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Court of Criminal Appeal 21 October 2016

Jones v R

[2016] NSWCCA 230

DrugsFirearms & weapons
CRIMINAL LAW SENTENCE APPEAL POSSESSING A PROHIBITED WEAPON AGGREGATE SENTENCE PASSED WHETHER AGGREGATE SENTENCE EXCESSIVE

Citation: Jones v R [2016] NSWCCA 230
Court: Court of Criminal Appeal, New South Wales
Date: 21 October 2016
Judge(s): Macfarlan JA, Price J, Hidden AJ (judgment delivered by Hidden AJ)

Background

The appellant pleaded guilty in the Local Court to three offences and was committed to the District Court for sentence. The charges were: supplying a large commercial quantity of pseudoephedrine (over 27 kilograms, valued at more than $3.2 million), knowingly dealing with the proceeds of crime (more than $160,000 in cash found at his home), and possessing a prohibited weapon (a homemade set of metal knuckledusters with jagged edges). Two related charges were placed on a Form 1 to be taken into account on the drug supply count.

The District Court imposed an aggregate sentence of 11 years imprisonment with a non-parole period of 7 years. The indicative sentences were 9 years (drug supply), 4 years (proceeds of crime), and 12 months (prohibited weapon). The sentencing judge allowed a 25% reduction for the early guilty pleas and gave some weight to the appellant's difficult background, history of drug abuse, and limited prior criminal history.

The appellant sought leave to appeal on the ground that the aggregate sentence was manifestly excessive, directing his argument narrowly at the indicative sentence for the prohibited weapon offence.

  • Whether the aggregate sentence of 11 years was manifestly excessive.
  • Whether the indicative sentence of 12 months imprisonment for possessing a prohibited weapon was in error, given the mitigating features of that offence.
  • Whether a custodial term was an available sentencing option for the prohibited weapon charge on the facts, having regard to sentencing statistics and the circumstances of possession.
  • Whether any error in an indicative sentence necessarily infects the aggregate sentence.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Hidden AJ (with whom Macfarlan JA and Price J agreed) found no error in the indicative sentence for the prohibited weapon charge and was satisfied that the aggregate sentence appropriately reflected the totality of the criminality involved.

The appellant's core submission was that the prohibited weapon offence did not warrant a custodial sentence at all. He pointed to Judicial Commission statistics showing that the majority of Local Court offenders convicted of possessing a prohibited weapon received non-custodial outcomes, and that fewer than half of District Court offenders received prison terms. The Court noted, consistent with the High Court's guidance in Hili and Jones v The Queen, that sentencing statistics carry limited weight without information about the circumstances underpinning those outcomes.

Hidden AJ observed that while the sentencing judge had identified mitigating features, including no evidence that the weapon had been used, was accessible to others, or was possessed to protect the drugs, those features had to be weighed against the nature of the weapon itself. The homemade knuckledusters were made of solid metal with jagged edges designed to cause serious injury, and the sentencing judge assessed them as more dangerous than ordinary knuckledusters. In that context, a custodial term remained an available and appropriate option.

Because the appellant's counsel frankly conceded that if a custodial sentence was open for the prohibited weapon charge the appeal must fail, and because the Court found it was open, the appeal did not succeed. Hidden AJ also reiterated the principles from JM v R: indicative sentences are not themselves amenable to appeal, and even if assessed as excessive, they do not necessarily render the aggregate sentence excessive. The proper focus remains on whether the aggregate sentence reflects the overall criminality.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Indicative sentences within an aggregate sentencing structure are not independently appealable, though they may assist in identifying whether error exists in the aggregate sentence overall.
  • Even where an indicative sentence is assessed as excessive, that finding does not automatically establish that the aggregate sentence is manifestly excessive; the primary question remains whether the aggregate reflects the totality of the criminality.
  • Sentencing statistics, without accompanying information about the facts and circumstances of the cases they represent, carry limited weight in determining the appropriate sentence in any particular matter, as confirmed by the High Court in Hili and Jones v The Queen.
  • No error was established in imposing a custodial term for possessing a homemade set of jagged metal knuckledusters, notwithstanding the absence of evidence that the weapon had been used or was possessed for a specific purpose, given its assessed capacity to cause serious injury.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that a broad range of weapons can fall within the prohibited weapons classification, and that the seriousness of a particular item must be assessed within that wider context.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) (supply large commercial quantity of prohibited drug)
- Crimes Act 1900 (NSW), s 193B(1) (knowingly dealing with proceeds of crime)
- Weapons Prohibition Act 1998 (NSW), s 7(1) (possessing a prohibited weapon)

Cases:
- Hili and Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- JM v R [2014] NSWCCA 297