Reported Decision : 144 A Crim R 515 New South Wales Court of Criminal Appeal CITATION : Regina v Cromarty [2004] NSWCCA 54 HEARING DATE(S) : 05/03/04 JUDGMENT DATE : 22 March 2004 JUDGMENT OF : Simpson J at 1; Kirby J at 2; Bell J at 93 DECISION : (1) That the appeal be allowed; (2) That the sentence imposed by Coolahan DCJ on 24 September 2003 be quashed; (3) That, in lieu thereof, the respondent be sentenced as follows: Count 1: Taking account of the matters on the Form 1 to a term of imprisonment of 4 years commencing on 4 October 2003 and expiring on 3 October 2007, with a non parole period of 2 years expiring on 3 October 2005. Count 2: Imprisonment for a fixed term of 2 years commencing on 4 October 2003 and expiring on 3 October 2005. Count 3: Imprisonment for a fixed term of 18 months commencing on 4 October 2003 and expiring on 3 April 2005. Counts 4 and 5: On each count, to imprisonment for a fixed term of 16 months commencing on 4 October 2003 and expiring on 3 February 2005; (4) The order that all firearms be seized and forfeited to the Crown is confirmed. CATCHWORDS : Criminal Practice & Procedure - Crown appeal against sentence - Firearms Act - possession of large number of prohibited and unregistered weapons - collector - security risk - importance of maximum penalty - deterrence and denunciation - unsuitability of periodic detention Firearms Act 1996 LEGISLATION CITED : Weaons Prohibition Act 1998 Firearm Amendment (Public Safety) Act Crimes (Sentencing Procedure) Act, 1999 R v Zamagias [2002] NSWCCA 17 R v Shankley [2003] NSWCCA 253 Ibbs v The Queen (1987) 163 CLR 447 CASES CITED : R v Allpass (1994) 72 A Crim R 561 R Whyte (2002) 55 NSWLR 252 R v Dodd (1991) 57 A Crim R 349 R v Penisini [2003] NSWSC 892 Dinsdale v The Queen (2000) 202 CLR 321 PARTIES : Regina Ian Ross Cromarty FILE NUMBER(S) : CCA 60438/03 COUNSEL : Ms E Wilkins (Crown/Appl) P Byrne SC/G Sunstrom (Resp) SOLICITORS : S Kavanagh (Crown/Appl) T Morgan (Resp) LOWER COURT District Court JURISDICTION : LOWER COURT 03/31/01163 FILE NUMBER(S) : LOWER COURT Coolahan DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60438/03 SIMPSON J KIRBY J BELL J Monday 22 March 2004 REGINA v IAN ROSS CROMARTY Judgment 1 SIMPSON J: I agree with Kirby J. 2 KIRBY J: This is an appeal against sentence by the Crown. Ian Ross Cromarty pleaded guilty to each count in the following indictment: Count 1: Unauthorised possession of firearms in aggravated circumstances, contrary to s51D(2) Firearms Act 1996 (maximum penalty: 20 years imprisonment). Count 2: Possession of unregistered firearms, contrary to s36(1) Firearms Act 1996 (maximum penalty: 10 years imprisonment). Count 3: Possession of firearms with defaced identification marks, contrary to s66(b) Firearms Act 1996 (maximum penalty: 5 years imprisonment). Count 4: Unauthorised possession of prohibited weapons, contrary to s7(1) Weapons Prohibition Act 1998 (maximum penalty: 14 years imprisonment). Count 5: Possession of shortened firearms, contrary to s62(1)(b) Firearms Act 1996 (maximum penalty: 10 years imprisonment). 3 Mr Cromarty asked that two matters be taken into account on a Form 1, namely, that he was in possession of ammunition without a licence or permit, and that contrary to s39(1)(a) of the Firearms Act 1996, he did not keep a firearm safe. The Sentence. 4 On 24 September 2003, Coolahan DCJ sentenced Mr Cromarty as follows. Count 1: Taking account of the matters on the Form 1, to imprisonment for 3 years commencing on 4 October 2003 and expiring on 3 October 2006, with a non parole period of 2 years expiring on 3 October 2005. Count 2: To imprisonment for a fixed term of 12 months commencing on 4 October 2003 and expiring on 3 October 2004. Count 3: To imprisonment for a fixed term of 8 months commencing on 4 October 2003 and expiring of 3 June 2004. Counts 4 & 5: On each count to imprisonment for a fixed term of 16 months commencing on 4 October 2003 and expiring on 3 February 2005. 5 His Honour ordered that such sentences should be served by way of periodic detention. He further ordered that the firearms seized by the police should be forfeited to the Crown. The Crown complains that the sentences imposed were manifestly inadequate. The search of Mr Cromarty's premises. 6 The material tendered before the sentencing Judge included a number of statements by the police. On Thursday 28 November 2002, upon the basis of information received by the police, a Chamber Magistrate issued a warrant to search Mr Cromarty's home. The nature of the information given to the police was not the subject of evidence before the sentencing Judge. 7 The following morning the police met at the office of the Firearms Crime Squad in Sydney. An officer gave a briefing. Some nine officers, including three sergeants, then drove to Charlestown, a suburb of Newcastle. They made contact with the local Area Command. Shortly after 9.30 am the police approached Mr Cromarty's home at Charlestown. The warrant was then executed in his presence. A video was made as the search progressed from one section of the home to another. 8 Mr Cromarty's home included a workshop. At the front of the workshop there was, according to Det Martin, a "standard roller type door". On the other side of the workshop, presumably giving access to the house, there was another door. Det Martin described it as "quite a secure door". He described the upstairs house as a normal suburban home. There were no bars on the windows. There was "limited security". There was a "back to base" alarm for both the workshop and the home. 9 Mr Cromarty gave evidence on sentence. He said the roller door was much stronger than the usual door. Plates had been welded in position which in some way fortified the door. The house was fitted with deadlocks. There were sensors which detected movement. The premises had been inspected by the police when he first sought a licence. They appeared quite pleased with them. 10 Soon after the search began the police noticed what appeared to be a false ceiling in the garage. They removed a number of panels. They uncovered a large number of weapons, including prohibited weapons. Mr Cromarty was immediately arrested. He was later taken to the Charlestown Police Station. He sought legal advice. He thereafter declined to be interviewed. He was held in custody overnight, being released on bail the following morning. 