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9
Court of Criminal Appeal 3 September 2013

Athos v R

[2013] NSWCCA 205

Also reported as (2013) 233 A Crim R 302
Firearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE OFFENDER WHETHER COURT SHOULD INTERVENE

Citation: Athos v R [2013] NSWCCA 205
Court: NSW Court of Criminal Appeal
Date: 3 September 2013
Judges: Beazley P, Johnson J, Price J (judgment delivered by Price J)

Background

The applicant pleaded guilty in the Local Court to seven charges of possessing prohibited firearms and weapons without a licence or permit, including a Smith and Wesson revolver, two bolt guns (pen pistols), handcuffs, firearm magazines, and a silencer. Eight further matters, including possession of barrels, ammunition, a suspected stolen GPS, and small quantities of methylamphetamine and cannabis, were placed on a Form 1 to be taken into account on sentence.

The facts revealed that the applicant had transported the firearms and a large quantity of ammunition by car from Queensland to New South Wales in May 2011. He delivered two bags containing the items to a café where police arrested him, a co-offender (Tuhukava), and others. The applicant admitted the bags were his and contained guns and ammunition.

The District Court sentenced the applicant to a total effective sentence of six years with a non-parole period of four years. The applicant sought leave to appeal, raising four grounds.

  • Whether the sentencing judge erred by affording good character less weight than usual because of the nature of firearms offences
  • Whether the quantity of items seized across all charges could legitimately elevate each individual offence to the upper range of objective seriousness
  • Whether the judge gave conclusive and erroneous weight to a finding that the applicant had not given truthful evidence about the circumstances of his offending, in turn leading to an adverse finding on rehabilitation prospects
  • Whether the applicant had a justifiable sense of grievance arising from a marked sentencing disparity with his co-offender, Tuhukava, whose total effective sentence was eight years

Decision

Ground 1 (Good Character): The Court of Criminal Appeal upheld this ground, finding the sentencing judge had erred in reducing the weight to be given to the applicant's prior good character. The correct approach is that good character carries less weight where the offence is one readily committed by persons of otherwise good character, but the applicable principle does not diminish good character simply because of the nature of a firearms offence. The Court found this constituted error in principle, but ultimately determined that no lesser sentence was warranted in the circumstances.

Ground 2 (Quantity and Objective Seriousness): The Court rejected this ground. It accepted that the quantity and variety of items lawfully informed the objective seriousness of the individual charges, particularly charge 1 which encompassed the Form 1 matters. The Court was not persuaded that the judge's reasoning involved any error.

Ground 3 (Rehabilitation Prospects): The Court also rejected this ground. The judge had found the applicant gave untruthful evidence about the circumstances of his offending, and this finding was open on the evidence. The judge took that into account as one of several factors bearing on rehabilitation. The Court was not satisfied the judge treated it as conclusive, or that this amounted to appellable error.

Ground 4 (Co-offender Disparity): The Court rejected the disparity argument. Tuhukava received a longer total effective sentence of eight years, and the differences in sentence reflected the differences between the two offenders, including the applicant's unblemished record. The Court was not persuaded there was a marked disparity giving rise to a justifiable sense of grievance.

The Court also noted, without being able to intervene, that the judge had imposed fixed terms for charges 2 to 7 rather than setting non-parole periods as required by the standard non-parole period provisions. Because no ground of appeal addressed this error and the sentences were not to be varied, the Court found it had no basis to re-sentence the applicant on those charges.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • Good character carries less weight in sentencing where the offence is one readily committed by persons of good character, but this principle is offence-specific and does not automatically diminish good character simply because the offence involves prohibited firearms.
  • A finding that an offender gave untruthful evidence about the circumstances of their offending can legitimately bear on the assessment of rehabilitation prospects, provided it is not treated as the sole or conclusive factor.
  • Quantity and variety of prohibited firearms and weapons can properly inform the objective seriousness of individual charges, particularly where related items are included via a Form 1.
  • In dismissing the disparity ground, the Court of Criminal Appeal confirmed that differences in subjective circumstances between co-offenders can justify sentencing differences, even where certain individual charges attract identical sentences.
  • Where a sentencing court imposes fixed terms for offences carrying a standard non-parole period (contrary to statute), the Court of Criminal Appeal noted it cannot correct that error unless a ground of appeal raises it and the sentences are otherwise to be varied.

Legislation and Cases Referenced

Legislation:
- Firearms Act 1996 (NSW), ss 7, 51(1A), 58(1), 58(2), 65(3)
- Weapons Prohibition Act 1998 (NSW), s 7
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21(3)(h), 21A(2)(m), 21A(3)(e)-(f)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes Act 1900 (NSW), ss 115, 527C(1)(a)
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)
- Crimes Act 1914 (Cth), s 16A(2)(m)

Key Cases:
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
- Hristovksi v R [2010] NSWCCA 129
- R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29
- R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740
- R v AZ [2011] NSWCCA 43; (2011) 205 A Crim R 222
- Gebara v R [2012] NSWCCA 107
- Cooper v R [2005] NSWCCA 428
- Application by the Attorney General under section 37 of the Crimes (Sentencing Procedure) Act [2004] NSWCCA 303; (2004) 61 NSWLR 305