New South Wales Court of Criminal Appeal CITATION : Regina v Eric Leonard MURRAY [2000] NSWCCA 159 FILE NUMBER(S) : CCA 60779/99 HEARING DATE(S) : 3rd May 2000 JUDGMENT DATE : 3 May 2000 PARTIES : Regina v Eric Leonard Murray JUDGMENT OF : Hulme J at 1 & 25; Carruthers AJ at 2 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0751 LOWER COURT JUDICIAL McGuire DCJ OFFICER : COUNSEL : P Bryne SC - Applicant P G Berman - Crown SOLICITORS : Horowitz and Bilinsky - Applicant S E O'Connor - Crown CATCHWORDS : Criminal law - sentence appeal against severity - relevance of fact that matters could have been dealt with in the Local Court - applicant aged 68 - in poor health. Crimes Act 1900 ss 97(1), 188 LEGISLATION CITED : Firearms Act 1996 s 62(1)(b) Sentencing Act 1989 s 25A CASES CITED: Thurgar (1990) 51 A Crim R 109 DECISION : Application for leave to appeal granted. Application dismissed. IN THE COURT OF CRIMINAL APPEAL 60779/99 HULME J CARRUTHERS AJ Wednesday 3 May 2000 REGINA v Eric Leonard MURRAY JUDGMENT 1 HULME J: In this matter the court is in a position to give judgment and I will ask Carruthers AJ to give the first judgment. 2 CARRUTHERS AJ: Eric Leonard Murray seeks leave to appeal against sentences imposed upon him by McGuire DCJ in the Sydney District Court on 25 November 1999. 3 On that occasion the applicant pleaded guilty to an indictment containing one count under s 188 of the Crimes Act 1900, - receiving, which carries a maximum penalty of penal servitude for ten years. 4 There was a second count, firstly, of armed robbery under s 97 (1) of the Crimes Act with an alternative second count of receiving. 5 The applicant pleaded guilty to the receiving count and the Crown accepted that plea in full discharge of the second count. He also pleaded guilty to two counts, namely 3 and 4 under s 62 (1) (b) of the Firearms Act 1996, commonly referred to as "possession of shortened firearm", which carries a maximum penalty of ten years penal servitude. 6 In relation to each of counts 3 and 4, his Honour sentenced the applicant to a minimum term of two years imprisonment to commence on 25 November 1999 and to expire on 24 November 2001. In relation to each of counts 1 and 2 his Honour sentenced the applicant to a minimum term of 12 months imprisonment to commence on 25 November 2001 and expire on 24 November 2002, with an additional term of 18 months to commence on 25 November 2002 and expire on 24 May 2004. 7 The applicant was born on 3 April 1931 and was accordingly 68 years of age at the date of sentence. Before I turn to the facts relating to the subject matters I shall deal briefly with his subjective circumstances. 8 His prior criminal record contains eighteen entries culminating with a fine for theft on 13 November 1975. He came from what would now be referred to as a dysfunctional family and received little formal education or training. He spent some time employed as a bell boy, then barman and then ship's steward on the Australian coast and subsequently he was employed in some capacity on the wharves. In more recent years his employment has been intermittent. 9 He has been married to his present wife for some 45 years. She has experienced continuing health problems. The applicant suffered from severe meningitis as a boy. At an early age, when he worked as a paper boy on the trams, he occasioned a severe head injury with considerable laceration of the face requiring restorative surgery to his left arm with major facial scaring. Psychometric assessment indicated diminished cognitive skills which may be due to the head injury and the meningitis. About four years ago the applicant suffered a heart attack. He presently suffers from both circulatory and gastrointestinal disease with periods of internal bleeding. 10 He has an occlusion of his carotid artery which increases his risk of stroke. He also suffers from ulcers. Psychometric testing in November 1999 demonstrated that he was suffering from severe depression. A medical report indicates that he requires ongoing supervision and medication for his heart and his gastrointestinal condition. Both conditions are significant and require ongoing medical management and supervision. 