11 The search was conducted over two days. The police found and seized what was described as the "largest cache of weapons" ever taken from a private individual in Australia. The items seized were later tested by a ballistics expert. All but a few were in working order. They included: · 35 weapons prohibited under Schedule 1 of the Firearms Act 1996. · 63 weapons prohibited under Schedule 1 of the Weapons Prohibition Act 1998. · 103 unregistered firearms. · 10 pistols from which the serial number or identification mark had been defaced. · 2 shortened self loading rifles. · 2,850 cartridges of ammunition. · 147 firearm parts. · 7 silencers suitable for rifles and pistols. 12 The weapons which the police seized were scattered throughout the home and workshop of Mr Cromarty. A significant number were recovered from the area concealed by the false ceiling. Some of those so concealed were prohibited weapons, including (as described by Det Martin) "two Thompson automatic submachine guns, a number of pistols and parts for high calibre machine guns ...". 13 Det Martin, in describing the search on the second day, said this: "During this time, the second level of the premises was searched and as a result one loaded, UZI submachine gun, 2 x 30 calibre machine guns, 1 Bren field machine gun, 1 x 50 calibre machine gun, 1 x M14 machine gun, 1 x AR15, Mini 14 rifle and other self loading rifles were located. All of these weapons were left unlocked and were found behind doors, in cupboards and under beds." 14 A large number of pistols were located in two drawers next to Mr Cromarty's bed. Further pistols were found in an armchair in the loungeroom. The Legislation. 15 Counts 1, 2, 3 and 5 concerned offences under the Firearms Act 1996. That Act replaced the Firearms Act 1989. The Act was part of a national campaign to implement firearms control following the Port Arthur massacre. The Act included the following statement of the principles underlying the statute: " 3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms." 16 The objects of the Act are stated in these terms: "(2) The objects of this Act are as follows: (a) to prohibit the possession and use of all automatic and self loading rifles and shotguns except in special circumstances, (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner." 17 The Firearms Act introduced a licensing scheme in respect of firearms (s8). The scheme created five categories of firearms, namely: · Category A: Which included rim-fire rifles (other than self loading rifles) and shotguns (other than pump action or self loading shotguns). · Category B: Which included muzzle loading and centre fire rifles or shotguns (other than those which were self loading). · Category C: A licence for certain prohibited self loading weapons for the licensee's farming or grazing activities, where the Commissioner of Police authorises an eligible person. · Category D: A licence to use certain prohibited weapons for "official purposes", which are defined and must be authorised. · Category H: Pistols. 18 Prohibited weapons, which include self loading and pump action firearms, are excluded from categories A, B and H. A person may also obtain a Firearm Dealer's licence. Mr Cromarty was authorised to possess firearms in respect to categories A, B and H. He also had a dealer's licence, which extended to all categories of firearms. 19 By s7(1) of the Act, it is an offence to possess a firearm unless the person is authorised by permit. The maximum penalty is five years imprisonment unless the firearm is a prohibited weapon (as defined by Schedule 1) in which case the maximum penalty is 14 years. 20 A person in possession of a firearm or firearms is obliged to register each firearm. The Commissioner of Police has the responsibility of compiling and maintaining the register (s33(1)). The register includes a description of each weapon and the serial number (s33(2)(a)). Mr Cromarty, as part of his business as a gunsmith, acted as the agent of the Commissioner in the registration of firearms. 21 Part 3, Division 2, of the Act deals with offences relating to registration. It is an offence to "sell, purchase, possess or use a firearm that is not registered" (s36(1)). The maximum penalty is 5 years imprisonment, unless the firearm is a prohibited firearm or pistol, in which case the maximum penalty is 10 years imprisonment. A licensed firearms dealer does not commit an offence under this section if, within 24 hours of acquiring the firearm, an application is made for registration of the firearm. Mr Cromarty was not able to take advantage of that dispensation, having owned the weapons for some time. 22 Part 4 of the Act makes provision for the safe-keeping of firearms. Category A and B firearms must be stored in a locked receptacle when not being used (s40). Category H firearms (pistols) must be locked in a safe (s41). It is an offence to shorten a firearm or possess a shortened firearm (s62(1)), or to have in your possession a firearm on which any number or identification mark has been defaced or altered (s66). The maximum penalty under s62 is ten years, and under s66 is five years imprisonment. 23 In 2002 the Minister for Police introduced the Firearm Amendment (Public Safety) Act which, amongst other things, inserted the following offences: " 51D Unauthorised possession of firearms in aggravated circumstances (1) A person who is in possession of more than 3 firearms is guilty of an offence under this subsection if: (a) the firearms are not registered, and (b) the person is not authorised by a licence or permit to possess the firearms. Maximum penalty: imprisonment for 10 years. (2) A person who is in possession of more than 3 firearms any one of which is a prohibited firearm or pistol is guilty of an offence under this subsection if: (a) the firearms are not registered, and (b) the person is not authorised by a licence or permit to possess the firearms. Maximum penalty: imprisonment for 20 years." 