Citation: Fraser v R [2022] NSWCCA 253
Court: NSW Court of Criminal Appeal
Date: 7 December 2022
Judges: Button J; Fagan J; Yehia J
Background
The applicant was a 63-year-old rural property owner near Deniliquin who pleaded guilty to possessing more than three unregistered firearms without a licence, one being a prohibited semi-automatic rifle, contrary to s 51D(2) of the Firearms Act 1996 (NSW). Police found 19 firearms in three locations on his property during a search in November 2018. The maximum penalty for the offence is 20 years imprisonment, with a standard non-parole period of 10 years.
Sixteen of the firearms had been stolen from a property in Swan Hill, and the applicant's adult son had been involved in that theft. The applicant's evidence, which the Crown did not dispute, was that he had made inquiries to locate the stolen guns with the intention of handing them to police. The guns were anonymously dropped at his property, and he wrapped and stored them while awaiting a police visit he expected on an unrelated matter. He ultimately did not notify police, having become anxious about being charged himself.
The District Court at Griffith sentenced the applicant to 7 years imprisonment with a non-parole period of 4 years. The applicant sought leave to appeal out of time, contending the sentence was manifestly excessive.
Legal Issues
- Whether the sentence of 7 years (non-parole period of 4 years) was manifestly excessive in circumstances where the sentencing judge found the objective seriousness of the offence to be slightly below mid-range
- Whether the applicant's subjective circumstances warranted greater leniency than the sentencing judge afforded
- Whether comparable cases and sentencing statistics supported a finding of manifest excess
- Whether the time extension for filing the appeal should be granted
Decision
The Court of Criminal Appeal granted the extension of time and leave to appeal, accepting that the merits of the appeal justified both. The Court found the sentence was manifestly excessive, meaning it was so disproportionate as to be plainly unjust, and quashed it.
On the objective seriousness of the offence, the Court accepted the sentencing judge's finding that it fell slightly below mid-range. However, the Court noted that the sentencing judge had not addressed the circumstances of the Chinese air rifle (which belonged to a third party) or the two firearms found in the wall cavity of the residence. Those firearms added nothing of significance to the overall criminality. The Court was prepared to act on the applicant's uncontested mitigating account of how the firearms came to be on the property.
On the applicant's subjective case, the Court rejected the Crown's submission that the circumstances were not compelling enough to justify significant leniency. The applicant was 63 years old, in deteriorating health, a first-time prisoner with a limited criminal record, his only prior drug offending having occurred more than a decade earlier. He was well regarded in his community and had been found by the sentencing judge to have genuine remorse and good prospects of rehabilitation. The Court held that specific deterrence was not a significant factor in those circumstances.
The Court also noted, to the extent relevant, that the applicant's rural property had been sold after his imprisonment because the family lost the benefit of his income. While hardship to family members does not ordinarily attract weight in the absence of exceptional circumstances, the Court regarded the applicant's own circumstances as sufficient to warrant a substantial reduction in sentence.
Orders Made
- Time for filing the application for leave to appeal extended to the date of filing
- Leave to appeal against sentence granted
- Sentence imposed in the District Court on 24 March 2020 quashed
- In lieu thereof, the applicant sentenced to imprisonment for 4 years and 3 months, commencing 15 February 2020 and expiring 14 May 2024, with a non-parole period of 2 years and 6 months expiring 14 August 2022
- The applicant was noted to have been eligible for release to parole since 14 August 2022
Key Takeaways
- A finding that objective seriousness is slightly below mid-range for a serious firearms offence does not, by itself, determine the appropriate sentence; a powerful subjective case can produce a result substantially below the mid-range starting point.
- Where an offender's uncontested account provides a mitigating explanation for how prohibited firearms came to be in their possession, a sentencing court is required to engage with that explanation; failure to do so may contribute to a finding of manifest excess on appeal.
- The Court of Criminal Appeal confirmed that, for a first-time prisoner aged 63 in deteriorating health with genuine remorse and good rehabilitation prospects, specific deterrence carries reduced weight as a sentencing consideration.
- Comparable cases remained a relevant reference point; the Court examined sentences imposed in analogous firearms possession matters to assess whether the original sentence fell outside the range that could be justified.
- An out-of-time application for leave to appeal against sentence may be resolved on the merits of the proposed appeal, where the Crown does not contest the extension and the interests of justice favour that approach.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Firearms Act 1996 (NSW), particularly ss 23(1), 39(1)(a), 51D(2), 65(3)
Cases
- Aird v R [2022] NSWCCA 35
- Attorney General's Application Under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Mack v R [2009] NSWCCA 216
- Mack v R [2022] NSWCCA 114
- R v Campbell; R v Smith [2019] NSWCCA 1
- R v Cromarty [2004] NSWCCA 54
- R v Lachlan [2015] NSWCCA 178
- R v Mahmud [2010] NSWCCA 219
- Taylor v R [2018] NSWCCA 50
- Weaver v R [2021] NSWCCA 215