Citation: Neil Harris (a pseudonym) v Regina [2019] NSWCCA 236
Court: NSW Court of Criminal Appeal
Date: 9 October 2019
Judges: Gleeson JA, Harrison J, N Adams J (all agreeing in the reasons of N Adams J)
Background
The applicant pleaded guilty in December 2017 to two counts of supplying a pistol to an unlicensed person, contrary to s 51(1A) of the Firearms Act 1996 (NSW), and one count of unsafe firearm storage under s 39(1)(a) of the same Act. He had supplied two registered firearms to an acquaintance, receiving $20,000 in payment, to help discharge a significant gambling debt. Both firearms were later located during search warrants executed in connection with a large organised crime investigation.
In June 2018, the District Court at Sydney imposed an aggregate sentence of five years imprisonment with a non-parole period of three years and six months for the supply offences. The applicant received a s 10 bond for the unsafe storage charge.
The applicant sought leave to appeal that aggregate sentence to the Court of Criminal Appeal, raising procedural fairness, factual error, and manifest excess.
Legal Issues
- Whether the sentencing proceedings were affected by procedural unfairness because the applicant was led to expect a particular sentencing approach but was sentenced on a different, more adverse basis without an opportunity to be heard.
- Whether the sentencing judge erred in treating the applicant's knowledge that the recipient of the firearms was engaged in criminal activity as an aggravating factor going to objective seriousness, when that fact was drawn from a confidential affidavit rather than the agreed facts.
- Whether the aggregate sentence of five years was manifestly excessive, having regard to the combined discount for guilty plea and assistance to authorities.
Decision
Ground 1: Procedural Fairness
The Court found that the sentencing judge had made representations to the parties during the hearing that led the applicant to understand that his statement to police would not be used against him. In the event, the judge relied on matters in the confidential affidavit in assessing objective seriousness. The Court accepted that this gave rise to procedural unfairness constituting an error of law, because the applicant was not afforded an opportunity to address the adverse use of that material.
Ground 2: Objective Seriousness
The Court found error in the sentencing judge's reliance on the applicant's knowledge that the recipient was engaged in criminal activity as a factor aggravating objective seriousness. That fact had not been established through the agreed facts or through evidence properly led at the sentencing hearing. Accordingly, it should not have been used to increase the assessment of objective seriousness.
Ground 3: Re-sentencing and Discount
Given error was established on grounds one and two, the Court proceeded to re-sentence. N Adams J assessed the objective seriousness of the supply offences as moderate. The Court also found that the combined discount for the guilty plea and for assistance to authorities should be 50% rather than the 40% applied at first instance. The Crown did not oppose this increase. On the applicant's subjective case, the Court found his prospects of rehabilitation to be moderate and his risk of reoffending low to medium, both contingent on resolution of his gambling problem, representing a slightly more favourable assessment than the sentencing judge's finding of "poor to moderate" prospects.
Orders Made
- Leave to appeal granted.
- Appeal allowed.
- Aggregate sentence of five years imprisonment imposed on 8 June 2018 set aside.
- Aggregate sentence of three years imprisonment substituted, commencing 8 June 2018 and expiring 7 June 2021.
- Non-parole period set at two years, with a balance of term of one year.
- Earliest eligible parole date specified as 7 June 2020.
- Indicative sentence recorded for each supply count: two years imprisonment with a non-parole period of one year and four months.
Key Takeaways
- Procedural fairness in sentencing requires that, where a court creates a legitimate expectation that certain material will not be used adversely, departing from that expectation without giving the offender an opportunity to be heard constitutes an error of law.
- A sentencing judge may not treat a fact as aggravating objective seriousness unless it is established through the agreed facts, a finding made after contested proceedings, or evidence properly before the court. Drawing on material in a confidential affidavit to make such a finding, without a proper foundation in the agreed facts, was held to be an error here.
- Where error is established on appeal, the Court of Criminal Appeal will re-sentence and may arrive at different findings on subjective matters such as rehabilitation prospects, even where those differences are modest.
- The combined discount for a guilty plea and assistance to authorities is fact-specific. In this case, the Court accepted a 50% combined discount in circumstances where the applicant's assistance was described as extensive, and the Crown did not oppose that figure on re-sentencing.
- Suppression and non-publication orders are available in the Court of Criminal Appeal where there is a legitimate safety or public interest basis, with the Court balancing that interest against the principle of open justice.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Firearms Act 1996 (NSW), ss 23, 39(1)(a), 51(1A)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2A), 53A
Cases:
- Athos v R [2013] NSWCCA 205
- Baroudi v R [2017] NSWCCA 48
- Brennan v R [2018] NSWCCA 22
- Button v R [2010] NSWCCA 264
- Chong v R [2017] NSWCCA 185
- Darren Brown (a pseudonym) v R (No 2) [2019] NSWCCA 69
- DL v The Queen [2018] HCA 32
- El Jamal [2017] NSWCCA 243
- El Masri v R [2014] NSWCCA 13
- Gibson v Regina [2019] NSWCCA 221
- Govinddaraju v R [2011] NSWCCA 55
- JMS v R [2010] NSWCCA 229
- Johan v R [2015] NSWCCA 58
- Laspina v R [2016] NSWCCA 181
- R v Bourchos (2002) 133 A Crim R 413
- RO v R [2019] NSWCCA 183
- Rodgers v R [2018] NSWCCA 47
- Zreika v R (2012) 223 A Crim R 60