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Court of Criminal Appeal 2 December 2016

Lamis v R

[2016] NSWCCA 274

Fraud & dishonestyFirearms & weaponsPublic order & justice offences
CRIMINAL LAW LEAVE TO APPEAL GRANTED PURPOSES OF SENTENCING RELEVANCE OF MENTAL HEALTH CONDITION OVERALL LENIENT SENTENCE WAS IMPOSED APPEAL DISMISSED

Citation: Lamis v R [2016] NSWCCA 274
Court: NSW Court of Criminal Appeal
Date: 2 December 2016
Judges: Hoeben CJ at CL, R A Hulme J, Schmidt J

Background

The applicant pleaded guilty to two offences arising from an incident at a Sydney casino in January 2015. He was found carrying a loaded semi-automatic pistol in a bag at the time police arrested him during an undercover drug operation. The firearms charge (unauthorised possession of a pistol under the Firearms Act 1996) carried a maximum penalty of 14 years imprisonment and a standard non-parole period of 3 years. The second charge was attempting to deal with property recklessly as to whether it was the proceeds of crime, under the Crimes Act 1900, carrying a maximum of 10 years.

A knife custody offence was also taken into account on the firearms sentence. The applicant had a substantial criminal history and was on a bond at the time of the offending. He had a documented mental health background, including a difficult upbringing, significant family history of mental illness, and had been assessed by a psychologist while in custody.

Garling ADCJ sentenced the applicant to a total of 3 years and 9 months imprisonment with a non-parole period of 2 years and 3 months, following a 25% discount for his early guilty plea. The sentence for the proceeds of crime offence was made wholly concurrent with the firearms sentence.

  • Whether the overall sentence was manifestly excessive, having regard to the time already spent in custody, the applicant's mental health condition, and the desirability of extended supervision and treatment.
  • Whether the standard non-parole period for the firearms offence was correctly applied.
  • Whether the Crown's sentencing submissions at first instance should constrain the appellate court's assessment.
  • Whether the decision to make the proceeds of crime sentence wholly concurrent with the firearms sentence was a correct application of the totality principle.

Decision

Schmidt J (with whom Hoeben CJ at CL and Hulme J agreed) dismissed the appeal, finding the sole ground of manifest excess was not established. The Court accepted that leave to appeal should be granted but found no error in the overall sentencing exercise that would justify intervention.

The Court acknowledged the sentencing judge was required to take into account the applicant's mental health condition as a mitigating factor. However, a mental health condition does not automatically lead to a reduced sentence: the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999, including deterrence and community protection, retained significance in this case given the nature of the offending, particularly the possession of a loaded firearm in a public place.

The Court noted that the sentence for the proceeds of crime offence was made wholly concurrent with the firearms sentence, when binding authority suggested it should have been at least partly cumulative. This represented a substantial benefit to the applicant, and the Crown had not challenged this approach on appeal. That favourable outcome bore directly on any assessment of whether the overall sentence was excessive.

Taking the sentencing exercise as a whole, the Court found the result was to the applicant's considerable benefit. The overall sentence was described as lenient rather than excessive, and the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A mental health condition is a relevant mitigating factor in sentencing, but it does not displace the need to give appropriate weight to the full range of sentencing purposes, including deterrence and community protection, particularly where serious weapons offences are involved.
  • Under the totality principle, sentencing courts are generally required to make at least some portion of sentences for separate offences cumulative, not merely concurrent, where the offences involve distinct criminality. Making the proceeds of crime sentence wholly concurrent here was a favourable departure from that approach.
  • The Court of Criminal Appeal confirmed that where the Crown has not challenged a sentencing error that favoured the offender, the overall leniency of the sentence is nonetheless a relevant consideration when assessing a manifest excess ground on appeal.
  • No error was established in the sentencing judge's treatment of the standard non-parole period for the firearms offence.
  • In dismissing the appeal, the Court reinforced that Crown sentencing submissions at first instance do not bind the appellate court's assessment of whether a sentence was appropriate.

Legislation and Cases Referenced

Legislation:
- Firearms Act 1996 (NSW), ss 3, 7(1)
- Crimes Act 1900 (NSW), s 193B(3)
- Summary Offences Act 1988 (NSW), s 11C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44, 54A(2)

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- Muldrock v The Queen (2011) 244 CLR 120
- Markarian v The Queen (2005) 228 CLR 357
- Barbaro v The Queen (2014) 253 CLR 58
- CMB v Attorney General for NSW (2015) 256 CLR 346
- House v The King (1936) 55 CLR 499
- Power v The Queen (1974) 131 CLR 623
- R v Jarrold [2010] NSWCCA 69
- Franklin v R [2013] NSWCCA 122
- MPB v The Queen (2013) 234 A Crim R 576
- R v XX (2009) 195 A Crim R 38
- Thalari v Regina (2009) 75 NSWLR 307
- Attorney-General's Application (No 1 of 2002) (2002) 56 NSWLR 146
- MP v Regina [2009] NSWCCA 226
- R v Amurao [2005] NSWCCA 32
- R v Goktas [2004] NSWCCA 296
- R v Hemsley [2004] NSWCCA 228
- R v Najem [2008] NSWCCA 32
- R v Tolley [2004] NSWCCA 165