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Court of Criminal Appeal 9 November 2016

Sutton v R

[2016] NSWCCA 249

DrugsFirearms & weapons
CRIMINAL LAW FIREARMS ACT 1996 (NSW) S 7(1) PLEA OF GUILTY WHERE GUILT ADMITTED TO FORM 1 OFFENCES APPEAL AGAINST SEVERITY OF SENTENCE WHERE STANDARD NON

Citation: Sutton v R [2016] NSWCCA 249
Court: Court of Criminal Appeal, New South Wales
Date: 9 November 2016
Judge(s): Gleeson JA (principal judgment); Fagan J and N Adams J (agreeing)

Background

The applicant, a man in his early fifties with a lengthy criminal history, pleaded guilty in the Tamworth District Court to two principal offences: knowingly taking part in the supply of methylamphetamine between May and July 2014, and possession of a prohibited pistol (a .22 calibre revolver) in July 2014. He also admitted to three further offences on a Form 1, being possession of ammunition without a permit, possession of an unregistered firearm, and possession of a prohibited weapon (a silencer). All offences were committed while he was on parole for an armed robbery conviction.

Police found the revolver, silencer, and ammunition in a canvas bag in a detached garage at the applicant's home. The sentencing judge accepted, on the most favourable view of the evidence, that another person had left the firearm there. The applicant cooperated with police and showed them where the items were located.

The District Court imposed an aggregate sentence of three years non-parole period with a balance of term of one year, backdated to commence on 1 May 2015. The applicant sought leave to appeal on the sole ground that the sentencing judge had misstated the applicable standard non-parole period for the firearms offence as four years, when the correct figure was three years.

  • Whether the sentencing judge's misstatement of the standard non-parole period (four years rather than three) constituted a sentencing error requiring the Court of Criminal Appeal to re-exercise its sentencing discretion.
  • Whether, in re-exercising that discretion, the correct standard non-parole period affected the outcome such that a lesser sentence was warranted in law.
  • Whether a finding of special circumstances was warranted, either on the basis of the applicant's ill-health (gallstones and back injury) or otherwise.

Decision

The Court of Criminal Appeal granted leave to appeal, accepting that the primary judge's misstatement of the applicable standard non-parole period was an error. Under the Crimes (Sentencing Procedure) Amendment (Firearms Offences) Act 2015, the standard non-parole period for the firearms offence at the relevant time was three years, not four. This error was sufficient to enliven the Court's discretion to re-sentence under s 6(3) of the Criminal Appeal Act 1912.

Gleeson JA undertook a fresh sentencing exercise. His Honour assessed the firearms offence as below the midpoint of objective seriousness, noting the favourable finding that the revolver had been left by another person and that there was no evidence of use or intended use by the applicant. However, his Honour also weighed significant countervailing factors: the applicant was on parole for armed robbery at the time, the pistol was found with a silencer and ammunition, and the applicant had a prior history of firearms-related offending, indicating a need for personal deterrence.

On the question of special circumstances, the Court declined to make such a finding. The applicant's gallstones and back injuries, while acknowledged, were not considered sufficient to justify departing from the statutory ratio between the non-parole period and the balance of term.

Exercising discretion afresh and applying the totality principle, Gleeson JA arrived at an indicative head sentence of three years for the firearms offence (with a non-parole period of two years and three months) and two years for the drug supply offence. With a greater degree of concurrency applied between the two indicative sentences, the aggregate result, being three years non-parole and a one-year balance of term, was found to remain within the appropriate range. The appeal was accordingly dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A misstatement of the applicable standard non-parole period is a sentencing error capable of enlivening the Court of Criminal Appeal's discretion to re-sentence, even where the standard non-parole period is only one of two guideposts in the Muldrock framework.
  • In dismissing the appeal despite the identified error, the Court of Criminal Appeal confirmed that the ultimate question under s 6(3) of the Criminal Appeal Act 1912 is whether a lesser sentence is warranted in law, not simply whether any error occurred.
  • Where a favourable factual finding (such as that a third party deposited a firearm at the accused's home) is advanced by the accused as a mitigating factor, the accused bears the onus of proving that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270.
  • A history of prior firearms-related offending is relevant to the assessment of personal deterrence in sentencing for subsequent firearms offences.
  • Ill-health (here, gallstones and a back injury) does not automatically establish special circumstances justifying departure from the statutory non-parole period ratio; it is weighed against all other relevant sentencing factors.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 61N
- Criminal Appeal Act 1912 (NSW) s 6
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 32, 44, 53A, 54B
- Crimes (Sentencing Procedure) Amendment (Firearms Offences) Act 2015 (NSW) Sch 1 Pt 5
- Drug (Misuse and Trafficking) Act 1985 (NSW) s 25
- Firearms Act 1996 (NSW) ss 4C, 7, 36, 65
- Weapons Prohibition Act 1998 (NSW) s 7(1)

Cases:
- Muldrock v The Queen (2011) 244 CLR 120
- R v Olbrich (1999) 199 CLR 270
- Abbas v R [2014] NSWCCA 188
- R v Farrell [2015] NSWCCA 68
- House v R (1936) 55 CLR 499
- Kentwell v The Queen (2014) 252 CLR 601
- Baxter v The Queen (2007) 173 A Crim R 284
- Douar v R (2005) 159 A Crim R 154