Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ballard v R [2011] NSWCCA 193 Hearing dates: 8 July 2011 Decision date: 29 August 2011 Before: Beazley JA at [1] Hall J at [2] Harrison J at [3] Decision: 1. Grant leave to appeal. 2. Allow the appeal in part. 3. Order that in lieu of the sentence imposed on the applicant by King DCJ for the firearms offence the applicant be sentenced to a period of 4 years imprisonment with a non-parole period of 2 years and 6 months commencing on 11 May 2010 and expiring on 10 November 2012 and a balance of term of 1 year and 6 months commencing on 11 November 2012 and expiring on 10 May 2014. 4. Otherwise confirm the orders made and the sentences imposed by King DCJ on 13 August 2010. Catchwords: CRIMINAL LAW – appeal against sentence - whether sentence manifestly excessive – whether inadequate level of concurrence of a drug offence and a firearms offence having regard to principles of totality – appeal allowed in part Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985 Firearms Act 1996 Weapons Prohibition Act 1998 Cases Cited: Alvares v R; Farache v R [2011] NSWCCA 33 Attorney General's application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 Clarke v R [2009] NSWCCA 49 Georgopolous v R [2010] NSWCCA 246 Mack v R; Mack v R [2009] NSWCCA 216 Nguyen v R [2011] NSWCCA 127 R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 R v AZ [2011] NSWCCA 43 R v Cramp [2004] NSWCCA 264 R v Elfar [2003] NSWCCA 358 R v Gu [2006] NSWCCA 104 R v Hammoud [2000] NSWCCA 540 R v Harmouche [2005] NSWCCA 398 R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 R v Pearce [1998] HCA 57; (1998) 194 CLR 610 R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 Sivell v R [2009] NSWCCA 286 Tran v R [2010] NSWCCA 183 TS v R [2007] NSWCCA 194 Category: Principal judgment Parties: Ben Arthur Ballard (Applicant) Crown (Respondent) Representation: Counsel: R Wilson (Applicant) J Pickering (Respondent) Solicitors: B Sandland, Solicitor for Legal Aid New South Wales (Applicant) S Kavanagh, Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/48237 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Date of Decision: 13 August 2010 (date of sentence) Before: King DCJ File Number(s): 2009/48237 Judgment 1. BEAZLEY JA: I agree with the reasons and orders proposed by Harrison J. 2. HALL J: I agree with Harrison J. 3. HARRISON J: The applicant pleaded guilty on 30 September 2009 to the following offences: Count 1: Supply a prohibited drug, namely 23.05g of methylamphetamine. This was an offence contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. Count 2: Possession of a prohibited firearm. This was an offence contrary to s 7(1) of the Firearms Act 1996. 1. The drug offence carried a maximum penalty of 15 years imprisonment with no standard non-parole period. The firearms offence carried a maximum penalty of 14 years imprisonment with a standard non-parole period of 3 years. 2. Pursuant to s 166 of the Criminal Procedure Act 1986 there were six related offences before the sentencing court. They were possessing shortened firearm, possessing prohibited weapon, possessing prohibited firearm, possessing prohibited drug, receiving stolen goods and possessing prohibited plant. His Honour took these offences into account on two forms when sentencing the applicant in accordance with s 32 of the Crimes (Sentencing Procedure) Act 1999. 3. His Honour King DCJ sentenced the applicant to a fixed term of imprisonment of 2 years and 6 months from 11 May 2009 for the drug offence. He sentenced the applicant to a period of 4 years imprisonment for the firearms offence with a non-parole period of 2 years and 6 months commencing on 11 May 2011 and expiring on 10 November 2013 and a balance of term of 1 year and 6 months commencing on 11 November 2013 and expiring on 10 May 2015. The overall effective sentence was therefore one of 6 years imprisonment commencing on 11 May 2009 and expiring on 10 May 2015 with an effective non-parole period of 4 years and 6 months commencing on 11 May 2009 and expiring on 10 November 2013. 4. The applicant seeks leave to appeal against these sentences upon the following grounds: Ground 1: The sentencing proceedings miscarried when [his Honour] rejected exculpatory material, to which the Crown had not objected, without informing the parties of his intention [to do so]. Ground 2: The sentencing judge erred in his approach to the assessment of the objective seriousness of the drug offence, in particular by finding that the applicant was engaged in a "significant commercial operation". Ground 3: The sentencing judge erred in his approach to the applicability of the standard non-parole period in relation to the firearms offence, including when assessing the objective seriousness of the offence. Ground 4: The sentencing judge erred, in considering whether special circumstances justified departure from the statutory ratio between the term of the sentence and the non-parole period, by failing to take into account anything other than the fact of partial accumulation in relation to the firearms offence. Ground 5: The sentencing judge erred in his approach to totality and the extent of accumulation. Ground 6: The sentences, including the overall effective sentence, are manifestly excessive. Agreed facts 1. The facts were not in dispute. On 11 May 2009 police executed search warrants at the applicant's home and that of his mother. Police found a total of 23.04g of methylamphetamine at the two locations. The applicant admitted that the drug was his and that he had it for the purpose of sale. Also present at his house were so-called indicia of supply such as mobile phones, electronic scales, resealable plastic bags and lists of names with amounts of money, as well as just over $1,000 in cash. The drug found at the applicant's house was divided into 12 small packages weighing a total of 3.02g and two packages weighing a total of 6.06g. The remaining 13.42g were found at his mother's house, divided into two packages. Count 1 relates to the applicant's possession of the total quantity of the drug for the purpose of supply. 