New South Wales Court of Criminal Appeal CITATION: Regina v Logan [2006] NSWCCA 416 HEARING DATE(S): 20/11/2006 JUDGMENT DATE: 21 December 2006 JUDGMENT OF: James J at 1; Hidden J at 2; Hislop J at 29 DECISION: Appeal dismissed CATCHWORDS: CRIMINAL LAW: - Crown appeal - possession of pistol, break and enter with intent to commit serious indictable offence - two years imprisonment suspended, 300 hours community service - approach to standard non-parole period on firearm charge - whether sentence is manifestly inadequate - exceptional case Firearms Act 1996 LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 R v Dang [2005] NSWCCA 430 CASES CITED: R v Way (2004) 60 NSWLR 168 R v Engert (1995) 84 A Crim R 67 The Queen v Osenkowski (1982) 30 SASR 212 PARTIES: Regina (applicant) Jay Logan (respondent) FILE NUMBER(S): CCA 2006/1957 COUNSEL: W Dawe SC (Crown) B Collaery (respondent) SOLICITORS: Solicitor for Public Prosecutions (applicant) Collaery Lawyers (respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/41/0093 LOWER COURT JUDICIAL OFFICER: Williams DCJ IN THE COURT OF CRIMINAL APPEAL 2006/1957 James J Hidden J Hislop J Thursday 21 December 2006 Regina v Jay LOGAN Judgment 1 JAMES J: I agree with Hidden J. 2 HIDDEN J: This is an appeal by the Director of Public Prosecutions against sentences imposed in the District Court upon the respondent, Jay Logan, after he pleaded guilty to the following charges: (1) Unauthorised possession of a pistol, an offence under s7(1) of the Firearms Act 1996, carrying a maximum sentence of imprisonment for 14 years and a standard non-parole period of three years; (2) Breaking and entering a dwelling house with intent to commit therein a serious indictable offence, namely intimidation, an offence under s113(1) of the Crimes Act 1900, carrying a maximum sentence of 10 years. 3 On the first charge, the respondent was sentenced to imprisonment for two years, comprising of a non-parole period of 14 months and a balance of term of ten months. That sentence was suspended under s12 of the Crimes (Sentencing Procedure) Act 1999, upon his entering into a bond to be of good behaviour and to observe certain specified conditions for two years. On the second charge, he was ordered to perform three hundred hours community service. The ground of the Director's appeal is that those sentences are manifestly inadequate. 4 The learned sentencing judge began his remarks on sentence with the observation that this was "a difficult and unusual case". Indeed it was. The respondent was 23 years old at the time of the offences, and is now 25. He has no prior convictions of any significance. He left school midway through year 12 and joined the army. He served for about three years, including a tour of duty in East Timor, and was discharged early in 2003. It was during his military service that he met and befriended Owen Van Duren, who was to be his co-offender in the offence of break and enter with intent. Mr Van Duren was to have been sentenced with him, but had absconded. He has since been dealt with. Facts 5 In February 2004, the complainant, John Clancy borrowed $5000 from Mr Van Duren on the pretext that the money was to be invested in a pyramid scheme. When Mr Van Duren attempted to recover the money, Mr Clancy lied to him about when it would be repaid. On 28 May 2004 Mr Van Duren twice went to Mr Clancy's residence in Queanbeyan and demanded the money, whereupon Mr Clancy called the police. 6 The respondent was working at the time as a security guard at the Canberra Casino. In the morning of 5 June 2004, Mr Van Duren told him that he needed to see Mr Clancy about the money owing, and that Mr Clancy was "a big bloke" and might get "aggro". He asked the respondent to accompany him and the respondent agreed to. 7 That night, the two men travelled by car to Mr Clancy's residence. The respondent had a Glock 9mm pistol, which was loaded. They parked in the car park of a nearby motel and got out of the car, wearing balaclavas. They were also carrying handheld radios for communication. They were observed by the manager of the motel, who called the police. 8 They approached Mr Clancy's residence, an apartment, saw that there were no lights on and concluded that there was no-one inside. Mr Van Duren told the respondent to wait until he came back or called him. The respondent took it that Mr Van Duren was going to break into the apartment and look for the money. In fact, having gained entry to the premises by cutting a hole in the bedroom ceiling, Mr Van Duren cut the interior phone lines and left a threatening note, in the middle of which was a .45 calibre bullet. His Honour accepted that the respondent did not know that this was Mr Van Duren's intention. As I understand it, the plea of guilty to the charge of break and enter with intent was entered upon the basis that the respondent was a party to a joint criminal enterprise in which it was anticipated that Mr Clancy would be at home and that Mr Van Duren would apply pressure to him in some way to repay the money. 9 In the meantime, the respondent had walked back to the car. He was nervous. He saw police approaching and ran. He was pursued into a nearby driveway, where he was observed speaking into the handheld radio, saying, "It's off, it's off." 10 He was apprehended and searched. Apart from the radio, police found on his person an extendable baton, a number of zip ties in the shape of handcuffs, a roll of black tape and a loaded magazine for the 9mm Glock pistol. He had apparently discarded the loaded pistol itself, because police found it, together with a folding knife, in the surrounding area. His army identification was found in the glove box of the vehicle in which he and Mr Van Duren had driven to the scene. 