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Court of Criminal Appeal 28 May 2018

Goldberg v R

[2018] NSWCCA 99

Firearms & weapons
CRIMINAL LAW APPEAL AGAINST SENTENCE

Citation: Goldberg v R [2018] NSWCCA 99
Court: Court of Criminal Appeal, NSW
Date: 28 May 2018
Judges: Hoeben CJ at CL; White JA; Fullerton J (principal judgment)

Background

The appellant pleaded guilty at the earliest opportunity to several offences, the most serious of which was possessing more than three unregistered prohibited firearms contrary to s 51D(2) of the Firearms Act 1996 (NSW). Police found four unregistered pistols, one of which was not in working order and another of which fired only intermittently. The appellant had accidentally discharged one of the pistols in a suburban street two days before his arrest.

The sentencing judge in the District Court assessed the s 51D(2) offence as falling above the mid-range of seriousness. This assessment was partly based on a finding that the appellant had been warehousing the weapons for people he knew or believed intended to use them in future crimes. An aggregate sentence was imposed on 9 March 2017.

The appellant sought leave to appeal, arguing the primary judge had erred in assessing objective seriousness, had placed undue weight on general deterrence, and had failed to properly account for his limited criminal history and prior good character.

  • Whether the sentencing judge erred in placing the s 51D(2) offence above the mid-range of objective seriousness
  • Whether the sentencing judge impermissibly double-counted the offence of discharging a firearm in a public place (already separately charged) when assessing the seriousness of the firearms possession count
  • Whether undue emphasis was placed on general deterrence
  • Whether the sentencing judge failed to give adequate weight to the appellant's limited criminal record and prior good character
  • Whether the aggregate sentence was manifestly excessive

Decision

The Court of Criminal Appeal granted leave and allowed the appeal, quashing the original sentence and substituting a reduced aggregate sentence. Fullerton J delivered the principal judgment, with Hoeben CJ at CL and White JA agreeing.

On objective seriousness, the Court held that the primary judge had erred. The four pistols represented the bare minimum number required to meet the threshold of the s 51D(2) offence. Additionally, two of the four weapons were not fully functional. While warehousing firearms for people believed to be engaged in crime is at least as serious as holding weapons for commercial sale, these circumstances did not, in the Court's view, push the offence beyond the mid-range of seriousness. White JA also expressed concern, though it was not a ground of appeal, about the way the evidence of the appellant's knowledge of criminal purpose was obtained through leading questions from the sentencing judge himself, noting the risk that an offender may feel constrained to answer in line with a questioner who is about to sentence them.

The Court also found that the primary judge had impermissibly double-counted. The discharge of a firearm in a suburban street was a separate charged offence attracting its own indicative sentence, yet the sentencing judge had also taken that same conduct into account when assessing the gravity of the s 51D(2) possession offence. While the judge acknowledged the importance of not double-counting, the Court found he had nonetheless done so, resulting in a degree of notional accumulation greater than was warranted.

Taking into account the corrected objective seriousness, the relevant subjective features including the 25 per cent discount for an early guilty plea, the appellant's assistance to authorities, his limited criminal record, and what the Court characterised as reasonable prospects of rehabilitation, the Court substituted a reduced aggregate sentence.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Blackmore DCJ on 9 March 2017 quashed.
  • In substitution, an aggregate sentence of 8 years and 6 months imprisonment imposed, with a non-parole period of 6 years and 4 months commencing 5 November 2015 and expiring 4 March 2022, and a balance of term of 2 years and 2 months expiring 4 May 2024.

(Note: The orders were subsequently amended on 8 June 2018 pursuant to the slip rule: see Goldberg v R (No 2) [2018] NSWCCA 119.)

Key Takeaways

  • Where an offender possesses the bare minimum number of firearms to satisfy the threshold of s 51D(2) of the Firearms Act 1996 (NSW), and some of those weapons are not fully functional, that is a relevant consideration that may weigh against a finding that the offence sits above the mid-range of objective seriousness.
  • Warehousing unregistered firearms for persons believed to be engaged in future criminal activity is at least as serious as holding such weapons for commercial sale, but this aggravating feature alone does not automatically elevate an offence beyond the mid-range where other factors point in the opposite direction.
  • A sentencing judge must not take conduct into account as an aggravating feature of one count where that same conduct constitutes a separately charged offence for which an independent penalty has been imposed, even where the judge acknowledges the double-counting risk.
  • Under the aggregate sentencing regime, where notional accumulation of indicative sentences exceeds what the totality principle warrants, the resulting aggregate sentence may be set aside as excessive.
  • The Court of Criminal Appeal identified, without deciding the point, a procedural concern about sentencing judges eliciting admissions through leading questions during sentencing hearings, given the risk that an offender may feel constrained to confirm what the questioner appears to expect.

Legislation and Cases Referenced

Legislation
- Firearms Act 1996 (NSW), ss 7A(1), 51D(2), 65(3)
- Firearms Amendment (Public Safety) Act 2002 (NSW)
- Crimes Act 1900 (NSW), ss 93G(1)(b), 307B(1), 527C(1)(c), 546C
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW), s 166
- Weapons Prohibitions Act 1998 (NSW), s 7(1)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)

Key Cases
- R v Brown [2006] NSWCCA 249
- Muldrock v R [2011] HCA 39; 244 CLR 120
- Kentwell v R [2014] HCA 37; 252 CLR 601
- Ryan v R [2001] HCA 21; 206 CLR 267
- El Jamal v R [2017] NSWCCA 243
- Elsaj v R [2017] NSWCCA 124
- Dionys v R [2011] NSWCCA 272; 217 A Crim R 280
- R v Lachlan [2015] NSWCCA 178; 252 A Crim R 277
- Hughes v R [2018] NSWCCA 2
- Goldberg v R (No 2) [2018] NSWCCA 119 (slip rule amendment)