Citation: Laspina v R [2016] NSWCCA 181
Court: Court of Criminal Appeal, NSW
Date: 19 August 2016
Judges: Hoeben CJ at CL, Rothman J, R A Hulme J
Background
The appellant was sentenced in the District Court at Dubbo in August 2015 for two offences: supplying cannabis (a fixed term of 2 years) and ongoing supply of firearms contrary to s 51B(1) of the Firearms Act 1996 (NSW) (6 years 9 months with a non-parole period of 4 years 2 months). The overall sentence was 7 years 9 months with a non-parole period of 5 years 2 months. The firearms offence involved the sale of eight firearms across four transactions between August and December 2013, for a total of $13,200.
The appellant had a lengthy criminal history dating back to 1983, including prior drug-related convictions. He was aged 50 and 51 at the time of the offending. Psychiatric evidence before the sentencing judge detailed diagnoses including depression, bipolar affective disorder, borderline personality disorder, substance abuse disorder, and dependent personality type, as well as a history of almost daily cannabis use since the 1980s and multiple admissions to a psychiatric hospital.
The sentencing judge expressly found a causal connection between the appellant's psychiatric conditions and his offending behaviour. Despite that finding, the appellant argued on appeal that the judge failed to carry it through adequately into the assessment of moral culpability and the weight given to general deterrence.
Legal Issues
- Whether the sentencing judge erred by failing to adequately reflect the found causal connection between the appellant's psychiatric conditions and his offending when assessing his degree of moral culpability.
- Whether the sentencing judge erred by failing to adequately moderate the weight given to general deterrence in light of that same causal connection.
Decision
R A Hulme J, with whom Hoeben CJ at CL and Rothman J agreed, found that the sentencing judge had made a factual finding of a causal connection between the appellant's psychiatric conditions and his offending conduct, but had not adequately translated that finding into either the assessment of moral culpability or the moderation of general deterrence. This constituted an error warranting intervention and a re-exercise of the sentencing discretion.
On re-sentencing, Hulme J adopted the primary judge's assessment that the offence fell within the mid-range of objective seriousness, a finding no party challenged. He applied a 25% discount for the guilty plea, working from a starting point of 8 years, and imposed a reduced sentence of 6 years, comprising a non-parole period of 3 years 8 months and a balance of term of 2 years 4 months.
Hulme J also addressed special circumstances (a concept that allows a court to depart from the statutory ratio between parole period and total sentence). He accepted that the need for reintegration support and the partial accumulation of the two sentences justified a finding of special circumstances, but declined to treat mental health as a further basis for that finding. Factoring it in twice, once in reducing the head sentence and again in adjusting the parole ratio, would have amounted to double counting.
Rothman J added observations on the broader context of firearm sentencing, noting that courts have sometimes underweighted the seriousness of firearms offences by focusing too heavily on whether a firearm was intended for use in another crime. He was careful to note, however, that this appellant should not bear the consequences of any perceived inadequacy in current sentencing ranges.
Orders Made
- Leave to appeal against sentence granted.
- Appeal allowed.
- Sentence imposed in the District Court on 14 August 2015 for ongoing supply of firearms (s 51B(1), Firearms Act 1996) quashed.
- In lieu, the appellant sentenced to imprisonment with a non-parole period of 3 years 8 months and a balance of term of 2 years 4 months, dating from 5 February 2015, with eligibility for parole from 4 October 2018.
Key Takeaways
- Where a sentencing court expressly finds a causal connection between an offender's psychiatric condition and the commission of an offence, that finding must be given adequate and discernible weight in both the assessment of moral culpability and the moderation of general deterrence. A failure to do so is a sentencing error.
- A causal connection between mental illness and offending does not disappear from the sentencing calculus once it reduces the head sentence. Relying on it a second time to justify a special circumstances finding would constitute double counting.
- Under s 51B(1) of the Firearms Act 1996 (NSW), ongoing supply of firearms carries a maximum of 20 years imprisonment and a standard non-parole period of 10 years. The Court of Criminal Appeal confirmed that mid-range objective seriousness remains a question of fact for the sentencing judge and is rarely disturbed on appeal.
- Rothman J's observations signal a judicial concern that firearm supply offences may be systematically undervalued when sentencing courts focus on whether the weapons were intended for use in other crimes, though those observations did not alter the outcome in this case.
- In dismissing the broader range of grounds that had been abandoned, the Court confined itself to the single argued ground, illustrating the significance of identifying and pressing the most precise and targeted sentencing error on appeal.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW) s 527C
- Drug Misuse and Trafficking Act 1985 (NSW) s 25(1)
- Firearms Act 1996 (NSW) ss 51B, 51BA
- Weapons Prohibition Act 1998 (NSW) s 7(1)
Cases
- Aslan v R [2014] NSWCCA 114
- Athos v R [2013] NSWCCA 205
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Lachlan v R [2015] NSWCCA 178
- Ngati v R [2014] NSWCCA 125
- R v Clark (NSWCCA, 15 March 1990, unrep)
- R v Howard [2004] NSWCCA 348
- R v Pitt [2005] NSWCCA 304
- R v Wright (1997) 93 A Crim R 48