New South Wales Court of Criminal Appeal CITATION : Regina v Adam Mouloudi [2004] NSWCCA 96 HEARING DATE(S) : 10 March 2004 JUDGMENT DATE : 28 June 2004 JUDGMENT OF : Simpson J at 1; Sperling J at 2; Bergin J at 3 DECISION : Appeal upheld. Sentences imposed by Maguire DCJ on 26 September 2003 quashed. Respondent sentenced on each offence to a non-parole period of 4 years with the balance of the term set at 2 years. Sentences to date from 28 February 2003 and to be served concurrently. CATCHWORDS : [CRIMINAL LAW] - SENTENCE- Crown Appeal against sentences - Firearms Act 1996 - Whether sentence imposed by Sentencing Judge manifestly inadequate - Whether Sentencing Judge made a material error of law in applying incorrect maximum penalty - Whether invariable rule that sentence to be imposed for later offence should be made cumulative upon sentence for offence in respect of which prisoner was on bail applies - Approach on re-sentencing since introduction of standard non-parole periods - Double jeopardy principle in Crown Appeals - Real prospect of rehabilitation based on age a special circumstance permitting adjustment of ratio between non-parole period and balance of the term. Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 Criminal Appeal Act 1912 Firearms Act 1996 Dinsdale v R (2000) 202 CLR 321 Ibbs v R (1987) 163 CLR 447 Veen v R (No 2) (1988) 164 CLR 465 CASES CITED : R v Holder & Johnston [1983] 3 NSWLR 245 R v Moffitt (1990) 20 NSWLR 114 R v Penisini; Regina v Lagi; Regina v John Taufahema [2003] NSWSC 892 R v Thomson: R v Houlton (2000) 49 NSWLR 383 R v Way [2004] NSWCCA 131 PARTIES : Crown (Appellant) Adam Mouloudi (Respondent) FILE NUMBER(S) : CCA 60456/03 COUNSEL : D Woodburne (Appellant Crown) W Hadley (Respondent) SOLICITORS : S Kavanagh (Appellant) LOWER COURT District Court JURISDICTION : LOWER COURT 03/21/2104 FILE NUMBER(S) : LOWER COURT Maguire DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60456/03 SIMPSON J SPERLING J BERGIN J 28 JUNE 2004 REGINA v ADAM MOULOUDI Judgment 1 SIMPSON J: I agree with Bergin J. 2 SPERLING J: I agree with Bergin J. 3 BERGIN J: This is a Crown appeal against the sentence imposed on the respondent on 26 September 2003 by the sentencing judge, Maguire DCJ, on 2 charges of unauthorised possession of a prohibited firearm contrary to the provisions of Section 7(1) of the Firearms Act 1996, in respect of which the respondent pleaded guilty with a further 7 offences on a Form 1 taken into account. The maximum penalty prescribed for offences under section 7(1) of the Firearms Act 1996 is imprisonment for 14 years. The respondent was sentenced to concurrent terms of imprisonment with a non-parole period of 2 ½ years and the balance of the terms of 2 years. 4 The appeal was heard on 10 March 2004 when judgment was reserved. Subsequently the Court of Criminal Appeal delivered judgment in R v Way [2004] NSWCCA 131, Spigelman CJ, Wood CJ at CL and Simpson J, dealing with standard non-parole periods. The parties were invited to make submissions consequent upon that judgment and that process concluded on 17 June 2004. The statutory regime for sentencing 5 The offences were committed on 28 February 2003 and the sentencing process was therefore governed by the provisions of the Crimes (Sentencing Procedure) Act 1999 (the Act) as they were amended by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 effective from 1 February 2003. Section 3A of the Act provides that the purposes of sentencing are: to ensure adequate punishment; to prevent crime by deterrence of the offender and others; to protect the community; to promote rehabilitation of offenders; to make offenders accountable; to denounce the offender's conduct; and to recognise harm done to a victim and the community. 6 The manner in which a sentence is imposed is governed by s 44 of the Act and requires the Court to first set a non-parole period for the sentence and then set the balance of the term of the sentence. The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence unless the Court decides that there are "special circumstances" for it being more than one-third. If that decision is made the Court must "make a record" of its reasons (s. 44(2)). 7 The offences are subject to a standard non-parole period of 3 years, such period representing the non-parole period "for an offence in the middle range of objective seriousness" for the offence: (s 54A & Table in Div. 1A). The Act provides that the "court is to set" the standard non-parole period as the non-parole period for the offence unless the Court determines that there are reasons for setting a longer or shorter non-parole period (s 54B). The "reasons" for which the Court may depart from the requirement to set the standard non-parole period are "only those referred to in s 21A" of the Act (s 54B(3)). In R v Way the Court held that the standard non-parole periods in the Table in Division 1A are intended for a middle-range case where the offender was convicted "after trial" (at [68]-[69]). 8 Section 21A does not, in terms, refer to "reasons". It provides: Aggravating, mitigating and other factors in sentencing 21A (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. (2) Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows: ( a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation, (b) the offence involved the actual or threatened use of violence, (c) the offence involved the actual or threatened use of a weapon, (d) the offender has a record of previous convictions, (e) the offence was committed in company, (f) the offence involved gratuitous cruelty, (g) the injury, emotional harm, loss or damage caused by the offence was substantial, (h) the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability), (i) the offence was committed without regard for public safety, (j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence, (k) the offender abused a position of trust or authority in relation to the victim, (l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bank teller or service station attendant), (m) the offence involved multiple victims or a series of criminal acts, (n) the offence was part of a planned