2. Also found were 0.7g of cannabis leaf and a cannabis plant, which the applicant said were for his personal use. (The sentencing judge and the Crown apparently accepted that). These items were the subject of the possession offences on Form 1B. 3. An amount of property, including a watch, a laptop computer and some cosmetics were also located. The latter still retained security tags from Woolworths Ltd. The computer was worth $1,400 and the cosmetics had a retail value of $12,950. This property was the subject of the receiving offences on Form 1B. 4. Police located a rifle that had been modified to resemble a walking stick, the subject of Count 2 on the indictment. The rifle was not loaded and no live ammunition for it was located. Spent .22 cartridges and holes in the kitchen door consistent with .22 calibre projectiles were found. The rifle had been shortened by the removal of the stock. Possession of that weapon was the subject of the relevant offence on Form 1A. 5. A homemade mace and a non-functioning paint ball pistol were also found. These became the subject of the remaining offences on Form 1A. The sentencing judge expressed the view that these offences were of a level of seriousness that would have had them dealt with summarily. 6. There was no reference in the agreed facts to the involvement of any other person in the supply of prohibited drugs. There was no explanation given concerning the provenance of the items that were the subject of the receiving offence. Ground 1 1. The applicant did not give evidence at the sentencing hearing. It is apparent that the sentencing judge's assessment of the objective seriousness of the offending behaviour was significantly influenced by his Honour's view of whether or not the applicant acted alone or in concert with others in the supply of drugs. The issue was the subject of comment in a psychiatrist's report from Dr Furst, upon which the applicant relied. Part of that report is as follows: "The offences in question were part of an enterprise that Mr Ballard was involved in with others. He understood that his actions were wrong, however he appears to have open [sic] to the suggestion of the other parties involved in the crimes before the Court. In my opinion, the cognitive deficits Mr Ballard suffers from, including poor attention, poor judgment, difficulty in problem solving, concrete (inflexible) thinking, mental slowness, problems with working memory would have made him more vulnerable to suggestions of others and were substantial contributing factors in his offending behaviour." 1. His Honour's remarks on sentence included the following passages: "… Dr Furst had access to the medical and clinical notes from the Liverpool Hospital and the Liverpool Bone Injury Unit and all of the material that had been provided to Mr Champion as well as…consulting or interviewing the offender. Of note in respect of the offence itself, contained in Dr Furst's report is an explanation or account given by the offender in respect of the offence. In part it indicates that the offender asserted that there were three people involved in the supply of drugs, and that they were not making any money from it. "We were giving out too much on credit and lost everything. I was the only one arrested." The original idea was said to have come up in conversation between himself and what I refer to as the co-offenders. He said that: "We were just getting ripped off everywhere, all it was was a little bit for me, I never bought the stuff, I was just there for the ride." He said that the stolen goods had been given to him by customers and the intention was to sell the goods at some point at the markets, but that he and the co-offenders "never got around to it". I note that there is no indication in the agreed facts of there having been any other person that was a participant in the offence. The offender has not given evidence on sentence, and the facts, in terms of the admissions said to have been made at the time, indicate that the offender was, in fact, the principal in relation to the offences that occurred at his premises, other than that portion of the drug recovered at his mother's, and he acknowledged the weapons as being his and having carried out the modification to the item described as the walking stick. The account given by the offender appears to be an attempt to diminish his responsibility or moral culpability in relation to the offences in circumstances where there is, in fact, no evidence of the participation of any other person before the Court. There have been a number of decisions over the years which highlight the need for the sentencing Court to be circumspect in relation to untested self serving statements made by offenders, whether they be by way of letters from the offender to the Court, or by way of statements made to presentence officers and/or psychologists