11 I turn then to the relevant facts which may conveniently be taken from the statement of facts before his Honour under the hand of Detective Senior Constable Justin Hallett of 25 November 1999. This statement which was adopted by McGuire DCJ in his remarks on sentence is in the following terms: " COUNT 1 On 24 April, 1998 Police Officers from Strike Force COLOMBO executed a search warrant at the premises of 4 Furber Street, Centennial Park. These are the premises of Beryl DOCTOR the sister of Lola Fay MacLEAN a close friend of the prisoner. The warrant was executed as a result of information obtained from a lawfully obtained listening device, on telecommunications service 02 93872518 leased in the name of Eric Leonard MURRAY of unit 3 No 4 Prospect Street, Waverley. Conversations were intercepted between the prisoner and Lola MacLEAN the content of these conversations indicated that police had been to Beryl DOCTOR's home. The prisoner showed concern regarding items which had been left at Beryl's premises by Ms MacLEAN. The prisoner requested that Ms MacLEAN attend her sister's premises at Centennial Park and retrieve these items. During the search of the premises at Centennial Park, police located underneath the rear ground decking a blue plastic bag. Inside this bag were items of jewellery and jewellery pouches. Statements obtained from Ms MacLEAN and Ms DOCTOR establish that the prisoner had given those items of jewellery along with other costume jewellery to Lola MacLEAN as gifts or presents. One of the items of jewellery recovered by police is described as a gold charm bracelet, which has a number of gold charms hanging from it. Along with this item of jewellery were two jewellery carry pouches, one mauve and one red. The gold charm bracelet had an approximate value of $2,000.00. The gold charm bracelet and carry pouches have been identified by their owner Mrs Britta RYAN who resides in the Manly area. Mrs RYAN was the victim of a robbery whilst armed in circumstances of aggravation offence, (home invasion), about 2.00 am on the 17th July, 1997 in which these items and other property were stolen. While police were executing the search warrant at the premises of 4 Furber St, the prisoner attended to take possession of the items from Ms MacLEAN. He was subsequently arrested and charged. COUNT 2 On 12th December, 1997 Police Officers from Strike Force COLOMBO executed a search warrant at the premises of Eric MURRAY at unit 3 of number 4 Prospect Street, Waverley. During the course of the search warrant numerous items were located and seized. Located in the pocket of a jacket hanging up in the wardrobe of the prisoners bedroom were a number of items. These consisted of two gold bracelets, gold pendant, gold 'Dunhill' brand cigarette lighter and a gold 'Raymond Renee' brand men's watch. The approximate value of these items was $5,000.00. These items have been identified by Margaret FALLOON and William MADDEN of 38 Bulls Road, Burraneer Bay as their property. These items amongst other items were stolen during the course of a robbery whilst armed in circumstances of aggravation offence, (home invasion), which occurred at their premises in the early hours of the 11th September 1997. The items of jewellery were located in pocket of a jacket handing up in the wardrobe in the prisoners bedroom. When questioned about the jacket he stated that it was his. When asked if he was able to say who owns the jewellery he stated "No." He was later interviewed at Waverley Police Station but declined to comment in relation to his possession of the items. COUNTS 3 AND 4 On 12 December, 1997 Police Officers from Strike Force COLOMBO executed a search warrant at the premises of Eric MURRAY at unit 3 of number 4 Prospect Street, Waverley. A search was conducted of the prisoners bedroom, which contained a large wooden wardrobe. An item resembling a balaclava and two shotgun shells were located in a black bag on top of this wardrobe. Along the lower portion of this wardrobe were a number of drawers. One of the drawers were removed and secreted underneath this drawer were two loaded, shortened pump action shotguns. One of which is described as a Bentley brand, 12 gauge pump action shotgun, wrapped in a yellow towel. The main body of the gun was marked with the letters 'D' and 'S' on either side. When both of these shotguns were removed from beneath the wardrobe they both appeared to be in good condition and free from any dust or dirt. Upon initial contact at the search warrant the prisoner was questioned specifically whether he had any firearms in his premises which he said he did not. (Statement of D.S.C. SIPOS paragraph 8). When police located the two shotguns the prisoner was again cautioned by Detective Sergeant SHORT. He was asked about the guns, Sgt SHORT said, 'What can you tell me about that gun?' the prisoner said 'Not a thing.' Sgt SHORT said, 'Does that gun belong to you?' the prisoner said, 'No, it certainly does not.' Sgt SHORT said 'Can you tell me who it belongs to?' the prisoner said, 'No, I wouldn't have a clue.' Sgt SHORT said, 'You've never seen that gun before, is that what you're telling me?' the prisoner said, 'I'm not saying, but it ain't mine.' (Transcript of audio of search warrant, 13.12.97, page 7) The prisoner was not the holder of a Firearms Licence or Permit nor was he the holder of a Permit or authorised to have in his possession the two shortened pump action shotguns." 