24 When introducing the amendment, the Minister said this: "Firearm-related crime is a major concern for both police and the community. In July 2001 the Government introduced tougher firearm trafficking laws designed to inhibit the illegal supply of firearms, and this bill is a further strengthening of our laws." 25 He added: "To crack down on possession for the purposes of illegal trafficking, proposed section 51D will introduce an offence of possession by an unlicensed person of three or more unregistered firearms. This will mean that criminals warehousing illegal guns for sale on the black market will be liable to up to 20 years in gaol if the firearm is prohibited or is a hand gun." 26 The charge in Count 4 was based upon the Weapons Prohibition Act 1998, a companion Act to the Firearms Act. It deals with weapons other than firearms. Prohibited weapons are identified in Schedule 1 which lists a miscellany of lethal weapons, including knives, and explosives. Relevantly, the list includes mortars, grenades and crossbows. 27 The principles underlying the Weapons Prohibition Act are similar to those in the Firearms Act. Section 3(1) is in these terms: " 3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm that the possession and use of prohibited weapons is a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety by imposing strict controls on the possession and use of prohibited weapons." 28 The objects of the Act are stated as follows: "3(2) The specific objects of this Act are as follows: (a) to require each person who possesses or uses a prohibited weapon under the authority of a permit to have a genuine reason for possessing or using the weapon. (b) to provide strict requirements that must be satisfied in relation to the possession and use of prohibited weapons. (c) to provide an amnesty period to enable the surrender of prohibited weapons." 29 Where there is a genuine reason for possessing such a weapon a permit may be sought from the Commissioner of Police (s10). It is an offence to possess or use a prohibited weapon unless the person is authorised by permit (s7(1)) (maximum penalty on summary conviction 2 years or, on indictment, imprisonment for 14 years). A table of possible reasons which may justify the issue of a permit is included in the Act. The reasons extend to recreational and sporting purposes, theatrical purposes, weapon collection, public museums and the like (s11(2)(a)). The Charges. 30 Count 1 was the most serious offence, alleging possession of firearms in circumstances of aggravation (s51D(2)). It will be remembered (supra para 22) that s51D(1) (the offence without aggravation) required proof that the person charged was in possession of three unregistered firearms and had no licence or permit (the maximum penalty: 10 years imprisonment). The offence in its aggravated form, as alleged against Mr Cromarty, required proof that any one of the three firearms was also "a prohibited firearm or pistol" (as defined by Schedule 1 of the Act) (maximum penalty: 20 years imprisonment). Here the Crown case on Count 1 involved multiple prohibited firearms, namely: · 4 machine guns · 4 submachine guns · 24 self loading rifles · 3 self loading shotguns 31 Some of the firearms were museum pieces. All were lethal. The description of Det Martin included the following: "These weapons included WWII Bren Machine Gun, 50 calibre machine gun, 2 x 30 calibre machine guns, M14 machine gun and a AR15 .300 Whisper calibre assault rifle fitted for a silencer and designed and used as a snipers rifle by some American law enforcement agencies." 32 The firearms were unregistered. Mr Cromarty was not authorised by licence or permit to have them in his possession. They were not firearms owned by others which he was working on. His dealer's licence (which extended to categories C and D) did not authorise their possession. 33 Count 2 alleged possession of unregistered firearms (s7(1) Firearms Act) (maximum penalty: 10 years imprisonment). They were firearms which fell within categories A, B or H, which Mr Cromarty was authorised to possess. However, they had not been registered, as required by the Act. The firearms were: · 45 rifles · 58 pistols 34 Count 3 alleged possession of firearms with defaced identification marks (s66(b)) Firearms Act (maximum penalty: 5 years imprisonment). There were ten pistols which had been defaced. Det Martin said this: "The defacing of a firearm is achieved by drilling out the serial number or any other feature which would prevent authorities tracing the true origin of the weapon. These weapons are of particular concern to police as these weapons are often stolen from lawful owners and sold to the criminal element." 35 Count 4 was based upon the Weapons Prohibition Act 1998, alleging the unauthorised possession of prohibited weapons (maximum penalty: 14 years imprisonment). The weapons, the subject of this count, were as follows: · a mortar bomb · 7 grenades · 1 rocket launcher · 7 silencers · 1 crossbow 36 Some of the weapons were less forbidding than their description suggested. The mortar and grenades were relics of World War II. They had been made inert. Major Parker (retired), who spoke highly of Mr Cromarty's character, commented upon media publicity given to the sentencing proceedings in these terms: "Much hype was given by the press to the 'rocket launcher' as used by terrorists. This was in fact a harmless inert fibreglass tube that had once contained an anti-tank rocket that the Army describes as 'disposable' and usually sent to the garbage dump at the completion of a practice. It could not be reloaded and used again. The police advised the media of this but truth and facts did not stand in the way of a sensational story." 37 Count 5 alleged a breach of s62(1)(b) of the Firearms Act (maximum penalty: 10 years imprisonment). Mr Cromarty had been found in possession of two prohibited firearms, both self loading rifles, both shortened. 