 of 2002, that a sentencing court does not impose punishment for Form 1 offences in any sense. The court's task is to sentence for the principal offence only. The Form 1 matters are relevant only insofar as they may increase the weight given to personal deterrence and to the community's interest in retribution, reflecting that the principal offence should be seen in the context of broader criminality rather than as an isolated act.

Adams J emphasised that it is impermissible to determine an aggregate sentence across all offences (whether on the indictment or on the Form 1) and then apply a discount. Equally, quantifying the precise effect of Form 1 offences on the sentence is rarely appropriate. The sentence imposed must remain anchored to the principal offence, subject to the statutory cap at the maximum penalty for that offence and the principle of totality.

On re-sentencing, the Court found that the sentences imposed by the original judge on counts 1 and 2 individually were not excessive, given the serious nature of the offending. The weapons were sold in circumstances suggesting they were destined for criminal use, and the scale of the conduct was significant.

However, the Court accepted that some error had arisen in the treatment of count 2, warranting re-sentencing. While the Court rejected the submission that both sentences should be wholly concurrent, it declined to treat the offences as entirely separate. Because both counts involved the same firearms, partial accumulation was appropriate: count 2 was accumulated on count 1 by one year, producing a total non-parole period of 8 years and 6 months with a balance of term of 4 years and 6 months.

Orders Made

  • Count 1: Leave to appeal granted; appeal dismissed.
  • Count 2: Leave to appeal granted; appeal allowed.
  • The sentence imposed on count 2 on 2 December 2010 was quashed.
  • The applicant was re-sentenced on count 2 to imprisonment with a non-parole period of 7 years and 6 months commencing 26 August 2010 and expiring 25 February 2018, with a balance of term of 4 years and 6 months expiring 25 August 2022.

Key Takeaways

  • A sentencing court does not, in any sense, impose punishment for offences listed on a Form 1. The court sentences only for the principal offence, and Form 1 matters operate solely to increase weight given to personal deterrence and the community interest in retribution for the wider course of conduct.
  • Attempting to determine an overall sentence for all offences and then discounting for the Form 1 procedure is an impermissible approach under the Crimes (Sentencing Procedure) Act 1999, as confirmed by the Court of Criminal Appeal in the 2002 guideline judgment and reaffirmed here.
  • Quantifying the precise effect of Form 1 offences on the sentence for the principal charge is rarely appropriate; the focus must remain on the principal offence throughout.
  • Where sale and possession charges relate to the same firearms, complete concurrency is not automatically required, but the factual overlap is a material consideration that must inform any accumulation decision.
  • In re-sentencing after an appeal, the principle of totality and the factual relationship between counts must both be addressed when determining whether and to what extent sentences should be accumulated.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 33(1)(b) and 33(3)
- Firearms Act 1996 (NSW)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Muldrock v The Queen [2011] HCA 39
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- R v Grube [2005] NSWCCA 140
- R v Brown [2006] NSWCCA 249
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Yammine v R [2010] NSWCCA 123