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Court of Criminal Appeal 25 February 2022

Aird v R

[2022] NSWCCA 35

Firearms & weapons
CRIMINAL LAW

Citation: Aird v R [2022] NSWCCA 35
Court: NSW Court of Criminal Appeal
Date: 25 February 2022
Judges: Meagher JA (at [1]); Walton J (at [60]); Harrison J (at [61])

Background

The applicant pleaded guilty in the Campbelltown District Court to two principal offences: possessing a prohibited weapon (a knife concealed as a credit card) contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW), and possessing nine unregistered firearms, four of which were prohibited firearms, contrary to s 51D(2) of the Firearms Act 1996 (NSW). A number of further offences, including possession of an extendable baton, knuckledusters, railway detonators, and ammunition, were taken into account on Form 1A and Form 1B.

The firearms included two pen guns inherited from the applicant's father and brother, along with low-calibre hunting rifles. The applicant had possessed them unlawfully for over ten years, knowing that his licence had been revoked. The firearms were stored in a locked box and were not connected to any other criminal activity, commercial dealing, or third-party criminal use.

At first instance, Hatzistergos DCJ imposed an aggregate sentence of 6 years and 5 months imprisonment, with a non-parole period of 4 years. The applicant, having received a 25% early plea discount, sought leave to appeal on the basis that the aggregate sentence was manifestly excessive.

  • Whether the aggregate sentence of 6 years and 5 months was manifestly excessive in all the circumstances.
  • How the purpose of unlicensed firearm possession bears on the objective seriousness of an offence under s 51D(2) of the Firearms Act 1996 (NSW).
  • Whether the interests of justice justified granting leave to appeal despite the applicant's further delay in filing the application.

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, finding that the aggregate sentence was manifestly excessive. Meagher JA (with whom Walton J and Harrison J agreed) accepted that the sentencing judge had correctly assessed the objective seriousness of each offence. However, the starting point for the indicative sentence on the principal firearm offence, before the plea discount, of approximately 7 years and 7 months was too high when considered against comparable cases.

The Court drew a clear distinction between firearm possession intended for sale or storage on behalf of others, and possession with no such purpose. Where firearms are held for sale or in connection with criminal supply chains, the foreseeable risk of those weapons entering criminal hands is a significant sentencing consideration. In the applicant's case, the firearms were not held for any commercial or third-party criminal purpose, which placed the offending in a materially lower range of seriousness than cases such as Dionys, Lachlan, and El Jamal.

The Court identified that substantially equivalent sentences in comparable cases, Taylor v R and Weaver v R, were 4 years and 6 months and 4 years and 4 months respectively. A starting sentence of 5 years and 9 months (after the plea discount) for the s 51D(2) offence was therefore outside the available range. The applicant's strong subjective case, including a low risk of reoffending, good rehabilitation prospects, and no risk to the community, reinforced that conclusion.

Notwithstanding the delay in bringing the application, the Court was satisfied that the interests of justice required the applicant be permitted to proceed. The Court then resentenced the applicant, imposing a reduced aggregate sentence.

Orders Made

  • Time for filing the application for leave to appeal extended to 1 March 2021.
  • Leave to appeal against the sentence imposed on 16 September 2019 granted.
  • Appeal allowed.
  • Sentence imposed on 16 September 2019 quashed.
  • Aggregate sentence of 4 years and 10 months imposed, comprising a non-parole period of 3 years commencing 12 July 2019 and expiring 11 July 2022, with an additional term of 1 year and 10 months expiring 11 May 2024, during which the applicant is eligible to be released to parole subject to the decision of the State Parole Authority.

Key Takeaways

  • The purpose behind unlicensed firearm possession is a significant factor in assessing objective seriousness under s 51D(2) of the Firearms Act 1996 (NSW). Possession for sale or storage on behalf of others, where weapons may foreseeably reach criminals, warrants substantially higher sentences than possession without any such purpose.
  • Comparative sentencing decisions remain relevant to manifest excess appeals. The Court of Criminal Appeal identified that the starting indicative sentence was inconsistent with the range established in Taylor v R and Weaver v R, where materially equivalent facts attracted sentences of 4 years and 6 months and 4 years and 4 months respectively.
  • In a manifest excess appeal from an aggregate sentence, the principal question is whether the aggregate reflects the totality of the criminality involved, rather than whether any individual indicative sentence was itself erroneous. Indicative sentences under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) are not themselves amenable to appeal but may assist in identifying error in the aggregate.
  • Strong subjective circumstances, including low reoffending risk and good rehabilitation prospects, remain relevant at the appellate resentencing stage. The Court adopted the sentencing judge's findings on subjective factors without re-examination.
  • Delay in filing an application for leave to appeal will not automatically defeat it. The Court extended time and granted leave because the interests of justice required the applicant to have the opportunity to challenge the excessive sentence, notwithstanding the procedural history.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(i), 53A
- Crimes Act 1900 (NSW), s 93FA(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Firearms Act 1996 (NSW), Pt 4; ss 3(2)(a), (c), (e), 4, 39(1)(a), 51D(2), 62(1)(b), 65(3)
- Firearms Regulation 2017 (NSW), r 28B
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Dionys v R [2011] NSWCCA 272; (2011) 217 A Crim R 280
- El Jamal v R [2017] NSWCCA 243
- Elsaj v R [2017] NSWCCA 124
- Hughes v R [2018] NSWCCA 2
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- R v Brown [2006] NSWCCA 249
- R v Cromarty [2004] NSWCCA 54; (2004) 144 A Crim R 515
- R v Lachlan [2015] NSWCCA 178; (2015) 252 A Crim R 277
- Taylor v R [2018] NSWCCA 50
- Weaver v R [2021] NSWCCA 215