or organised criminal activity. The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: (a) the injury, emotional harm, loss or damage caused by the offence was not substantial, (b) the offence was not part of a planned or organised criminal activity, (c) the offender was provoked by the victim, (d) the offender was acting under duress, (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, (g) the offender is unlikely to re-offend, (h) the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise, (i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner, (j) the offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability, (k) a plea of guilty by the offender (as provided by section 22), (l) the degree of pre-trial disclosure by the defence (as provided by section 22A), (m) assistance by the offender to law enforcement authorities (as provided by section 23). (4) The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. (5) The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence. 9 Where an offender pleads guilty, the Court must take the fact of the plea and the timing of the plea into account when passing sentence and in doing so "may" impose a lesser penalty than it would otherwise have imposed (s. 22). 10 This statutory regime suggests that, for a conviction after trial for an offence against s 7(1) of the Firearms Act 1996 in the middle range of objective seriousness for which the maximum penalty is 14 years imprisonment, without adjustment to the standard non-parole period for reasons referred to in s 21A and without adjustment to the ratio between the non-parole period and the balance of the term based on special circumstances, the appropriate sentence is 4 years imprisonment – being the standard non-parole period of 3 years and the balance of the term not exceeding one-third of the non-parole period. 11 In sentencing the offender for the principal offence the Court may take into account further offences, with which the offender has been charged but not convicted, that are included on a list (Form 1) filed by the prosecutor and which the offender has indicated he wants the Court to take into account. (s. 32 & 33). The Sentencing proceedings 12 The facts establishing these offences were outlined in a Statement of Facts dated 28 February 2003, an edited version of which was included in the sentencing judge's remarks on sentencing as follows (ROS 1-2): At 10:10pm on Thursday 27 February 2003 the accused entered the Pacific International Hotel located on Chapel Road, Bankstown. At the time he was in the company of Mohamed Alkhair who paid for a room at the hotel with a fraudulent credit card. Neither male had luggage. Both males then entered the bar of the hotel where they purchased a jug of Coke and they proceeded to room 236 which had been allocated to them. Room 236 had been cleaned one hour prior to their arrival. At about 10:20pm, Amanda Havron and Miriam Alkalhal entered the hotel and staff reporting the matter to police via telephone observed them to walk to room 236 where the accused and Alkhair were waiting for them. The police were called and in company with staff of the hotel, they approached the door of the relevant room. One of them knocked on the door and said, "Reception". One of the female occupants of the room opened the door and police entered the room. The prisoner was observed seated in a single lounge chair on the far side of the room. The other man was lying on the two-seater lounge. Police instructed both males to stand and move towards the walls of the room. They complied. They searched Alkhair and then moved towards the prisoner. He was wearing a baggy black jumper and a pair of light coloured cargo pants. As police started to run their hands over the accused's lower back to search him, he lowered his right hand from the wall towards the front waist line of his pants. He was instructed to put his hand back on the wall and he complied. Police continued to search his lower back and he again lowered his hand towards the front of his waist line. The searching police officer reached around to the front of the prisoner's waist line and grabbed hold of his hand and simultaneously felt a hard metallic object. The prisoner attempted to pull the object away from the police officer who countered by taking possession of the object and removing it from the prisoner's pants. As the object was removed, it was identified as a black pistol. Police seized the pistol and continued the search of the prisoner's person. During the search, they located a second pistol in his rear left trouser pocket. The pistol was a metallic silver smaller calibre pistol. The prisoner was interviewed electronically during which he admitted being at the Pacific International but declined to answer any questions in relation to possession of the firearms or any other matter. Checks on one of the pistols disclosed that it was reported stolen previously and the prisoner does not hold licences authorising him to possess firearms or ammunition. 13 It was not contested before the sentencing judge that the magazines of both guns were loaded with ammunition but that neither had a bullet in the chamber. 14 The history of the matter before the sentencing judge is that on 29 August 2003 the appellant tendered its evidence, the respondent, although he did not give evidence, relied upon a number of references and final submissions were made. A pre-sentence report, based on a telephone interview with the respondent, was in evidence and included the following, at page 2: Mr Mouloudi was somewhat reluctant to discuss the offences. He acknowledged having the firearms and added that in retrospect this was a "stupid" thing to do. He stated that he would rather not elaborate. 15 This report also referred to the fact that the respondent had been assessed as "requiring a high level of intervention, given his firearms charges and his reluctance to discuss them in any detail" and that "supervision would focus on monitoring Mr Maloudi's choice of associates and lifestyle generally" (p.3). 