38 The Form 1 matters (taken into account in respect of Count 1) were first, the possession of a significant quantity of ammunition without licence or permit and, secondly, the failure to keep safe a firearm. It is not entirely clear which firearm was not kept safe. The storage of a number of firearms and weapons appeared not to comply with the Act, although not the subject of any charge (and not, as such, to be taken into account on sentence). Presumably the matter, the subject of the Form 1, was the loaded Uzi submachine gun which was found unlocked. 39 In the proceedings on sentence, Det Martin said this: (T6 - 8.8.03) "Q. With respect to Mr Cromarty himself, your particular crime agency has absolutely , is this correct, had no information of no intelligence to suggest that he is involved in trading in these kinds of weapons, selling, giving them away, conspiring to give them away or anything of that nature, is that correct? A. Yes sir, none whatsoever ." (emphasis added) 40 Mr Duffield, an experienced probation and parole officer, provided a report which included the following: (Exhibit A) "It seems he chose to ignore the illegality of his behaviour, but it is strongly felt that he had no sinister intent." 41 Dr Roger Peters, a psychologist to whom Mr Cromarty had been referred, commented upon possible explanations of Mr Cromarty's conduct in these terms: (Exhibit 1) "I think the answer in this case is quite complex and psychologically convoluted. I think it involves many issues none of which are delinquent or sinister." Sentencing Remarks. 42 The sentencing proceedings occupied a number of days. His Honour reserved his decision. His remarks painstakingly analysed the nature of each offence and the subjective circumstances of Mr Cromarty. His Honour recognised that the offences were serious, both by reason of the sheer number of weapons and the maximum penalties provided in respect of each offence (R/S 8). His Honour said this: "... whilst the offender was in flagrant breach of the law in relation to each of the counts on the indictment and whilst he knew because of his experience and long history with the legitimate use of firearms, both as a dealer and a gunsmith, that he was in breach, there is no doubt that this came about not as a result of any desire on his part to profit from the illegal trade in these goods but rather as a result of a passion and obsession with firearms as well as other intricate and precision machinery and an almost morbid unwillingness to part with them, knowing that to do so would see them destroyed." 43 Elsewhere his Honour said: "... there is no doubt on all the evidence that the offender was not a person who in any sense could be described as a criminal or an associate of criminals and certainly not someone who was prepared to engage in the illicit trade in firearms." 44 The Crown submitted that the criminality of Mr Cromarty objectively "fell towards the upper end of seriousness of offences of this sort". Referring to that submission, his Honour said this, speaking of the Crown prosecutor: (R/S 24) "... he referred to the sheer size of the cache, the nature and type of weaponry recovered, and the fact that most of it was in working order. He pointed to one of the factors of sentencing being to deter other people from committing like offences and he said that this was particularly important here. It was his submission that there was no place for the type of weapons seized to be in the hands of a private citizen." 45 His Honour added: (R/S 24) "To a large extent I agree with the submissions of the learned Crown Prosecutor. However, as I said, it must be borne in mind that, particularly in relation to the weapons described in count 2 in the indictment, by virtue of his licence the offender was perfectly entitled to possess them had he simply registered them. I am unable to agree with the learned Crown Prosecutor that the criminality involved here is in the upper bracket." 46 Nonetheless, his Honour noted that Mr Cromarty "was well aware of the (relevant) legislative provisions and deliberately flouted the law..." (R/S 28). He added: (R/S 28) "I also have regard to the number and type of weapons seized, including the fact that some were silencers and two were shortened firearms. Whilst I accept that the offender had no intention of ever dealing in these arms in an illegal manner and whilst I accept that in relation to some of them at least had he registered them he was entitled to possess them, the real danger is that they may have fallen into the hands of the criminal element, notwithstanding the security provided for them by the offender." The Subjective Case. 47 Mr Cromarty is aged 61 years. He was born on 28 June 1942. He trained as a fitter and turner. For many years he worked at BHP in Newcastle. He had a lifelong interest in guns. In 1982, or thereabouts, he became a licensed gunsmith. He conducted his business from home in suburban Charlestown. 48 Mr Cromarty joined the Newcastle Pistol Club in 1977. His wife was also interested in shooting. He remained a committee member of the club for almost ten years. He competed successfully. He won two Australian awards, six State championships, and was a place-getter on many occasions. He had a Range Officer's status at National level. He was also an Instructor. 49 Mr Cromarty was highly regarded by club members. A number gave evidence before the sentencing Judge. Others provided references. He had a good reputation for safety in handling firearms. He was regarded as a mentor to young shooters. He maintained and repaired firearms belonging to members, usually without fee. He was much admired for his craftsmanship. 50 Mr Cromarty also collected stamps, cigarette cards, coins, car parts and fine machinery. He had a keen interest in the history of firearms used in both World Wars and had many publications dealing with that subject. He was described as a "quiet, caring family man". 