New South Wales Court of Criminal Appeal CITATION: Tran v R [2010] NSWCCA 183 HEARING DATE(S): 23 June 2010 JUDGMENT DATE: 19 August 2010 JUDGMENT OF: McClellan CJatCL at 1; Hislop J at 2; Barr AJ at 27 DECISION: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentences and in lieu thereof sentence the applicant as follows: count 1 - imprisonment for a non parole period of six months to commence on 10 June 2008 and expire on 9 December 2008 with a balance of term of two months to expire on 9 February 2009; count 2 - imprisonment for a non parole period of three years two months to commence on 10 September 2008 and expire on 9 November 2011 with a balance of term of one year one month to expire on 9 December 2012; count 3 - imprisonment for a fixed term of two years two months to commence on 10 September 2008 and expire on 9 November 2010. The earliest date on which the applicant will be eligible for release to parole is 9 November 2011. CATCHWORDS: CRIMINAL LAW - sentence - firearms - prohibited weapon - statutory discount for guilty plea - resentence. Weapons Prohibition Act 1998 LEGISLATION CITED: Firearms Act 1996 Criminal Case Conferencing Trial Act 2008 Crimes (Sentencing Procedure) Act 1999 CASES CITED : R v Mitchell [2007] NSWCCA 296; (2007) 177 A Crim R 94 Micklesson v R [2009] NSWCCA 61 PARTIES: Andrew Tran v Regina FILE NUMBER(S): CCA 2009/3281 COUNSEL: M. Johnson (Applicant) S. Dowling (Crown) SOLICITORS: Nyman Gibson Stewart (Applicant) Solicitor for Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2009/3281 LOWER COURT JUDICIAL OFFICER: King DCJ LOWER COURT DATE OF DECISION: 19 June 2009 IN THE COURT OF CRIMINAL APPEAL 2009/3281 McCLELLAN CJ at CL HISLOP J BARR AJ Thursday 19 August 2010 ANDREW TRAN v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Hislop J. 2 HISLOP J: On 3 February 2009 the applicant pleaded guilty in the Central Local Court to the following offences: Count 1: Possess a prohibited weapon without being authorised to do so by a permit, contrary to s 7(1) of the Weapons Prohibition Act 1998. The maximum penalty for such an offence is 14 years imprisonment. A standard non parole period of three years is applicable. Count 2: Possess a prohibited pistol not being authorised to do so by a licence or permit, contrary to s 7(1) of the Firearms Act 1996. The maximum penalty for such an offence is 14 years imprisonment. A standard non parole period of three years is applicable. Count 3: Possess a firearm that was not registered, contrary to s 36(1) of the Firearms Act 1996. The maximum penalty for such an offence is 10 years imprisonment. On 8 March 2009 the applicant was committed to the District Court for sentence. 3 On 19 June 2009 the applicant was sentenced for those offences in the District Court as follows: Count 1: Imprisonment for a fixed term of nine months to commence on 10 June 2008 and expire on 9 March 2009. Count 2: Imprisonment for a non parole period of three years six months commencing on 10 September 2008 and expiring on 9 March 2012 together with a balance of term of one year and two months commencing on 10 March 2012 and expiring on 9 May 2013. Count 3: Imprisonment for a fixed term of two years four months commencing on 10 September 2008 and expiring on 9 January 2011. The sentence on count 2 took into account an offence on a Form 1 being the possession of ammunition without a licence, contrary to s 65(3) of the Firearms Act . The maximum penalty for this offence was 50 penalty units. 4 The applicant sought leave to appeal against the sentences on the following grounds: "1. The sentencing judge erred by not allowing a discount of 25 percent for the plea of guilty before Committal. 2. The sentencing judge erred in assessing the objective seriousness of the firearms offence. 3. The sentence was manifestly excessive." 5 The facts were agreed. In essence, at approximately 3.00 am on 10 June 2008 two police officers stopped in response to traffic lights at an intersection. They observed a Subaru WRX which was also stopped in response to traffic lights at the intersection. There were four male occupants in the vehicle. The actions of the driver and passengers aroused the interest of the police who pulled the vehicle over a short distance from the lights. As his Honour recounted: "Information regarding the WRX and its occupants was then broadcast over police radio and Officer O'Brien reached into the car to remove the keys from the ignition. Officer O'Brien noticed all four [occupants] become extremely nervous, looking from side to side and behind them as they fidgeted and reached down between their legs with their hands. He then stepped back from the vehicle and pulled the restraining clip from his