New South Wales Court of Criminal Appeal CITATION : R v Middlebrook [2004] NSWCCA 49 HEARING DATE(S) : 5 February 2004 JUDGMENT DATE : 5 February 2004 JUDGMENT OF : James J at 1; Buddin J at 40 DECISION : Leave to appeal allowed - appeal allowed CATCHWORDS : Criminal law - firearms possession Crimes (Sentencing Procedure) Act LEGISLATION CITED : Firearms Act 1996 Firearms Amendment (Public Safety) Act 2002 No 47 Firearms Amendment (Trafficking) Act 2001 No 24 PARTIES : Regina v Kimberley Wayne Middlebrook FILE NUMBER(S) : CCA 60468/03 COUNSEL : P Boulton SC - Applicant DC Frearson - Crown SOLICITORS : R Jones - Applicant S Kavanagh - Crown LOWER COURT District Court JURISDICTION : LOWER COURT 03/31/0131 FILE NUMBER(S) : LOWER COURT English DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60468/03 JAMES J BUDDIN J Thursday 5 February 2004 REGINA (NSW) v KIMBERLEY WAYNE MIDDLEBROOK Judgment 1 JAMES J: Kimberley Wayne Middlebrook has applied for leave to appeal against a sentence imposed on him in the District Court on the 29 August 2003 by her Honour Judge English, after he had pleaded guilty to one charge under s 51D(2) of the Firearms Act 1996. Section 51D was inserted in the Firearms Act by the Firearms Amendment (Public Safety) Act 2002 No 47 which commenced on the 15 July 2002. Section 51D(2) provides: "A person who is in possession of more than three firearms, any one of which is a prohibited firearm...is guilty of an offence under this subsection if: (a) the firearm is not registered; and (b) the person is not authorised by a licence or permit to possess firearms. Maximum penalty: imprisonment for 20 years." 2 In sentencing the applicant her Honour took into account seven further offences which I will refer to more fully later in this judgment. For the offence under s 51D(2) of the Firearms Act and taking into account the further seven offences, her Honour imposed a sentence of imprisonment for four years commencing on the 29 August 2003, the date of sentencing, with a non-parole period of three years. 3 The applicant had been arrested and charged on the 18 February 2003 but had immediately been granted bail and he had remained at liberty on bail until he was sentenced. 4 Her Honour's statement of the facts of the offence was derived from a statement of facts prepared in the office of the Director of Public Prosecutions which was admitted into evidence without objection in the proceedings on sentence. In her remarks on sentence her Honour said: "… on 13 February 2003, after receiving information that the offender had cannabis plants and unregistered firearms at his premises, police sought and obtained a search warrant. At 3.40 pm on 14 February 2003 six officers from the Manning Great Lakes Area Command drove to the offender's premises and executed the search warrant. The offender resides at 190 Winmurra Drive Possum Brush. The property is a rural block approximately 37 hectares in area. A cabin and a large open work shed stand on the property about 200 metres back from Winmurra Drive at the end of a dirt driveway. The work shed is about 40 metres east of the cabin and a caravan was parked about ten metres east of the work shed. No one was present when the police arrived at the property. A search was conducted and five cannabis plants were located on the eastern side of the caravan. The plants were growing in containers and measured .5 of metre to 1.5 in heights, and the plants were seized. Police then drove around the property looking for more cannabis plants. Two hundred metres along the dirt track police located another four cannabis plants growing in pots near a dam located on the property. These plants measured one to two metres in height and they were also seized. Police returned to the cabin and entered it through the front door which was unlocked. Police immediately saw four firearms mounted horizontally on the wall. The firearm at the top was a Bentley pump action 12 gauge shotgun, the weapon was loaded with three shotgun shells. The second firearm from the top was a Greener's single shot 12 gauge shotgun, this weapon had a shot sitting in the breech. There were no rounds in the breech. The third weapon from the top was a Sterling .22 calibre bolt action rifle with telescopic scope and magazine. The last firearm on the rack was a Slazenger .22 calibre bolt action single shot rifle. There was no round in its breech. A PVC canon, known as a Spud canon was leaning against the wall. Two ammunition belts were hanging on the wall. One belt contained eight .222 calibre rounds, the second belt contained also .222 calibre rounds. A loaded SKK assault rifle magazine was found on a shelf above the firearms rack. A silver foil containing 3 grams of cannabis seeds was located in a drawer in the bar area. The four firearms, the ammunition belts, the SKK magazine and the PVC canon were seized by police. So too were the drugs." 5 On 18 February 2002 the applicant voluntarily attended the Forster Police Station, exercised his right to silence and was charged. As I have already stated, he was immediately granted bail. 6 It was the possession of the four firearms mounted on the wall of the cabin which gave rise to the charge under s 51D(2) of the Firearms Act. It was not disputed that none of those firearms were registered and that the applicant was not authorised to possess any of them. The Bentley pump action shotgun was a "prohibited firearm" within the meaning of that expression in the Act, as falling within schedule 1 of the Act. 7 The seven further offences which the sentencing judge took into account in sentencing the applicant were: 1. Cultivation of nine cannabis plants. 2. Possession of three grams of cannabis seeds. 3. Unauthorised possession of the PVC Spud cannon. 