Citation: Ali v R [2021] NSWCCA 174
Court: NSW Court of Criminal Appeal
Date: 6 August 2021
Judges: Meagher JA, Walton J, Harrison J (reasons by Harrison J)
Background
The appellant pleaded guilty to possessing a shortened firearm and to possessing a loaded firearm in a public place, both offences relating to the same weapon. Additional offences were taken into account on sentence. The District Court sentenced him to an aggregate term of 4 years and 6 months with a non-parole period of 3 years, allowing a 25% discount for the guilty plea.
The sentencing judge assessed the objective seriousness of both firearms offences as sitting within the mid-range. He rejected the appellant's evidence that he had no intention of using the weapon, citing the weapon being loaded at the time of apprehension, a spare cartridge found nearby, and the appellant's admission that he had used the shotgun to shoot snakes. However, the judge also found he could not be satisfied beyond reasonable doubt that the weapon had ever been used in criminal activity.
The appellant sought leave to appeal on the single ground that the sentencing judge erred in his assessment of the objective seriousness of the offences.
Legal Issues
- Whether the sentencing judge erred in assessing the objective seriousness of the firearms offences as within the mid-range.
- Whether the sentencing judge was required, having found no basis that the firearm had been used in criminal activity, to also expressly address the submission that the firearm was not intended for, nor connected with, criminal enterprise or offending.
- Whether the failure to expressly articulate that absence of a factor meant the sentencing discretion miscarried.
Decision
The appellant argued that a material consideration in assessing objective seriousness for a firearm possession offence is whether the offender was engaged in other criminal activity, or intended or anticipated the firearm might be used to facilitate crime. He submitted that the sentencing judge's rejection of the claim that he had "no intention of using the weapon" could not, without more, constitute a rejection of the separate claim that the weapon was not connected to any criminal enterprise. Because the judge did not expressly address the "no criminal enterprise" submission, the appellant contended the sentencing discretion had miscarried.
Harrison J rejected that argument, finding it rested on a false premise. The judge's express conclusion that there was no basis for finding any of the weapons had been used in criminal activity was itself a complete and adequate response to the submission that the shotgun was not intended for or connected with criminal enterprise. The judge had, on a fair reading of the remarks on sentence, clearly accepted that submission.
Harrison J also rejected the broader proposition that sentencing judges are obliged to list all potentially adverse factors they have chosen not to take into account. To impose such a requirement would be unreasonably burdensome on judges exercising the sentencing discretion in the District Court. Unlike the cases relied upon by the appellant, this was not a case where the reasons left any genuine doubt about what the judge had and had not considered.
Orders Made
• Leave to appeal should be refused
Key Takeaways
- A sentencing judge's affirmative finding that there is no basis for concluding a firearm was used in criminal activity will ordinarily be read as also disposing of a submission that the firearm was not intended for, nor connected with, criminal enterprise.
- No principle requires sentencing judges to exhaustively enumerate all potentially adverse factors that they chose not to take into account when arriving at a sentence.
- The established authorities on unexplained silences in sentencing remarks apply where there is genuine doubt about what a judge considered; they do not apply where the reasons, read as a whole, make the judge's approach clear.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a miscarriage of the sentencing discretion is not established simply because a judge did not positively state that he or she refrained from relying on a particular adverse factor.
- Leave to appeal against sentence severity was refused, with the Court finding no error in the assessment of objective seriousness or in the reasoning process that led to the aggregate sentence.
Legislation and Cases Referenced
Cases:
- Connell v R [2020] NSWCCA 352
- Dunshea v R [2016] NSWCCA 244
- R v El Masri [2005] NSWCCA 167
- Sanchet v R [2006] NSWCCA 291