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31
Court of Criminal Appeal 3 July 2015

R v Lachlan

[2015] NSWCCA 178

Also reported as (2015) 252 A Crim R 277
Firearms & weapons
CRIMINAL LAW APPEAL CROWN APPEAL AGAINST SENTENCE FIREARMS ACT 1996 (NSW) S 51D(2) PAROLE PERIOD FOR THE OFFENCE

Citation: R v Lachlan [2015] NSWCCA 178
Court: NSW Court of Criminal Appeal
Date: 3 July 2015
Judges: Gleeson JA (with Johnson J and Garling J agreeing)

Background

The respondent, a young man aged 19 at the time of the principal offence, pleaded guilty to two charges arising from items found during a police search of premises at Airds, near Campbelltown. Police located four shortened and loaded firearms (a rifle and three shotguns), each in working order and each constituting a prohibited firearm, along with a stun gun. The respondent's DNA and fingerprints were matched to several of the weapons. Mobile phone evidence also showed he had been engaged in buying and selling firearms for financial gain in the months leading up to the offence.

The respondent was sentenced in the Campbelltown District Court in November 2014. For the principal charge of unauthorised possession of more than three unregistered prohibited firearms under s 51D(2) of the Firearms Act 1996 (NSW), the judge imposed 3 years imprisonment with a non-parole period of 2 years. The prohibited weapon offence attracted a fixed term of 1 year. Eight further offences, including possession of additional prohibited weapons and conduct during his arrest, were taken into account on a Form 1 document.

The Crown appealed on the sole ground that the sentences were manifestly inadequate, with particular focus on the firearms offence. The offence carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years.

  • Whether the sentence imposed for the s 51D(2) firearms offence was manifestly inadequate given the maximum penalty and standard non-parole period.
  • Whether the sentencing judge gave appropriate weight to the standard non-parole period as a guidepost.
  • Whether the respondent's youth and subjective circumstances were sufficient to justify the sentence actually imposed.
  • Whether the Court of Criminal Appeal should exercise its residual discretion to decline to re-sentence, notwithstanding any error established.

Decision

The Court of Criminal Appeal found that the sentence imposed by the Acting District Court Judge was manifestly inadequate. Although the respondent's youth, difficult upbringing, and guilty plea were legitimate mitigating factors, the sentencing judge failed to give sufficient weight to the objective gravity of the offending. The possession of four shortened, loaded, and operational prohibited firearms, combined with evidence of ongoing firearms dealing, placed the conduct at the serious end of the offending spectrum.

The Court reaffirmed that the standard non-parole period of 10 years functions as a legislative guidepost for offences of mid-range seriousness, and that a sentencing judge must engage properly with that benchmark. The starting point adopted by the sentencing judge was too low, even accounting for the significant subjective factors in the respondent's favour.

On the question of residual discretion, the Court declined to refrain from re-sentencing. While the respondent had made some limited rehabilitative progress in custody, including completing a first aid course and an IT course, his overall rehabilitation was described as limited. Two breaches of gaol discipline, including possession of a mobile phone and an offensive instrument, also weighed against exercising the discretion in his favour.

The Court determined an appropriate starting point of 7 years imprisonment. After applying a 25% discount for the early guilty plea, the head sentence was reduced to 5 years and 3 months. A finding of special circumstances (justifying a non-parole period shorter than the standard three-quarters proportion) was maintained, resulting in a non-parole period of 3 years.

Orders Made

  • Appeal allowed.
  • Sentence imposed by the District Court for the s 51D(2) firearms offence quashed.
  • In substitution, the respondent sentenced to imprisonment with a non-parole period of 3 years commencing 29 November 2013 and expiring 28 November 2016, and a balance of term of 2 years and 3 months commencing 29 November 2016 and expiring 28 February 2019.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the standard non-parole period for an offence under s 51D(2) of the Firearms Act 1996 (NSW) (10 years, with a maximum of 20 years) must operate as a genuine legislative guidepost that sentencing courts engage with meaningfully, not merely acknowledge in passing.
  • Significant subjective factors, including a young offender's difficult upbringing, history of family violence, early expulsion from school, and genuine prospects of rehabilitation, do not automatically justify a departure well below the standard non-parole period where the objective gravity of the offending is high.
  • Where four operational shortened prohibited firearms are found alongside evidence of ongoing illegal dealing in firearms, the objective seriousness of the offence warrants substantial weight in the sentencing exercise, even for a young adult offender.
  • A residual discretion to dismiss a Crown appeal despite established error was not exercised where the respondent's rehabilitative progress while in custody was modest and his disciplinary record in custody was not unblemished.
  • Under the Crown appeal framework in s 5D of the Criminal Appeal Act 1912 (NSW), the Court re-sentenced by identifying a fresh starting point, then applying the appropriate guilty plea discount and adjusting for special circumstances to set the non-parole period.

Legislation and Cases Referenced

Legislation:
- Firearms Act 1996 (NSW), ss 4, 51D(2), 65, Sch 1
- Weapons Prohibition Act 1998 (NSW), s 7(1), Sch 1
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Criminal Appeal Act 1912 (NSW), s 5D
- Children (Criminal Proceedings) Act 1987 (NSW), s 6
- Crimes Act 1900 (NSW), ss 58, 195(1)
- Firearms Regulation 2006 (NSW), reg 129
- Inclosed Lands Protection Act 1901 (NSW), s 4

Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- CMB v The Attorney General for New South Wales [2015] HCA 9; 317 ALR 308
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- House v The King [1936] HCA 40; 55 CLR 499
- Griffiths v The Queen [1977] HCA 44; 137 CLR 293
- Lowndes v The Queen [1999] HCA 29; 195 CLR 665
- Carroll v The Queen [2009] HCA 13; 83 ALJR 579
- R v De Simoni [1981] HCA 31; 147 CLR 383
- Attorney General's Application Under Section 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCA 518; 56 NSWLR 146