or psychiatrists. [His Honour cited the authorities]. In the circumstances of this matter, the Court does not propose to accept in any way the assertion made to the psychiatrist as to the participation of others. Again, the report from Dr Furst is an extensive report. Before referring to any specific content of the report I note that in part the psychiatrist has accepted…the assertions made to him by the offender that he was participating in an enterprise involving others as previously outlined in these remarks. The fact that the psychiatrist has relied on that material somewhat diminishes the utility of the report. However, in respect of the offender's cognitive functioning, Dr Furst found on examining the material before him that his brain injury would be classified as moderate, and that common long term symptoms of a moderate to severe traumatic brain injury are changes such as inappropriate social behaviour, deficits in social judgment and cognitive changes, and special problems with sustained attention, processing speed and executive functioning, and he said that those features are evident in the offender's psychiatric history since the accident and in the results of neuropsychological testing. So much is accepted by the Court. The difficulty with the acceptance of the offender's assertions of others being participants in the offence is that Dr Furst goes on to say: In my opinion, the cognitive deficits Mr Ballard suffers from, including poor attention, poor judgment, difficulty in problem solving, concrete (inflexible) thinking, mental slowness, problems with working memory would have made him more vulnerable to suggestions of others and were substantial contributing factors in his offending behaviour. As I have previously indicated, the difficulty with that is the lack of any evidence independent of the assertions made by the offender and recorded in the psychiatrist's report, to support such a prospect." 1. The applicant submitted that it flowed from his Honour's rejection of the applicant's assertion to Dr Furst that others were involved in the supply of drugs, that his Honour also rejected Dr Furst's opinion that "cognitive deficits…would have made him more vulnerable to the suggestions of others and were substantial contributing factors in his offending behaviour". This was said to be important because such reasoning affected both the assessment of the objective criminality of the offending behaviour as well as the extent to which the need for general deterrence might have been ameliorated. 2. The applicant complained that in taking this approach the sentencing judge improperly and erroneously denied him the opportunity to explain his level of involvement in the activities concerned. The applicant submitted that what he told Dr Furst was exculpatory, in the sense that it indicated that he was not the instigator of the drug offences but was led by others. The Crown had not objected to Dr Furst's report and the Crown declined what the applicant's written submissions described as "the opportunity to cross-examine him". The Crown did not suggest that what he told Dr Furst should be given little or no weight because it was in the form of a statement to Dr Furst. The Crown's submissions did no more than suggest that the applicant's involvement in the supply of drugs was not merely impulsive and that he involved himself knowing full well what he was doing and to support his own addiction. The Crown did not seek to distinguish between a case where others were involved in that activity and one where they were not. 3. The applicant referred to well known authority dealing with the need for sentencing judges to exercise caution when faced with untested but self-serving exculpatory material. His Honour referred to these cases in his remarks on sentence. In R v Elfar [2003] NSWCCA 358, Whealy J said this at [25], [28] - [29]: "[25] The matters of principle stated in R v McGourty and R v Qutami are plainly important. They require emphatic endorsement by this court. Indeed it needs also to be further emphasised that this principle extends not only to statements in psychological reports, but also to statements by offenders in pre-sentence reports - (R v Palu per Howie J with whom Levine J and Heydon J agreed (2002) 134 A Crim R 174 at 185). In addition, the current practice of tendering a note or letter from an offender in sentencing proceedings attracts the same admonishment. Considerable caution should be exercised in reliance upon such exculpatory material where there is a matter in dispute and where no evidence is given by an offender or other direct evidence is not placed before the court. The essential reason for treating the material in that way is precisely because it remains untested. Indeed, where the Crown has either objected to the tender of this type of material or has made it clear, either at the time of tender or when submissions are made, little or no weight should be placed upon the material, that the sentencing court would be entitled to treat the material as being of little or no weight. Indeed, in an appropriate case, it ought to do so. ***** [28] While sentencing judges are required in general to act with caution and employ a sound level of judicial scepticism when confronted with statements in reports or other material which are not supported by an offender's evidence, I do not think it is open to the Crown to complain of appellable error in this court if its representative in the court below has not