firearm, yelling 'Keep your hands up where I can see them, stop moving around and keep your hands up. If you don't someone is going to get hurt.'" 6 A search of the vehicle and its occupants revealed the presence of a balaclava and three white gloves. One occupant (Nguyen) had a machete with a 50 cm blade secreted in his pants. A black Parabellum pistol containing a magazine with 10 live rounds of ammunition was located in the foot well where one occupant (Chompeay) had been sitting. A 32 calibre Beretta pistol was located in the foot well area on the driver's side where Do had been sitting. It contained a magazine with two live rounds of ammunition. A plastic bag containing 0.27 grams of methylamphetamine was located in his pocket. The applicant had a Taser-type device, in working order, on his person and a copper coloured bullet in his pocket. A .25 calibre pistol with a magazine with six live rounds was found in the foot well area where the applicant had been sitting. The pistols and Taser-type device were prohibited and unregistered. The occupants had no licences or permits in respect of them. Numerous items of correspondence in the name of Do were located in the glovebox of the vehicle. 7 All four occupants of the vehicle were arrested. Subsequently Nguyen was deported before charges were laid against him. The applicant and the other two occupants were sentenced together. 8 In sentencing the applicant, his Honour, the sentencing judge, allowed a 20 percent discount for the guilty pleas. Regrettably, his Honour's attention was not drawn to the Criminal Case Conferencing Trial Act 2008 which had application in this case and provided: "17(1) If an offender pleaded guilty to an offence at any time before being committed for sentence, the sentencing court must allow a discount for the guilty plea calculated as follows: (a) if the court imposes a sentence of imprisonment for a term—a term that is 25% less than the term the court would otherwise have imposed" 9 The Crown conceded that a material error had occurred in this regard. In the circumstances the sentences must be quashed and the applicant resentenced. It is therefore unnecessary to consider the other grounds of appeal. 10 The applicant did not give evidence on sentence. Evidence as to his subjective case is taken from a pre sentence report and other material in the Crown case. 11 The applicant was born in June 1978 in Vietnam. His family left Vietnam in 1984 and spent 18 months in Malaysian refugee camps and in Indonesia before arriving in Australia in 1986. The applicant left school in year 12 without completing the Higher School Certificate and since leaving school completed some short courses oriented to employment and basic requirements for the hospitality industry. He has only had intermittent work. He admits to past heroin use but claims to be drug free and alcohol abstinent, and this appears to be confirmed by departmental records since 1998. 12 The applicant has been convicted of a number of offences including goods in custody, break and enter with intent, malicious damage, shoplifting, possess prohibited drug, and driving offences. He has served a term of four years imprisonment with a non parole period of three years, commencing 15 February 2001 for the offence of maliciously inflict grievous bodily harm. During the six years prior to the subject offences the applicant had only motor vehicle offences. Accordingly, there may be some prospect of rehabilitation. 13 The Firearms Act 1996 s 7(1) provides: "A person must not possess or use a prohibited firearm or pistol unless the person is authorised to do so by a licence or permit." 14 A prohibited firearm is defined in s 4 and means a firearm prescribed in Sch 1 of the Firearms Act 1996. The firearms there described ranged from a machine gun, rifle, shotgun down to replica firearms. A prohibited pistol is defined in s 4C(1). 15 Section 7(1) is of wide application. It refers to both possessing and using a firearm. It can be argued that using is a more serious offence than possessing and that a pistol is less dangerous than a machine gun. However, each can be lethal and a pistol may be readily concealed upon the person. Much will depend upon the particular circumstances. 16 In this case the pistol was loaded and unsecured. It was in the applicant's possession when he was a member of a group of heavily armed young men. The pistol was within a vehicle which was upon a public street in an urban area. It was capable of concealment upon the applicant's person or in the vehicle. A balaclava and gloves were in the vehicle. The pistol represented a high risk to members of the public and to the arresting police though it was not used on this occasion. There was no acceptable innocent explanation for the possession of the pistol which in any way mitigated the objective seriousness of the offences. There was no material before the Court from the applicant explaining his involvement in these offences. 