51 Since the confiscation of his collection of firearms and weapons, Mr Cromarty has lost all interest in firearms. Mr Duffield, a Probation Officer, said this: "That pistols and shooting and working on weapons was a major part of the offender's life is an understatement, and he currently exhibits signs of significant grief and loss." 52 Dr Roger Peters thought that Mr Cromarty was suffering from a reactive anxiety best described as an "adjustment disorder". He was otherwise well adjusted and not suffering from any psychiatric or psychological conditions. He suffered from a measure of depression. His licence as a gunsmith had been revoked (s11 Firearms Act). Dr Peters said this: (Exhibit 1: 4/5 ) "In fact I would make one further observation and that is that had he handed in his collection when amnesties were proclaimed - he would have had no opportunity of replacing it and this collection seems to have been one of the main reasons he was living. Not to put (too fine a) point on it, his collection provided him with a reason for living and that its loss would have been devastating. I doubt he could even face the thought of handing in his collection, let alone taken any action to actually do anything. Thus the threat of resultant depression and psychological trauma from its loss would have been overwhelming, ironically the very situation he now finds himself in." 53 Finally, dealing with Mr Cromarty's subjective circumstances, there was evidence that he suffered from osteoarthritis. Further, his Honour determined that Mr Cromarty would not re-offend. He believed, therefore, that personal deterrence should not play a part in determining an appropriate sentence. Mr Cromarty pleaded guilty at the first available opportunity. His Honour allowed a 25% discount on sentence. 54 His Honour said that he regarded the case as "somewhat exceptional and unique" (R/S 29). Taking account of Mr Cromarty's subjective circumstances and the objective criminality, his Honour said this: (R/S 28) "So far as the nature of the sentences are concerned, I am of the view that custodial sentences are called for. However, for reasons which I will give shortly I am of the view that the longest of those sentences relating to count 1 in the indictment should be a sentence of three years and should be served by way of periodic detention." The Complaints of the Crown. 55 The Crown submitted that the sentence was manifestly inadequate, both in its overall length and in the manner in which it is to be served. It drew attention to the size and nature of the weaponry in respect of each count. Whilst Mr Cromarty may not have been trafficking in illegal weapons, he was certainly conscious of his obligations under each Act, and understood the security risk that he ran. The fact that he was obsessed by firearms may be an explanation for his offending behaviour. It is not, in the Crown submission, a matter in mitigation. 56 It was further submitted that his Honour erroneously characterised the sole objective of s51D of the Firearms Act as the punishment of criminals warehousing illegal firearms. The objective was much broader than that. It included "the illegal firearm market". Firearms may find their way onto that market through the stockpiling of weapons where the stockpile is vulnerable. 57 His Honour, it was suggested, placed too much weight upon the subjective features of Mr Cromarty's case and too little on the objective seriousness of his offending behaviour. Moreover, in his description and assessment of the subjective case, his Honour, according to the Crown, erroneously characterised certain aspects as mitigating features. The Crown said this: "The legislation provides ample room for those with a legitimate interest in firearms for sporting, occupational or historical purposes to satisfy those interests. The fact that the respondent is distressed by the lawful seizure of these weapons and by the fact that he must now face the consequences of his behaviour was erroneously treated by the sentencing judge as a mitigating feature." 58 Finally, the Crown drew attention to Count 3 which concerned the ten pistols in Mr Cromarty's possession where the serial number had been erased. Mr Cromarty, on any view, was a meticulous man. He cleaned and repaired each weapon as it was received. He would have noticed at once the erasure of the serial number. On the Crown submission, this was a worrying aspect of his behaviour, given the attraction of such weapons to criminals. It justified some accumulation in the sentences which were imposed. The Respondent's Submissions. 59 It was submitted on behalf of Mr Cromarty (the respondent) that, properly assessed, the objective criminality of Mr Cromarty was "towards the lower end of the scale of criminality for offences of this kind". There was no evidence whatever that he traded in guns. Both the probation officer and the psychologist emphasised that he had "no sinister intent". Accordingly, the penalty imposed was within sound sentencing discretion. Mr Cromarty was a decent and honest, if somewhat reclusive, individual, who was well regarded within the community. His house was a "virtual fortress". He was rarely absent from the premises. "Virtually nobody knew of his collection." 60 His Honour, in the respondent's submission, provided lengthy and careful reasons, having reserved his judgment. His Honour well appreciated, according to counsel for Mr Cromarty, the potentially serious consequences of the respondent's conduct. However, he also recognised that no actual harm had been caused. No error has been shown or, alternatively, the Court in its discretion, would refrain from disturbing the sentence which had been passed. The Objective Criminality of Mr Cromarty. 61 His Honour accurately characterised the offences as serious. The maximum penalty under Count 1 was 20 years imprisonment. Significant terms of imprisonment have been fixed in respect of the remaining counts. In R v Zamagias [2002] NSWCCA 17, Howie J said this: (para 11) "... the sentencing court must be reminded that the maximum penalty is a reflection of the seriousness with which the public through the legislature considers the type of criminal conduct with which it is concerned: H (1980) 3 A Crim R 53 at 65. It is through the maximum penalty that the legislature manifests its policy and it is the initial consideration when determining the appropriate sentence: Oliver (1980) 7 A Crim R 174 at 177." 