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Court of Criminal Appeal 9 September 2013

Bejanov v R

[2013] NSWCCA 207

Firearms & weapons
CRIMINAL LAW SENTENCE AFFECTED BY MATHEMATICAL ERROR POSITION NOT DISPUTED BY CROWN MULTIPLE FIREARMS OFFENCES CONSEQUENTIAL CHANGES REQUIRED WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Bejanov v R [2013] NSWCCA 207
Court: NSW Court of Criminal Appeal
Date: 9 September 2013
Judges: Leeming JA, R A Hulme J, Button J (all agreeing with Button J)

Background

The applicant was sentenced in the District Court on 10 February 2012 for a series of offences involving the unlawful sale and possession of firearms and ammunition. The offences arose from two sets of events: the sale of two prohibited firearms and associated ammunition to an undercover police officer for $7,000 in February 2010, and the discovery of two further firearms, ammunition, and capsicum spray at the applicant's home during the execution of a search warrant in May 2010.

Six offences were dealt with substantively, with a further seven placed on a Form 1 (a document listing additional offences to be taken into account at sentencing without separate punishment). The total sentence imposed at first instance was imprisonment for 7 years, with a non-parole period of 4 years 6 months.

The applicant sought leave to appeal against those sentences on three grounds. The Crown conceded that two grounds revealed error, which required the Court of Criminal Appeal to resentence. The applicant's counsel agreed that the third ground's material should be addressed as part of the resentencing exercise rather than as a standalone ground.

  • Whether the sentencing judge made a mathematical error in calculating the total sentence across multiple cumulative terms
  • Whether two charges relating to the same firearm (the .22 calibre rifle) were erroneously made fully cumulative, resulting in double punishment for substantially overlapping conduct
  • What the correct sentence should be on resentencing, taking into account all subjective factors, including the applicant's serious medical condition

Decision

The Crown conceded the first two grounds of appeal, accepting that a mathematical error had infected the total sentence calculation and that sequences 16 and 17 (both arising from possession of the same .22 calibre rifle on the same occasion) had been made fully cumulative in circumstances where their significant evidential overlap required the totality principle to operate. Both errors were undisputed, and the Court was therefore required to resentence.

Button J noted that the assignment of charges between the notice of committal and the Form 1 was "idiosyncratic and apt to confuse," and that a more logical arrangement would have placed the most serious count for each of the four firearms on the substantive document, with remaining charges on appropriately linked Form 1 documents. The structure at first instance contributed to the error regarding sequences 16 and 17.

On resentencing, the Court took into account the applicant's plea of guilty (attracting a 25 per cent utilitarian discount), his limited criminal history (a single prior offence involving what was effectively a starting pistol), his family circumstances, and in particular his serious medical condition. The exculpatory explanation the applicant offered for possessing the firearms (that he had found them on a beach and at a construction site) was rejected at first instance and was not revisited on appeal.

The Court imposed a revised total head sentence of 6 years with a total non-parole period of 3 years 7 months. Button J expressly noted that the resulting sentence carried a marked degree of leniency, reflecting both the need to correct the errors at first instance and the applicant's serious medical condition. The ratio of non-parole period to total term (just below 60 per cent) was reduced from that imposed at first instance, with special circumstances found to justify the departure from the standard statutory ratio.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences for sequences 1, 9, 13, and 17 quashed
  • Sequence 1 (sale of prohibited firearm, 12-gauge shotgun, 2 February 2010, Form 1 matters taken into account): non-parole period of 3 years 1 month, balance of term 1 year 7 months, commencing 15 December 2011; non-parole period expires 14 January 2015, total term expires 14 August 2016
  • Sequence 9 (possession of prohibited firearm, second pump-action shotgun, 12 May 2010): non-parole period of 2 years 6 months, balance of term 1 year 8 months, commencing 15 October 2012; non-parole period expires 14 April 2015, total term expires 14 December 2016
  • Sequence 13 (possession of prohibited weapon, capsicum spray, 12 May 2010): non-parole period of 2 years, balance of term 1 year, commencing 15 July 2013; non-parole period expires 14 July 2015, total term expires 14 July 2016
  • Sequence 17 (possession of unauthorised prohibited firearm, .22 calibre rifle, 12 May 2010): non-parole period of 2 years 6 months, balance of term 2 years 6 months, commencing 15 December 2012; non-parole period expires 14 June 2015, total term expires 14 December 2017
  • First eligible parole date: 14 July 2015

Key Takeaways

  • A mathematical error in cumulating multiple sentences, and fully cumulating sentences for two charges arising from the same firearm on the same occasion, each constituted error warranting intervention on appeal and resentencing by the Court of Criminal Appeal.
  • Where two charges share substantial evidential overlap (here, both sequences concerned possession of the same .22 calibre rifle on the same day), making those sentences wholly cumulative without regard to totality principles can amount to reviewable error.
  • Special circumstances justifying a reduction in the standard non-parole period ratio can be established by factors including serious illness and the particular rehabilitation needs of the offender.
  • In resentencing, the Court of Criminal Appeal expressly characterised the revised sentence as carrying "a marked degree of leniency," signalling that such leniency arose from the specific combination of correcting first-instance error and responding to the applicant's medical condition rather than reflecting a general approach to comparable offending.
  • Button J's observation that the idiosyncratic arrangement of charges across the committal document and Form 1 contributed to sentencing error illustrates the practical significance of coherent charge management in multi-offence firearms matters.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Firearms Act 1996 (NSW), ss 7(1), 36(1), 39(1)(a), 51(2), 51(2A), 65(1), 65(3)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases:
- R v Achurch [2011] NSWCCA 186; (2011) 216 A Crim R 152
- R v Badanjak [2004] NSWCCA 395
- R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
- R v Nguyen [2013] NSWCCA 195
- Troung v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36