12 When sentencing the applicant his Honour said, in relation to the firearms offences: "Their only possible purpose involved major illegality. Shortened pump action shotguns are not kept as protection, souvenirs, heirlooms nor for some innocent pursuit such as hunting. They were simply weapons designed or adapted to inflict destruction or to create terror. To my mind the possession of loaded shortened pump action shotguns represents criminal conduct of a very high order." His Honour added: "There is no evidence that the prisoner actually used these weapons in any criminal endeavour or that he intended to use them. However, the potential for their use was ever present. The presence of the balaclava and the additional shotgun cartridges is at odds with the prisoner's claim to his Probation and Parole Officer that the shotguns were left with him to be looked after some six or seven years ago by an acquaintance now deceased." 13 That being so, the applicant came to be sentenced in relation to the firearm offences upon the basis that there was no explanation before his Honour for the possession of the weapons. As to the receiving matters, his Honour accepted that the applicant may not have been aware that the jewellery was from the proceeds of major robberies. However, his Honour said that the applicant was fully aware that the items of jewellery had been stolen in some manner. 14 As to the subjective circumstances, his Honour accepted that there were special circumstances and thus varied the prima facie ratio between minimum and additional terms of the sentences imposed. 15 An important plank in the forceful arguments presented by Mr Byrne of senior counsel on behalf of the applicant was that all these matters to which the applicant pleaded guilty could have been dealt with summarily by reason of the relevant provisions of the Criminal Procedure Act. If the receiving matters had been dealt with summarily the maximum penalty in respect of each matter would have been one year. If the firearm offences had been dealt with summarily the maximum penalty which could have been imposed in respect of each offence was two years. His Honour specifically adverted to the fact that the firearm matters could have been dealt with summarily. However, he made no reference to the fact that the receiving matters could you have been dealt with summarily. Bearing in mind the vast experience of the sentencing judge, I would be quite unable to conclude that his Honour would not have been unaware, by reference to his knowledge of the relevant legislation and the value of the jewellery received by the applicant, that the receiving matters could have been dealt with summarily. 16 It was put to the Court by Mr Byrne SC that in effect, and I hope I am not misquoting him, it was only something of a accident that the matters came to be before the District Court in that the indictment contained a count of armed robbery which was not pursued. It is a question of discretion for the Director of Public Prosecutions whether matters such as this be proceeded with in the Local Court or the District Court, and it would only be in a rare matter, I would have thought, that this Court would be prepared to express a view as to whether it was or was not appropriate for the Director to have elected to proceed in the District Court in relation to certain matters as distinct from the Local Court. However, in view of the forceful argument that was put to this Court in this regard, I have no hesitation in expressing my view that, independently of the armed robbery count, it would have been clearly appropriate, if I may respectfully say so, for the Director to have commenced these proceedings in the District Court. It is, however, a factor as the law presently stands, for consideration in the sentencing process. 17 Senior counsel for the applicant also relied upon the fact that the applicant had not been before a court for 24 years prior to being dealt with for the subject offences and this was the first occasion upon which he had been before a court on indictment. 18 As to the firearms possession charges, he submitted that the rejection by his Honour of the applicant's explanation for the possession of the weapons did not lead to a conclusion, and was not capable in law to lead to a conclusion, that the applicant was involved in the use of weapons. The point was made that the applicant was charged with possession of the subject weapons and not with the use of the subject weapons. One must, of course, bear in mind in this context the judgment of this court in Thurgar (1990) 51 A Crim R 109, which concerned the possession of an unlicensed pistol, contrary to s 25 of the Firearms and Dangerous Weapons Act 1973, where Gleeson CJ said (at 117): "It is not accurate to say, as was submitted on behalf of the appellant, that the learned judge was obliged to sentence the appellant on the basis that there was nothing more to the second charge than the bare fact of possession of an unlicensed pistol. There is also the