Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Fraser v R [2022] NSWCCA 253 Hearing dates: 7 November 2022 Date of orders: 7 December 2022 Decision date: 07 December 2022 Before: Button J; Fagan J; Yehia J Decision: (1) Extend the time within which the applicant may seek leave to appeal against sentence. (2) Grant leave to appeal against sentence. (3) Quash the sentence imposed in the District Court and in lieu thereof sentence the applicant to imprisonment for a term of 4 years and 3 months commencing on 15 February 2020 and expiring on 14 May 2024 with a non-parole period of 2 years and 6 months expiring on 14 August 2022. Catchwords: CRIME – appeal against sentence – where the applicant pleaded guilty to possession of 19 firearms at a rural property – manifest excess – where the offender intended to hand the firearms in to police – strong subjective case – consideration of comparable cases – sentence plainly unjust Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Firearms Act 1996 (NSW) Cases Cited: 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 Category: Principal judgment Parties: Rex James Fraser Representation: Counsel: I Nash (Crown) L Fernandez (Applicant) Solicitors: Director for Public Prosecutions (Crown) Tankard's Law (Applicant) File Number(s): 2018/371780 Publication restriction: Nil Decision under appeal Court or tribunal: District Court NSW Jurisdiction: Criminal Date of Decision: 24 March 2020 Before: Grant DCJ File Number(s): 2018/371780 JUDGMENT 1. THE COURT: James Douglas Fraser applies for leave to appeal against a sentence imposed on him by Grant DCJ in the District Court at Griffith on 24 March 2020. The application is out of time. The Crown is content for the Court to decide whether an extension should be allowed according to the merits of the proposed appeal. 2. The applicant pleaded guilty to a charge that on 30 November 2018 he did possess more than three firearms that were unregistered and that he was not authorised by licence to possess, one of those firearms being of a prohibited, kind, namely a semi-automatic rifle – contrary to s 51D(2) of the Firearms Act 1996 (NSW). The maximum penalty is 20 years imprisonment and a standard non-parole period of 10 years is prescribed. Grant DCJ sentenced the applicant to 7 years with a non-parole period of 4 years. 3. At the request of the applicant his Honour took into account four offences on a Form 1, as follows (the sequence numbers being those designated on Court Attendance Notice H70353865): Sequence 1: possession of ammunition without a licence or permit for either the ammunition or for any firearm in which it could be used – contrary to s 65(3) of the Firearms Act (maximum penalty 50 penalty units). Sequence 2: possession of about 5 g of cannabis – contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (maximum penalty 20 penalty units and/or imprisonment for 2 years). Sequences 4 and 6: two counts of failure to keep safely a firearm not being a prohibited firearm or pistol) – contrary to s 39(1)(a) of the Firearms Act (maximum penalty 50 penalty units and/or 2 years imprisonment). 1. One backup charge was before his Honour pursuant to s 166 the Criminal Procedure Act 1986 (NSW). It was a charge under s 23(1) of the Drug Misuse and Trafficking Act of cultivating three cannabis plants. His Honour recorded a conviction with no other penalty, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). It will not be necessary to make any further reference to that offence. 2. The applicant's sole proposed ground of appeal is that the sentence imposed by his Honour is manifestly excessive. He submits that manifest excess appears from the following: (a) The disproportionality between the sentencing judge's finding of the objective seriousness of the offence being slightly below mid-range, and the sentence imposed. (b) The applicant's strong subjective case. (c) Comparable cases. (d) Sentencing statistics. Facts 1. The facts of the applicant's possession of firearms contrary to s 51D(2) of the Firearms Act were as follows. During a search of a rural property near Deniliquin, which was owned by the applicant and occupied by him and his wife and two of their children, police found 19 firearms in three separate locations. The first location was a water tank, presumably empty of water although that is not stated in the evidence. Within the tank 16 firearms were found in two groups of eight, each group wrapped in orange plastic sheet and sealed with duct tape. The descriptions of the guns in these packages are as follows: 1. 1 Sterling .22 calibre semi-automatic rifle with scope and magazine. 2. 6 rifles of .22 calibre. 3. 6 side-by-side double barrel shotguns, 12 gauge. 4. 1 under and over double barrel shotgun, 12 gauge. 5. 1 single barrel shotgun, 12 gauge. 6. 1 air rifle. One of the .22 calibre rifles, a Lithgow model, had a live round in the firing chamber. 1. The second location was a cavity in the wall between the lounge and dining rooms of the main residence on the property. Within this cavity the following items were found: 1. 1 under and over double barrel shotgun, 12 gauge. 2. 1 lever action rifle, .30-30 calibre. 