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10
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: Court of Criminal Appeal
Date: 3 September 2013
Judge(s): Beazley P, Johnson J, Price J (unanimous, Price J writing)

Background

The applicant pleaded guilty in the Local Court to seven charges of possessing prohibited firearms and prohibited weapons, including a Smith and Wesson revolver, two bolt guns, handcuffs, firearm magazines, and a silencer. Eight additional matters were placed on a Form 1 and taken into account on sentence, including possession of ammunition, firearm barrels, a suspected stolen GPS unit, and prohibited drugs. The applicant had transported the items from Queensland to New South Wales and was intercepted by police when delivering two bags containing the firearms and a substantial quantity of ammunition to associates at a café in Sydney.

In the District Court, the sentencing judge imposed a total effective sentence of 6 years imprisonment with a non-parole period of 4 years, applying a 25 per cent discount for the utilitarian value of guilty pleas and finding special circumstances. The applicant had no prior criminal history. A co-offender, who had prior convictions for violence, was subsequently sentenced to a total effective term of 7 years with a non-parole period of 5 years.

The applicant sought leave to appeal on four grounds: the treatment of his good character, the assessment of objective seriousness by reference to quantity of items, the conclusion that he had no favourable prospects of rehabilitation, and an alleged marked disparity with the co-offender's sentence.

Legal Issues

  • Whether the sentencing judge erred by reducing the weight afforded to the applicant's prior good character on the basis that possession of prohibited firearms is a type of offence where good character carries less mitigating weight generally
  • Whether the judge erred in using the quantity of prohibited items in the applicant's possession as a factor increasing the objective seriousness of each individual offence
  • Whether the judge erred by treating the applicant's lack of candour about the circumstances of his offending as effectively determinative of his prospects of rehabilitation, without separately weighing the psychologist's opinion and evidence of family support
  • Whether the disparity between the sentences imposed on the applicant and his co-offender gave rise to a justifiable sense of grievance warranting appellate intervention

Decision

Ground 1: Good character and firearms offences

Price J held that the sentencing judge erred by reducing the weight given to the applicant's good character on the basis of the type of offence alone. The court confirmed that the weight to be afforded to good character is always a matter for the sentencing judge and may vary with all the circumstances, including the nature of the offence. Certain categories of offence, such as child pornography, white-collar crime, and drug couriering, have been recognised as warranting reduced weight for good character, but possession of prohibited firearms has not been placed in that category, and the category is not closed.

The judge's reasoning, that persons of good character are less likely to attract police attention and therefore more likely to be selected to transport firearms, was not supported by sufficient material. The applicant's own account in his police interview was that he was selected because he was "a reliable bloke," which is not the same as being a person of good character. The error lay in tethering the reduction in weight to the type of offence rather than to the specific circumstances of the offending. Ground 1 was upheld.

Ground 2: Quantity of items and objective seriousness of individual offences

Despite upholding Ground 1, the court rejected Ground 2. The judge had taken the quantity of all prohibited items into account when assessing the objective seriousness of each individual offence. Price J found this was technically inconsistent with the principle in Pearce v The Queen (1998) 194 CLR 610, which requires that a sentence for any individual offence must reflect only the criminality of that offence, not the criminality of other offences being dealt with simultaneously. The quantity of items across all charges was relevant to totality, not to the seriousness of each individual count.

Nonetheless, the court declined to intervene on this ground. The unchallenged finding that the applicant knew he was handing weapons to persons with criminal backgrounds and that there was a real chance those weapons would be used in criminal activity was, in itself, sufficient to place each individual offence in the upper range of objective seriousness. The characterisation of seriousness was open to the judge on this basis alone.

Ground 3: Prospects of rehabilitation

The court rejected Ground 3. The sentencing judge had given careful consideration to the psychologist's favourable opinion on rehabilitation but declined to accept it, because that opinion was founded on the psychologist's acceptance of the applicant's account that he was merely a custodian of the weapons who had given no thought to their future use. The judge had rejected that account as lacking credibility, and the applicant's lack of frankness before the court provided a sufficient basis to decline to accept the psychologist's prognosis.

Price J confirmed that an offender's honesty about the circumstances of offending is legitimately relevant to assessing prospects of rehabilitation. The complaint was essentially one about the weight given to the psychologist's evidence and the evidence of family support, and the circumstances in which weight-based complaints justify appellate intervention are narrowly confined. The finding was open to the judge on the evidence.

Ground 4: Parity with the co-offender

The court rejected Ground 4. While the applicant had a superior subjective case in some respects, particularly his unblemished criminal history compared to the co-offender's prior convictions for violence, there were material differences justifying the disparity. The co-offender faced an additional charge of being armed with intent to commit an indictable offence and an offence of possessing proceeds of crime. He had received a lesser utilitarian discount (20 per cent against 25 per cent). The judge expressly applied parity principles when sentencing the co-offender. The total effective sentences differed by one year and the court was not persuaded that any marked disparity existed.

Intervention

Although Ground 1 was upheld, the court was not satisfied that any lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912. The court also noted that the judge had incorrectly imposed fixed terms for charges 2 to 7, for which standard non-parole periods are prescribed, but as no ground challenged this and the sentences were not being quashed or varied, there was no basis to intervene and re-sentence on those charges.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • Reducing the weight afforded to an offender's prior good character must be justified by the specific circumstances of the offending, not simply by the category or type of offence. The Court of Criminal Appeal confirmed that possession of prohibited firearms has not been established as an offence category where good character automatically carries diminished mitigating weight.

  • Under the principles in Pearce v The Queen, a sentence imposed for an individual offence must reflect only the criminality of that offence. Using the total quantity of items involved across multiple charges to elevate the objective seriousness of each individual offence is inconsistent with that principle, though it remains relevant at the totality stage.

  • Where a sentencing judge rejects an offender's account of the circumstances of offending as lacking credibility, that finding can constitute a sufficient basis to decline to accept a psychologist's favourable opinion on rehabilitation, if that opinion was premised on acceptance of the rejected account.

  • A finding that an offender knew prohibited firearms were to be passed to persons with criminal backgrounds, and that there was a real chance those weapons would be used in criminal activity, substantially elevates the objective seriousness of individual firearms possession offences and can, of itself, place each offence in the upper range.

  • Appellate intervention on parity grounds requires a marked disparity that a reasonable person would regard as giving rise to a justifiable sense of grievance, assessed objectively. Differences in criminal history, utilitarian discounts, and the particular charges faced by each co-offender are all relevant considerations in that assessment.

Legislation and Cases Referenced

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

Cases
- Cooper v R [2005] NSWCCA 428
- Gebara v R [2012] NSWCCA 107
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Hristovksi v R [2010] NSWCCA 129
- Mulato v R [2006] NSWCCA 282
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- R v AZ [2011] NSWCCA 43; (2011) 205 A Crim R 222
- R v Baker [2000] NSWCCA 85
- R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29
- R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267
- R v Howard [2004] NSWCCA 348
- R v llbay [2000] NSWCCA 251
- R v Kennedy [2000] NSWCCA 527
- R v Kollas and Mitchell [2002] NSWCCA 491
- R v Leroy (1984) 2 NSWLR 441
- R v Najam [2008] NSWCCA 32
- R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
- R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740
- Application by the Attorney General under section 37 of the Crimes (Sentencing Procedure) Act [2004] NSWCCA 303; (2004) 61 NSWLR 305
- Ryan v R [2001] HCA 21; (2001) 206 CLR 267; (2001) 118 A Crim R 538