plainly taken up a disputant position, either when the material was tendered or when submissions were made. This is even more so when, as here, the Crown had raised no objection whatsoever and made no submissions in opposition to the documentary material or its hearsay contents. [29] In some situations, the evidence placed before a sentencing court will be so inconsistent, so contrary to common sense and the agreed facts that, even without Crown intervention, adverse submission or opposition, it will be quite apparent to the sentencing judge that little or no weight should be given to the material. The duty of the sentencing judge will be plain in such a situation. There will be a need for the sentencing judge to inform the parties of his preliminary attitude to the tendered material and to invite submissions and provide the opportunity for further evidence. Absent satisfaction, the judge will be entitled to, and should exercise considerable caution in placing reliance on the material. In many cases, only very limited weight, if any, will be given to the material. When, as happened here, however, there was a consistent body of coherent credible evidence, admittedly of a hearsay kind, supporting the existence of genuine exculpatory factors, it will be necessary for the Crown to state that it disputes the position revealed in that material and to say why that is so." 1. More recently this Court returned to the same issue in Alvares v R; Farache v R [2011] NSWCCA 33. The usual authorities were considered and helpfully reviewed. At [49] - [58] Buddin J, with whom the other members of the Court agreed, said this: "[49] It is now convenient to refer to the authorities to which counsel directed the court's attention. In R v Qutami (2001) 127 A Crim R 369 in which Smart AJ, with whom Simpson J agreed, said: 'There is one further general observation. In this case reliance appears to have been placed on statements made by the prisoner to psychiatrists and the psychologist. While those statements are admissible in evidence, very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases only very limited weight can be given to such statements. There has been a noticeable and disturbing tendency of more recent years for prisoners on a sentence hearing not to give evidence and to rely on statements made to experts. Prisoners should realise that if this course is taken great caution will be exercised in respect of the weight, if any, given to those statements.' (paras 58-9) [50] Spigelman CJ said: 'I agree with the observations of Smart AJ as to the limited weight that ought to be given to self-serving, untested statements made to experts which are tendered in sentencing hearings.' (para 79) [51] Subsequently in R v McGourty [2002] NSWCCA 335, Wood CJ at CL, with whom the other members of the court agreed, said: 'So far as I can see, there was no factual basis for the finding made by his Honour beyond a self-serving and untested statement made by the respondent to a psychologist. Recently this Court has criticised the practice of placing material of this kind before sentencing judges, in an attempt to minimise the objective seriousness of a crime otherwise apparent on the face of a record: Regina v Qutami [2001] NSWCCA 353, at paras 58 and 59 per Smart AJ, and at para 79 per Spigelman CJ). I whole-heartedly agree with the criticism offered in that case. If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his/her criminality, then it should be done directly and in a form which can be tested.' (paras 24-5) [52] There are many other decisions to similar effect. See, for example, R v Tulloh (Court of Criminal Appeal, (NSW) 16 September 1993 unreported at 4); R v Niketic [2002] NSWCCA 425; R v Hooper [2004] NSWCCA 10; R v Alameddine [2004] NSWCCA 286. [53] It was submitted that those statements were prescriptive in nature and were thus likely to be applied in a fashion which effectively placed a fetter upon the exercise of a sentencing judge's discretion. It was also submitted that no statutory foundation for the statements was to be found in s 16A(2) of the Act. Although in written submissions, counsel had contended that those decisions were wrongly decided, that submission was not pressed in oral argument. Rather, it was argued that they did not apply to Commonwealth offences or in circumstances in which no objection was raised to the evidence being given. [54] Since counsel placed considerable reliance upon this court's decision in R v Elfar [2003] NSWCCA 358, it is necessary at this stage to consider its significance. That case involved a Crown appeal against the inadequacy of a sentence that had been imposed upon a young man who had pleaded to having been involved in a large-scale conspiracy to "re-birth" stolen vehicles in order that they could be sold overseas. The respondent's father was a co-conspirator. The sentencing judge had before him a pre-sentence report, two psychological reports and a letter addressed to him from the respondent. Much of that material was directed to highlighting the influence which the respondent's father exerted over him and to the violence which he had exacted upon him. It also contained assertions that the respondent's father had forced his son to assist him in his criminal activities. The sentencing judge accepted that the respondent's "criminal activity was due to the duress of his father". The sentencing judge apparently accepted, without reservation, the accounts recorded in the material which had