11 Related offences of possessing ammunition, a prohibited weapon (the baton) and the knife were set out on a certificate under s166 of the Criminal Procedure Act 1986. For those offences his Honour ordered the respondent to perform one hundred hours community service, concurrently with the order in relation to the charge of break and enter with intent. There was no complaint about this order in the appeal. 12 In March 2003, the respondent had been issued with a firearms licence for rifles, shotguns and pistols in the Australian Capital Territory. However, it transpired that he was not entitled to have a pistol unless he was a member of pistol club and had undergone certain training, despite his army background. In the following month he attended the firearms registry in Canberra and had the pistol category deleted from his licence. His Honour could find no adequate explanation in the evidence of how and when the respondent came into possession of the Glock pistol. However, he accepted that it was carried on the night in question only to be used in self-defence if Mr Clancy became aggressive, and that the respondent believed that no occasion would arise to use it. 13 His Honour assessed the criminality of the episode in this way: Except for the fact real weapons were used and a real break-in occurred one could be forgiven for thinking this was an episode from a TV soap opera. How either offender expected to escape detection is baffling as they chose to park their vehicle in a motel car park and the motel manager was naturally curious at his prospective guests behaving in a very odd manner. The Crown concedes that Mr Logan's role was a lookout to ensure Mr Van Duren's safe retreat from whatever he was doing. What either of them thought might be achieved by all this is difficult to imagine. Whilst there was obviously an element of planning in regard to the event, part of which was conducted as if it was a military operation, it is difficult to see the need for Mr Logan to have gone equipped with the various things that he had on him at the time, except to see it in the nature of him acting out once again being in the army with orders to carry out a vital mission. It all seems to have taken place at a remove from reality. Subjective Case 14 I have already touched upon the respondent's background. He had a somewhat disturbed upbringing, never having known his natural father and having had a difficult relationship with a violent stepfather. The family moved from Queensland to New South Wales, and finally to the Australian Capital Territory. 15 After a period of adjustment, he settled well into army life and his Honour had before him a number of references to that effect. However, his service in East Timor exposed him to experiences which his Honour described as "harrowing and horrifying". In addition, a non-commissioned officer required his section to cross the border between East and West Timor whilst on patrol, a course which was inappropriate and possibly illegal. The matter was reported to higher authorities but no action was taken. He was unsettled on his return to Australia and decided to leave the army. After some further difficulties, which need not be recounted, he was honourably discharged. 16 He had difficulty re-adjusting to civilian life and regretted his decision to leave the army. He had a variety of short-term jobs, culminating in the position as a security guard to which I have referred. On the day prior to the offences, he helped to restrain a person at the Casino who was wielding a knife. 17 His Honour had the reports of two psychiatrists, together with the report and oral evidence of a neuro-psychologist. The effect of that material was that the respondent suffered from post traumatic stress disorder and major depression. He had attempted suicide late in 2003. One of the psychiatrists, Dr Jolly, expressed the view that most of the positive things which he had learned, particularly about relationships with others, had been during his military training and associated with it. This, the doctor thought, left him with an "over-valued mateship ideal", leading to an error of judgment on his part as a result of a request made to him by "his ex-military colleague". It was clear from the whole of this evidence that the respondent would benefit from appropriate psychotherapy supplemented, if necessary, by medication. 18 By the time he appeared for sentence the respondent had obtained employment with a communications company and his employer, who was aware of these charges, was supportive of him. He had enrolled at the Canberra Institute of Technology to complete his Higher School Certificate, and was making good progress. He was also in what his Honour described as a "supportive relationship" with a young woman, and they planned to marry. 