16 The appellant's counsel informed the sentencing judge that the maximum penalty relevant to these offences was 14 years imprisonment. The respondent's counsel referred to the new regime of penalties on two occasions referring to the fact that the legislature had increased the penalties recently and that, in those circumstances, the sentencing statistics would not provide assistance. The appellant agreed that those statistics were of marginal relevance because the offences occurred after 1 February 2003 "so that the new standard non-parole period provisions are enlivened". 17 The respondent's counsel submitted to the sentencing judge that the respondent had not been found in possession of the firearms "for a hostile purpose" and that the possession of the weapons was as a result of vanity and stupidity. In respect of the police officers' evidence in relation to the respondent twice reaching towards his waistband, it was submitted that it was merely "that instinct of self-survival which prompted him to try and hide them and somehow escape – hoping they would escape detection". When it was drawn to the respondent's counsel's attention that the police evidence was uncontradicted, counsel informed the court that the respondent did not want to give evidence but that he had instructed his counsel that he was "only trying to pull his jumper over to conceal and hopefully escape detection" (tr. 2; 29/08/03). 18 The Director of the Wangee Road Childcare Centre in Greenacre provided a reference in which the opinion was expressed that the respondent was found to be thoroughly honest, reliable and responsible in every aspect. Reference was also made to the respondent's regular voluntary work at the childcare centre, including maintenance, gardening and repairs. The Pre-Sentence Report referred to the respondent having stated that, "he helped out a sister in a child care centre where she works as a teacher". There was no evidence before the sentencing judge as to whether this was the child-care centre at which the sister taught. 19 There was also a reference from Ms Nadia Bernoussi, with whose family the respondent and his family had lived for three months on their arrival in Australia, apparently from Morocco, on 17 July 1988. Ms Bernoussi regards the respondent as a younger brother and described him as "a quiet young man" who is "well mannered and extremely friendly" and "respects people a lot always willing to help his family". There is also reference to the lack of a "male mentor" because the respondent's father left the family when the respondent was very young and that there appeared to be a "sad emptiness about that part of his life". 20 A further reference from a friend, Fatima Bloul, referred to the respondent as a very kind, nice and helpful person. Mrs Lamia Sy, who had known the respondent and his family for fifteen years and had employed him as a gardener and painter stated that she found him to be "loyal, honest, considerate, trustworthy and very caring" with her two children. A further reference from Zahra Ennebt, whose house the respondent had painted, referred to him as "conscientious and capable of using his initiative when necessary". 21 Finally, a reference from Ahmed Essafi, the executive chef from Fez Café referred to the respondent's employment as a casual cook from 18 March 1998 and that in the six months prior to 18 March 2003, the date of the reference, the respondent had "become a strong and dependable employee". There is no mention of knowledge of the subject offences. That reference concludes: "Naturally we wish Adam well in all his future endeavours, he is honest and trustworthy and I am sure he will continue to make his mark within this industry". 22 In his remarks on sentence, the sentencing judge said he found it "difficult to identify the person described by the authors with the person appearing before the Court" (ROS 5.5). Respondent's criminal history 23 At the time of sentence on 26 September 2003, the respondent's criminal history was as follows: Charge date Charge Conviction date Sentence 21/08/2000 Possess prohibited drug 11/09/2000 $200 fine plus court costs 27/01/2002 Possess prohibited drug 29/05/2002 $300 fine 01/07/2002 Malicious wounding 11/02/2003 8 months periodic detention commencing 28/02/03; npp 6 months. Possess unauthorised firearm – not prohibited 8 months periodic detention; npp 6 months Possess prohibited drug S9 bond; 2 years – supervision – to report within 7 days Unlawfully possess prescribed restricted substance S9 bond; 2 years-supervision – to report within 7 days Possess/use prohibited weapon without permit S9 bond; 2 years – supervision – to report within 7 days Goods suspected stolen in/on premises S9 bond; 2 years – supervision – to report within 7 days 19/01/2003 Supply prohibited drug 22/05/2003 6 months imprisonment commencing 28/02/03 24 The respondent committed the offences the subject of this appeal on the day that he was due to commence the first period of periodic detention imposed on 11 February 2003. As a result of his inability to commence that detention the Parole Board revoked the periodic detention sentence and converted it to a sentence of four months and ten days imprisonment with a non-parole period of two months and ten days. 25 The sentencing judge referred to the circumstances of the malicious wounding in his remarks on sentence as follows (ROS 3): It is common ground that that malicious wounding involved the discharge of a firearm under the control of the prisoner, which discharge resulted in the wounding of the prisoner's own nephew. His record also discloses a conviction for unlawfully possessing a prescribed restricted substance and possessing a prohibited weapon. These charges are related to the malicious wounding charge. 26 The appellant emphasised that at the time of the commission of the subject offences, the respondent was on four separate Section 9 Bonds of two years duration that had been imposed seventeen days before the commission of the subject offences. Additionally, at the time of the commission of the subject offences the respondent was on bail in relation to the count of supply a prohibited drug in respect of which he had been charged on 19 January 2003. The Form 1 27 There were 7 additional offences on a Form 1. They were 2 offences of possess a firearm, not registered in the state of NSW; 2 offences of possess ammunition without holding a licence or permit; 2 offences of not taking all reasonable precautions to ensure that a firearm was kept safely; and 1 offence of having a pistol in his custody reasonably suspected of being stolen or otherwise unlawfully obtained. 