4. Failure to ensure the safekeeping of the PVC Spud cannon. 5. Failure to ensure the safekeeping of the firearms, being the Greener shotgun, the Sterling rifle and the Slazenger rifle. 6. Failure to ensure the safekeeping of the prohibited weapon, being the Bentley pump action shotgun. 7. Unauthorised possession of ammunition, being the SKS assault rifle ammunition. 8 The applicant gave evidence in the proceedings on sentence. Her Honour summarised some of this evidence in her remarks on sentence. Her Honour did not expressly say that she accepted this evidence. However, the evidence had not been challenged in cross-examination of the applicant or in the submissions made on behalf of the Crown in the proceedings on sentence and, in the absence of any statement by her Honour that she did not accept the evidence or any apparent reason why she should not accept the evidence, I would infer that her Honour accepted it. Her Honour said: "The firearms he says he has owned for a number of years. He was unaware that the Bentley shot gun was a prohibited weapon. He knew he was required to be licensed to own firearms, he just did not bother to obtain a licence. He was aware of the police amnesty and the buy back for the purpose of reducing the number of firearms in the community. He handed in the SKK assault rifle, but chose to keep the remainder of the firearms. He says he kept the firearms to destroy wild dogs, foxes and other vermin on his property. He says they were kept with ammunition in the magazines, not in the breeches, so that he did not have to look for ammunition if he needed to use the rifle in the event that dogs or dingoes were harassing his cattle. He denies that he had the guns loaded to protect his cannabis plants. He says that the PVC cannon was given to his son at Christmas, he was concerned about his son having possession of such a object, so he insisted it remain at Rainbow Flat, rather than be taken back to Brisbane when his son returned after the Christmas holidays." 9 In his evidence the applicant said that he had had the Bentley pump action shotgun for about 25 years, that he had used it for duck shooting and that he had last fired it about nine or twelve months before, to shoot a brown snake. 10 The applicant gave evidence that he had had the Greener shotgun and the Slazenger rifle since his wife's father had given them to him about eight years before he was sentenced. The applicant gave evidence that he had had the Sterling rifle for about 15 years, after he had exchanged a trailer for it. 11 In assessing the objective gravity of the principal offence her Honour referred in her remarks on sentence to a number of matters. Her Honour noted that in July 2000 laws had been introduced to inhibit the illegal supply of firearms (her Honour would have been referring to the Firearms Amendment (Trafficking) Act 2001 No 24) and that these laws had been amended by the Firearms Amendment (Public Safety) Act 2002 No 47. Her Honour referred to part of the speech by the Minister for Police on the second reading of the Bill which became the Firearms Amendment (Public Safety) Act in which the Minister (Mr Costa) had said: "This will mean that criminals warehousing illegal guns for sale on the black market will be liable for up to 20 years in gaol if the firearm is prohibited." 12 Her Honour said in her remarks on sentence that the use of firearms to commit robberies, to injure and murder police and members of the public and to commit other crimes is becoming prevalent. Her Honour immediately added: "I am not suggesting for one moment that it was the intention of this offender to do any of those things, but to keep these weapons and to keep them in such a way that access was easily gained to his cabin where they were kept, allows anyone wishing to obtain a firearm to commit a serious offence, instant access to a veritable arsenal capable of causing great harm." 13 Later in her remarks on sentence her Honour said: "However, having regard to the objectively serious nature of the offence committed and the objectively serious nature of the offences contained on the Form One and the intent of the legislation, I find that this is a matter of the utmost gravity and would result in the imposition of a prison sentence. I find that the offender has shown a blatant disregard for the criminal law. The offender had little regard for public safety. The firearms were on display, they were with magazines loaded and they were kept in premises that were unlocked and easily accessible. The police simply walked onto the property and into the buildings. On the owner's own evidence, his 15 year old son had access to the weapons which were mounted on the wall and ready for use." 14 In her remarks on sentence her Honour said that "as this offence was committed after 1 January 2003, the applicant is to be sentenced under the new regime," by which her Honour meant that the applicant was to be sentenced under legislation which included Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act dealing with standard non-parole periods. In fact Div 1A of Pt 4 applies only to offences committed after the 1 February 2003, but as the offence for which the applicant was being sentenced was committed on the 13 February 2003, Div 1A of Pt 4 would have been part of the legislation in force. 15 Her Honour acknowledged that an offence under s 51D(2) of the Firearms Act was not included in the offences for which a standard non-parole period had been set. However, her Honour noted that a standard non-parole period had been set for an offence under s 7 of the Firearms Act. Under s 7 of the Firearms Act it is an offence to possess or use a firearm without being authorised to do so by licence or permit. The maximum penalty for an offence under s 7 is imprisonment for 14 years if the firearm concerned is a prohibited firearm. The standard non-parole period which has been set for an offence under s 7 of the Firearms Act is three years. 