Citation: Lowe v R [2025] NSWCCA 202
Court: Court of Criminal Appeal, New South Wales
Date: 26 November 2025
Judges: Kirk JA; Fagan J; Yehia J
Background
The applicant pleaded guilty in the District Court to four firearms offences and two drug offences, all arising from a police search of his home on 21 November 2023. Officers found two shortened rifles, ammunition, methylamphetamine, and cannabis. Three additional offences were placed on Form 1 schedules to be taken into account at sentencing, including possession of a firearm with a defaced serial number.
Judge Musgrave sentenced the applicant to an aggregate term of 3 years and 9 months imprisonment with a non-parole period of 2 years and 3 months, backdated to the date of arrest. A 25% discount was applied to each indicative sentence for the early pleas of guilty.
The applicant sought leave to appeal on three grounds, challenging the sentencing judge's treatment of a Form 1 offence, a finding about ammunition compatibility, and the handling of his PTSD diagnosis.
Legal Issues
- Whether the sentencing judge erred by treating the Form 1 offence of possessing a firearm with a defaced serial number as contributing to the objective seriousness of the principal offence with which it was associated (possession of the same shortened rifle without a permit).
- Whether the sentencing judge erred in finding that seized .22 Long Rifle calibre ammunition was compatible with the shortened .22 Long Rifle calibre Anschutz firearm, and whether procedural fairness was denied in making that finding.
- Whether the sentencing judge failed to take into account that the applicant's PTSD symptoms would make his time in custody more onerous.
Decision
Ground 1 (Form 1 and objective seriousness): upheld, but no lesser sentence warranted.
The Court found that her Honour had erred by using the circumstances of the defaced firearm charge to increase the assessed objective seriousness of the principal offence. Both the Form 1 charge and the principal charge related to the same physical rifle. The defaced serial number did not provide context that shed light on the criminality of simply possessing a shortened firearm without a permit. Under the principles established in the Attorney General's Guideline Decision, a Form 1 offence is relevant to personal deterrence and community retribution, not to the objective gravity of the principal offence itself. The two matters should not have been conflated.
Ground 2 (ammunition compatibility): dismissed.
The Court held that it was open to the sentencing judge to conclude that .22 Long Rifle calibre ammunition was compatible with the shortened Anschutz rifle, itself described as .22 Long Rifle calibre. The agreed statement of facts supplied sufficient basis for that finding. No procedural fairness error was established.
Ground 3 (PTSD and burden of imprisonment): dismissed.
The psychological report before the sentencing judge contained only a general, non-specific observation about PTSD and imprisonment. The applicant had not described any sense of threat in prison and had not told the psychologist of any exacerbation of symptoms in custody. Counsel appearing at sentence had effectively conceded the point was of limited weight. The Court found there was no evidence from which the sentencing judge could have concluded the applicant bore an increased burden of imprisonment attributable to his PTSD symptoms.
Overall result.
Although Ground 1 succeeded, the Court examined the totality of the offending and the applicant's subjective circumstances and was satisfied that no lesser sentence than the aggregate imposed was warranted in law. The appeal was dismissed.
Orders Made
- Leave to appeal against the sentence imposed on 1 May 2025 was granted.
- The appeal was dismissed.
Key Takeaways
- A Form 1 offence is relevant to sentencing for the principal offence in the limited senses identified in the Attorney General's Guideline Decision, namely personal deterrence and community retribution. It cannot properly be used to increase the assessed objective seriousness of the principal offence itself, particularly where both charges arise from the same item or conduct.
- Where a principal offence and its associated Form 1 charge concern exactly the same object, the circumstances of the Form 1 charge do not provide separate contextual criminality capable of aggravating the principal offence.
- Ammunition compatibility with a firearm can be inferred from matching calibre descriptions in agreed facts, without any requirement for technical expert evidence, where the factual foundation is clear and unambiguous.
- Establishing that PTSD will increase the burden of imprisonment requires actual evidence connecting the condition to the specific prison environment or experience. A generalised clinical observation is insufficient, and concessions made by counsel at sentence will weigh against revisiting the point on appeal.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that identifying a sentencing error does not automatically produce a lesser sentence: if the overall sentence remains appropriate when assessed against the full sentencing picture, the aggregate will stand.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Firearms Act 1996 (NSW)
- Criminal Procedure Act 1986 (NSW)
Cases:
- Attorney General's Application Under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 (the Guideline Decision)
- Ragg v R [2022] NSWCCA 150
- Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
- LN v R [2020] NSWCCA 131
- Flick v R [2023] NSWCCA 197
- Tukuafu v R [2024] NSWCCA 84
- Blackett v R [2021] NSWCCA 210
- Singh v R [2021] NSWCCA 96
- Stephens v R [2010] NSWCCA 93
- RO v R [2019] NSWCCA 183