28 The sentencing judge referred to matters on the Form 1 and stated that they "have been taken into account" but did not specify the "principal offence" in respect of which they were taken into account (ROS 1). The Sentence 29 The sentence was imposed on 26 September 2003. The Remarks on Sentence included the following: The maximum penalties attracted by the crimes to which the prisoner has pleaded guilty are imprisonment for five years and the law provides a standard non-parole period of three years. (ROS 1) He has served time in prison previously and has been in custody pending his hearing. He has been given opportunities in the past and does not appear to have taken advantage of them. I have taken into account his plea of guilty, but only to a limited degree in view of the strength of the case against him. It is very clear to me that there is a great deal of disquiet in the community at the proliferation of illegal weapons in circulation. One sees in this Court too many instances of the use of such weapons. I see the need to deter this offender and to deter others from the commission of crimes such as this. This is not a case where the offender had the weapons in a show case at home where he could admire them. He had them concealed on his person. I accept that when apprehended, he endeavoured to remove one of the weapons from his trousers, using his right hand. His own counsel has asked for an extended period of parole. My own view is that extended supervision upon release may very well serve to assist in his rehabilitation. His record, although a bad one, is not one of long standing, nor could it be having regard to his relatively young age. But I do think there is a real prospect of rehabilitation. There are in my view special circumstances that justify the displacement of the usual ratio between head sentence and non-parole period and I think that those same circumstances justify, in this case, the imposition of a non-parole period shorter than the standard. I am mindful of the provisions of s3A and of s21(A) (sic) as amended of the Criminal (sic) (Sentencing Procedure) Act and have taken them into account. Stand up. I sentence you to a minimum term of two and a half years imprisonment. I sentence you to a further term of two years imprisonment. The sentence and non-parole period are to commence on 27 February 2003. The term of the sentence expires on 26 August 2007. The term of the non-parole period expired (sic) on 26 August 2005. (ROS 5-6) 30 The sentencing judge reduced the standard non-parole period from 3 years to 21/2 years and fixed the balance of the term at 2 years. Although it is not clear from the remarks on sentence it is apparent that the sentencing judge intended to impose the sentence on each of the principal offences and intended that they be served concurrently. It was common ground that the reference to the maximum available penalty of 5 years was incorrect. The maximum available penalty in relation to these charges under the Firearms Act 1996 is 14 years. Material Error of law 31 The appellant appeals pursuant to Section 5D of the Criminal Appeal Act 1912 on the basis that the sentence imposed by the sentencing judge was manifestly inadequate. The appellant submitted that the intervention of this Court is justified because of the material error of law made by the sentencing judge in applying the wrong maximum penalty. It is submitted that was fundamental error and caused the proceedings to miscarry in a number of respects, resulting ultimately in the imposition of a sentence disproportionate to the gravity of the offences. 32 Prior to the delivery of R v Way the appellant submitted that the sentencing judge was required to determine whether the standard non-parole period should be set which necessitated consideration of whether the offence was "an offence in the middle of the range of objective seriousness" (s 54A). It was also submitted that such determination could only have been made by reference to the correct maximum penalty and that the belief that the maximum penalty was 5 years unduly restrained the sentencing judge's discretion in that regard. 33 It was submitted that by reason of this error alone, the court should intervene and re-sentence the respondent. 34 The respondent submitted that the sentencing judge did not make a material error of law in the application of the wrong maximum penalty and that the reference to the maximum penalty of 5 years was a "slip of the tongue". It was submitted that a careful consideration of his remarks on sentencing in the context of the sentencing process makes it clear that the sentencing judge was aware of the new regime of penalties that were applicable and the provision of a maximum penalty of 14 years imprisonment. The respondent submitted that on at least six occasions during the sentencing hearing references were made to the new statutory provisions relating to the standard non-parole period and that reference was also made to the maximum penalty of 14 years. It has to be remembered that those references were made on 29 August 2003 and the respondent was not sentenced until 26 September 2003. 35 It was submitted that from the context of the remarks on sentence, it can be concluded that the sentencing judge did not regard the conduct amounting to the commission of these offences as the worst type of cases: Veen v R (No 2) (1988) 164 CLR 465 at 478; Ibbs v R (1987) 163 CLR 447 at 451. On that basis it was submitted that if the sentencing judge had really thought that the maximum penalty was 5 years it would be very unlikely that he would have given a 41/2 year sentence for these offences. It was submitted that his Honour dealt with the matter on the basis of the correct maximum penalty of 14 years imprisonment and the court should not intervene. 