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Court of Criminal Appeal 22 April 2020

Andary v R

[2020] NSWCCA 75

DrugsFirearms & weapons
CRIMINAL LAW SENTENCE APPEAL FAMILY LIVED UPSTAIRS POSSESSION OF FIREARMS RELEVANT CONSIDERATIONS APPLICANT RE

Citation: Andary v R [2020] NSWCCA 75
Court: NSW Court of Criminal Appeal
Date: 22 April 2020
Judges: R A Hulme J, Hamill J (primary judgment), Wilson J

Background

The appellant had rented out a partitioned basement in his Blacktown home to a co-offender who used it to run a clandestine drug laboratory. The appellant lived upstairs with his partner and three young children aged 5, 8, and 10. He received $100 per week in rent and was aware that drug manufacturing was taking place below. He played no other role in the enterprise, did not enter the basement, and left no DNA or fingerprint evidence inside it.

When police searched the property in August 2014, they found the drug laboratory in the basement and, separately, several firearms in the master bedroom. The appellant held no current firearms licence. He was charged with knowingly taking part in drug manufacture while exposing children to that process, as well as possessing a prohibited firearm (a partially disassembled AR-15 rifle) and a second firearm (a bolt-action rifle).

In December 2018, the District Court imposed an aggregate sentence of 4 years imprisonment with a non-parole period of 2 years and 6 months. The appellant sought leave to appeal on three grounds, primarily challenging the sentencing judge's treatment of the drug manufacturing context as a factor elevating the objective seriousness of the firearms offences.

  • Whether the sentencing judge erred by treating the drug manufacturing operation conducted in the basement as a factor that increased the objective seriousness of the firearms offences, when the appellant had no connection between the firearms and the drug enterprise
  • Whether the sentencing judge erred in assessing the prohibited firearm offence as being in the "mid-range" of objective seriousness
  • Whether the sentencing judge erred in finding that the appellant's anxiety and depressive disorder did not warrant a reduction in sentence

Decision

The Court of Criminal Appeal upheld the first ground of appeal. Hamill J found that the sentencing judge had impermissibly elevated the objective seriousness of the firearms offences by reference to the drug manufacturing operation. There was no evidence connecting the firearms to the drug enterprise: the weapons were found in the master bedroom, the appellant had no involvement in the manufacture or distribution of drugs, and there was nothing to suggest the firearms were kept to protect or further the drug operation.

On the second ground, the Court found the prohibited firearm (the AR-15) should have been assessed at the lower end of objective seriousness, not the mid-range. The weapon was partially disassembled, missing a magazine, could not function as a self-loading rifle in its existing state, and was dangerous to fire without a retaining pin. While it could be reassembled into a working firearm, these features significantly reduced its objective dangerousness at the time of the offence.

The third ground was not upheld. The Court found no error in the sentencing judge's treatment of the appellant's mental health condition. The appellant's depression and anxiety were taken into account by way of the finding of special circumstances, which extended the parole period to allow for structured supervision and support on his return to the community.

Because errors were established on the first two grounds, the Court proceeded to re-sentence the appellant. It acknowledged his prior good character, absence of criminal history, strong employment record, low risk of reoffending, and the rehabilitation already demonstrated during the period of remand. The plea of guilty, though late, attracted a 10% utilitarian discount.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • Sentence imposed in the District Court quashed
  • Applicant re-sentenced to an aggregate term of 3 years and 3 months imprisonment commencing 5 October 2018 and expiring 4 January 2022, with a non-parole period of 2 years commencing 5 October 2018 and expiring 4 October 2020

Key Takeaways

  • A sentencing court cannot use a co-offender's drug manufacturing enterprise to inflate the objective seriousness of separate firearms offences where there is no evidence linking the weapons to that enterprise.
  • The physical condition of a firearm at the time of the offence is a relevant consideration in assessing objective seriousness: partial disassembly, missing components, and inability to function as designed can place an offence toward the lower end of the range.
  • The Court of Criminal Appeal confirmed that special circumstances findings (which extend the non-parole period relative to the head sentence) can legitimately reflect a need for structured supervision upon release, including where an offender suffers from anxiety and depression.
  • Where a sentencing judge fails to indicate a putative non-parole period for an individual count as required by s 54B(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW), that omission does not automatically vitiate the aggregate sentence, at least where the appellant did not advance it as a ground of appeal.
  • Re-sentencing on appeal may produce a meaningfully shorter non-parole period even where the discount for a guilty plea is modest, if errors in the assessment of objective seriousness are identified across multiple counts.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 32, 53A(2)(b), 54B(4), sch 1
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(1A), 33AC(2)
- Firearms Act 1996 (NSW), ss 7(1), 7A(1)

Cases
- Akkawi v R; Akkawi v R [2012] NSWCCA 11
- Ballard v R [2011] NSWCCA 193
- Cao v R [2013] NSWCCA 321
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1
- James v R [2017] NSWCCA 287
- Krivosic v R [2017] NSWCCA 167
- Mokhaiber v R [2011] NSWCCA 10
- Moustafa Mariam v R [2017] NSWCCA 292
- Mulato v R [2006] NSWCCA 282
- R v Amurao [2005] NSWCCA 32
- R v AZ [2011] NSWCCA 43
- R v Engert (1995) 84 A Crim R 67
- R v Mehcur [2002] NSWCCA 56
- R v Thurgar (1990) 51 A Crim R 109