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Court of Criminal Appeal 25 February 2013

SMART, Gary v R

[2013] NSWCCA 37

Firearms & weapons
CRIMINAL LAW MACHINE GUNS WHETHER SENTENCES MANIFESTLY EXCESSIVE

Citation: SMART, Gary v R [2013] NSWCCA 37
Court: Court of Criminal Appeal, NSW
Date: 25 February 2013
Judges: McClellan JA, Hidden J, Adamson J

Background

The applicant pleaded guilty in the District Court to a range of serious firearms offences, including two charges of manufacturing a sub-machine gun under s 50A(2) of the Firearms Act 1996. Police executed a search warrant at his Blacktown home in December 2009 and discovered a partially assembled sub-machine gun in a shed, along with manufacturing instructions, diagrams, and several other unlicensed firearms and prohibited items. A second sub-machine gun he had already manufactured was recovered from the premises of a co-offender.

The sentencing judge rejected the applicant's claim that he had been coerced by the co-offender into manufacturing the weapons. His Honour found instead that the applicant had operated a small-scale business, manufacturing sub-machine guns to sell for profit, and that the offences were premeditated.

The applicant received an aggregate sentence of 12 and a half years imprisonment with an effective non-parole period of 7 and a half years. He sought leave to appeal on two grounds: that insufficient weight was given to his psychological condition, and that the sentences were manifestly excessive.

  • Whether the sentencing judge gave appropriate weight to the applicant's psychological condition as a mitigating factor.
  • Whether the aggregate sentences were manifestly excessive, having regard to the gravity of the offences and the applicant's subjective circumstances.

Decision

On the psychological condition ground, the Court noted that the applicant's psychologist had provided a report but had not concluded that any condition substantially affected his moral culpability. The sentencing judge had acknowledged the applicant's psychological state, including references to his tendency towards obsessive and compulsive behaviours, but found it did not significantly diminish his responsibility for these serious offences. The Court of Criminal Appeal found no error in that reasoning and rejected this ground.

On manifest excess, the Court acknowledged the difficulty facing the sentencing judge in dealing with the offence of manufacturing a sub-machine gun, which it described as "uncharted territory" given the paucity of comparable cases. The Court assessed the objective gravity of the offences as very high. Both weapons were chambered in .45 calibre ammunition, were compact enough to be easily concealed, and were of a type highly sought after by organised criminal groups.

The Court found the 10-year sentence for the primary manufacturing offence (derived from a starting point of almost 14 years) was undoubtedly high but not outside the proper exercise of the sentencing judge's discretion. The structure of the overall sentence, including a finding of special circumstances that produced a generous reduction in non-parole periods, was found to reflect an appropriate balancing of objective seriousness against the applicant's favourable subjective case, including his guilty plea and personal circumstances.

Leave to appeal was granted, but the appeal was dismissed unanimously.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that manufacturing sub-machine guns under s 50A(2) of the Firearms Act 1996 represents offending of very high objective gravity, particularly where the weapons are purpose-built for sale, capable of being concealed, and of interest to organised criminal groups.
  • A sentencing court is not required to treat a psychological condition as significantly mitigating where the forensic evidence does not establish that the condition substantially reduced the offender's moral culpability.
  • In dismissing the appeal, the Court accepted that sentencing for the offence of manufacturing a sub-machine gun involves "uncharted territory," and gave appropriate latitude to the sentencing judge's exercise of discretion in that context.
  • The aggregate sentence of 12 and a half years, though described as "undoubtedly severe," was held to fall within the range of a proper sentencing discretion when balanced against the seriousness of the offending and the applicant's subjective circumstances.
  • A finding of special circumstances permitting departure from the standard non-parole period proportion can properly reflect an offender's need for supervised rehabilitation, even in cases involving very serious firearms offences.

Legislation and Cases Referenced

Legislation:
- Firearms Act 1996 (NSW), ss 7(1), 36(1), 39(1)(a), 50A(2)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Benitez v R [2006] NSWCCA 21, 160 A Crim R 166
- R v Wright (1997) 93 A Crim R 48
- DPP (Cth) v De La Rosa [2010] NSWCCA 194, 79 NSWLR 1
- R v Engert (1995) 84 A Crim R 67