1. The third location was a shed near the main residence. Within the shed police located a Chinese brand air rifle, cocked with a pellet loaded for firing. 2. Of the Form 1 matters, sequence 1 concerned, firstly, ammunition located in the kitchen and main bedroom of the residence. This consisted of .22 and .30-30 calibre rounds and shotgun shells. Sequence 1 also related to shotgun shells and assorted ammunition in the wall cavity between the lounge and dining rooms and 50 x .22 rifle rounds and 48 shotgun shells found inside a boat stored in the shed. The 5 g of cannabis in sequence 2 was located in a tin within the bedroom. The two charges of failing to keep firearms safely, sequences 4 and 6, concerned the storage of the shotgun and lever action rifle in the lounge/dining room wall cavity. 3. According to the agreed facts, the Chinese brand air rifle in the shed was owned by a person other than the applicant and was claimed by that person, who said that he had been shooting pigeons in the shed and had left the gun behind when he had to leave in a hurry because he was unwell. Those assertions were apparently accepted by police. The applicant supported them in his evidence in the sentence proceedings and he was not challenged on this. The Chinese air rifle makes no significant contribution to the overall seriousness of the offending, both because of its nature and because of the circumstances in which it came to be in the applicant's possession. 4. Of the remaining 18 firearms, the 16 that were located in the water tank had been stolen from a property in Swan Hill. The applicant knew of that circumstance. His son, who was aged 24 or 25 years in late 2018, had been concerned in the theft. There was evidence before the sentencing judge that on 22 October 2018, five weeks prior to the police search of the Deniliquin property, the son had been released from custody, apparently on bail. He was suffering from a mental disorder at that time and he entered a drug rehabilitation facility. A medical specialist subsequently assessed him and found, in early 2020, that he was suffering from Post Traumatic Stress Disorder with psychotic symptoms. 5. In the sentence proceedings the applicant said that he had been told both by his son and by police that the 16 firearms that were found in the water tank, in two separate plastic wrapped bundles of eight, were the subject of the theft from Swan Hill. The applicant's son had been arrested and charged with the theft and it may be inferred that the son was in custody on that charge up to 22 October 2018 when he was released to bail. 6. The applicant gave this evidence: A [My] son was involved in the theft and two others. Q […] that theft was a theft I think from premises in Swan Hill, is that right? A Yes. […] A I had asked about, you know, let word out that I wouldn't mind finding out where these [guns] were from a few people though I was […] never really expecting to get the guns back but I thought I might hear where they were and, yeah, we could get them off the streets. […] Q You were hoping to find out where they were and then what? A Well, get them back to the police and get them off the street. That's what I was concerned about. […] I've had a son been held up and I definitely didn't want them in the wrong hands. 1. The applicant expanded on his last answer by saying that another son, on some unrelated occasion, had been shot in the leg. He said that, having "asked about" and "let word out", the 16 guns were dropped off outside his shed, apparently referring to a shed on the applicant's rural property. He gave the following answers: A Well, I come out and when I opened up my shed door and there were some guns lying down they were in a couple of hessian bags or some of them were sort of spilled out. A They were on the ground in a couple of hessian bags. Some of them were sort of spilled out and I realised where they'd come from. I knew where they come from. […] Q So then what did you do? A Well, I took them in my shed, I put them on the bench and I thought a police officer was going to come out through another case, not of mine but just some information I had and, yeah, well, I've wrapped them up. I've got them out the way and I've put them under a tank just near my workshop. 1. When asked to explain why he wrapped and sealed the 16 guns he said this: A Well, I don't want them to go all rusty. You know, these are people's guns and, you know, just you put them under something where they'll sweat and they'll just go all rusty. Q When you say that you didn't want them to go rusty and they were people's guns […] what was the importance of that? What do you mean? A Well, my son was involved in this. 1. The applicant gave no evidence of who had actually brought the 16 firearms to the front of his shed. On his evidence, he did not know. He said that this occurred about three weeks before the police carried out their search. He said that having wrapped the 16 firearms and placed them in the water tank he did not notify the police, for reasons that he expressed as follows: A I sort of got panicky. Once I got them and I thought about it, it'd be like, "Oh, geez, I'm