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Court of Criminal Appeal 14 November 2014

R v Sward

[2014] NSWCCA 259

DrugsFirearms & weaponsPublic order & justice offences
CRIMINAL LAW SELL FIREARMS TO UNAUTHORISED PERSON SUPPLY DRUGS SENTENCING CROWN APPEAL WHETHER SENTENCE MANIFESTLY INADEQUATE

Citation: R v Sward [2014] NSWCCA 259
Court: NSW Court of Criminal Appeal
Date: 14 November 2014
Judges: Hoeben CJ at CL, R A Hulme J, Davies J (with reasons)

Background

The respondent pleaded guilty in the District Court to a range of serious offences committed in 2012. The firearms offences involved the sale of four registered handguns to an unauthorised person, in exchange for discharge of a drug debt of approximately $5,000. The guns were sold knowing they were being acquired by a member of an outlaw motorcycle club. Only one firearm was subsequently recovered.

The drug supply offences involved ecstasy, amphetamine, and methylamphetamine, arising from police telephone interceptions conducted by Strike Force Raptor. An additional offence arose from the respondent making a false report to police, claiming his firearms had been stolen in a break-in, before admissions were obtained.

Acting Judge Williams sentenced the respondent in the District Court on 30 May 2014 to an aggregate non-parole period of two years and six months with an additional term of two years. The Crown appealed, contending that the sentence was manifestly inadequate, particularly in light of the maximum penalties and the ten-year standard non-parole period applicable to the firearm offences.

  • Whether the aggregate sentence imposed by Acting Judge Williams was manifestly inadequate, having particular regard to the statutory maximum of 20 years and the standard non-parole period of ten years for selling a firearm to an unauthorised person.
  • Whether the sentencing judge gave appropriate weight to those statutory markers in arriving at the indicative and aggregate sentences.
  • How the Court of Criminal Appeal should re-sentence, including consideration of further subjective material tendered on the respondent's behalf.

Decision

Davies J (with whom Hoeben CJ at CL and R A Hulme J agreed) found that the original sentence was manifestly inadequate. The firearms offences were treated as carrying a standard non-parole period of ten years, which represents the legislative benchmark for offending in the middle of the range. The indicative sentences imposed for those offences fell far short of that benchmark without sufficient justification.

The Court also observed that the gravity of the offending was compounded by the respondent's knowledge that the handguns were being acquired by a member of an outlaw motorcycle gang. Three of the four firearms remained unrecovered. These factors rendered the respondent's culpability toward the more serious end of the spectrum, and the original sentencing failed to reflect that adequately.

On re-sentencing, the Court had regard to additional material tendered by the respondent, including evidence of his time spent in protective custody, his depression and ongoing safety concerns, his TAFE studies, and a certificate of appreciation from Corrective Services. Davies J found special circumstances warranted a departure from the standard ratio of non-parole period to additional term, by reason of his custodial arrangements and ongoing need for drug rehabilitation.

Orders Made

  • Crown appeal upheld.
  • Aggregate sentence imposed by Acting Judge Williams on 30 May 2014 quashed.
  • For sequences 1, 2, 3, 4, 6 and 9 (and taking into account Form 1 offences), the respondent sentenced to an aggregate non-parole period of 4 years and 6 months commencing 9 October 2012 and expiring 8 April 2017, with an additional term of 2 years and 6 months expiring 8 October 2019.
  • The sentence of 6 months imprisonment for the s 166 certificate offence (false representation resulting in a police investigation), commencing 9 October 2012, confirmed.

Key Takeaways

  • The standard non-parole period of ten years for selling a firearm to an unauthorised person operates as a significant legislative benchmark; sentences that depart substantially downward from that marker require clear and commensurate justification in the sentencing remarks.
  • Upholding the Crown appeal, the Court of Criminal Appeal found that the original indicative sentences for the firearm offences failed to give due regard to both the statutory maximum of 20 years and the standard non-parole period, producing a result that was manifestly inadequate.
  • Knowledge that handguns were being sold for acquisition by a member of an outlaw motorcycle club, combined with the fact that three of four firearms remained unrecovered, were identified as significant aggravating features that required meaningful reflection in the sentence.
  • Under the aggregate sentencing regime, it is neither necessary nor appropriate to set non-parole periods for indicative sentences relating to offences that do not carry a standard non-parole period, consistent with s 44(2C) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Special circumstances justifying an extended additional term can be established by reference to unusual custodial arrangements, such as time spent in protection, and a demonstrated need for ongoing rehabilitation.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 32, 44, 44(2C)
- Criminal Procedure Act 1986 (NSW)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Mack v R; Mack v R [2009] NSWCCA 216
- Pearce v The Queen (1998) 194 CLR 610