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Court of Criminal Appeal 15 May 2024

Brown v R

[2024] NSWCCA 72

Firearms & weapons
CRIME APPEALS APPEAL AGAINST SENTENCE FOUR SEPARATE SETS OF OFFENCES POSSESS UNAUTHORISED PISTOL APPEAL AGAINST SENTENCE

Citation: Brown v R [2024] NSWCCA 72
Court: NSW Court of Criminal Appeal
Date: 15 May 2024
Judges: Garling J, Wilson J, Cavanagh J

Background

The appellant pleaded guilty in the District Court at Gosford to six offences arising from four separate incidents between September 2020 and January 2022. The offences included being an accessory after the fact to armed robbery, aggravated break and enter, possessing an unauthorised pistol in a public place in circumstances of aggravation, and two counts of common assault. Two further offences were taken into account on a Form 1. The sentencing judge imposed an aggregate sentence of 6 years imprisonment with a non-parole period of 3 years, reflecting a finding of special circumstances.

One of the charges, possessing an unauthorised pistol contrary to s 93I(2) of the Crimes Act 1900 (NSW), was listed in Table 2 to Schedule 1 of the Criminal Procedure Act 1986 (NSW). Such offences are dealt with summarily unless the prosecutor elects to proceed on indictment. No election was made, and the charge came before the sentencing court as a related offence on a certificate under s 166 of the Criminal Procedure Act.

Despite that procedural status, the sentencing judge applied the indictable maximum penalty of 14 years imprisonment when determining the indicative sentence for that offence, announcing a term of 3 years. The applicable summary maximum was 2 years imprisonment. The appellant sought an extension of time and leave to appeal, arguing that the sentencing judge had erred by applying the wrong maximum penalty.

  • Whether the sentencing judge erred by applying the indictable maximum penalty of 14 years to a firearms offence that was before the court as a summary (Table 2) matter, where no election to proceed on indictment had been made
  • Whether, error having been established, resentencing was required under s 6(3) of the Criminal Appeal Act 1912 (NSW)
  • What aggregate sentence was appropriate on resentencing

Decision

The Crown conceded that the sentencing judge had applied the wrong maximum penalty. Because no election had been made to prosecute the s 93I(2) offence on indictment, the maximum penalty was 2 years imprisonment, not 14 years. The indicative sentence of 3 years therefore exceeded the available maximum, and error was established.

Wilson J noted that, in practice, the error likely had little or no effect on the aggregate sentence because the sentencing judge had allowed a high degree of notional concurrency. Nevertheless, the Court was required to resentence unless it was not of the opinion that some other sentence, whether more or less severe, was warranted in law. That threshold was not engaged, and resentencing proceeded.

The Court of Criminal Appeal identified several contributing causes for the error: the Crown's standard coversheet had recorded the indictable maximum rather than the summary maximum; the Committal Notice listed the offence as both a committal and a related offence; and neither party had drawn the court's attention to the summary nature of the charge during the sentencing proceedings.

On resentencing, the Court adopted the same indicative sentences as the sentencing judge for all offences except the firearms charge, for which it substituted an indicative term of 18 months imprisonment. Applying the totality principle with an appropriate degree of concurrency, the Court reduced the aggregate sentence to 5 years and 9 months imprisonment, with a non-parole period of 3 years.

Orders Made

  • Time extended for filing the application for leave to appeal until 6 November 2023
  • Leave to appeal granted
  • Appeal allowed
  • Aggregate sentence of 6 years imprisonment set aside and replaced with an aggregate sentence of 5 years and 9 months imprisonment, commencing 20 January 2022 and expiring 19 October 2027, with a non-parole period of 3 years expiring 19 January 2025

Key Takeaways

  • Where a Table 2 offence under the Criminal Procedure Act 1986 (NSW) is before a sentencing court as a related offence and no election to proceed on indictment has been made, the applicable maximum penalty is the summary maximum, not the indictable maximum.
  • Applying the indictable maximum penalty to a charge prosecuted summarily constitutes an error of law, regardless of whether the error had a material effect on the aggregate sentence ultimately imposed.
  • Under s 6(3) of the Criminal Appeal Act 1912 (NSW), the Court of Criminal Appeal is required to resentence once sentencing error is established, unless it is not of the opinion that some other sentence is warranted in law.
  • Contributing factors in this case included an inaccurate Crown coversheet, an ambiguous Committal Notice, and the failure by both parties to identify the summary nature of the charge during proceedings, all of which led the sentencing court into error.
  • Even where sentencing error is established, the Court of Criminal Appeal may find that practical differences to the outcome are modest; here, the non-parole period remained unchanged while the aggregate head sentence was reduced by 3 months.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61, 93I(2), 97, 112(2), 114(1)(d), 347, 350
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Procedure Act 1986 (NSW), Schedule 1 Table 2, ss 166

Cases:
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- 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
- Higgins v R [2020] NSWCCA 169
- JG v R [2023] NSWCCA 33
- Martellotta v R [2021] NSWCCA 168
- McDowall v R [2019] NSWCCA 29
- Thorp v R [2022] NSWCCA 180
- Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266