New South Wales Court of Criminal Appeal CITATION: REGINA v Mark Isaac Shane BROWN [2006] NSWCCA 249 HEARING DATE(S): 1 August 2006 JUDGMENT DATE: 17 August 2006 JUDGMENT OF: Spigelman CJ at 1; Howie J at 39; Rothman J at 40 DECISION: 1 Extend time to apply for leave to appeal up to and including 18 July 2005; 2 Leave to appeal granted; 3 Sentence set aside and Appellant resentenced. CATCHWORDS: SENTENCING – Gravity of firearms offences reflected in maximum penalty – Firearms Act 1996, s51D Firearms Act 1996, s52D(2), s51A(2) LEGISLATION CITED: Firearms Amendment (Public Safety) Act 2002 Crimes (Sentencing Procedure) Act 1999, s44 Itaoui v R [2005] NSWCCA 415 Mohamad v R [2005] NSWCCA 406 CASES CITED: R v Dunn [2003] NSWCCA 169 R v NP [2003] NSWCCA 195 R v Cramp [2004] NSWCCA 264 R v Cromarty [2004] NSWCCA 54 PARTIES: Mark Isaac Shane Brown (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2005/2040 COUNSEL: In person (Applicant) J. Girdham (Respondent) SOLICITORS: M. Crozier, Walker Smith Sols S. Kavanagh, NSW Director of Public Prosecutions LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/11/1127 LOWER COURT JUDICIAL OFFICER: Latham DCJ LOWER COURT DATE OF DECISION: 22 October 2004 - 9 - IN THE COURT OF CRIMINAL APPEAL 2005/2040 SPIGELMAN CJ HOWIE J ROTHMAN J Thursday 17 August 2006 REGINA v Mark Isaac Shane BROWN Judgment 1 SPIGELMAN CJ: The Applicant pleaded guilty to one count of possession of more than three unregistered firearms in respect of which the offender was not licensed contrary to provisions of s52D(2) of the Firearms Act 1996. That offence carried a maximum penalty of 20 years imprisonment. A further six offences were taken into account on a Form 1. This included four drug offences, two offences relating to possession of ammunition and possession of handcuffs, each being a prohibited article. 2 The Applicant was sentenced to a term of eight years with a non-parole period of five years. He appeals against the severity of sentence. The facts were outlined by the trial judge as follows: "The offender was the warehouser of a large number of prohibited weapons which he bought and sold to criminals. Included in the cache of weapons in a storage unit at 1008 Old Princes Highway, Engadine were sixteen .32 automatic calibre double barrel keyring pistols and an automatic self loading rifle. Between 13 and 19 September 2003 the police had carried out surveillance of the offender and had legally intercepted a number of the offender's phone calls. In the course of one of those calls the offender is heard to say that he was to make $10,000 on the sale of the keyring pistols alone. The offender's account is that he owed between thirty and $40,000 to various criminal associates arising out of drug deals on behalf of both himself and his wife. His enterprise in weapon sales was an attempt to pay some or all of this money back. Whatever the underlying reason, the fact remains that this is a very serious example of this offence." 3 The Applicant had an extensive prior criminal record albeit not including offences relating to firearms. He had convictions for dishonesty, property offences, drug related offences and escaping lawful custody. Her Honour Judge Latham, then of the District Court, set out the offender's subjective circumstances, which it is not necessary to repeat. 4 Her Honour noted that there was some evidence that the offender was prepared to take steps in the direction of rehabilitation. However, her Honour did not make, and indeed could not make, any finding that the prospects of rehabilitation were significant. 5 Her Honour also noted that the plea of guilty came on the day fixed for trial and assessed the utilitarian value of the plea at 15 percent. Her Honour also gave weight to the fact that the Applicant had served part of his sentence in protective custody and would probably do so in the future. 6 Originally there was only a single ground of appeal: that the sentence imposed by Latham DCJ was excessive. A number of additional grounds were added by way of an amended Notice of Appeal at the hearing. It is convenient to deal with these additional grounds first. 7 The Applicant submits that the sentencing judge failed to adequately take into account his circumstances at the time the offences were committed and that the offences were out of character. Her Honour was, however, well aware that he had a record of prior offending, albeit not for the kind of offence that was before the Court. 8 The matter on which this ground of appeal appears to rely is the assertion by the Applicant that he had become significantly indebted to drug dealers by reason of his drug addiction and, at their suggestion, he had become involved in warehousing of firearms with a view to obtaining money to discharge his debt. This material was before Latham DCJ, particularly in the form of the Probation and Parole Service Pre-Sentence Report. As in the case of other drug users who perform crimes in order to feed their habit, this is a consideration that can explain, but not excuse, criminal conduct directed to obtaining money. As noted in the extract set out in par [2] above, her Honour was aware of the Applicant's assertions in this respect and took them into account. 