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Court of Criminal Appeal 1 April 2016

Grills v R

[2016] NSWCCA 46

DrugsFirearms & weapons
CRIMINAL LAW SENTENCING SUPPLY PROHIBITED DRUG POSSESS PROHIBITED FIREARM TOTALITY PRINCIPLE NO CHALLENGE TO INDIVIDUAL SENTENCES

Citation: Grills v R [2016] NSWCCA 46
Court: Court of Criminal Appeal, NSW
Date: 1 April 2016
Judge(s): Beazley P, Davies J, RS Hulme AJ

Background

The applicant pleaded guilty in the District Court to two principal offences: supply of a prohibited drug (methylamphetamine) and possession of a prohibited firearm without authorisation. A number of additional offences, including possession of a shortened firearm, a taser-like device, cannabis, and suspected proceeds of crime, were attached via Form 1 to each principal count.

The facts arose from a police search of the applicant's home at Kurri Kurri in November 2013. Officers found several grams of methylamphetamine, tick lists, cutting agents, digital scales, and multiple firearms, including a loaded .44 Magnum behind the master bedroom bedhead and a sawn-off shotgun in a backpack in the lounge room. Text messages on the applicant's phones indicated he was operating above street level in the drug supply chain.

The District Court sentenced the applicant to a fixed term of five years for the drug supply offence and a non-parole period of three years (with an additional term of two years) for the firearm offence, accumulated so that the overall effective sentence was a non-parole period of six years and an additional term of two years. The applicant sought leave to appeal, arguing that the totality principle had been misapplied and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge correctly applied the totality principle when accumulating the sentences for the drug supply and firearm offences.
  • Whether the sentence for the drug supply offence could be taken to comprehend the criminality involved in the separate firearm offence, such that accumulation was inappropriate.
  • Whether the extent of accumulation produced an overall sentence that was manifestly excessive.

Decision

Davies J, with whom Beazley P agreed, dismissed the appeal. His Honour accepted that the drug supply and firearm offences involved distinct criminality. The firearm offence was not merely incidental to the drug supply but constituted a separate and serious category of offending, particularly given the nature of the weapons found and the context in which they were discovered.

On the totality ground, the Court found that the sentencing judge had not erred in declining to treat the two offences as sufficiently interconnected that one sentence could absorb the criminality of the other. Each offence carried its own significant maximum penalty, and the standard non-parole period of three years applied to the firearm offence. The applicant was also on conditional liberty at the time of the offending, which was a relevant aggravating factor.

The Court was satisfied that the overall sentence, including the accumulation, was not unreasonable or plainly unjust. Because no individual sentence was challenged, the appeal was confined to whether the accumulation itself was erroneous. The Court found no such error.

RS Hulme AJ agreed with the orders but added a pointed observation. His Honour considered the effective increase of twelve months attributable to the Form 1 firearm and weapons offences, including possession of a shortened shotgun (maximum ten years) and the prohibited weapon (maximum fourteen years), to be grossly inadequate. There was no Crown appeal, but his Honour made clear that the absence of challenge did not imply endorsement of that aspect of the sentencing.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The totality principle does not require a court to subsume the criminality of a firearm offence within a drug supply sentence merely because the weapons were found in the same premises as the drugs. Accumulation of sentences may be appropriate where the offences involve genuinely distinct criminal conduct.
  • Where an offender possesses loaded, prohibited firearms in a context consistent with drug dealing, the firearm offence retains independent criminality that can justify a separately accumulated sentence.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the absence of a challenge to individual sentences limits the appellate inquiry to whether the accumulation itself produced a manifestly excessive overall term.
  • Conditional liberty at the time of offending remained a relevant aggravating factor capable of supporting a more significant accumulation of sentences.
  • RS Hulme AJ's observations indicate that Form 1 offences involving serious weapons, such as shortened firearms and tasers, warrant meaningful increases in sentence, even where no Crown appeal has been filed to correct an inadequate outcome.

Legislation and Cases Referenced

Legislation:
- Firearms Act 1996 (NSW), ss 7(1), 62(1)(b)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases:
- Ayshow v R [2011] NSWCCA 240
- JT v R [2012] NSWCCA 133
- R v AZ [2011] NSWCCA 43
- R v Holder and Johnston [1983] 3 NSWLR 245
- R v Najem [2008] NSWCCA 32
- R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38