going to be charged with this. You know, this is going to be a funny one." A […] I got a bit, bit sort of worried about how I was going to do this then without being charged. You know, would they believe what happened and, yeah, I got a bit panicky. […] Yeah, I had a lot going on in my head, you know with my son and his mental attitude and we were running down to Shepparton sometimes two, three times a week to the rehab and psychiatrists and, yeah, we had a lot going on. 1. The applicant said he also held a concern that if he went ahead with handing in the 16 firearms "something could happen to […] my family". It was not clarified whether he perceived the possibility of police action against his family or whether he feared possible retribution by others who may have had an interest in the guns, either criminals or legitimate owners. 2. The applicant said that the shotgun and .30-30 rifle that were concealed in the wall cavity of the residence, which were two of the guns that were the subject of the s 51D(2) charge, were left at the property by people for whom he had repaired a bus. They had brought the bus out to the property to have work carried out on it. Those two guns were not part of any collection that he was proposing to surrender to police. Rather, they were held long-term for his own use on the property, albeit that they were unregistered and that he had no licence for them. The applicant said that he stored them in the wall cavity "by way of an attempt to keep them safe". The applicant was not challenged about any of his evidence concerning those two firearms. The sentencing judge did not make any findings about them. 3. The applicant gave the following evidence concerning the source of the significant quantity of ammunition that police located, as referred to in sequence 1 on the Form 1: A Look, a lot of cars I clean out, you know, shells could – yeah, you blow them out with EO4 [sic] on the floor. A lot of them, you know, there's been shooters out there, you know, and I've picked up shots from down the back and, yeah, I'd just put them in my pocket. […] working out in the shed sometimes, you know, I throw a bit on the bench inside and, yeah, empty my pockets of a night […]. The applicant was not challenged in cross-examination about this explanation. The judge made no finding with respect to it. Aspects of what the applicant said about the source of the ammunition are implausible. The large amount of .22 ammunition found in the residence and in the boat was not compatible with the calibre of either of the two firearms that the applicant had for his own use on the property, being the two stored within the residence. Objective gravity 1. The sentencing judge made the following findings concerning possession of the firearms, implicitly limited to the 16 that were found in the water tank: I accept that Mr Fraser did not possess the firearms for profit. It would appear that, on his evidence, it was his intention to get them off the streets and give them to the police. They are firearms which were left at his property. He said that he wrapped them in plastic and used duct tape and placed them in the water tank so that he did not want them to go rusty so that they would be in good condition. [His counsel] submits that what he was saying was that they would be in good condition when they were given to the police. It would appear that he got cold feet and did not go on with what he intended to do, although in evidence he has now said that he wished he had gone to the police. 1. Those findings, based upon acceptance of the applicant's evidence, were open. The Crown did not cross-examine the applicant to suggest that his evidence of how the 16 firearms came into his possession and of his intention with respect to them was untruthful. Nor did the Crown adduce any evidence to contradict the applicant's account, in particular, to suggest that he had some purpose in holding the firearms other than to surrender them. The judge's findings, based upon the applicant's uncontested explanation, significantly mitigate the objective seriousness of the s 51D(2) offence. The guns were dropped off at the applicant's shed by another or others, rather than bought or stolen by the applicant. He did not hold them thereafter for sale at profit and he intended to surrender the guns to police. 2. His Honour's acceptance that the applicant "got cold feet" amounts to a finding that soon after receiving the 16 firearms the applicant suspended his intention and decided to hold them for some undefined period. Clearly he did not take the first reasonable opportunity to hand the guns in or to notify police that he had received them. The fact that he wrapped them in a manner intended to preserve them against moisture ingress and deterioration and that he hid them in a water tank indicates that implementation of his original plan of surrender was not imminent. However there was no evidence, and his Honour did not purport to find, that the intention of surrender was abandoned or replaced by some other purpose that would aggravate the seriousness of the crime. 