36 An analysis of the sentencing judge's remarks and the sentencing proceedings leads me to comfortably conclude that the sentencing judge regarded these offences as very serious indeed. He referred to the fact that "both" guns were loaded (ROS 2.9) and rejected as "ridiculous" the proposition that the guns were acquired for purely "decorative reasons" (ROS 4.8). He also found that there was no overt evidence of contrition (ROS 4). He also referred to the respondent's criminal history and the fact that he committed the offences on the "very day" that he was to commence his periodic detention (ROS 3). Although referred to earlier in this judgment it is appropriate to reiterate that the remarks on sentence included the following (ROS 5): It is very clear to me that there is a great deal of disquiet in the community at the proliferation of illegal weapons in circulation. One sees in this Court too many instances of the use of such weapons. I see the need to deter this offender and to deter others from the commission of crimes such as this. This is not a case where the offender had the weapons in a show case at home where he could admire them. He had them concealed on his person. I accept that when apprehended, he endeavoured to remove one of the weapons from his trousers, using his right hand. 37 These are significant findings against the respondent who had been suggesting, through submissions, that the action was an instinctive reaction to hide the gun rather than, as found, a positive action to remove the gun. The context of these findings leads also to the conclusion that the respondent was not attempting to remove the gun to assist the police in taking it from him. It is clear that the sentencing judge concluded that this action was hostile. 38 These findings demonstrate that the sentencing judge viewed these offences as extremely serious. He took the respondent's plea of guilty into account "only to a limited degree" (at 5.4). In my view it does not present as a realistic possibility that with these findings the sentencing judge could then have imposed a sentence of only four and a half years for offences of such seriousness had he not felt himself constrained by a maximum penalty of 5 years. The error as to the maximum penalty was a material error of law warranting intervention by this Court and the re-sentencing of the respondent. 39 It should be said that the sentencing judge should have had assistance from the appellant, at least, so that the error exposed very early in the remarks on sentence was corrected. There was opportunity either to interrupt the remarks at that time or at the time the sentencing judge requested the respondent to stand up for the purpose of the imposition of the sentence. Alternatively, application could have been made after the imposition of the sentence, pursuant to s 43(2) of the Act to reopen the sentencing proceedings so that a sentence according to the law, that is, having regard to the correct maximum sentence, could have been imposed. Re-sentence 40 The appellant submitted that this is a matter which should be categorised as being towards the upper range of the scale of seriousness for this offence particularly having regard to the following factors: multiplicity of offences; both pistols were loaded; both pistols were secreted on the respondent; one pistol was a stolen pistol; there was a high degree of risk to members of the public and a real danger posed to police by reason of the respondent's possession of the loaded and unsecured weapons; the respondent had just one month and eight days previously been admitted to conditional liberty by way of bail in respect of the supply drug offence; the respondent had just seventeen days earlier been sentenced to periodic detention in respect of offences of malicious wounding and possess unauthorised firearm; the respondent was on conditional liberty and the subject of four bonds; and a further seven offences were required to be taken into account. 41 The appellant submitted that it is legitimate to take account of the antecedent criminal history when it illuminates the "moral culpability" of the offender or shows his "dangerous propensity" or a need to "impose condign punishment" to deter him: Veen v R (No 2) at 477 42 The respondent submitted that the various firearms offences overlapped to some extent and therefore the appellant's submissions exaggerate the degree of seriousness of the respondent's conduct. It is also submitted that there is no evidence that the respondent knew that the pistol was stolen. It was conceded that the potential risk and community concern is unable to be doubted or ignored, however, it was submitted that there was no evidence that the respondent had an intention of using the pistols and that his actions when searched were designed to better secrete the first weapon found by the police officer and that after it was found the respondent remained passive. 43 It was submitted that the respondent's criminal record reveals minor drug possession offences and that the serious criminality occurred over a short period of time during which admittedly the respondent was involved in "serious criminal activity". However it was submitted that there are a number of mitigating factors that apply to the respondent: (i) there was no evidence that injury, emotional harm, loss or damage was caused by the respondent and none was intended (s 21A(3)(a)); (ii) the offence was not part of organised criminal activity (s 21A(3)(b); (iii) the respondent is unlikely to re-offend (s 21A(3)(g); (iv) the respondent has good prospects of rehabilitation, as found by the sentencing judge (s 21A(3)(h); and (v) there was a plea of guilty at the earliest opportunity although the evidence was overwhelming (s 21A(3)(k)). 