62 Elsewhere his Honour made the following statement in R v Shankley [2003] NSWCCA 253: (para 19) "... a consideration of the maximum penalty prescribed by an offence is fundamental to a determination of the appropriate sentence to be imposed ... it represents the public's view of the seriousness of the crime." 63 Nonetheless, the maximum penalty is plainly directed at the worst class of case (Ibbs v The Queen (1987) 163 CLR 447 at 451/2). The offences committed by Mr Cromarty cannot be so described. How serious, then, were these offences? 64 First, it is important that Mr Cromarty knew that he was in breach of the law. It was, as his Honour remarked, "a flagrant breach". Mr Duffield, the probation and parole officer, said this: (Exhibit A) "There is no doubt Cromarty would have been quite aware of the illegal nature of his activities. He is very well versed on the gun laws and has very strong negative views about them. It seems he chose to ignore the illegality of his behaviour but it is strongly felt he had no sinister intent." 65 Secondly, the following statement by his Honour significantly understated, to my mind, the criminality in respect of Count 2 (the possession of 45 rifles and 58 pistols which were unregistered): (R/S 24) "However, as I said, it must be borne in mind that, particularly in relation to the weapons described in count 2 in the indictment, by virtue of his licence the offender was perfectly entitled to possess them had he simply registered them." 66 The Firearms Act was part of a national initiative. Registration of each firearm, and authorisation to possess that firearm by an appropriate licence or permit, were the chosen means of control. When applying for a licence, an applicant was obliged to provide the following information: (s18(2) Firearms Act) "18(2) A licence must: (a) contain a recent photograph of the person to whom it is issued (such photograph being obtained in accordance with arrangements determined by the Commissioner), and (b) bear the signature of the licensee, and (c) specify the licence category, and (d) specify (except in the case of a firearms dealer licence) the registered firearm or firearms to which the licence relates, and (e) specify the genuine reason for which the person was issued with the licence, and (f) (Repealed) (g) specify (in the case of a firearms dealer licence) the premises where the firearm is authorised to be kept, and (h) contain a reference to the requirements under this Act relating to the storage and safe keeping of the firearm, and (i) contain such other detail as may be prescribed by the regulations." 67 A licence, when issued, may be subject to conditions (s19(1)), including requirements in respect of the safekeeping and storage of firearms (s19(2)(a)). The refusal of Mr Cromarty to comply with these provisions defeated the attempt by this legislation to impose strict control upon possession and safe keeping of firearms (cf s3(1) of the Firearms Act: supra paras 14 and 15). 68 Thirdly, it cannot be doubted that Mr Cromarty well appreciated the security risk which his arsenal created. In 1996 Mr Cromarty's home was invaded by three masked intruders, one armed with a sawn-off 12 gauge shotgun. Mr Cromarty described what occurred in these words: (T24) "A. ... all I was told was get down. They want me on the ground and then fortunately the bloke decided that he didn't like what he'd seen and he left, tripping over his mates doing it." 69 Mr Cromarty elaborated: (T24) "A. ... I had a safe there, full of guns, and the police asked me what were they there for and I said I don't know, all that was said to me was get down and I said to the officer that actually took the statement that you are glad that they didn't get the safe open, that is what they wanted. Because on the following Friday, that was Tuesday night, and the following Friday they robbed the National Australia Bank in Warners Bay, with a sawn-off shotgun and with a knife I think the other bloke was supposed to have had. I would say it was the same people." 70 Mr Cromarty recognised that authority to possess the firearms which were prohibited under Schedule 1 would not be given unless the firearms were rendered permanently inoperable. He also recognised that to register the weapons which were not prohibited would draw attention to the extent of his collection. He said this: (T21) "A. ... I had a good relations with the police, I minded my own business and kept out of their way and they left me alone as such, and you just don't want to draw attention, getting checks and all that all the time. That's the reason I didn't actually apply." 71 With some hyperbole, the respondent's submissions described Mr Cromarty's home as "a fortress". It certainly was not a fortress. It was a suburban home with limited security. The back to base alarm, even were it activated, inevitably involved delay. It may offer little protection if, as occurred in 1996, intruders entered the premises whilst Mr Cromarty was there. The premises, moreover, were unoccupied from time to time, although less often after the home invasion than before. To some degree, after that invasion, Mr Cromarty became a prisoner in his own home, precisely because he recognised the security risk which his stockpile created. 72 The following submission was made on Mr Cromarty's behalf: "Virtually nobody knew of his collection - it was kept a closely guarded secret. The respondent himself was only rarely away from the premises." 73 It may be accepted that nobody, apart from Mr Cromarty, knew the full extent of his collection. However, it cannot be doubted that many knew that Mr Cromarty had an extensive collection. He had acquired the firearms and weapons in that collection over a number of years. His account of the way in which that occurred was vague. People would come to his home because they knew of his interest in guns. That reputation, and the sheer size of his collection, suggests, to my mind, that the existence of the collection was not "a closely guarded secret". One would also infer from the operation of the police, when they executed the search warrant, that they had information suggesting a significant violation of the provisions of the Act. 74 These are matters which go to the objective seriousness of the criminality in these offences. However, on the credit side, two things should be said. First, although there was unquestionably a risk to public safety through the accumulation and possession of such an arsenal, that risk did not materialise. The weapons did not fall into the hands of criminals. They were seized by the police. 