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Court of Criminal Appeal 24 September 2015

Cornish v R

[2015] NSWCCA 256

DrugsFirearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE DRUG AND FIREARMS OFFENCES AGGREGATE SENTENCE IMPOSED LEAVE TO APPEAL GRANTED APPEAL DISMISSED

Citation: Cornish v R [2015] NSWCCA 256
Court: Court of Criminal Appeal, NSW
Date: 24 September 2015
Judge(s): Hoeben CJ at CL, Hall J, Button J (all agreeing)

Background

The appellant was stopped by police near Armidale airport in September 2013 and found in possession of small quantities of amphetamines and ecstasy. A search warrant executed at his home the same day uncovered 7.58 kilograms of cannabis (with an estimated street value of around $42,000), drug supply paraphernalia, 23 cannabis plants growing in the garden, approximately $4,900 in cash, a crossbow, and eight firearms secreted in a safe. One of the firearms had been reported stolen; others were prohibited by virtue of being self-loading or fitted with a silencer.

The appellant pleaded guilty to eight offences spanning drug supply and cultivation, possession of three or more unregistered and prohibited firearms, possession of a prohibited weapon, possession of ammunition, and dealing in the proceeds of crime. Acting Judge Walmsley SC sentenced him in the District Court at Armidale in May 2014, imposing an aggregate sentence that encompassed three District Court offences and five Local Court offences dealt with by way of a certificate under the Criminal Procedure Act 1986 (NSW).

The appellant sought leave to appeal against the aggregate sentence, arguing that the sentencing judge had failed to properly assess the objective seriousness of the offences, had given insufficient weight to his diagnosis of chronic schizophrenia, and had imposed a sentence that was manifestly excessive.

  • Whether the sentencing judge failed to assess adequately the objective seriousness of the offences
  • Whether the sentencing judge erred in failing to give sufficient weight to the appellant's schizophrenia when determining the sentence
  • Whether the aggregate sentence was manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed all three grounds.

On objective seriousness, Button J (with whom the other judges agreed) found no error in the sentencing judge's assessment. The firearms offence was characterised as very serious: the possession by a person described as floridly mentally ill, who held delusional beliefs about malignant external forces controlling his life, of shotguns, a self-loading rifle capable of firing eight rounds without interruption, and a silenced firearm, along with substantial ammunition, presented extreme danger to the community. The Court rejected the submission that the rural setting of the offending diminished its gravity, noting also that criminals commonly target regional and rural properties to steal or seize firearms.

On the mental illness ground, the Court accepted that the appellant's schizophrenia was severe and chronic, and that it made him a less suitable vehicle for general and personal deterrence. However, the sentencing judge had plainly taken this into account. The appellant also had a prior record that included supply of a prohibited drug, possession of a prohibited weapon, and unlawful possession of ammunition, which the Court considered relevant when weighing the deterrence question.

On manifest excess, Button J described the indicative head sentence for the firearms offence as "quite a lenient one" in the context of a maximum penalty of 20 years and a standard non-parole period of 10 years, even accounting for the significant subjective features. The aggregate sentence, which also encompassed the separate drug offending, was found to be soundly within the proper exercise of the sentencing discretion.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the possession of multiple prohibited and unregistered firearms by a person with severe delusional mental illness represents serious objective criminality, regardless of whether the setting is urban or rural.
  • A diagnosis of chronic schizophrenia is a relevant mitigating factor that can reduce the weight given to general and personal deterrence, but it does not operate as a decisive consideration where the offender has a prior record of similar offending.
  • Where a sentencing judge's indicative head sentence for a principal offence sits well below the applicable maximum penalty and standard non-parole period, and the judge has properly accounted for subjective factors, an appellate court is unlikely to find manifest excess.
  • An aggregate sentence that encompasses offending across multiple categories of serious crime (drug supply and cultivation alongside prohibited firearms possession) will not be manifestly excessive simply because the combined result is substantial.
  • Under Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the offence of possessing three or more unregistered firearms (at least one of which is prohibited) carries a maximum of 20 years' imprisonment and a standard non-parole period of 10 years, benchmarks the Court regarded as instructive when assessing proportionality.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 193C(1), 556A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A, Div 1A
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 23(1)(a), 25(1), 29, Sch 1
- Firearms Act 1996 (NSW), ss 7(1), 51D(2), 65(3)

Cases:
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579