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Court of Criminal Appeal 28 November 2014

Atkinson v R

[2014] NSWCCA 262

Firearms & weapons
CRIMINAL LAW APPEAL APPEAL FROM SENTENCE OFFENDER'S INTENDED USE OF FIREARMS APPEAL APPEAL FROM SENTENCE

Citation: Atkinson v R [2014] NSWCCA 262
Court: Court of Criminal Appeal, NSW
Date: 28 November 2014
Judges: Simpson J, Adams J, McCallum J

Background

The appellant was convicted and sentenced in the District Court on seven offences, including two counts of unauthorised possession of prohibited firearms: a .22 calibre Ruger self-loading pistol and a .45 automatic Colt pistol. He was also found with significant quantities of ammunition for both weapons, a ballistic vest, and items including a police badge and warrant card. He was acquitted of a separate charge of conspiracy to murder.

The sentencing judge classified both firearms possession offences as falling within the worst category of their kind, and imposed ten years imprisonment for each (with accumulation producing an aggregate of eleven years and a non-parole period of seven years). A guilty plea discount of fifteen per cent was applied, rather than the twenty-five per cent ordinarily available under the guideline in R v Thomson; R v Houlton.

The appellant challenged the sentence on several grounds, including the worst-case classification, the adequacy of the guilty plea discount, parity with a related offender, and whether the sentencing judge properly applied the High Court's guidance in Bugmy v R on the relevance of social deprivation to sentencing.

  • Whether the sentencing judge was correct to classify both firearms possession offences as falling within the worst category of case
  • Whether the intended use of the firearms (re-sale versus use in criminal activity) was a material sentencing distinction
  • Whether parity principles applied to the sentences of the appellant and a related offender (Colvin) who was involved in supplying the Ruger, and whether those principles were properly applied
  • Whether the reduction in the guilty plea discount was justified, given that delays in formally entering the pleas were attributable to the appellant's lawyers rather than to the appellant himself
  • Whether the sentencing judge correctly applied Bugmy v R in treating the appellant's history of social deprivation and dysfunctional upbringing as a relevant subjective consideration

Decision

Worst-case classification and intended use (Grounds 1, 2 and 4): The Court of Criminal Appeal upheld the sentencing judge's classification of both firearms offences as worst-case. Simpson J noted that the worst-case categorisation is directed at the objective gravity of the offence and exposes the offender to the maximum penalty, but does not compel its imposition. The Court held that little practical distinction existed between possession of firearms for re-sale into the criminal environment and possession for direct criminal use: both were equally serious in terms of criminal culpability, and either exposed the community to the same risk of harm.

Parity with co-offender Colvin (Ground 3): Simpson J found that the sentencing judge had too readily dismissed parity considerations in relation to Colvin, the middleman who sold the Ruger to the appellant. While Colvin's offence (selling a prohibited firearm) carried a higher maximum penalty and was at least as serious as possession, his sentence of four years and six months with a two-and-a-half year non-parole period stood in stark contrast to the ten-year sentence imposed on the appellant for possession of the same weapon. The Court accepted that the appellant's overall criminality (including the Colt, the ammunition, the ballistic vest, and other items) justified a longer term, but concluded that a material consideration had been overlooked.

Guilty plea discount (Ground 5): The sentencing judge reduced the discount to fifteen per cent on the basis that the delay in formally entering the pleas was partly the appellant's responsibility. The Court of Criminal Appeal disagreed. The appellant had been in custody, refused bail, and preoccupied with defending a conspiracy to murder charge. The evidence established that the delay resulted from his lawyers' focus on that charge, not from any failure by the appellant to give clear instructions. The Court found the full twenty-five per cent discount should have been applied.

Subjective features and Bugmy (Ground 6): The Court accepted that the sentencing judge had not given sufficient weight to the appellant's history of social deprivation, including a dysfunctional family background involving parental substance abuse and physical abuse, consistent with the principles restated by the High Court in Bugmy v R. Those matters remained relevant to the weight to be given to general deterrence. On re-sentence, the aggregate term was reduced to nine years with a non-parole period of five years and three months.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence for the first offence (possession of the Ruger): quashed and replaced with a term of imprisonment with a non-parole period of 5 years and 3 months commencing 24 September 2009 and expiring 23 December 2014, with a balance of term of 2 years and 9 months expiring 23 September 2017.
  • Sentence for the second offence (possession of the Colt): quashed and replaced with a term of imprisonment with a non-parole period of 4 years and 3 months commencing 24 September 2010 and expiring 23 December 2014, with a balance of term of 3 years and 9 months expiring 23 September 2018.
  • The earliest date for release on parole was 23 December 2014.

Key Takeaways

  • A worst-case classification in sentencing is directed at the objective gravity of an offence and permits (but does not require) imposition of the maximum penalty; other sentencing considerations remain relevant and may produce a significantly lower sentence.
  • No material sentencing distinction exists between possession of a prohibited firearm for re-sale into the criminal environment and possession for direct criminal use: both carry equivalent culpability and community risk, and neither is treated as less serious than the other.
  • Parity principles are not confined strictly to co-offenders charged with the same offence; they can apply where two offenders are connected through the same criminal transaction, even where the offences and maximum penalties differ.
  • Under the Thomson/Houlton guideline, a reduction in the standard twenty-five per cent guilty plea discount requires proper justification; where delay in formally entering a plea is attributable to a lawyer's conduct rather than the offender's own failure, reducing the discount on that basis constitutes error.
  • Bugmy v R (2013) 249 CLR 571 confirmed that an offender's history of social deprivation and childhood disadvantage retains ongoing relevance to the weight accorded to general deterrence at sentencing, regardless of how long after those circumstances the offending occurs.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 188(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3, s 44
- Criminal Appeal Act 1909 (NSW), s 6(3)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Firearms Act 1996 (NSW), ss 7(1), 39(1), 51(1A)(a), 65(3)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)

Cases:
- Bugmy v R [2013] HCA 37; (2013) 249 CLR 571
- Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- R v Borkovski [2009] NSWCCA 102; 195 A Crim R 1
- R v Bugmy [2012] NSWCCA 223
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383