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Court of Criminal Appeal 18 February 2019

Burns v R

[2019] NSWCCA 24

Assault & violenceFirearms & weapons
SENTENCE POSSESS A SHORTENED FIREARM ASSAULT OCCASIONING ACTUAL BODILY HARM APPLICANT RE SENTENCED

Citation: Burns v R [2019] NSWCCA 24
Court: NSW Court of Criminal Appeal
Date: 18 February 2019
Judges: R A Hulme J, Wright J, Fagan J

Background

The applicant pleaded guilty in the Local Court to seven offences arising from events on the evening of 17 November 2015, including discharging a firearm with intent to cause grievous bodily harm, possessing a shortened firearm, and assault occasioning actual bodily harm. The three indictable offences were committed to the District Court at Dubbo, where Lerve DCJ sentenced the applicant to an aggregate term of 12 years' imprisonment with a non-parole period of 8 years.

In sentencing, the District Court applied a maximum penalty of 14 years for the shortened firearm offence under s 62(1)(b) of the Firearms Act 1996 (NSW). However, the offence occurred on 17 November 2015, and the legislative amendment that raised the maximum from 10 to 14 years did not take effect until 24 November 2015, seven days after the offending.

The applicant sought leave to appeal out of time, relying on two grounds: first, that the sentencing judge had applied the wrong maximum penalty for the firearm possession offence; and second, that the sentencing judge had failed to find a causal link between the applicant's mental health issues and the offending.

  • Whether the sentencing judge erred by applying a maximum penalty of 14 years for the shortened firearm offence when the correct maximum at the date of offending was 10 years
  • Whether the error in maximum penalty had a material bearing on the aggregate sentence, so as to enliven the Court's power to re-sentence
  • Whether the sentencing judge erred by failing to find a causal link between the applicant's mental health and the offences

Decision

The Crown conceded Ground 1, acknowledging that the maximum penalty of 14 years did not apply to conduct that predated the amending legislation. Wright J found that the error was not merely technical: the sentencing judge had expressly referenced the 14-year maximum, quoted judicial commentary on the particular danger of shortened firearms, and treated possession of the weapon as sufficiently serious to warrant partial accumulation of sentences. Those factors together indicated the erroneous maximum had a material bearing on the aggregate sentence, meaning the sentencing judge had "acted" on the error within the meaning of the House v The King principle.

Because the error was material, the Court was required to re-exercise the sentencing discretion afresh, in accordance with Kentwell v The Queen (2014) 252 CLR 601. The Court quashed the aggregate sentence and imposed a fresh one.

On Ground 2, Wright J noted that the sentencing judge's failure to find a causal link between the applicant's depression and the offending could not constitute appealable error, because counsel for the applicant at the original sentencing had expressly disavowed any case of causal connection. The applicant attempted to limit that disavowal to one particular report in evidence and also relied on the exception in Zreika v R [2012] NSWCCA 44, which permits an appellate court to entertain arguments that depart from earlier concessions in limited circumstances. Wright J did not find it necessary to resolve Ground 2 fully, given that re-sentencing was already required, but noted the relevant mental health material would nonetheless be considered in the fresh exercise of the sentencing discretion.

In re-sentencing, the Court identified indicative sentences for each offence, applied a 25% discount for the guilty pleas, and found special circumstances warranting a longer parole period, having regard to the applicant's youth and the need for supervision and rehabilitation on release. The resulting aggregate sentence of 10 years with a non-parole period of 6 years and 6 months was less severe than the sentence imposed below.

Orders Made

  • Time for filing the notice of application for leave to appeal extended to 24 September 2018
  • Leave to appeal against sentence granted
  • Appeal against sentence allowed
  • Aggregate sentence imposed in the District Court on 9 December 2016 quashed
  • Applicant re-sentenced to an aggregate term of 10 years' imprisonment with a non-parole period of 6 years and 6 months, commencing 2 March 2016, expiring 1 March 2026, with eligibility for parole from 1 September 2022

Key Takeaways

  • An error in the maximum penalty applied at sentencing will vitiate an aggregate sentence where it can be shown to have had a material bearing on the sentencing exercise, not merely where it appears in the remarks on sentence.
  • The Court of Criminal Appeal confirmed that materiality is assessed by examining the full sentencing approach: explicit reliance on the erroneous maximum, the weight given to the offence's seriousness, and the structure of any accumulation all bear on the analysis.
  • A concession by the Crown that a sentencing error requires the appellate court to re-exercise the discretion afresh is treated as a significant but not conclusive factor; the appellate court must independently confirm that the error was material.
  • Where defence counsel at the original sentencing expressly disavows a causal link between a mental health condition and the offending, an applicant faces a substantial hurdle in raising that causal argument on appeal.
  • Hulme J observed that a judge sitting in a busy regional court was misled by an incorrect Crown Sentence Summary document and that experienced counsel for the applicant had not detected the error, underscoring the shared responsibility for accuracy in the documents placed before a sentencing judge.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33A(1)(a), 59(1)
- Firearms Act 1996 (NSW), s 62(1)(b)
- Firearms and Weapons Prohibition Legislation Amendment Act 2015 (NSW), Sch 1, Item [9]
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 53A
- Criminal Procedure Act 1986 (NSW), s 166(1)(b)
- Criminal Appeal Act 1912 (NSW)

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- DL v The Queen [2018] HCA 32
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 317
- Andreata v R [2015] NSWCCA 239
- Baxter v R [2007] NSWCCA 237
- Zreika v R [2012] NSWCCA 44
- R v Lachlan [2015] NSWCCA 178
- R v Rayment [2010] NSWCCA 85
- Vossos v R [2016] NSWCCA 262