3. Nor was any such finding sought by the Crown. No finding of a more sinister purpose could have been made beyond reasonable doubt on the evidence tendered in the sentence proceeding. There is at least a reasonable possibility that the applicant's failure immediately to carry through with surrender of the weapons may have arisen from concern about how this might impact upon the charge that his son was facing. A circumstance mitigating the gravity of the offence is that the applicant had only held the firearms for three weeks prior to the police search of his property. That is consistent with mere procrastination concerning the surrender, or uncertainty how best to proceed without making things worse for himself or his son, rather than change of purpose. 4. One of the objective circumstances identified by the sentencing judge was the risk that these weapons might find their way into the community, in particular into the hands of criminals, as a result of being held by the applicant. As his Honour pointed out, it was clear from the circumstances described by the applicant that at least one other person who was not the rightful owner of the 16 guns had brought them to the property and knew that they were there. The place was relatively isolated and the prospect of that same person retaking the guns, or of some other person learning of their whereabouts and coming out to steal them, was significant. The applicant's possession of the firearms posed a risk to the community of a kind that is sought to be addressed by the Firearms Act. 5. His Honour listed all of the above features of the applicant's conduct and took them into account as contributing to, or mitigating, the objective seriousness of the offence. It was not necessary for the judge to characterise the objective seriousness in terms of position on a notional scale: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [29]; s 54A(6) of the Crimes (Sentencing Procedure) Act; Tepania v R [2018] NSWCCA 247 at [110](d) per Johnson J (Payne JA and Simpson AJA agreeing). His Honour's statement that the seriousness of the principal offence was "slightly below the mid-range" was therefore unnecessary and, contrary to the applicant's submissions, the question whether the sentence imposed was manifestly excessive cannot be resolved, or even assisted, by comparing that characterisation with the proportion of the maximum penalty that the judge imposed. Subjective circumstances 1. The applicant was 63 years old when he was sentenced. The sentence fixed by Grant DCJ was to be his first experience of full-time custody. On that consideration alone the judge found special circumstances and reduced the ratio of his non-parole period to 57%. The applicant had no prior convictions for firearms offences and the only past offence involving violence was an aggravated assault dealt with by fine in the East Perth Court of Petty Sessions 30 years earlier. He had convictions for driving offences. The applicant was convicted of using and cultivating cannabis in 2008. The concurrent suspended sentences imposed for those matters suggest that they did not concern production or possession on a commercial basis. References tendered on the applicant's behalf showed that by the date when he was sentenced the applicant had established good standing in his district and was well regarded for generous involvement in community affairs and activities. 2. The applicant had a history of employment, hard work and commitment to his partner and children, particularly the son who at the time of the sentence proceedings was in psychiatric care. The applicant described his rehabilitative engagement with his son, including involvement of the son in work on the property and in the applicant's panel beating business. The applicant said that his son "does rely on me a real lot" and that if he should be imprisoned the young man would "probably fall back a lot". The applicant was emotional and became distressed when giving this evidence. He said that his partner would be unable to maintain their property alone and did not earn sufficient income, as a cleaner, to cover outgoings if he should be sentenced to full-time imprisonment. A bank loan of $29,000 was outstanding and repayments of $1,000 per month had to be made. 3. The sentencing judge accepted that the applicant suffers significant medical disabilities, including residual pain in his knee and a limp following an unsuccessful operation, as well as an untreated abdominal hernia and back pain. The burden of incarceration would be particularly great because of the applicant's loss of ability to care and provide for his family, particularly his troubled son. His Honour accepted that the applicant had good prospects of rehabilitation and that his expressions of remorse and contrition were genuine. Although not stated by the judge, the likelihood of him reoffending appears to us to be negligible. The applicant entered his plea in the Local Court and the sentence imposed reflected allowance of a 25% discount. Principles stated and sentences passed in comparable cases 1. The importance of general deterrence in sentencing for offences against s 51D(2) of the Firearms Act has been emphasised consistently in this Court's decisions. In R v Cromarty [2004] NSWCCA 54 all members of the Court concurred in the following statement by Kirby J: [86] […] [Although] the primary object of s 51D, introduced in 2002, may have been the punishment of criminals who warehouse illegal firearms, the objective was, I believe, broader than that. The measures, as the Minister announced in his Second Reading Speech, were "designed to inhibit the illegal supply of firearms". The purpose of the amendments extended to the stockpiling of weapons, as happened here, where that stockpile was vulnerable and, if violated, may feed the market in the illegal supply of firearms. 