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Court of Criminal Appeal 27 November 2012

Hsu v R

[2012] NSWCCA 248

DrugsFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE POSSESSION OF PROHIBITED FIREARM COMPLAINTS ABOUT LEGAL REPRESENTATIVES WHETHER SENTENCE EXCESSIVE

Citation: Hsu v R [2012] NSWCCA 248
Court: Court of Criminal Appeal, NSW
Date: 27 November 2012
Judge(s): McClellan CJ at CL, Fullerton J, SG Campbell J

Background

The appellant pleaded guilty in the District Court to two offences: supplying a large commercial quantity of MDMA on two occasions in March and April 2008, and possessing an unregistered .45 calibre pistol. The drug supplies, totalling 3,000 MDMA tablets, were arranged through intercepted telephone calls and conducted via an intermediary to undercover police operatives in Cabramatta. The pistol, along with ammunition, scales, and a further quantity of MDMA, was found locked in a safe in the appellant's garage.

The District Court sentenced the appellant to 13 years and 6 months imprisonment (with a 10-year non-parole period) for the drug offence and 4 years (with a 3-year non-parole period) for the firearms offence. After partial accumulation, the effective sentence was 14 years with a non-parole period of 10 years and 6 months. The sentencing judge applied a 25 per cent discount for the early plea on the firearms count and a 10 per cent discount for the drug count, which was entered after the matter had been listed for trial.

The appellant sought leave to appeal, challenging the sentences on multiple grounds.

  • Whether the way the drug supply charge was framed was unfair, given the appellant's persistent reluctance to accept it
  • Whether a more generous discount for the guilty plea to the drug count should have been applied, having regard to the reasons for the delayed plea
  • Whether the sentencing judge gave insufficient weight to the quantity of drugs being at the low end of the large commercial category and the appellant's relatively minor role
  • Whether the sentence on the firearms count was excessive, given the pistol was stored in a locked safe
  • Whether the overall effective sentence was unreasonable or plainly unjust

Decision

On the question of the guilty plea discount for the drug charge, the Court of Criminal Appeal held that the sentencing judge was entitled to differentiate between the two pleas based on when they were entered. The appellant's reluctance to plead guilty to the supply count as framed was described as carrying no weight. It was the fact that the plea came after the matter had been listed for trial that diminished its utilitarian value, making a 10 per cent discount within the proper exercise of sentencing discretion.

Regarding the objective seriousness of the drug offending, the Court found that the sentencing judge had made express findings that the appellant supplied drugs for monetary reward, which well justified his assessment of the seriousness of the conduct. The argument that the quantity sat at the low end of the large commercial category, or that the appellant's role was minor, did not persuade the Court that the sentence was outside the appropriate range.

On the firearms count, the Court rejected the argument that storing the pistol in a locked safe reduced the appellant's criminality. The offence under the Firearms Act 1996 is constituted by possession of an unregistered prohibited firearm, not by the risk of others accessing it. Having found the appellant's explanation for his possession to be untrue, the sentencing judge's discretion was properly exercised.

The Court confirmed that the sentencing judge had correctly acknowledged the standard non-parole periods as benchmarks and applied recognised sentencing principles in structuring the partial accumulation. Neither individual sentence nor the overall effective sentence was found to be outside the appropriate range or plainly unjust.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a guilty plea's utilitarian value is assessed by reference to when it is entered, not by the reasons a defendant gave for the delay.
  • Where a defendant's reluctance to plead is based on an ultimately unfounded view that a charge was improperly framed, that explanation carries no weight in justifying a more generous discount.
  • Under the Firearms Act 1996, the offence of possessing a prohibited firearm is constituted by the fact of possession itself; the storage conditions of the weapon do not reduce the objective seriousness of that offence.
  • In dismissing the appeal, the Court applied the principle from Windle v R that an appellate court will not intervene unless the sentence is outside the appropriate range or is unreasonable or plainly unjust.
  • Standard non-parole periods function as sentencing benchmarks, and a sentencing judge who expressly acknowledges them and applies recognised accumulation principles will not readily be found to have erred.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Firearms Act 1996 (NSW), s 7(1)

Cases:
- Windle v R [2011] NSWCCA 277
- Hamzy v R (1994) 74 A Crim R 341
- R v Cramp [2004] NSWCCA 264
- R v Gao; R v Lim [2007] NSWCCA 343
- Xue v R [2009] NSWCCA 227