17 The objective circumstances of count 2, in my opinion, place it significantly above the middle range of objective seriousness for such offences. In these circumstances, reference to the yardstick provided by the standard non parole period is of little assistance. The maximum penalty of 14 years becomes the principal factor in determining the sentence as the objective criminality is above the mid range – R v Mitchell [2007] NSWCCA 296; (2007) 177 A Crim R 94 at [37], Micklesson v R [2009] NSWCCA 61 at [15]-[16]. 18 The Weapons Prohibition Act 1998 s 7(1) provides: "(1) A person must not possess or use a prohibited weapon unless the person is authorised to do so by a permit." 19 The definition of "prohibited weapon" is contained in s 4 of the Weapons Prohibition Act and means anything described in Sch 1. Schedule 1 includes a wide range of weapons extending from bombs, grenades, rockets and missiles to knives, crossbows, slingshots, knuckledusters and a studded glove. The Taser type device fell within the description in Sch 1 cl 2. 20 I have had regard to ss 3A and 5 of the Crimes (Sentencing Procedure) Act 1999. No penalty other than full time imprisonment is appropriate and no submission to the contrary was made. 21 The applicant is entitled to a 25 percent discount for the pleas of guilty. The subjective factors are not compelling. There is no acceptable evidence of remorse or contrition, the applicant's record is not one which entitles him to any leniency from the Court. I have taken into account the matter on the Form 1 on the second count. There are no special circumstances to justify any reduction of the non parole period. 22 Judicial Commission statistics and a table of cases were before the Court in respect of the count 2 offence. The statistics were based upon a small number of cases. These were too limited to provide guidance as to the appropriate range particularly when dealing with an offence where the circumstances may be so variable. Similarly, I did not find the table of cases of any real assistance. 23 The applicant was arrested on 10 June 2008 and has remained in custody solely as a result of the subject offence since that date. The sentence on the first count should therefore commence on 10 June 2008 (Crimes (Sentencing Procedure) Act 1999, s 47). There should be some accumulation with count 2 in recognition of the fact that though the offences occurred on the one occasion, the Taser-type device was a separate and distinct weapon from the pistol. The count 1 offence, by reason of the nature of the weapon involved, was significantly below the middle range of objective seriousness for such offences. The penalty that would have been imposed but for the guilty plea was 11 months. Accordingly, in my opinion, the appropriate sentence (rounded off) on the count 1 offence is imprisonment for a non parole period of six months to commence on 10 June 2008 and expire on 9 December 2008 with a balance of term of two months, expiring on 9 February 2009. 24 In my opinion, the appropriate sentence (rounded off) on the count 2 offence is imprisonment for a non parole period of three years two months to commence on 10 September 2008 and expire on 9 November 2011 with a balance of term of one year one month to expire on 9 December 2012. The penalty that would have been imposed on count 2 but for the guilty plea was five years nine months imprisonment. 25 The third count relates to the same pistol. In my opinion, the appropriate sentence for this offence is imprisonment for a fixed term of two years two months to commence on 10 September 2008 and expire on 9 November 2010. 26 I propose the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentences and in lieu thereof sentence the applicant as follows: count 1 - imprisonment for a non parole period of six months to commence on 10 June 2008 and expire on 9 December 2008 with a balance of term of two months to expire on 9 February 2009; count 2 - imprisonment for a non parole period of three years two months to commence on 10 September 2008 and expire on 9 November 2011 with a balance of term of one year one month to expire on 9 December 2012; count 3 - imprisonment for a fixed term of two years two months to commence on 10 September 2008 and expire on 9 November 2010. The earliest date on which the applicant will be eligible for release to parole is 9 November 2011. 27 BARR AJ: I agree with Hislop 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.