1. In R v Mahmud [2010] NSWCCA 219 the following was said by R S Hulme J (Giles JA and Latham J agreeing): [71] In this connection it is important to recognise the legislative purpose embodied in s 51B [scil s 51D, with which the appeal was concerned] and other similar provisions of the Firearms Act, viz, the elimination of firearms from the community except insofar as their possession is expressly authorised. The reason is clear. The possession of firearms, except where necessary and by persons authorised to have them, is calculated to lead to substantial damage. The courts have a duty to impose penalties that conform with the legislative intention and operate as real disincentives to those otherwise attracted to the illegal possession of firearms. 1. In Taylor v R [2018] NSWCCA 50 the then Chief Judge and Price J agreed with the following statements by Johnson J: [59] The offence under s 51D(2) Firearms Act 1996 may be committed in a wide range of circumstances. The issue of public safety is a factor of significance with respect to offences under this section. The purpose of s 51D is not limited to the punishment of criminals who warehouse and harbor illegal firearms. The purpose of the prohibition is broader. It extends to the stockpiling of weapons by persons without any further criminal intent: R v Cromarty at [86]. This is because of the risk that a stockpile, if vulnerable, may inadvertently feed the market in the illegal supply of firearms: R v Cromarty at [86]. [61] The Applicant had a significant criminal history for firearm offences. As the sentencing Judge found […], there was a particular need for specific deterrence and general deterrence in this case. Courts have a duty to impose penalties for offences involving possession of firearms that conform with the legislative intention and operate as real disincentives to persons who may be attracted to the illegal possession of firearms: R v Mahmud at [71]; R v Lachlan (2015) 252 A Crim R 277; [2015] NSWCCA 178 at 288 [68]. 1. Comparison of the objective facts of the present case with those of other cases that have come before this Court confirms Johnson J's observation that infringement of s 51D(2) "may be committed in a wide range of circumstances". The range stems from the long list of variables that may affect objective gravity, such as number and type of firearms, number in a prohibited category, purposes for which the firearms are held and so on: Mack v R [2009] NSWCCA 216 at [40]. The degree to which appropriate sentences may vary from one case to another is further increased by the impact of subjective factors, notably whether the offender has prior convictions for firearms offences, which would commonly engage a requirement for specific deterrence. 2. A conclusion that a sentence is manifestly excessive is only to be drawn if it is "plainly apparent" and, having been drawn, it may "not admit of amplification": Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]. For an offence that may vary so greatly in the level of punishment that any one contravention should attract, the question whether manifest excess is "plainly apparent" depends upon attention to detail, that is, appreciation of the entire objective and subjective circumstances of the case. On careful consideration of the mitigating objective features and favourable subjective circumstances found by his Honour, we regard it as plain that the sentence of 7 years with a non-parole period of 4 years, after allowing a 25% discount, was manifestly excessive. Review of penalties that have been imposed upon other offenders pursuant to this section, in a variety of circumstances, confirms that conclusion. It is recognised in this Court that reference to one or two or even several other decisions in which lesser penalties have been imposed may not be useful in the resolution of a manifest excess ground of appeal. However, decisions cited by the applicant show that significantly shorter sentences have been imposed by this Court, upon re-sentence after upholding appeals, for breaches of s 51D(2) in substantially more grave circumstances than the present, including in cases where the offender's subjective circumstances have been less favourable than the circumstances of this applicant. 3. Without in any way derogating from the above-quoted statements of principle, it should be acknowledged that discord between the sentence imposed by Grant DCJ and this Court's re-sentencing orders in a number of other cases would, if the former were permitted to stand, give rise to a justifiable sense of grievance on the part of the applicant and a lack of consistency in the administration of the relevant offence provision. 