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Court of Criminal Appeal 18 April 2019

Sumrein v R

[2019] NSWCCA 83

Firearms & weapons
CRIMINAL LAW APPLICANT OBTAINED FIREARM AFTER DRIVE BY SHOOTING AT HIS HOME NOT INVOLVED IN CRIMINAL ACTIVITY

Citation: Sumrein v R [2019] NSWCCA 83
Court: NSW Court of Criminal Appeal
Date: 18 April 2019
Judges: Leeming JA, Ierace J, Hidden AJ

Background

The appellant pleaded guilty in the District Court to possessing a loaded firearm in a public place, an offence under s 93G(1)(a)(i) of the Crimes Act 1900 (NSW) carrying a maximum of 10 years imprisonment. Two related offences (unauthorised possession of a pistol and possession of ammunition without a licence) were taken into account on a Form 1. The District Court sentenced him to 3 years and 9 months imprisonment with a non-parole period of 2 years, backdated to 16 November 2017.

The background to the offending was significant. Several weeks before his arrest, the appellant's home had been sprayed with bullets while his mother, wife, and children were inside. Fearing further attacks and doubting police could help, he purchased an illegal loaded pistol through contacts at a gym. He was arrested in Redfern while the firearm was in a satchel over his shoulder.

The appellant sought leave to appeal the sentence on the grounds that the sentencing judge had erred in assessing the objective seriousness of the offence and his moral culpability, and that the sentence was manifestly excessive.

  • Whether the appellant's motive for possessing the firearm (protection of himself and his family following a drive-by shooting at his home) was relevant to the assessment of objective gravity and moral culpability
  • Whether the sentencing judge erred in treating that protective motive as not reducing the objective seriousness of the offence
  • Whether the resulting sentence was manifestly excessive

Decision

The Court of Criminal Appeal found error in the way the sentencing judge treated the appellant's motive. While the judge acknowledged the protective purpose behind the possession, she declined to give it any mitigating weight in the objective assessment. The Court held this was an error: a person who obtains an illegal firearm out of genuine fear following a violent attack on their home, without involvement in criminal activity, stands in a different position from someone carrying a loaded weapon as part of a criminal enterprise.

Hidden AJ (with whom Ierace J agreed) emphasised that the appellant's conduct remained seriously reprehensible. He had taken the law into his own hands rather than reporting his concerns to police, and carrying a loaded pistol in a public place created a real danger regardless of his intentions. However, the absence of any connection to criminal enterprise and the genuine fear motivating his conduct were properly relevant to an assessment of his moral culpability, and the sentencing judge's failure to treat them as mitigating factors warranted intervention.

On resentencing, the Court reduced the starting point from 5 years to 4 years, applied the same 25% discount for the guilty plea (producing a sentence of 3 years), and fixed a non-parole period of 1 year and 5 months. Given that this period had almost expired by the date of judgment, a statutory parole order came into effect immediately.

Leeming JA agreed that error had been established but declined to express a view on certain statements in the earlier decision of R v Shortland [2018] NSWCCA 34 concerning objective gravity. His Honour also remarked on the importance of prosecuting sentence appeals expeditiously, noting that the appeal had been filed after more than half the sentence had already been served, and that late filing of lengthy further submissions had compounded the delay.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by the District Court quashed
  • In lieu, the appellant sentenced to a non-parole period of 1 year and 5 months commencing 16 November 2017 and expiring 15 April 2019, with a balance of term of 1 year and 7 months commencing 16 April 2019 and expiring 15 November 2020
  • Statutory parole order to take effect immediately upon expiry of the non-parole period

Key Takeaways

  • A defendant's motive for possessing an illegal firearm is relevant to the assessment of both objective gravity and moral culpability at sentencing, even where it does not excuse the conduct.
  • Possession of a loaded firearm for protective purposes following a violent attack, without involvement in criminal activity, is properly distinguishable from possession in connection with a criminal enterprise, and the distinction can affect the sentencing outcome.
  • Carrying a loaded pistol in a public place remains seriously dangerous and criminally reprehensible regardless of the carrier's subjective intentions, but those intentions are not legally irrelevant.
  • The Court of Criminal Appeal confirmed that sentencing judges must engage meaningfully with mitigating features of a defendant's subjective case, including the circumstances that prompted the offending, rather than dismissing them without weight.
  • Leeming JA noted, without criticising any party, that sentence appeals against relatively short terms should be brought and prosecuted as promptly as possible to avoid artificial urgency arising from the simple passage of time.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 93G(1)(a)(i)
- Firearms Act 1996 (NSW), ss 7(1), 65(3)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 158(1)

Cases:
- R v Shortland [2018] NSWCCA 34
- Cao v R [2013] NSWCCA 321
- Johan v R [2015] NSWCCA 58
- Luu v R [2008] NSWCCA 285
- Mack v R [2009] NSWCCA 216
- R v AZ [2011] NSWCCA 43; 205 A Crim R 222
- R v Dusan Krstic [2005] NSWCCA 391
- Regina v AA [2006] NSWCCA 55
- Tepania v R [2018] NSWCCA 247
- Thalari v Regina [2009] NSWCCA 170
- Zreika v R [2012] NSWCCA 44; 223 A Crim R 460