9 The Applicant asserts that her Honour gave inadequate weight to the fact that the sentence may need to be served in an environment of strict protection. Her Honour made express reference to this consideration in her Remarks on Sentence. She took the matter into account. The weight to be given to this consideration was a matter for her Honour. An inference that she gave the matter inadequate weight could only be drawn as an explanation to why, if it be the case, an excessive sentence was imposed. Accordingly, this adds nothing to the original ground of appeal. 10 The same proposition is true of the next ground of appeal which was that her Honour failed to sufficiently take into account the effect of the Applicant's conduct of the revelation to his wife and his family of the sexual abuse he suffered whilst a child at the hands of a relative. Her Honour also made express reference to this matter in her Remarks on Sentence. She expressly took it into account. Again, the issue of weight is to be determined by assessing the allegedly excessive sentence. 11 The next ground is an assertion that her Honour paid too little regard to the Applicant's intellectual difficulties in determining whether he had shown general contrition or remorse. 12 Her Honour made reference to the expert report outlining the offender's mild form of intellectual disability. Her Honour did note that there was "very little in the way of genuine contrition or remorse over and above that which might be inherent in the plea". The report of the clinical psychologist assessed his disability as "mild". There is no reason to believe that it impinged on his capacity to manifest remorse or contrition to any significant degree. 13 The next ground of appeal was that Latham DCJ failed to personally avail herself of the opportunity to hear from the Applicant. The Applicant did not give additional evidence before her Honour, notwithstanding an invitation to do so. He had, however, given evidence before Bellear DCJ at an earlier stage of the sentencing hearing. He was represented on both occasions. The transcript of the hearing before Bellear DCJ was before her Honour. 14 Additional material was put before her Honour, upon instructions, by counsel representing him. Counsel further stated expressly that the Applicant was in a position to proceed on the day. Updated expert reports were tendered as well as material indicating the Applicant had taken courses in prison and options for his rehabilitation. There is no basis for any suggestion that in any respect he was denied procedural fairness. This ground of appeal should be rejected. 15 The Applicant also submitted that inadequate weight was given by her Honour to the Applicant's willingness to assist authorities. Some evidence was presented to this Court that, after the sentence by her Honour, some assistance was given. The Crown was not in a position to deal with this material. It is not necessary to obtain such submissions. The statement to police referred to sexual offences committed against the Applicant by his uncle. Oral submissions were made about a preparedness to assist police with regard to other offences. 16 During the course of the sentence proceedings before her Honour, the possibility of a discount for assistance was expressly conceded by counsel then appearing for the Applicant, as not arising. No error has been shown. At the time of the imposition of the sentence, no assistance had been given, nor was any in prospect. If some such has been given or offered subsequently, that will no doubt be of relevance to an executive decision making process. It is not a basis available for an appeal from the exercise of the sentencing discretion by her Honour. 17 The original ground of appeal is the alleged severity of the sentence. The offender directed attention to the Court to two cases in which a non-parole period of two years and a head sentence of four years was imposed for cognate offences. 18 The count to which the Applicant pleaded guilty was as follows: "Between 13 September 2003 and 21 September 2003, at Engadine in the State of New South Wales, he did possess more than three firearms, namely 16 x .32 Automatic calibre double barrel 'keyring' pistols, 1 x 5.56 NATO calibre Australian Automatic Arms self loading rifle, 1 x .32 calibre SMITH and WESSON six chamber revolver and 1 x .22 calibre PHOENIX ARMS pistol, 17 of which were prohibited firearms and 2 of which were pistols in circumstances where the said firearms were not registered and the said Mark Isaac BROWN was not a person authorised by a licence or permit to possess the firearms." 19 Section 51D(2) of the Firearms Act 1996 provides: "A person who is in possession of more than three 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." 20 As can be seen from the maximum sentence of 20 years, this is an offence which the legislature regards with considerable gravity. It is well established that the maximum penalty is a reflection of the seriousness with which the public regards particular forms of criminal conduct. 21 When s51D was introduced by the Firearms Amendment (Public Safety) Act 2002, the Minister said: "Firearm related crime is a major concern for both police and the community." 