4. R v Mahmud concerned the possession, contrary to s 51D(2), of four firearms. Two were pistols and the other two were single shot home made weapons of less utility and significance. One of the pistols was being carried in the offender's vehicle, loaded and set to fire, when he was arrested. He had owned the guns for over a year, since being released from prison and recommencing drug use. It was accepted that the offender was in possession of the guns because of a "fetish" with respect to them. However, at the time of his arrest he was also engaged in commercial supply of methyl amphetamine. At the time of arrest he was in possession of 1.78 kg of the drug at low purity and a large number of resealable bags suitable for distributing small quantities. Offences of possession of ammunition and of prohibited weapons were taken into account on a Form 1. 5. The offender had multiple prior convictions for assaults in various degrees of severity and convictions for three offences relating to an unregistered and unauthorised pistol and ammunition, dating from four years earlier. For the previous firearms offences he had served a term of 18 months with a non-parole period of 12 months. On re-sentence for the s 51D(2) offence, in a successful Crown inadequacy appeal, the Court determined that a sentence of 6 years with a non-parole period of 4 years and 7 months would be an appropriate starting point. A discount of 20% was applied for a late plea. For the purposes of comparison with the sentence imposed by Grant DCJ, a discount of 25% would have resulted in a sentence of 4 years and 6 months with a non-parole period of 3 years and 5 months. 6. R v Lachlan [2015] NSWCCA 178 was another Crown appeal. The offence against s 51D(2) concerned possession of only four firearms, but all of them were of prohibited type – whereas in the present case only one of the 19 firearms was prohibited. In R v Lachlan the offender had possession of a shortened rifle and three shortened shotguns. As Gleeson JA observed, these weapons "could have no legitimate purpose": [72]. The firearms were held by the offender for the purpose of resale and financial gain. He had multiple contacts through whom he was actively engaged in acquisition and distribution of firearms. There were taken into account on a Form 1 seven offences that, in combination, were significantly more serious than the offences on the Form 1 in the present case. The offender was 19 at the date of the offence and came from a dysfunctional family background. He had abused various illicit drugs from the age of 14. The offender had prior convictions for firearms offences and had been variously assessed as at a "low to moderate" or a "medium to high" risk of reoffending. He was resentenced to 5 years and 3 months with a non-parole period of 3 years, after allowing 25% discount for his early plea of guilty. 7. R v Campbell; R v Smith [2019] NSWCCA 1 was a successful appeal by the Crown against manifest inadequacy of sentence. The offender Smith had pleaded guilty to, inter-alia, one count under s 51D(2) concerning seven unregistered firearms, six of which were prohibited. The six comprised two semi-automatic rifles, a pump action shotgun, a sawn-off shotgun and two pen guns. The firearms were found in proximity to over 1,000 rounds of ammunition. They were stored by the offender on behalf of the members of an outlaw motorcycle gang who were engaged in methylamphetamine manufacture and distribution. 8. R A Hulme J recorded the following with respect to the character of Smith's offending: [190] There are many judgments of this Court in which statements have been made about the seriousness of offences against the Firearms Act and the Weapons Prohibition Act. The more serious of the two offences against the Firearms Act for which Mr Smith was sentenced was that against s 51D(2) (Charge 6). Spigelman CJ made the following observation about such an offence in R v Brown [2006] NSWCCA 249: [21] When s51D was introduced by the Firearms Amendment (Public Safety) Act 2002, the Minister said: "Firearm related crime is a major concern for both police and the community." [22] The offence, in a series of offences relating to firearms in the Firearms Act 1996, is directed to persons who are engaged in the warehousing of firearms for sale. A person so engaged plays a critical role in the perpetration by other criminals of the worst crimes of violence in this community. The maximum sentence reflects the important role that such conduct plays in the injuries inflicted upon members of the community by deadly weapons. [191] Of course, Mr Smith was not "engaged in the warehousing of firearms for sale"; he was warehousing a collection of deadly weapons, together with a large amount ammunition, for the benefit of an outlaw motorcycle gang. 1. The offender was 46 years old when he committed the crime and he had convictions for prior firearms offences. His record did not entitle him to leniency and required that specific deterrence be given weight. His subjective case was not impressive. Having found that the aggregate sentence imposed at first instance was manifestly inadequate, this Court nominated an indicative sentence for the s 51D(2) matter of 7 years and 6 months with a non-parole period of 4 years and 10 months, after allowing a 25% discount for his early plea of guilty. The Court re-sentenced Smith to an aggregate term for the s 51D(2) matter and other offences. 