44 These mitigating factors are not all available. There was no evidence of injury but it is not clear that "none was intended". Indeed the finding that the sentencing judge made in respect of the respondent reaching for the pistol means that not much weight should be given to this factor. There was no evidence that the offences were part of organised criminal activity. Certainly the trial judge found that the respondent had a "real prospect of rehabilitation". The basis for that finding is not at all clear particularly in the light of the fact that the respondent declined to discuss the offences with the probation and parole officer. However that observation should be tempered by the fact that the interview was over the telephone which, it is reasonable to conclude, would hardly be conducive to candid exploration of criminal conduct. In any event, it appears that the sentencing judge based his finding on the relative youth of the respondent who was 20 years of age at the time of the offences and 21 years of age at the time the sentence was imposed. 45 The submission that the respondent "is unlikely to re-offend" is not supported by the evidence. The availability of a real prospect of rehabilitation does not mean that the factor of "unlikely to re-offend" is available. Until that prospect is a reality a conclusion is unable to be drawn in relation to the likelihood or otherwise of this respondent re-offending. Unfortunately his criminal history casts real doubt about that matter but the sentencing judge has given the respondent the real prospect by reason of his age. The intention was clearly to give the respondent as much time under supervision as possible. 46 The respondent's counsel submitted that the respondent had, through him, expressed his remorse for his actions and that there are good reasons why the Court can accept that he is remorseful. On this aspect the sentencing judge's remarks that he saw "no overt evidence of contrition on the part of this young man" (ROS 4.8) remain apt. It was also submitted that, although the circumstances of the previous convictions are very serious, they do not support the view that the respondent has a dangerous propensity to intentionally use firearms to injure people. It was submitted that the respondent suffered a great deal of anguish as a result of the circumstances giving rise to his conviction for the malicious wounding of his nephew which, it was submitted, occurred in a very unsettled period of his life. There is no evidence that supports these submissions other than the suffering of these and the earlier convictions. It was conceded that his arrest for firearms offences on 28 February 2003 so soon after that conviction is a seriously aggravating factor. 47 The appellant submitted that the sentences for the present offences should commence from 27 August 2003, the date of the expiration of the sentence on the supply prohibited drug conviction, an offence for which he was on bail at the time of the commission of these offences, so as to mark the gravity of the respondent's conduct in abusing his conditional liberty. It was submitted that cumulation of sentence is almost an invariable rule in circumstances where an offender takes advantage of his conditional liberty to commit further crimes. In support of this submission the appellant relied upon what Badgery-Parker J said in R v Moffitt (1990) 20 NSWLR 114 at 128: Several decisions of this Court have emphasised the need for significant sentences to be imposed on an offender who takes advantage of his liberty whilst on bail to commit further crimes. In such circumstances the almost invariable rule is that the sentence to be imposed for the later offence should be made cumulative upon the offence in respect of which the prisoner was on bail. 48 The appellant submitted that there was and is no good reason in the light of the flagrant breach of bail and the breaches of the opportunities afforded by the Court, to do anything other than apply the rule and order that the sentences for the subject offences be served consecutively upon the sentences for supply prohibited drug and the malicious wounding and firearm offences. 49 The respondent's counsel submitted that the instant case should be considered an exception to the "almost invariable rule" because of the subjective factors that are relevant to the respondent's case including his good prospects for rehabilitation. 50 There are other reasons for excluding this case from the almost invariable rule. The first is that from the evidence before this Court such a submission was not put to the sentencing judge. The second reason is that the appellant should have assisted the sentencing judge when the error was clear early in remarks on sentence or before he imposed sentence or after the sentence was imposed pursuant to s 43(2) of the Act. I am not satisfied that the sentence should commence from 27 August 2003 rather than 28 February 2003. 51 The sentencing judge determined that there were circumstances that justified the imposition of a non-parole period shorter than the standard non-parole period. However it was submitted that the determination was infected by the fundamental error made in relation to the maximum penalty and that it should have been determined that a non-parole period longer than the standard should have been set because the offences were above the middle range of objective seriousness and there were no factors which justified a non-parole period of less than three years. 52 The appellant submitted that it is evident from the terms of Section 7 (1) of the Firearms Act 1996 that it was intended to cover a range of criminal conduct. It was submitted that the section makes the fundamental distinction between the possession and use of a firearm that is a prohibited firearm or pistol and any other firearm. It was also submitted that the conduct indulged in by the respondent exhibited a degree of seriousness well above that of a person who had possession in private premises of a firearm, not loaded and properly secured, and in circumstances where licences might have been issued and lapsed or where licences had been sought and had not been granted and the like. 53 It was also submitted that the criminal conduct of the respondent was of a high order and was aggravated by the matters referred to earlier. It was submitted that this included the circumstances of the respondent's arrest set out in Constable Paff's statement which included the following: Mouloudi placed his right hand back on the wall and I continued to search around the lower back. At this point, he dropped his right arm again and it appeared to go to his waist band. I instinctively thought this was strange and I quickly placed my left hand around to where his hand was. I grabbed hold of his hand and immediately felt a hard metal object which he was holding. I grabbed hold of the object, squashing his hand and he began to pull the object away from me, and I began to pull back and after a bit of struggling I managed to get the object from his grip, and turned slightly to my left. I looked down my hand and saw a large black metallic handgun similar to the police issue Glock. 