been placed before him, notwithstanding the fact that the respondent had not given sworn evidence. [55] The Crown submitted that the sentencing judge had erred in accepting two major components of the respondent's case solely on the basis of hearsay material. Whealy J, with whom the other members of the court agreed, said: 'There is, however, a problem for the Crown in relation to the first submission. The Crown was represented throughout the sentence hearing. The transcript records that, when the hearsay material was tendered, there was no objection taken to it. There was no qualification expressed as to the way in which the sentencing judge might use the material. The Crown did not, at any time suggest that there was any dispute as to the assertion that the respondent had been, in effect, coerced into the criminal enterprise by the force of his father's personality and his position as family leader. Nor was there any dispute raised with the proposition that the respondent had expressed remorse and contrition on a number of occasions in relation to his involvement in these serious criminal activities. Moreover, at one stage, the solicitor appearing for the offender indicated her willingness to call the offender's grandmother to give evidence of her observations of the behaviour of the offender's father towards him. The respondent's grandmother was then present in court with an interpreter available to translate her evidence. His Honour, however, indicated that, for his part, he did not require to hear from the witness in view of the material in the statements. More importantly, the Crown made no demur to the proposition that the sentencing judge might accept the statements in the material before him, without hearing direct evidence on the issue. Additionally, the Crown did not express any wish to test the available witness in cross-examination on any matter relating to the issue. While sentencing judges are required in general to act with caution and employ a sound level of judicial scepticism when confronted with statements in reports or other material which are not supported by an offender's evidence, I do not think it is open to the Crown to complain of appellable error in this court if its representative in the court below has not plainly taken up a disputant position, either when the material was tendered or when submissions were made. This is even more so when, as here, the Crown had raised no objection whatsoever and made no submissions in opposition to the documentary material or its hearsay contents. In some situations, the evidence placed before a sentencing court will be so inconsistent, so contrary to common sense and the agreed facts that, even without Crown intervention, adverse submission or opposition, it will be quite apparent to the sentencing judge that little or no weight should be given to the material. The duty of the sentencing judge will be plain in such a situation. There will be a need for the sentencing judge to inform the parties of his preliminary attitude to the tendered material and to invite submissions and provide the opportunity for further evidence. Absent satisfaction, the judge will be entitled to, and should exercise considerable caution in placing reliance on the material. In many cases, only very limited weight, if any, will be given to the material. When, as happened here, however, there was a consistent body of coherent credible evidence, admittedly of a hearsay kind, supporting the existence of genuine exculpatory factors, it will be necessary for the Crown to state that it disputes the position revealed in that material and to say why that is so. In this regard this case was perhaps an unusual one. This was so because of the consistent nature of the material and its inherent credibility. Nevertheless, there was not one suggestion made that the sentencing judge should reject the material, or treat it as of little value because of the absence of direct evidence from the respondent. If the Crown wished to take an adverse position in that regard during the sentence hearing it needed to do so clearly and explicitly. Because of the Crown's failure to take that position in the rather unusual circumstances of this matter; and because of its tacit acceptance that the sentencing judge might reliably act on that material, there is, in my view, no substance in the first point of the argument.' [paras 27-31] (emphasis added) [56] The applicant relied upon his Honour's observations as providing support for the proposition that since the Crown in the present case had not raised any objection to the tender of the material (or at least not to the material concerning the issue of remorse), or made any submission that it should be approached with caution, then that material should not only have been accepted but should have been afforded substantial weight. Moreover, it was submitted that the decision made it clear that a sentencing judge is under a duty as a matter of procedural fairness, to put a party on notice especially where the evidence is uncontested, as to any preliminary view about the weight to be given to particular material which he or she may have formed. That was necessary, so it was submitted, to enable the parties to consider their positions and so that they could proceed with the benefit of that indication. Support was also, it was submitted, to be found in the underlined passage from Olbrich (supra) to which reference was made earlier. [57] I am unable to accept that his