2. In his remarks on sentence Grant DCJ quoted from R v Campbell; R v Smith Rothman J's observations at [9] that in relation to offences concerning possession of firearms, "general deterrence and specific deterrence loom large" and at [5] that: The Courts have unfortunately treated firearm offences far too leniently. Of course, whether specific deterrence is a significant consideration in sentencing depends upon the offender's subjective case. Rothman J's statement that sentencing in this area has been too lenient is of such generality that it could not have any specific bearing upon the determination of the applicant's sentence. R v Campbell; R v Smith did not mark any departure in sentencing standards for s 51D(2). It was just a serious infringement by an offender presenting no subjective basis for mitigation, resulting in a heavy sentence. 1. The sentence under appeal is only marginally shorter than the indicative term for Smith in R v Campbell; R v Smith. But Smith's crime had much more serious objective features, including the nature of the weapons in Smith's possession and, particularly, the criminal purposes for which he held them. Further, as R A Hulme J recorded at [168]: There was very little by way of mitigation available to the respondents in their subjective cases. The applicant's favourable subjective case, in combination with the less serious character of his offending, should have sounded in a sentence markedly shorter than that indicated for Smith. It is not coherent and not supportable that the applicant's term should be less by only months. 1. Aird v R [2022] NSWCCA 35 was a successful severity appeal. In contravention of s 51D(2) the offender had in his possession seven .22 rifles, two semi-automatic rifles and two pen guns; that is, four of the 11 firearms that were the subject of the charge were prohibited. The firearms were stored with quantities of ammunition. Some of them had been inherited from the offender's deceased father and brother more than 10 years earlier; some had been purchased by the offender subsequently. He claimed that those received from his father and brother had sentimental value and that those he had purchased were intended for hunting. He claimed that he had intended to hand the firearms in to a gun shop in Campbelltown under an amnesty but that he had failed to do so. There was no evidence that the firearms had been used for illegal purposes, or that they were associated with any illegal activity or were intended for sale. 2. At [52] Meagher JA (with whom Walton and Harrison JJ agreed) noted the distinction between cases where the purpose of possession is for use, including by others, in the perpetration of further crimes, or for distribution at profit, and, in contrast, cases where the purpose of possession "does not of its nature increase the likelihood of the firearms being used by third parties in crimes of violence". His Honour said: That distinction is reflected in the lower range of sentences imposed in those cases as compared to R v Brown [2006] NSWCCA 249 and R v Lachlan [2015] NSWCCA 178. 1. The offender was 49 years old when he was sentenced. He had no record of significant prior offending and was found to be at a low risk of re-offending, with good prospects of rehabilitation. His subjective case was otherwise not notably strong. After allowing a discount of 25% for his early plea of guilty the Court adopted an indicative sentence of 4 years and 4 months. That indicative penalty took into account Form 1 offences of possession of ammunition and failure to keep firearms safely. Outcome of the comparison 1. Noting Grant DCJ's acceptance of the applicant's reason for being in possession of 16 out of the 19 firearms (see [20]-[23] above) and taking into account the short period of possession, the fact that only one firearm was of a prohibited type and the number and description of the balance of the firearms, the objective seriousness of the applicant's offending was significantly less than that of the offenders in R v Lachlan and R v Campbell; R v Smith. It was somewhat less serious than the offending in R v Mahmud, because although the number of weapons in the applicant's possession was greater they were not held in the context of the applicant carrying on commercial supply of illicit drugs and the applicant's mitigating explanation for having the guns was accepted. The applicant's offending was also somewhat less serious than that considered in Aird v R. The applicant's favourable subjective case was in strong contrast with the adverse records and subjective characteristics of the offenders in R v Mahmud, R v Lachlan and R v Campbell; R v Smith and it was it was somewhat more favourable than that of the offender in Aird v