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11
Court of Criminal Appeal 18 September 2019

Gibson v Regina

[2019] NSWCCA 221

Assault & violenceFirearms & weaponsDomestic & family violence

Citation: Gibson v Regina [2019] NSWCCA 221
Court: NSW Court of Criminal Appeal
Date: 18 September 2019
Judge(s): Bathurst CJ, Beech-Jones J, N Adams J

Background

The applicant, a 28-year-old with no prior criminal record, appeared for sentence in the District Court at Griffith following a single incident on Australia Day 2018 at his home in Hillston. During a party at which he became heavily intoxicated, he retrieved an unregistered rifle from his bedroom, loaded it in the presence of his girlfriend and other guests, threatened to kill his girlfriend and himself, and pointed the firearm at multiple people. He also struck his girlfriend with the rifle, swung a tomahawk at her, and was later found to have been cultivating a prohibited plant on the property.

Judge Lakatos SC sentenced the applicant on nine offences arising from that incident, imposing an aggregate non-parole period of one year and ten months and a balance of term of one year and two months. The most serious indicative sentence, two years and nine months, was for possessing a loaded firearm so as to endanger life under s 93G(1)(a)(ii) of the Crimes Act 1900 (NSW), which carries a maximum of ten years imprisonment.

The applicant sought leave to appeal against the aggregate sentence in the Court of Criminal Appeal.

  • Whether the sentencing judge's assessment of the applicant's prospects of rehabilitation was affected by error.
  • Whether the sentencing judge's assessment of the risk of reoffending was affected by error.
  • Whether the sentencing judge impermissibly conflated the risk of reoffending with the danger to the community if reoffending occurred.
  • Whether the aggregate sentence was manifestly excessive.

Decision

On grounds 1 and 2, N Adams J found no error in the sentencing judge's assessments of rehabilitation prospects or reoffending risk. The sentencing judge had considered relevant materials, including the applicant's psychological treatment in custody, and reached conclusions that were open on the evidence. The Court noted that the weight given to mitigating factors was a matter for the sentencing judge's discretion.

On ground 3, the Court found no impermissible conflation. The sentencing judge properly distinguished between the likelihood of reoffending and the consequences if reoffending occurred, and any reference to the danger posed was consistent with the sentencing task.

On ground 4, the Court was not satisfied the aggregate sentence was manifestly excessive. While mitigating factors were present, including no prior criminal record, genuine remorse, and the single-incident nature of the offending, the applicant faced nine counts, including two with maximum penalties of ten years and four with maximum penalties of five years. The offending involved a loaded unregistered firearm, threats to kill, and violence against a domestic partner. These circumstances were sufficient to support the sentence imposed.

The Court also granted leave but dismissed the appeal, finding the applicant had not established the sentence was unreasonable or plainly unjust.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • No error was established in the sentencing judge's assessments of rehabilitation or reoffending risk where those assessments were open on the available evidence and materials, including psychology reports.
  • A sentencing court is entitled to have regard to the consequences of reoffending when considering community protection, provided it does not impermissibly conflate likelihood with consequence.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that the presence of substantial mitigating factors does not alone render a sentence manifestly excessive where the objective seriousness of the offending is significant.
  • Bathurst CJ made tentative observations that interpreting the majority decision in Hordern v R [2019] NSWCCA 138 as requiring a court to substitute its own assessment for an open finding by a sentencing judge may be inconsistent with the High Court's reasoning in Kentwell v The Queen (2014) 252 CLR 601. This question was left unresolved as it was unnecessary to decide and had not been argued.
  • Aggregate sentences present inherent difficulty in comparative analysis: the Judicial Commission does not maintain statistics on aggregate sentences, limiting the utility of statistical comparisons in such appeals.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 61, s 59, s 93G(1)(a)(ii)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A, 53A
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), s 23(1)
- Explosives Act 2003 (NSW), s 6(1)
- Firearms Act 1996 (NSW), ss 36, 39(1), 51D, 64(1)

Cases
- Clarke v R [2015] NSWCCA 232
- Hampton v R [2014] NSWCCA 131
- Hordern v R [2019] NSWCCA 138
- House v The King (1936) 55 CLR 499
- Kentwell v The Queen (2014) 252 CLR 601
- Knight v R [2015] NSWCCA 222
- Lowndes v The Queen (1999) 195 CLR 665
- Markarian v The Queen (2005) 228 CLR 357
- R v Barker [2009] NSWCCA 225
- R v Elyard [2006] NSWCCA 43
- R v Lachlan [2015] NSWCCA 178
- R v O'Donoghue (1988) 34 A Crim R 397
- R v Qutami (2001) 127 A Crim R 369
- Zuffo v R [2017] NSWCCA 187