Citation: R v Farrell [2015] NSWCCA 68
Court: NSW Court of Criminal Appeal
Date: 21 April 2015
Judges: Simpson J, Rothman J, Bellew J
Background
The respondent pleaded guilty in the District Court to possessing an unauthorised pistol contrary to s 7(1) of the Firearms Act 1996 (NSW), an offence carrying a maximum penalty of 14 years' imprisonment and a standard non-parole period of three years. The firearm was loaded and its identification markings had been defaced. Four additional offences (including possession of unregistered firearms and defaced ammunition) were taken into account on a Form 1.
The sentencing judge found that the respondent had come into possession of the pistol essentially by chance rather than through deliberate sourcing, and that there was no evidence of any intended criminal purpose, use, or on-sale. By the time of sentencing, the respondent had already spent approximately nine and a half months in pre-sentence custody. On 19 September 2014, the District Court sentenced the respondent to two years' imprisonment to be served by way of an Intensive Correction Order.
This was the second Crown appeal against sentences imposed in the same proceedings. An earlier appeal (R v Farrell [2014] NSWCCA 30) had found error in the original sentencing but was dismissed on practical grounds, as the matter was shortly to return before the sentencing judge. The Crown again appealed, contending that the sentence imposed on resentencing was manifestly inadequate.
Legal Issues
- Whether the sentence of two years' imprisonment served by way of an Intensive Correction Order was manifestly inadequate in all the circumstances.
- Whether the sentencing judge erred in finding the offending fell below the mid-range of objective seriousness, given the nature of the weapon and the matters on the Form 1.
- Whether evidence suggesting possible links to a motorcycle gang was properly placed before the Court and capable of affecting the assessment of objective seriousness.
- Whether the residual discretion available on a Crown appeal should be exercised to vary the sentence, even if some inadequacy were established.
Decision
Bellew J (with whom Simpson J agreed) dismissed the appeal, concluding that the sentence was not unreasonable or plainly unjust. The sentencing judge had made a series of unchallenged favourable findings about the nature and extent of the respondent's possession and his degree of moral culpability. Those findings supported the conclusion that the offending fell below the mid-range of seriousness.
Bellew J also rejected the Crown's reliance on evidence suggesting the respondent was a member of an outlaw motorcycle gang. The witness who gave that evidence conceded under cross-examination that his understanding came solely from reading a facts sheet, and that it may not have been accurate. In those circumstances, the Crown's reliance on that material was misplaced.
Rothman J agreed the appeal should be dismissed but expressed a different view on the underlying merits. His Honour considered the pistol to be an extremely dangerous weapon and expressed the view that a two-year sentence served by way of an Intensive Correction Order was, in his assessment, unreasonably inadequate and plainly unjust. He added that if such a sentence fell within the existing range for this type of offence, that range itself was inadequate.
Despite this, Rothman J declined to vary the sentence. He reasoned that retrospectively adjusting the relevant sentencing range in a way that would prejudice the current respondent would be inappropriate and unjust. He was not satisfied that the Crown had established that the residual discretion to vary the sentence should be exercised, and he agreed with the orders proposed by Bellew J.
Orders Made
- The Crown appeal is dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a Crown appeal on the ground of manifest inadequacy requires the Crown to establish that the sentence is unreasonable or plainly unjust, a threshold that was not met on the facts of this case.
- Unchallenged findings by the sentencing judge as to objective seriousness and moral culpability carry significant weight on a Crown appeal, particularly where the Crown does not contest those findings in the appellate proceedings.
- Evidence going to objective seriousness must be sufficiently reliable; where a witness concedes their account derives solely from a facts sheet and may be inaccurate, reliance on that evidence in an appellate court is problematic.
- A primary purpose of a Crown appeal against sentence is to establish principles for the guidance of sentencing courts (following Green v R; Quinn v R [2011] HCA 49), and the Court may decline to vary a sentence even where it identifies inadequacy, if doing so would retrospectively prejudice the respondent.
- Where a respondent has served a substantial period of pre-sentence custody referable to the same charge, that time already served remains a relevant consideration in the overall sentencing calculus.
Legislation and Cases Referenced
Legislation
- Firearms Act 1996 (NSW), s 7(1)
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11
- Crimes Act 1900 (NSW)
Cases
- R v Farrell [2014] NSWCCA 30
- Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579
- CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 317 ALR 308
- Cranssen v The Queen [1936] HCA 42; (1936) 55 CLR 509
- Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
- Everett v R [1994] HCA 49; (1994) 181 CLR 295
- Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462
- Griffiths v R [1977] HCA 44; (1977) 137 CLR 293
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v MD and ors [2005] NSWCCA 342; (2005) 156 A Crim R 372
- R v Thalari [2009] NSWCCA 170; (2009) 75 NSWLR 307