19 In the light of all this material, his Honour expressed his approach to sentence as follows: Subjectively speaking I have a young man who has committed two serious offences. He had served with distinction in the Australian military forces in a combat zone. The day before the incident he assisted in restraining a knife wielding assailant in the Canberra Casino. Since his return to civilian life, from the army, almost directly from a combat involvement, he has had significant problems of adjustment and was not offered any debriefing by the Department of Defence. I am satisfied at the time he committed these offences he was deeply depressed as well as suffering from a degree of post traumatic stress disorder. I accept that as a result of the peculiar and necessary bonding and mateship encouraged by the army he felt obliged to help his friend, Mr Van Duren and because of his mental state at the time lacked the full capacity to rationalise his intended actions in the real world. In those circumstances I am not satisfied that there needs to be a substantial element of general deterrence in this particular case. The appeal 20 His Honour considered the standard non-parole period of three years for the firearm offence, referring to the now familiar principles in R v Way (2004) 60 NSWLR 168. He noted that the respondent's plea of guilty was a sufficient reason to depart from the standard non-parole period, but he also found that the offence fell below the mid-range of objective seriousness of offences of its kind. The Crown prosecutor in this Court challenged that finding. 21 What his Honour said was this: In my view Mr Logan's offending falls well below the midrange for objective seriousness for the firearms offence, although determining that criteria for that particular offence could be quite difficult, principally because there are probably not that many such cases that come before the courts. I accept that when the firearm was obtained the weapon was not intended to be used for an unlawful purpose. However the fact that weapons legitimately obtained can be used for unlawful purposes is the reason why the regulatory regime around weapon possession and use is so stringent. 22 The Crown prosecutor submitted that his Honour had misapprehended the evidence about the circumstances in which the respondent came into possession of the Glock pistol. However, as his Honour rightly observed, the evidence about that was confusing and unsatisfactory and, as I have said, he found that the respondent's possession of the pistol remained unexplained. Certainly, there was no evidence to suggest that he had acquired the weapon for any unlawful purpose, and it was open to his Honour to accept that he had not. 23 The Crown prosecutor pointed out that mere possession of the pistol, whatever the circumstances, was sufficient to constitute the offence. Here, he observed, the respondent had it with him in a public place in circumstances where it might have been fired, if only to defend himself or Mr Van Duren. I can see the force of those observations. As Howie J observed in R v Dang [2005] NSWCCA 430 at [22], whether an offence falls in the mid-range of seriousness "is a matter of judgment on which reasonable minds might differ", but it is necessary for a sentencing judge to specify the factors which were taken into account in making the assessment. 24 Presumably, his Honour's determination that the offence fell below the mid-range was based upon his characterisation of both offences in the passages from his remarks which I have quoted above. That includes his Honour's reference to the respondent's psychological condition and his finding that "his mental state at the time lacked the full capacity to rationalise his intended actions in the real world". This led his Honour to conclude that there need not be "a substantial element of general deterrence…". No doubt, this was a reference to the familiar line of authority dealing with the sentencing of people suffering mental illness to be found in cases such as R v Engert (1995) 84 A Crim R 67. 25 In my view, it was open to his Honour to assess the offence within the range of seriousness as he did. It is apparent from the relevant passage of his remarks that his Honour was well aware of the gravity of an offence of this kind. In any event, the respondent's plea of guilty and his subjective case provided ample reason to depart from the standard non-parole period. 26 Otherwise, the Crown prosecutor submitted that the two year sentence for the firearm offence is manifestly inadequate, the more so because it was suspended. The same submission was made in respect of the community service order for the break and enter offence. There is no doubt that both sentences are markedly lenient but, in my view, justifiably so. This was a most unusual case. To the features of the case favourable to the respondent to which I have already referred there should be added his Honour's finding that his prospects of rehabilitation were "excellent" and that there was "little or no chance" of his re-offending. 27 The principles governing Crown appeals are well known and need not be repeated. Also well established is the flexibility of a sentencing judge's discretion, within the bounds of principle and having regard to the desirability of consistency in sentencing, particularly in exceptional cases where leniency is called for: see, for example, the familiar passage in the judgment of King CJ in The Queen v Osenkowski (1982) 30 SASR 212 at 212-3. Sentencing judges must be free to fashion an exceptional disposition in an exceptional case. This was such a case. 28 I note, in passing, that the respondent has now completed the community service ordered in respect of the break and enter offence. That, however, is by no means determinative of the appeal. I am not persuaded that his Honour fell into error in his reasons or in his disposition of the case. I would dismiss the appeal. 29 HISLOP J: I agree with Hidden J. ********** 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.