54 The appellant submitted that having regard to the applicable maximum penalty the proper assessment of the respondent's conduct is that it was well above the middle range of seriousness for the offence. In those circumstances it is submitted that the non-parole period should have been correspondingly above the standard non-parole period of three years. 55 The respondent's submissions included a concession that the offences were alarming from a public safety point of view but that the respondent had no intention and did not, in fact, threaten anybody. It was submitted that his possession of the firearms can be attributed to his foolishness and immaturity rather than a desire to commit acts which threaten the safety of the public. However counsel responsibly put the submission that one appreciates that the potential for things to go wrong is a serious matter in itself. As to the aggravation of the offences by reason of them being committed whilst the respondent was on conditional liberty, it was suggested that the respondent was extremely foolish and immature at that time. 56 In conclusion, it was submitted that despite the objective seriousness of the offences and the duty of the Court to the community, this is a matter where the prospect of rehabilitating the offender should mitigate the penalty to be imposed. It was submitted that the public interest in the rehabilitation of offenders, especially young offenders, should be given considerable weight and that a sentence commensurate with that imposed by the sentencing judge is appropriate. I agree that the public interest in the rehabilitation of young offenders should be given considerable weight, and the sentencing judge's finding that this respondent has a real prospect of rehabilitation by reason of his age should be recognised in the re-sentencing of the respondent. 57 The origin of the nature of the sentence to be imposed by this Court as a consequence of a successful Crown appeal is found in what was said by Street CJ in R v Holder & Johnston [1983] 3 NSWLR 245 at 256 as follows: … the sentence passed on a successful Crown appeal does not always represent the full measure of sentence which might have been passed upon the convicted person at first instance. 58 In the same case Priestley JA said at 269: The double jeopardy aspect in Crown appeals against sentence appears in another situation also: the court will in some cases where it is persuaded that the original sentence was inadequate, impose an increased sentence which is nevertheless less severe than that which the court thinks should have been imposed at first instance. 59 This approach has developed further so that a sentence imposed as a result of a successful Crown appeal will not only be generally less than that which should have been imposed by the sentencing judge but also will generally be towards the lower end of the appropriate range of sentence: Dinsdale v R (2000) 202 CLR 321. It seems to me that the concept of the "appropriate range" of sentence has been adjusted by the introduction of the standard non-parole period for certain offences, combined with the requirement to fix the non-parole period first. In this regard in Regina v Way the Court said at paragraph 53: There is nothing in Division 1A to suggest that the statutory maximum ceases to provide a benchmark, or a reference point, in sentencing, so far as it is a manifestation of legislative intention as to the seriousness of the offence. The focus is, however, likely to shift more towards the standard non-parole periods where they apply, since they may be taken to express a legislative intention as to the minimum periods of actual imprisonment, which are appropriate for the relevant offences. 60 The consequence is that when the Court of Criminal Appeal is imposing a sentence as a result of a successful Crown appeal, the focus is more on the recognition that the standard non-parole period is a reflection of the middle range of objective seriousness for the offence where the offender was convicted after trial (Way at par 68) and then, on considering the conduct against that reflection in coming to what is an appropriate sentence, applying the principle of double jeopardy. 61 It is clear that the sentencing judge regarded these offences as extremely serious. Although he did not differentiate between the two offences it seems to me that the offence in which the respondent reached for the prohibited firearm during arrest is more serious than the offence in which he remained passive on arrest. In Regina v Penisini; Regina v Lagi; Regina v John Taufahema [2003] NSWSC 892 Wood CJ at CL in considering offences under s 7(1) of the Firearms Act 1996 said: 96. I would add, in relation to the firearm offence, that reference to the Judicial Commission statistics would tend to suggest that insufficient consideration has been given to the degree of seriousness with which the legislature regards such offences, as indicated by the maximum available sentence of imprisonment for 14 years. In part, that may be due to the fact that the population of recorded cases, where non parole periods or fixed terms were imposed, is very small (only 7 in number), or to the fact that some of those cases may have predated the increase in the maximum sentence. In those circumstances, and bearing in mind the serious aggravation involved where the offender who uses or possesses an unlicensed handgun was on parole, I regard it as necessary to impose a sentence above the range which the statistics would otherwise disclose. 