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Court of Criminal Appeal 21 November 2022

Le v R

[2022] NSWCCA 243

DrugsFirearms & weapons
CRIME APPEALS APPEAL AGAINST SENTENCE FIREARMS AND DRUG OFFENCES ERROR NOT ESTABLISHED

Citation: Le v R [2022] NSWCCA 243
Court: Court of Criminal Appeal, NSW
Date: 21 November 2022
Judge(s): Button J, Fagan J, R A Hulme AJ

Background

The appellant pleaded guilty in the District Court to four primary offences: possessing two unauthorised Glock pistols (one of which was also a "prohibited" pistol due to its dimensions), supplying 51.99 grams of methylamphetamine, and possessing a prohibited weapon (a cattle-prod taser). He also asked the court to take into account four related offences listed on Form 1 documents, including possession of two defaced firearms (each pistol had its serial number removed). The items were found during a police search of premises associated with the appellant.

The District Court imposed an aggregate sentence of five years' imprisonment with a non-parole period of two years and nine months, following a 25 per cent reduction for early guilty pleas. The appellant sought leave to appeal against that sentence on two grounds.

  • Whether the sentencing judge erred under ss 44(2A) and (2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW) by increasing the additional term (the balance of the sentence served after release on parole) when finding special circumstances, rather than reducing the non-parole period.
  • Whether the sentencing judge erred by improperly taking into account the Form 1 offences (possessing defaced firearms) when assessing the objective seriousness of the primary firearms offences.

Decision

On Ground 1, the Court found no error in the judge's approach to special circumstances. The judge had not locked in a fixed non-parole period before applying s 44(2B); rather, his statement that he would "increase the additional term" was understood to convey that a longer balance of term would follow as a consequence of reducing the non-parole period. That approach was consistent with well-established authorities on how courts are to structure sentences when special circumstances are found.

On Ground 2, the Court acknowledged some infelicity of expression in the judge's remarks but was satisfied that the judge had identified and avoided the relevant error. The Form 1 offences had been taken into account only in assessing the additional need for personal deterrence and retribution, which is the proper and limited purpose for which such offences may be considered. The Court noted that the judge's objective seriousness findings, placing one pistol offence at the midrange and the other slightly above it, were appropriate given the circumstances, and the appellant had not sought to challenge those findings even if resentencing had been ordered.

R A Hulme AJ (with whom Button J and Fagan J agreed) added an observation about the pressure on District Court judges to produce reserved judgments under significant workload constraints, offering context for why some imprecision in expression appeared in the remarks on sentence.

Orders Made

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

Key Takeaways

  • No error was established in the sentencing judge's treatment of special circumstances: increasing the additional term as a consequence of reducing the non-parole period is a correct application of s 44(2B), provided the court has not first fixed an immutable non-parole period.
  • Under established authority, Form 1 offences may only be taken into account for the limited purpose of assessing the additional need for personal deterrence and retribution in relation to the primary offence; they must not inflate the objective seriousness assessment of that primary offence.
  • In dismissing both grounds, the Court confirmed that apparent infelicities of expression in a sentencing judgment will not constitute appellable error where the reasons, read as a whole, disclose that the correct legal approach was in fact applied.
  • The Court of Criminal Appeal affirmed the sentencing findings that possession of two loaded-compatible Glock pistols in the context of drug supply activity warranted placement at or slightly above the midrange of objective seriousness.
  • District Court judges' heavy workloads may provide context for imprecision in expressed reasons, though the Court makes clear it must assess the transcript as it stands.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(1), 44(2A) and (2B)
- Crimes (Sentencing Procedure) Amendment Act 2010 (NSW)
- Firearms Act 1996 (NSW), ss 66(1)(a) and (1)(b)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Prevention of Cruelty to Animals Regulation 2012 (NSW), Sch 3
- Sentencing Act 1989 (NSW), ss 5(1) and (2)

Cases:
- R v Moffitt (1990) 20 NSWLR 114
- R v Hampton (1998) 44 NSWLR 729
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
- Nguyen v R [2019] NSWCCA 209
- RO v R [2019] NSWCCA 183
- Abbas, Bodiotis, Taleb and Amount v R [2013] NSWCCA 115; (2013) 231 A Crim R 413
- 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
- Dolman v R [2010] NSWCCA 137
- Musgrove v R [2007] NSWCCA 21; (2007) 167 A Crim R 424
- R v Tobar; R v Jan [2004] NSWCCA 391; (2004) 150 A Crim R 104