16 In her remarks on sentence her Honour said that the five firearms offences which were to be taken into account in sentencing the applicant for the principal offence called for an increase in the penalties to be imposed for the principal offence. 17 Her Honour also considered the two drug offences to be taken into account required the imposition of an increased penalty for the principal offence, "they too being matters of an objectively serious nature." 18 In a part of her remarks on sentence her Honour summarised some of the subjective features of the applicant as follows: "This offender is presently aged 45. He left school at the end of fourth form in 1974, as it then was, and he took up an apprenticeship and obtained trade qualifications as a mechanic. He married and subsequently separated. He has two sons who live with their mother in Brisbane, but he continues to support them financially and remains in touch with them. In 1990 he moved to Rainbow Flat where he purchased the rural property where he now resides. He has lived there ever since doing some part time mechanical work when it becomes available, otherwise, he is in receipt of unemployment benefits." 19 Later in her remarks on sentence her Honour observed that the applicant had a criminal record but that it was of no consequence. The applicant's criminal history consisted of a conviction in 1976 for driving with the prescribed concentration of alcohol in his blood and a charge of malicious damage in 1993 which had been dismissed under s 556A of the Crimes Act, as then in force. 20 A number of character witnesses gave evidence in the proceedings on sentence, who (as her Honour said in her remarks on sentence) testified that the applicant was a law-abiding citizen and an upstanding member of the community. 21 In this application the following grounds of appeal were raised: 1. The sentencing judge had erred in her assessment of the objective gravity of the principal offence. 2. The sentencing judge had erred in her assessment of the objective criminality of the offences to be taken into account. 3. The sentencing judge had given inadequate weight to the applicant's very favourable subjective circumstances. 4. The sentencing judge had erred in having regard to the existence of a standard non-parole period for an offence other than the offence for which the applicant was being sentenced. 5. The sentencing judge had erred in finding that non-custodial sentencing options were not available. 6. The sentence imposed by her Honour was manifestly excessive. 7. The sentencing judge had failed to consider whether special circumstances existed within s 44(2) of the Crimes (Sentencing Procedure) Act. 22 As to the first ground, it was submitted that her Honour had grossly overstated the criminality in the principal offence; and that the fact that the offence under s 51D(2) had been created, according to the Minister's second reading speech, so that criminals warehousing illegal guns for sale on the black market would be liable to severe punishment did not mean that anyone whose conduct fell within the terms of the section should be severely punished. Her Honour's finding that the applicant's 15 year old son had access to the firearms was criticised on the basis that on the evidence the applicant's son lived most of the time with his mother in Brisbane. 23 As to the second ground of appeal, it was submitted that the criminality involved in the offences of failing to ensure the safekeeping of the prohibited firearm and the other firearms had already been taken into account by the sentencing judge in assessing the objective criminality of the principal offence, so that no further penalty would have been warranted by reason of taking those further offences into account; that the other firearm offences to be taken into account were minor; and that the two drug offences of cultivating as few as nine cannabis plants, which the applicant had testified were to be for his own use, and having in his possession as small a quantity as three grams of cannabis seeds, so far from being objectively serious, as her Honour considered, were very minor offences. 24 As to the third ground of appeal, it was submitted that the sentencing judge had given inadequate weight to the virtual absence of any criminal history, the character evidence given in the proceedings on sentence, the very positive pre-sentence report in which the author of the report had said that the Probation and Parole Service had "no concerns regarding drug or alcohol issues", her Honour's view that "it is not a matter where rehabilitation looms large", that is, her Honour considered there was little risk of the applicant reoffending, and her Honour's finding that the applicant was remorseful. 25 As to the sixth ground, it was submitted that, as a consequence of what had been submitted in support of the first three grounds, the sentence imposed by her Honour was manifestly excessive. 26 I propose to deal now with the grounds 1, 2, 3 and 6. In my opinion all of grounds 1, 2, 3 and 6 should be upheld. 27 The applicant's conduct in having in his possession more than three firearms, one of which was a prohibited firearm, without the firearms being registered or the applicant being licensed to possess them, did fall within s 51D(2) of the Firearms Act and required that some penalty be imposed on the applicant. However, I accept the contention by counsel for the applicant that the sentencing judge overstated, and seriously overstated, the objective gravity of the principal offence. 