97. In this regard, the observations of Howie J in R v Shankley (above), citing R v Oliver (1980) 7 A Crim R 174 and R v H (1980) 3 A Crim R 53, are apposite; "a consideration of the maximum penalty prescribed for 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." (At para 19) 98. That was the case where, upon a crown appeal, a sentence for a firearm offence, by an offender who had been subject to a bond for similar offences, was increased, after allowance for double jeopardy, from a term of imprisonment for four years with a non parole period of 3 years to one of imprisonment for six years with an non parole period of two years and three months, the latter being significantly reduced because of the accumulation of the sentence upon that imposed for another offence, so as to restore the statutory ratio between the total effective sentence and the total non parole period. 99. The decision underlines, in a clear and obvious way, the proper approach to be taken to firearm offences in the case of offenders such as the three persons now before the Court who were on conditional liberty, particularly where they had prior convictions involving the use or possession of firearms, and it provides a much more certain guide than anything which might emerge from the sentencing statistics. 62 The first step in re-sentencing the respondent is the fixing of a non-parole period. Both offences were in my view far more serious than an offence in the middle of the range of objective seriousness. Although the standard non-parole period does not apply in this case because the respondent was convicted after a plea rather than after a trial, the appellant submitted that it is convenient to ask the question posed in R v Way at par [117] namely "are there reasons for not imposing the standard non-parole period"? It seems to me that in sentencing after a plea the Court may have regard to the standard non-parole period applicable after conviction but it must be remembered that the discretion in fixing a non-parole period after a plea is unfettered. 63 As the sentencing judge found, both offences involved loaded firearms and such firearms were not acquired for "purely decorative reasons". An aggravating factor to be taken into account on the first offence is the sentencing judge's finding that the respondent reached for the weapon, amounting to a threatened use of a weapon (s 21A(2)(c)). Other aggravating factors relevant to both offences are that they were committed without regard for public safety (s 21A(2)(i)); and were committed while the respondent was on conditional liberty (s 21A(2)(j)). Additionally the respondent has a record of previous convictions (s21A(2)(d)). The fact that those convictions included the malicious wounding of his nephew resulting from the use of an unauthorised firearm just six months prior to these offences is a seriously aggravating factor, as is the factor that he was on bonds when he committed these offences. 64 The mitigating factors to be taken into account are; that the respondent has a real prospect of rehabilitation by reason of his age (recognising the sentencing judge's finding); that the respondent pleaded guilty to the offences and did so before the magistrate thus requiring the utilitarian value to be assessed in the range of 10 to 25 per cent discount on sentence: R v Thomson; R v Houlton (2000) 49 NSWLR 383; that there was no substantial injury, emotional harm, loss or damage caused by the offence (but lessened by the finding in respect of reaching for the pistol); and that there was no evidence that the offence was not part of planned or organised criminal activity. 65 The aggravating factors of these offences far outweigh the mitigating factors. To be in possession of two loaded prohibited firearms, in respect of one of which there was a threatened use, whilst on bail and within two weeks of being sentenced to eight months periodic detention for maliciously wounding his nephew as a result of the use of an unauthorised firearm, and on the day that he was to commence his detention is conduct of a gravely serious kind. 66 The matters in the Form 1 will be taken into account on the second offence. These matters are taken into account in sentencing the respondent in respect of the second offence with a view to increasing the penalty that would otherwise be appropriate for the offence. In this regard greater weight will be given to the need for deterrence of the respondent and the community's entitlement to exact retribution for serious offences when there are other offences for which no punishment has been imposed, whilst paying regard to the maximum penalty and the principle of totality: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ (with whom Wood CJ at CL, Grove J, Sully and James JJ agreed) at [42]-[43]. 67 The first offence is more serious than the second and the matters on the Form 1 are taken into account in sentencing the respondent on the second offence. The special circumstances as found by the sentencing judge of the real prospect of rehabilitation by reason of the respondent's age is the basis upon which the ratio between the non-parole period and the balance of the term will be adjusted. Applying the principle of double jeopardy and after giving a discount of 20% for the pleas of guilty before the magistrate, an appropriate sentence for each offence is a non-parole period of 4 years with the balance of the term fixed at 2 years. The sentences should be served concurrently and should date from 28 February 2003. 68 The orders I propose are: 1. The appeal is upheld. 2. The sentences imposed by Maguire DCJ on 26 September 2003 are quashed. 3. On each offence and taking the matters on the Form 1 into account on the second offence, the respondent is sentenced to a non-parole period of 4 years and the balance of the term is set at 2 years. The sentences are to date from 28 February 2003 and are to be served concurrently. **************** Last Modified: 10/18/2013 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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