circumstance that no innocent explanation for such purpose had been advanced by the appellant…" 19 That observation is often referred to and has now stood for some ten years. When dealing with the quantum of the sentence imposed in relation to the firearms matters, Mr Berman of counsel for the Crown also drew attention to the following passage in the judgment of the Gleeson CJ (at 113) where the Chief Justice said: "Subject to an important qualification that will be mentioned below, as the learned trial judge said, the most obvious circumstance calling for the imposition of the penalty at the higher end of the range would be one relating to the purpose for which such a weapon was possessed. In particular, and again subject to the qualification to be mentioned below, the possession of such a pistol for a purpose connected with proposed criminal activities would be likely to be the kind of thing that would lead to the imposition of a penalty close to the maximum." 20 I think I am correct in saying that the relevant maximum for that offence in Thurgar was four years imprisonment. When one considers what the Chief justice said in Thurgar, the fact that these "fearsome weapons", as McGuire DCJ described them, were in a concealed position in the applicant's home, fully loaded and in serviceable condition in close proximity to a balaclava, gives a somewhat chilling aspect to the possession charges; albeit one must, as I have indicated, constantly bear in mind that the applicant was only charged with possession not use. However, that charge must be considered in the light of the gloss contained in Thurgar. 21 With regard to the receiving matters, Senior Counsel for the applicant submitted that the evidence was such that it was impossible to conclude that the applicant was a professional receiver because he had the subject jewellery in his possession for a longer period than one would reasonably expect of a professional. Senior Counsel also relied upon certain relevant statistics of the Judicial Commission. However, in this particular matter, if I may respectfully say so, one does not really get any significant assistance from those statistics, helpful as they may be in certain other cases. They certainly demonstrate, however, strange as it may be thought, that the vast majority of shortened firearm possession matters are dealt with in the Local Court. Generally stated, they indicate that the subject sentences, both in relation to the receiving matters and the possession matters, if one looks at both the Local Court and the District Court statistics, are in the higher echelon of the sentences imposed in these types of offences. 22 The applicant had before his Honour and before this Court, a strong subjective case particularly by reason of the fact that he had no prior criminal conviction for some 25 years, these were his first indictable offences and, significantly, his age and his poor medical condition. However, those matters are overtaken by the objective seriousness of both the receiving and the possession matters. This Court has said on innumerable occasions that in appropriate cases subjective circumstances must yield to the deterrent aspect. 23 His age and health does, speaking for myself, cause me concern. However, there are provisions in the Sentencing Act 1989, where the appropriate authorities may take account of a person's health as an exceptional and extenuating circumstance. I refer, of course, to s 25 A (1) of that Act. 24 Giving full weight to the arguments put on behalf of the applicant, all of which I have not dealt been specifically referred to in this judgment, and balancing the subjective and the objective circumstances, I am quite unable to conclude that the sentences imposed by his Honour were outside the sentencing discretion available to him. In the circumstances I would propose that the application for leave to appeal be granted but that the appeal be dismissed. 25 HULME J: I agree with the orders proposed and, with one reservation, with his Honour's reasons. The one reservation concerns his Honour's reference to the provision of the Sentencing Act bearing on the care of the applicant while in prison. I do not find it necessary to rely on that aspect of the matter. I would add only this: but for the applicant's age I would have regarded the sentence imposed on him, having regard particularly to the presence of two loaded shortened shotguns in the near vicinity of the balaclava when the maximum punishment prescribed for the possession of but one of those weapons for ten years, as woefully inadequate. If the community and its representatives are serious about getting rid of this sort of weapon, sentences far, far higher than disclosed in the statistics put before us should surely be imposed. 26 The order of the court is the application is dismissed. ********** 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.