28 According to the Minister's second reading speech, the purpose of s 51D was "to crack down on possession (of firearms) for the purposes of illegal trafficking" and, as previously stated in this judgment, to ensure that criminals warehousing illegal guns for sale on the black market would be liable to severe punishment. 29 In the present case, there was nothing to suggest that the applicant was in possession of the firearms for the purposes of trafficking in them. The applicant had acquired all of the firearms many years before in legitimate transactions and there was nothing to suggest that he intended to dispose of any of them. The sentencing judge herself was at pains to disclaim any suggestion that she thought that the applicant himself might use any of the firearms to commit a crime. The applicant had been in possession of the prohibited firearm, that is the Bentley pump action shotgun, for 25 years. He had used it for shooting ducks and had last used it 9-12 months before to shoot a snake. The firearms were kept by the applicant at a fairly remote country property about 15 kilometres from Taree, where the applicant lived alone, and, although the firearms were kept mounted on a wall in a cabin on the property instead of being locked away, I consider that her Honour overstated the risk of "anyone wishing to obtain a firearm to commit a serious crime (having) instant access to the applicant's firearms." I accept that the applicant's 15 year old son lived most of the time with his mother in Brisbane. 30 For the reasons advanced by counsel for the applicant, I consider that her Honour erred in considering that the offences to be taken into account in sentencing the applicant for the principal offence required the imposition of a significantly increased penalty for the principal offence. The failures to keep the firearms safe so that there was a risk of wrongdoers having access to them had already been taken into account by the sentencing judge as a circumstance of aggravation in assessing the objective criminality of the principal offence. The two drug offences, so far from being objectively serious, were, in my opinion, quite minor. 31 I accept that the applicant had very favourable subjective circumstances. 32 Having regard to what I consider to be a proper assessment of the objective criminality of the principal offence and of the extent to which the sentence for the principal offence could properly have been increased by reason of the offences to be taken into account and to the applicant's subjective circumstances, I consider that the sentence imposed by her Honour was manifestly excessive, that leave to appeal against sentence should be granted and that the appeal against sentence should be allowed. 33 In the light of this conclusion it is unnecessary to consider the fifth and seventh grounds of appeal. It is also unnecessary to consider the fourth ground of appeal, which raises a question which I consider a two judge Bench of this Court should not endeavour to resolve. It is clear that Div 1A of Pt 4 of the Crimes (Sentencing Procedure) Act has no direct application, in that an offence under s 51D(2) of the Firearms Act is not included in the table of offences to Div 1A. 34 Having decided that the appeal should be allowed it is necessary for me to consider what sentence should be imposed in the re-sentencing of the applicant. There is no need for me to repeat the objective facts of the principal offence or of the offences to be taken into account or the subjective features of the applicant. In re-sentencing the applicant I take into account the relevant provisions of the Crimes (Sentencing Procedure) Act . 35 It was submitted by counsel for the applicant that, if the appeal was allowed and a lesser sentence was imposed, the Court should order that the sentence be served by way of periodic detention or that the sentence should be suspended. It was also submitted that the Court should at least find that there were special circumstances. 36 I consider that the Court should find special circumstances. It is a sufficient ground for a finding of special circumstances that the applicant has never previously been to prison. 37 I have already stated my conclusion that the sentencing judge seriously over-estimated the objective gravity of the principal offence. However, the Legislature has made it clear that the possession of more than three firearms, if the firearms are not registered and the possessor is not authorised to possess them, is a serious offence and is an even more serious offence, if one of the firearms is a prohibited firearm. Although I consider that the sentencing judge over-estimated the likelihood of other persons having access to the applicant's firearms, there was a potential for such firearms to fall into wrong hands and to be used in the commission of crimes. 38 In my opinion, a custodial sentence should be imposed and I do not consider that the Court should order that it be served by way of periodic detention or that any part of the sentence should be suspended. 39 In my opinion leave to appeal should be granted. The appeal should be allowed. The sentence imposed by her Honour, Judge English on the 29 August 2003 should be quashed and in lieu thereof the following sentence should be imposed: I consider that a non-parole period of one year should be set commencing on the 29 August 2003 and expiring on the 28 August 2004. I consider that the balance of the term of imprisonment should be a further period of one year. The applicant will be entitled to be released from custody on the expiration of the non-parole period on the 28 August 2004. The date on which the total sentence will expire will be the 28 August 2005. 40 BUDDIN J : I agree. ********* Last Modified: 03/16/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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.