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Court of Criminal Appeal 8 June 2022

Mack v R

[2022] NSWCCA 114

DrugsFirearms & weapons
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE SUPPLY PROHIBITED DRUG POSSESS UNAUTHORISED PROHIBITED FIREARM ERROR CONCEDED

Citation: Mack v R [2022] NSWCCA 114
Court: Court of Criminal Appeal, NSW
Date: 8 June 2022
Judge(s): Simpson AJA, Harrison J, Fagan J

Background

The appellant pleaded guilty in the Local Court to four charges and was committed for sentence to the District Court: supply of prohibited drugs (7.654 kg of cannabis), possession of more than three unregistered firearms including prohibited firearms (eight firearms in total), and two counts of possessing an unauthorised prohibited firearm. The offending came to light on 10 April 2018 when police stopped the appellant near Mudgee and later searched his rural property at Bocoble in the central-west of NSW.

The property search uncovered ten firearms, all tested and confirmed to be in working order, along with substantial quantities of cannabis, ammunition spread throughout the house, and 38 cannabis plants growing in the garage. The appellant had no firearms licence and was subject to recently issued Firearms and Weapons Prohibition Orders served on him earlier that same morning.

The District Court at Dubbo imposed an aggregate sentence of 8 years imprisonment with a non-parole period of 4 years and 9 months, commencing 10 April 2018. The appellant sought leave to appeal against that sentence on four grounds.

  • Whether the sentencing judge effectively sentenced the appellant twice for the same offence by treating a related offence on a section 166 certificate and an offence on a Form 1 as two separate matters attracting separate punishment
  • Whether the sentencing judge failed to properly account for the appellant's mental health status in accordance with the principles in DPP (Cth) v De La Rosa
  • Whether the sentencing judge erred in assessing the objective seriousness of the offence under section 51D(2) of the Firearms Act 1996 (possessing more than three unregistered firearms)
  • Whether the aggregate sentence was manifestly excessive

Decision

The Crown conceded Ground 1, accepting that the sentencing judge had erroneously sentenced the appellant twice in relation to the same offence, once as a related offence on a section 166 certificate and again as a Form 1 matter attached to the supply charge. That concession was properly made. The error required the Court of Criminal Appeal to resentence the appellant afresh, consistent with the High Court's approach in Kentwell v The Queen (2014) 252 CLR 601.

On the remaining grounds, the Court found no further error. The sentencing judge had addressed the appellant's mental health and the Court was not persuaded that the De La Rosa principles had been misapplied. The assessment of objective seriousness for the section 51D(2) offence was also upheld: the eight firearms had been on the property since at least 2007, the appellant had concealed them while serving his earlier sentence of imprisonment, and he had retained possession of them for a further six and a half years after his release on parole in 2011.

The Court rejected the submission that the firearms' longstanding presence on the property mitigated the seriousness of the section 51D(2) offence. On the contrary, the Court observed that the appellant had effectively secreted a second arsenal while being imprisoned for a first, resumed possession of those firearms upon release, and kept them for years. No manifest excess was established.

Having resentenced the appellant afresh, the Court arrived at exactly the same sentence as the District Court: 8 years imprisonment with a non-parole period of 4 years and 9 months. Accordingly, despite leave to appeal being granted, the appeal was dismissed.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Court of Criminal Appeal confirmed that where an error in sentencing is established, even one conceded by the Crown, the appellate court must resentence the offender afresh rather than simply adjust the original sentence, following Kentwell v The Queen.
  • A conceded error does not automatically produce a more favourable outcome for an appellant: resentencing afresh may, as here, result in precisely the same sentence being imposed.
  • Where firearms subject to a section 51D(2) charge were concealed from police during an earlier arrest, retained throughout a prior custodial sentence, and kept for years after release, those circumstances do not mitigate objective seriousness and may instead aggravate it.
  • In dismissing the appeal, the Court treated the section 51D(2) offence (possessing more than three unregistered firearms) as by far the most serious matter, with the indicative penalties for the remaining charges running substantially concurrently.
  • Under section 51D(2) of the Firearms Act 1996, the maximum penalty is 20 years imprisonment with a standard non-parole period of 10 years, reflecting the legislature's assessment of the gravity of possessing multiple unregistered and prohibited firearms.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33
- Criminal Procedure Act 1986 (NSW), s 167
- Drugs Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Firearms Act 1996 (NSW), ss 7(1), 51D(2)

Cases
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Mack v R; Mack v R [2009] NSWCCA 216
- R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434