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Court of Criminal Appeal 10 July 2020

Kember v R

[2020] NSWCCA 152

Firearms & weapons
CRIMINAL LAW APPEAL SENTENCE FIREARMS OFFENCES POSSESS A PROHIBITED WEAPON TIME CUSTODY

Citation: Kember v R [2020] NSWCCA 152
Court: NSW Court of Criminal Appeal
Date: 10 July 2020
Judge(s): Simpson AJA, Bellew J, Wilson J

Background

The appellant pleaded guilty in the District Court of New South Wales to two offences committed on 31 August 2016: knowingly taking part in the supply of a pistol to a person not authorised to possess it, and possessing a silencer without authorisation. The supply offence carried a maximum of 20 years' imprisonment and a standard non-parole period of 10 years; the silencer offence carried a maximum of 14 years and a standard non-parole period of 5 years.

The factual background involved the appellant facilitating the delivery of a .22 calibre Ruger semi-automatic pistol to an associate who was not licensed to possess it. Recorded telephone intercepts showed the appellant actively directing the arrangement, telling a co-offender to bring only the Ruger and later confirming the transaction was "all sorted." Two co-offenders, Ayre and Lawrence, were also sentenced for their roles in the same offending.

The sentencing judge imposed an aggregate sentence of 2 years and 9 months' imprisonment with a non-parole period of 1 year and 5 months. The appellant sought leave to appeal on three grounds.

  • Whether the sentencing judge failed to properly consider an Intensive Correction Order (ICO) as an alternative to full-time custody
  • Whether the sentencing judge failed to apply the parity principle when sentencing the appellant relative to the co-offenders Ayre and Lawrence
  • Whether, if either of the above grounds succeeded, the overall sentence was manifestly excessive

Decision

On the first ground, the Court confirmed that sentencing judges must follow a three-step process when considering whether to impose an ICO: first, determine the appropriate sentence; second, assess whether the sentence falls within the range eligible for an ICO; and third, consider whether an ICO is in fact appropriate. The Court found the sentencing judge followed each of those steps and had regard to all relevant matters, including a pre-sentence report and the nature of the offending. No error was established.

On the parity ground, the Court examined the sentences imposed on each co-offender. Ayre received a 12-month ICO and Lawrence received a 2-year aggregate sentence. The Court found the sentencing judge had appropriately accounted for the different degrees of criminality among the three offenders. The appellant's role was assessed as more significant than that of Ayre and at least comparable to Lawrence's, and the sentencing judge had expressly engaged with the parity question. No justifiable sense of grievance arose from the disparity in outcomes.

Because both the first and second grounds failed, the third ground, which was expressly conceded to depend on the success of either of the other two, did not require consideration. The Court granted leave to appeal but dismissed the appeal.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed the three-step process for ICO consideration: fix the appropriate sentence, determine eligibility, then assess whether an ICO is appropriate. A sentencing judge who follows those steps and considers all relevant material makes no error.
  • No justifiable sense of grievance arose from the different sentences received by co-offenders where the sentencing judge had expressly addressed the parity principle and the participants' different levels of culpability.
  • Where a ground of appeal is expressly contingent on other grounds succeeding, and those other grounds fail, the contingent ground need not be addressed.
  • Recorded telephone intercepts can form a reliable and objectively verifiable basis for factual findings at sentencing, even where factual disputes remain on other issues.
  • In dismissing the appeal, the Court reinforced that appellate intervention requires demonstrated error; a sentence that accounts for the relevant statutory framework, the offender's role, and the co-offenders' sentences does not invite correction simply because a different outcome was available.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Firearms Act 1996 (NSW), s 51(1A)(a)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Evidence Act 1995 (NSW), s 128

Cases
- Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Blanch v R [2019] NSWCCA 304
- Brown v R; Reid v R [2006] NSWCCA 144
- Campbell v R [2018] NSWCCA 87
- Chamon v R [2020] NSWCCA 112
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Fangaloka [2019] NSWCCA 173
- Tatana v R [2006] NSWCCA 398
- WM v R [2020] NSWCCA 96