22 The offence, in a series of offences relating to firearms in the Firearms Act 1996, is directed to persons who are engaged in the warehousing of firearms for sale. A person so engaged plays a critical role in the perpetration by other criminals of the worst crimes of violence in this community. The maximum sentence reflects the important role that such conduct plays in the injuries inflicted upon members of the community by deadly weapons. 23 On the facts of the present case the Applicant clearly intended to sell the firearms to criminals for profit. He had in his possession, for that purpose, an automatic self-loading rifle, which he called a "machine gun" and which was clearly capable of inflicting serious injury and also some compact "keyring" firearms, which were particularly dangerous by reason of their capacity for concealment. 24 This was a serious example of the offence under s51D. 25 The principal thrust of the Applicant's written submissions was to compare his sentence with the sentences imposed in two earlier cases, R v NP [2003] NSWCCA 195 and R v Cromarty [2004] NSWCCA 54. As is often the case, comparisons with so few cases is of little assistance to the Court. There are material differences between the cases. 26 Cromarty was a Crown appeal and involved a licensed gunsmith who had collected firearms over a considerable period. There was no evidence that he had any intention of selling the firearms into the black market. A police officer gave evidence that the police had no intelligence of this nature. There is no relevant comparison. 27 NP involved charges of illegal possession of firearms when the maximum penalty was 10 years. The principal issue in the case was how the sentencing judge had taken into account the plea of guilty when sentencing for a range of disparate offences including, relevantly, conspiracy to sell firearms. It was with respect to that latter offence, which penalty was at large, that the sentence of four years with a non-parole period of two years was imposed. This is of little assistance for sentencing under different offences. 28 At the hearing the Applicant relied on two additional cases: R v Dunn [2003] NSWCCA 169 and Mohamad v R [2005] NSWCCA 406. 29 Dunn was a Crown appeal. The charges were lain under s51(1A) of the Firearms Act 1996. A substantial number of weapons were involved. The sentence was imprisonment for seven years with a non-parole period of thee years and nine months. It is not clear from the Reasons in this Court what the Appellant's precise role in the transaction was. He is described as having "participated" in the sale of the weapons. 30 In any event, a Crown appeal, when the Court is restricted by the principle of double jeopardy, is not a particularly useful indication in the case of a sentence appeal. Allowing for this factor, there is no disparity between the sentences. 31 Mohamad involved an attempted purchase of 18 firearms contrary to s51A(2) of the Firearms Act 1996. The maximum penalty was five years. The sentence of two years with a non-parole period of fifteen months is of no assistance in assessing an offence with a maximum sentence of 20 years. 32 These cases are of little assistance for the purposes of sentence under s51D which was an offence subsequently introduced with a heavy maximum penalty, manifesting the intention of the Parliament that offences of the character now under consideration had to be treated more seriously than they had hitherto been treated. 33 The offence to which the Applicant pleaded guilty was a serious example of the offence. Her Honour's sentence was well within the range of the exercise of the sentencing discretion. Indeed a case could be made that it was low in the range. 34 In the Crown submissions it was noted that the principal offence was committed after 1 February 2003 and, accordingly, s44 of the Crimes (Sentencing Procedure) Act 1999 applied so that her Honour was obliged to first sentence the Applicant to a non-parole period and then to a balance of term. The Crown acknowledged that her Honour did not express the sentence in that manner. 35 That is, at most, a technical error in the circumstances of this case, not requiring the intervention of this Court: R v Cramp [2004] NSWCCA 264 at 44; Itaoui v R [2005] NSWCCA 415 at [14]-[15]. 36 The application before this Court was lodged some two months out of time. The Crown opposes any extension of time for leave to appeal. This is a case where the delay is of no account. 37 The Court should in any event grant leave in order to resentence the Applicant in accordance with s44 and the extension of time should be granted, if only for that purpose. 38 It is necessary only to correct the technical error identified by the Crown: 1 Extend time to apply for leave to appeal up to and including 18 July 2005. 2 Leave to appeal granted. 3 Set aside the sentence of 22 October 2004. 4 The Appellant is sentenced to a non-parole period of five years commencing on 20 September 2003 and expiring on 19 September 2008 and a balance of term of three years commencing on 20 September 2008 and expiring on 19 September 2011. 39 HOWIE J: I agree with the orders proposed by the Chief Justice for the reasons given by him 40 ROTHMAN J: I agree with the Chief Justice. ********** 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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