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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
Date: 8 June 2022
Judges: Simpson AJA, Harrison J, Fagan J

Background

The appellant pleaded guilty in the Local Court to four offences arising from events on 10 April 2018, when he was stopped near Mudgee and his vehicle and rural property were searched. Police found cannabis in his vehicle (which he admitted he intended to supply to a friend), and at his property discovered ten firearms, cannabis plants, and a significant quantity of ammunition.

The appellant had a prior history of almost identical offending, having served a sentence between 2007 and 2012 for drug cultivation and possession of unregistered and prohibited firearms. The eight firearms comprising the principal charge under s 51D(2) of the Firearms Act 1996 had, on the court's findings, been on the property since at least 2007 and remained there throughout that custodial period.

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

Legal Issues

  • Whether the sentencing judge erred by sentencing the appellant twice for the same offence (once as a related offence on a s 166 certificate, and again on a Form 1 attached to a separate charge)
  • Whether the sentencing judge erred by failing to take adequate account of the appellant's mental health status, including its causal connection to the offending
  • Whether the sentencing judge erred in assessing the objective seriousness of the s 51D(2) offence
  • Whether the aggregate sentence was manifestly excessive

Decision

Ground 1: Double counting the same offence

The Crown conceded that the sentencing judge erred by counting Sequence 3 (possession of 171 grams of cannabis seeds) both as a related offence on a s 166 certificate and on a Form 1 attached to Sequence 4, thereby sentencing the appellant twice for the same matter (at [3]). This required the Court of Criminal Appeal to re-exercise the sentencing discretion afresh under the principle in Kentwell v The Queen (at [3]). On re-sentencing, the court declined to take Sequence 3 into account on the Form 1 for Sequence 4, instead nominating a separate indicative sentence for Sequence 3 under s 167 of the Criminal Procedure Act 1986 and factoring it into the aggregate (at [47]). Importantly, the court arrived at the same indicative sentences as the sentencing judge for each offence, concluding that the original judge must have treated Sequence 3 as having a negligible effect on the punishment for Sequence 4 (at [48]).

Ground 2: Mental health and causal connection

The appellant argued that his diagnosed generalised anxiety disorder and cannabis use disorder caused or substantially contributed to his failure to dispose of the firearms after his release from custody. The court acknowledged that the appellant's psychiatric conditions were genuine and their debilitating effects should not be understated (at [45]). However, the court was not persuaded that his continued possession could be attributed solely to chronic mental inertia. The court found it difficult to accept that the appellant had never been in a sufficiently rational mental state, during the six-and-a-half years between his release in 2011 and his arrest in 2018, to take steps to surrender the weapons (at [45]). The court found that he made at least occasional conscious decisions to retain the items, a conclusion reinforced by his failure to surrender the firearms during the July-to-September 2017 amnesty (at [43], [45]).

Ground 3: Objective seriousness of the s 51D(2) offence

The court agreed with the sentencing judge's assessment that the s 51D(2) offence sat at the mid-range of objective seriousness, noting this was also consistent with an earlier Court of Criminal Appeal assessment of similar offending by the same appellant in 2009 (at [44]).

Ground 4: Manifest excess

Because the court arrived at precisely the same aggregate sentence on re-sentencing, the contention that the original sentence was manifestly excessive was effectively resolved against the appellant. Leave to appeal was granted but the appeal was dismissed (at [52]).

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • Where a sentencing judge counts the same offence both on a Form 1 and as a related offence on a s 166 certificate, that constitutes a double-counting error requiring the appellate court to re-sentence afresh under Kentwell v The Queen (at [3]).
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that arriving at the same sentence on re-exercise of the discretion does not mean the original error was harmless in principle: the error is established, but the outcome is unchanged if the correct approach produces an identical result (at [48], [52]).
  • A documented psychiatric condition does not automatically reduce moral culpability at sentence where the court finds the offender made conscious decisions to maintain possession of prohibited items across an extended period, and failed to take available opportunities such as a firearms amnesty to surrender them (at [43], [45]).
  • Eleven years of continuous possession of prohibited firearms, including a period spanning a prior custodial sentence for equivalent offending, does not itself mitigate the seriousness of subsequent possession charges arising from that same arsenal (at [50]).
  • Prior conviction for substantially identical offending heightens the significance of both general and specific deterrence, and weighs against a finding of favourable prospects for rehabilitation (at [31], [32]).

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) A Crim R 1; [2010] NSWCCA 194
- Kentwell v The Queen (2014) 252 CLR 601; (2014) 238 A Crim R 134; [2014] HCA 37
- Mack v R; Mack v R [2009] NSWCCA 216
- R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434