REGINA v HOWARD [2004] NSWCCA 348

New South Wales Court of Criminal Appeal

CITATION : REGINA v HOWARD [2004] NSWCCA 348 HEARING DATE(S) : 6 October 2004 JUDGMENT DATE : 12 October 2004

JUDGMENT OF : Spigelman CJ at 1; Grove J at 68; Smart AJ at 69 DECISION : Leave to appeal granted; appeal dismissed

CATCHWORDS : CRIMINAL LAW -- Sale of unauthorised firearms to undercover police officer -- appeal against sentence -- objective of general and personal deterrence entitled to substantial weight when sentencing for firearms offences which pose major threat to the community Firearms Act 1996 LEGISLATION CITED : Crimes (sentencing and Procedure) Act 1999 Criminal Appeal Act 1912 CASES CITED : R v Taouk (192) 65 A Crim R 387 PARTIES : Kevin John HOWARD REGINA FILE NUMBER(S) : CCA 2004/1818 CCAP COUNSEL : Mr P Byrne SC (Appellant) Mr P Miller (Crown) SOLICITORS : T O'Gorman (Appellant) S Kavanagh (Crown)

LOWER COURT District Court JURISDICTION : LOWER COURT 03/51/0070 FILE NUMBER(S) : LOWER COURT Ducker ADCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 2004/1818

SPIGELMAN CJ GROVE J SMART AJ

12 OCTOBER 2004 REGINA v Kevin John HOWARD Judgment 1 SPIGELMAN CJ: The applicant pleaded guilty to two charges of selling unauthorised pistols contrary to s51(1A) of the Firearms Act 1996. The first charge involved an actual sale. The second involved an agreement to sell. 2 Acting Judge Ducker of the District Court imposed concurrent sentences of three years and six months on the first charge, with a non-parole period of two years. On the second charge his Honour imposed a head sentence of two years and six months, with a non-parole period of eighteen months. The maximum penalty for each offence was 20 years imprisonment. 3 The offence was committed at Beerwah in the State of Queensland where an undercover police officer from New South Wales met the applicant with a view to obtaining pistols. On 9 September 2002 the applicant sold two pistols to the undercover police officer, the subject of the first charge. Subsequently, the applicant offered to sell two other pistols, one with a silencer, to the same police officer. This was the subject of the second charge. 4 It was expressly stated in each of the charges, to which the applicant pleaded guilty, that the applicant knew that the pistols would be taken to New South Wales. 5 Subject to certain particular matters which arise on specific grounds of appeal, and which I will further discuss below, the basic sequence of events is not challenged. His Honour set out his findings as follows:- "On 13 June 2002 an undercover Police Officer met with a person named Lionel Ross Death (not an inappropriate sobriquet) and purchased from him a number of prohibited firearms. During that meeting Death placed a telephone call to the present offender and a conversation was had between them relating to the availability of handguns. Death was thus used by the undercover operative as a means of gaining access to the present offender. Death was himself later dealt with in this Court by the Chief Judge in relation to a large number of similar offences to the present.