75 Secondly, his Honour, as mentioned, also found that Mr Cromarty was not engaged in the trade in illegal weapons. The Crown challenged that finding, drawing attention to the following statement in the report of Dr Peters: (Exhibit 1: 5) "Ian has no other financial plan in respect to his superannuation, but rather has invested all his money in developing a collection that would only increase in value as years passed. In taking this away he has lost his 'nest egg' for his later years. Likewise revoking his license has effectively prevented him from making a living. At his age he is quite unlikely to be able to turn his hand to anything else." 76 The "nest egg" was valued at something like $300,000. Quite how it was to have been realised was not explored, either by Dr Peters or during the sentencing hearing. During argument on the appeal there was discussion about possible ways in which the "nest egg" could have been lawfully realised. One way was by surrendering the weapons during any renewed amnesty (and accepting compensation at the then market value), or opening a museum. Prohibited firearms within a collection must be rendered permanently inoperable (as prescribed by regulation) and all other firearms temporarily inoperable by the removal of the bolt or firing mechanism or the use of an approved trigger lock (s20 Firearms Act). 77 Two other possibilities were canvassed, neither attractive. It was said that it may have been possible to sell the firearms or weapons interstate or overseas. That would seem unlikely, since the legislation was passed as part of a national drive to control weapons throughout Australia. The legislation interstate is broadly similar to that in New South Wales. There are penalties in the Firearms Act for conspiring to commit offences outside New South Wales (s51C). 78 The second suggestion was no more attractive. It involved Mr Cromarty selling his firearms and weapons to a compliant dealer who would then have 24 hours (without committing an offence) to register them, at which point they could be sold. 79 It is clear on the evidence that Mr Cromarty had not, in the past, engaged in the trade of unregistered or prohibited weapons. The position in the future is less clear. However, it is reasonable to suppose that Mr Cromarty would not sell into the black market. One infers that he had not quite thought through how he might benefit from the collection which he had amassed. Principles to be Applied. 80 Before dealing with the Crown's submissions, and the response made on behalf of Mr Cromarty, it is useful to state briefly the principles which should guide the resolution of these issues. 81 The principles in respect of Crown appeals are not in doubt. They were stated by this Court in R v Allpass (1994) 72 A Crim R 561 (Gleeson CJ, Hunt CJ at CL and McInerney J) in these terms: (at 562) "1. A Court of Criminal Appeal which is dealing with an appeal against sentence does not simply embark upon the task of sentencing afresh, substituting its own opinion for that of the sentencing judge, and increasing the sentence if it considers it to be inadequate, or decreasing the sentence if it considers it to be excessive. An appellate court will only interfere if it is demonstrated that the sentencing judge fell into material error of law or fact. Such error may appear in the reasons given by the sentencing judge, or the sentence itself may be manifestly excessive or inadequate, and thus disclose error. However, the facts and circumstances of individual cases are often such that sentencing judges have a substantial discretion, and the appellate court does not intervene simply upon the basis that the members of that court would have exercised their discretion differently from the judge at first instance. 2. Crown appeals against sentence are relatively infrequent. The High Court has said that such appeals 'should be a rarity': Griffiths (1977) 137 CLR 293 at 310; Malvaso (1989) 168 CLR 227 at 234; 43 A Crim R 451 at 456. One reason for this is the element of double jeopardy that is involved in such appeals. Rules designed to safeguard against double jeopardy are deeply embedded in our system of criminal justice: eg Dodd (1991) 56 A Crim R 451; Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502. Thus, for example, there is usually no right of Crown appeal against an acquittal at a trial. 3. If a Crown appeal against sentence is successful, and the appellate court resentences the respondent, it does so in the light of all the facts and circumstances as at the time of resentencing. Events which have occurred after the original sentencing may be relevant. 4. When, in response to a Crown appeal, the court decides to resentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance. 5. An appellate court has an overriding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection the conduct of the Crown at the original sentencing proceedings may be a matter of significance." 82 In determining an appropriate sentence, his Honour was obliged to have regard to the principle of proportionality, that is, that the sentence was required to encompass all of the circumstances of the offence and the offender considered together (R v Whyte (2002) 55 NSWLR 252, per Spigelman CJ at 276). In Whyte the Chief Justice said this: (at 277) "153 The role of objective circumstances in the test of proportionality was emphasised in the joint judgment of the High Court in Hoare v The Queen (1989) 167 CLR 348 at 354: '... a basic principle of sentencing law is that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances'. [Emphasis in original.]" 