R. 2. These considerations support the conclusion that the sentence passed by Grant DCJ was manifestly excessive. In the determination of an appeal on this ground, less assistance can be gained from reviewing severity appeals in cases where this Court has declined to intervene. However, reference to any of a number of such decisions tends to confirm the impression that the sentence imposed by Grant DCJ is greatly in excess of the levels of punishment meted out in comparable, or worse, cases. All of the following examples concern sentences passed after allowance of 25% discount: In Taylor v R the sentence was 4 years and 6 months with a non-parole period of 2 years and 2 months for possession of one prohibited self-loading shotgun and four other long arms, on a rural property. The firearms had been inherited from the offender's father about one year earlier. He offender was 58 years old and had "a significant criminal history for firearm offences" attracting "a particular need for specific deterrence": at [61]. In Weaver v R [2021] NSWCCA 215 a sentence of 4 years with a non-parole period of 2 years and 4 months was indicated. The offender had excellent subjective characteristics, comparable to those of the applicant in the present case. However, the charge concerned 31 firearms including numerous pistols, shortened weapons and silenced weapons, some of which were loaded. The offender admitted that he was deliberately stockpiling this arsenal because he believed that there existed "external threats". In Mack v R [2022] NSWCCA 114 an indicative sentence of 7 years and 2 months was nominated for a s 51D(2) offence involving eight firearms of which six were prohibited, held on a rural property. That indicative penalty is only slightly above the head sentence imposed by Grant DCJ but the objective seriousness of the offending was enormously greater, given the number of prohibited weapons included in this arsenal, the long period over which they had been held and the fact that the applicant had maintained knowing possession of them notwithstanding his full awareness of the criminality involved, arising from the fact that he had served a similar sentence for a previous offence of the same nature. Orders 1. In our view the applicant's sentence should be quashed and he should be re-sentenced. For that purpose we take into account the objective facts of the offence as agreed before the sentencing judge and as found by his Honour. In the remarks on sentence no attention was given to the circumstances of possession of the Chinese air rifle found in the shed or the circumstances surrounding the shotgun and lever action rifle found in the residence. Those weapons did not add to the overall criminality. This Court should act upon the basis of the applicant's mitigating explanations of how those firearms came to be on his property, because his evidence in that respect was not disputed by the Crown. 2. The applicant's counsel submits on the appeal, with justification, that he had, and has, a powerful subjective case. The Crown submits that the applicant's subjective circumstances were "not so compelling as to justify significant leniency". we cannot accept that. A man of 63, in deteriorating health, facing prison for the first time, with a very limited record, his minor drug offending 10 years behind him, highly regarded in his community, hardworking and supportive of his family, was and is entitled to consideration for leniency. Specific deterrence is not a significant consideration, given the judge's findings of genuine remorse and good prospects of rehabilitation. 3. So far as relevant we take into account circumstances that have arisen since the applicant entered custody, as deposed to in the affidavit of his wife sworn 28 October 2022. That affidavit describes the loss of the applicant's rural property. It had to be sold after he was committed to prison due to the family no longer having the benefit of the applicant's earnings. Other aspects of the affidavit are concerned with hardship to the applicant's wife and to their son, which would not ordinarily be taken into account in the absence of exceptional circumstances and which, in any event, are not material in view of the degree to which we consider the applicant's sentence should be reduced upon other considerations. We take into account the Form 1 matters in accordance with the principles stated in Attorney General's Application Under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 at [35]-[44]. 4. We propose the following orders: 1. Extend the time within which the applicant may seek leave to appeal against sentence up to and including the date on which his application was filed. 2. Grant leave to appeal against sentence. 3. Quash the sentence imposed in the District Court on 24 March 2020 and in lieu thereof sentence the applicant to imprisonment for a term of 4 years and 3 months commencing on 15 February 2020 and expiring on 14 May 2024 with a non-parole period of 2 years and 6 months expiring on 14 August 2022. 4. The applicant has been eligible to be released to parole since 14 August 2022. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2022