R. v Brown [1999] NSWCCA 143

New South Wales Court of Criminal Appeal CITATION : R. v Brown [1999] NSWCCA 143 FILE NUMBER(S) : CCA 660658/99 HEARING DATE(S) : 9 June 1999 JUDGMENT DATE : 9 June 1999

PARTIES : Regina v Richard Brown JUDGMENT OF : Grove J at 18-19; Carruthers AJ at 1-17

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0572 LOWER COURT JUDICIAL OFFICER : Viney DCJ

COUNSEL : P.G. Berman for the Crown R. Burgess for the Applicant SOLICITORS : C.K. Smith for the Crown T.A. Murphy for the Applicant CATCHWORDS : Appeal against severity of sentence; Possessing a shortened firearm; Possessing an unregistered firearm; Concurrent sentences for shoplifting & larceny; Long criminal record; Long history of drug abuse including addiction to heroin; Prospects of rehabilitation poor; Relevance of the fact that the matter could have been dealt with in Local Court ACTS CITED : s 62(1)(b) of Firearms Act 1996 s 25 of Firearms & Dangerous weapons Act 1973 CASES CITED: Thurgar (1990) 41 A Crim R 109 Simpson (1992) 61 A Crim R 58 DECISION : Appeal for leave to appeal and appeal allowed.; Resentenced. (Paras 17 & 19)

- 9 - IN THE COURT OF CRIMINAL APPEAL

No 60658/98

GROVE J CARRUTHERS AJ

WEDNESDAY 9 JUNE 1999

REGINA V RICHARD BROWN.

JUDGMENT:

1 CARRUTHERS AJ: Richard Brown seeks leave to appeal against sentences imposed upon him by Viney DCJ QC at the Sydney District Court on 16 October 1998 when the applicant pleaded guilty to one count of possessing a shortened firearm under s 62(1)(b) of the Firearms Act 1996 which carries a maximum penalty of ten years imprisonment, and one count of possessing an unregistered firearm under s 36(1) of that Act which carries a maximum penalty of five years imprisonment. 2 His Honour sentenced the applicant in relation to the first count to a minimum term of eighteen months imprisonment to date from 2 October 1998 and to expire on 1 April 2000. The sentence was backdated to 2 October 1998 to take into account two weeks pre-sentence custody and his Honour imposed an additional term of six months to commence on 2 April 2000 and to expire on 1 October 2000. In relation to the second count his Honour sentenced the applicant to a fixed term of six months imprisonment to date from 2 October 1998 and to expire on 1 April 1999. 3 It is convenient to note at this stage that the applicant was arrested on 31 May 1998 and refused bail. On 15 November 1998 he began serving concurrent sentences for shoplifting and larceny, the longest of which was to expire on 14 December 1998. Accordingly, two months and twelve days were served in relation to the subject offences concurrently with the sentences for shoplifting and larceny which dated from 15 June 1998, but one has to balance against that the fourteen days which were taken into account for the pre-sentence custody. 4 The applicant, who is represented by the Legal Aid Commission was born on 8 September 1959. He has a long criminal record, unhappily, which goes back to September 1973 but,realistically,so far as this case is concerned, no relevant previous offences involving the possession or use of firearms. Unhappily, he also has a long history of drug abuse involving addiction to heroin. Again one has to express regret that the evidence before his Honour indicated that his prospects of rehabilitation were poor. At the time of the commission of the subject offences the applicant was unemployed. 5 The relevant facts may be briefly stated as follows: on 31 May 1998 police in an unmarked car at Chippendale observed the applicant and a second male walk across an intersection in front of the police car, the applicant carrying a small backpack. The applicant was shortly thereafter seen to remove the backpack and drop it in the front yard of a nearby home. The police stopped and inspected the backpack which was found to contain a .22 calibre rifle which had been modified with a shortened barrel and sawn stock. A further search of the area resulted in the location of a black wool beanie with two eye holes cut out within ten metres of where the applicant was ultimately detained by the police. 6 When interviewed electronically by the police the applicant exercised his right to silence and declined to answer any questions regarding his possession of the firearm, which was admitted. 7 He was originally charged with being armed with a weapon with intent to commit an indictable offence. He was committed for trial to the District Court in relation to that matter but it was not proceeded with. It is submitted on behalf of the applicant that if he had not been charged with this particular offence the matter would in all probability have been dealt with in the Local Court where the maximum penalty under both section 62(1)(b) and section 36(1) of the Firearms Act 1996 on summary conviction is two years imprisonment. Thus effectively it is submitted the applicant was sentenced to the maximum penalty available for those offences in the Local Court. That is not completely correct because one has to take into account the effective two months concurrent sentence with the shoplifting and larceny matters. 8 The search for comparable cases has been a somewhat futile one. Counsel for the Crown has referred to the decision of this court in Thurgar (1990) 41 A Crim R 109 which is authority for the proposition that the objective gravity of an offence of possessing a firearm depends on the purpose of the possession. A purpose connected with proposed criminal activities would be likely to lead to the imposition of a penalty at the higher end of the range. 9 It was submitted by the Crown that Viney DCJ appears to have sentenced the applicant on the basis of bare possession of the firearm. However, it is contended that his Honour would have been entitled to take into account that no innocent explanation for the possession had been advanced by the applicant. This submission by the Crown was supported by observations which have been made by Gleeson CJ in Thurgar. That was a case in which the court was dealing with the charge of being in possession of an unlicensed pistol contrary to the provisions of s 25 of the Firearms And Dangerous Weapons Act 1973. In that case the then Chief Justice said: "It is not accurate to say, as is 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 possession has been advanced by the appellant".