83 Spigelman CJ then stated the further implication of the principle of proportionality in these terms: (at 277) "156 The reasoning in Hoare appears to me to necessarily involve separate consideration of the sentence appropriate to the objective circumstances of the offence. Although expressed as an upper limit - a sentence cannot be greater than the objective circumstance suggest - it has been applied to create a lower limit - a sentence should not be less than the objective circumstances require." 84 In R v Dodd (1991) 57 A Crim R 349, Gleeson CJ, Lee CJ at CL and Hunt J in a joint judgment, said this: (at 354) "... making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No 2) (198) 164 CLR 465 at 472; 33 A Crim R 230 at 234 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and subjective features of a case will vary: see, for example, the passage from the judgment of Street CJ in Todd [1982] 2 NSWLR 517 quoted in Mill (1988) 166 CLR 59 at 64; 36 A Crim R 468. Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case." 85 In R v Zamagias (supra) Howie J included a useful exposition on the separate issues which a sentencing Judge must confront under the Crimes (Sentencing Procedure) Act, 1999. Paraphrasing his Honour's words, the following propositions can be stated. · First, there are a number of steps in the determination of an appropriate sentence. Each step requires a consideration of the objective gravity of the offence balanced against the subjective circumstances of the offender. · Secondly, a preliminary question must be asked and answered, namely: Are there any alternatives to a term of imprisonment? · Thirdly, if the Court determines that there is no alternative to imprisonment, it must then determine the length of the term of imprisonment. That determination must be made without regard to the manner in which the sentence may be served (whether by home detention or periodic detention) or whether the term should be suspended. · Fourthly, the Court should then consider if an alternative to full time custody is appropriate. In making that determination the Court must recognise that the alternatives to full time custody involve a significant element of leniency. The appropriateness of an alternative to full time custody will depend upon many factors including, importantly, whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment, including deterrence and denunciation. Was there error? 86 There is no question that his Honour faced a difficult sentencing task. I believe three criticisms can be made of his Honour's sentencing remarks. First, his Honour, to my mind, appeared seriously to understate the criminality involved in failing to register firearms and weapons which he was authorised to possess (supra para 64). Secondly, although the primary object of s51D, 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. Thirdly, I accept the Crown's submission (supra para 56) that his Honour appeared to regard certain matters as mitigating features (the grief at the lawful seizure of his collection of weapons) whereas in truth they were not. 87 I have characterised each of these matters as a criticism of his Honour's remarks, rather than an error. His Honour's lengthy and careful remarks did not misstate any sentencing principle. The "criticisms" may suggest that his Honour may have undervalued the objective gravity of the criminality of Mr Cromarty or overvalued his subjective case. 88 Turning, then, to whether the sentence was manifestly inadequate, being new legislation there is little guidance from the caselaw or statistics (cf Wood CJ at CL in R v Penisini [2003] NSWSC 892, paras 96-100). It also has to be acknowledged, as his Honour said, that the case is unusual. 89 However, to my mind the objective gravity of these offences, and especially Count 1, was such that they called for a sentence which unmistakably denounced the conduct, a sentence which would operate as a deterrent to likeminded offenders. A sentence to be served by way of periodic detention did not achieve these objectives. I believe, with respect, that the sentence was manifestly inadequate. To my mind error has been demonstrated. Resentencing. 90 I believe the Court should intervene to resentence Mr Cromarty. Being a Crown appeal, the sentence that should now be imposed is not simply one which the Court may otherwise believe appropriate were it sentencing the offender for the first time. The fact of double jeopardy is recognised. The sentence substituted should be towards the lower end of the range of available sentences (Dinsdale v The Queen (2000) 202 CLR 321, per Kirby J at 341). The Crown at first instance did not oppose a finding of special circumstances. The Crown has reaffirmed that attitude on this appeal, were a sentence of full time custody imposed. I believe a finding of special circumstances is justified. Mr Cromarty is now 62 years old. He has health problems. He has not previously been in custody. 91 Mr Cromarty, in accordance with the sentence imposed by his Honour, has attended each Friday for periodic detention. He first did so on 4 October 2003 at the Detention Centre at Tomago. The dislocation to his life in doing so extends beyond the actual days of incarceration. Although there is an element of leniency, I would propose that the sentence should commence on 4 October 2003. 92 I would therefore propose the following orders: 1. That the appeal be allowed. 2. That the sentence imposed by Coolahan DCJ on 24 September 2003 be quashed. 3. That, in lieu thereof, the respondent be sentenced as follows: Count 1: Taking account of the matters on the Form 1, to a term of imprisonment of 4 years commencing on 4 October 2003 and expiring on 3 October 2007, with a non parole period of 2 years expiring on 3 October 2005. Count 2: Imprisonment for a fixed term of 2 years commencing on 4 October 2003 and expiring on 3 October 2005. Count 3: Imprisonment for a fixed term of 18 months commencing on 4 October 2003 and expiring on 3 April 2005. Counts 4 and 5: On each count, to imprisonment for a fixed term of 16 months commencing on 4 October 2003 and expiring on 3 February 2005. 4. The order that all firearms be seized and forfeited to the Crown is confirmed. 93 BELL J: I agree with Kirby J. ********** Last Modified: 03/23/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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