Honour's observations should be construed in that fashion. His Honour was not, as I read the judgment, seeking to lay down rules of general application. In my view, what his Honour said was utterly uncontroversial in the context of deciding that particular case. It is important to reiterate that Elfar (supra) involved a Crown appeal and, as Whealy J was at pains to point out, the Crown sought on appeal to impugn findings of fact that were based on material to which no objection had been taken at first instance. Furthermore, his Honour described the case as an "unusual one" and referred to the "consistent nature of the material and its inherent credibility". There was, as I read the judgment, statements from other family members to the effect that the respondent had indeed been afraid of his father and that he had previously made unsuccessful attempts to leave home and cease working for his father. There was also reference to the fact that the respondent's father had previously served a minimum term of 4 years imprisonment for a very similar offence. Moreover in a passage to which the Court's attention was not drawn, his Honour went on to say: 'The matters of principle stated in R v McGourty and R v Qutami are plainly important. They require emphatic endorsement by this court. Indeed it needs also to be further emphasised that this principle extends not only to statements in psychological reports, but also to statements by offenders in pre-sentence reports - ( R v Palu per Howie J with whom Levine J and Heydon J (sic) agreed (2002) 134 A Crim R 174 at 185). In addition, the current practice of tendering a note or letter from an offender in sentencing proceedings attracts the same admonishment. Considerable caution should be exercised in reliance upon such exculpatory material where there is a matter in dispute and where no evidence is given by an offender or other direct evidence is not placed before the court. The essential reason for treating the material in that way is precisely because it remains untested. Indeed, where the Crown has either objected to the tender of this type of material or has made it clear, either at the time of tender or when submissions are made, little or no weight should be placed upon the material, that the sentencing court would be entitled to treat the material as being of little or no weight. Indeed, in an appropriate case, it ought to do so.' [at para 25] [58] Not only does the court in Elfar make clear its "emphatic endorsement" for the principles expressed in Qutami (supra) and McGourty (supra) but nowhere in the judgment is there to be found any support for the proposition that in the absence of objection to material adduced on behalf of an offender, evidence of remorse must be afforded substantial weight. Nor is there any support for it in Olbrich (supra). At one stage it was submitted that this court had, in effect, created a principle that has been interpreted, particularly in the District and Local Courts, as having the consequence that an offender cannot get a meaningful benefit for remorse unless he or she gives sworn evidence. It is not easy to reconcile that submission with the approach taken by this Court in determining the Crown appeal in Elfar itself. Nevertheless, circumstances may arise in which it will be prudent for a sentencing judge to remind the parties during the course of a sentence hearing of what was said by this court in Qutami (supra)." 1. The applicant contended that in the present case the evidence was not plainly inconsistent or contrary to common sense or the agreed facts. The Crown did not object to the evidence and made no submissions about the force it had or the weight that should be given to it. The applicant was not "cross-examined". The applicant submitted that in those circumstances it was "even more clearly incumbent upon the judge to inform the parties of his preliminary attitude, invite submissions and provide the opportunity for further evidence". He failed to do so. The applicant argued that in the events that occurred he had been denied a fair hearing, particularly as he had been willing to enter the witness box and give evidence if required. The applicant went as far as to suggest that his Honour's failure infected the entire sentencing process with error, including in particular his Honour's assessment of the objective seriousness of the offences and the relevance and significance of the applicant's uncontested cognitive difficulties. 2. I am unable to accept these submissions. The applicant's argument proceeds upon the basis that his Honour was somehow obliged to accept the version given to Dr Furst because the Crown did not object to his report or ask to cross-examine the applicant. However, his Honour was not obliged to approach the task at hand by placing an uncritical reliance on material contained in tendered reports or other third party statements where the applicant chose not to give evidence: see Qutami and TS v R [2007] NSWCCA 194 at [30]. The applicant's decision not to give evidence was a forensic choice taken with a presumed knowledge and understanding that the authorities were to this effect. In deciding not to enter the witness box he ran the risk that evidence given by others of what he had said to them, in a clinical setting or otherwise, would and could be treated by the sentencing judge with appropriate circumspection. His Honour was not required to underline the authenticity of that approach before deciding not to accept the evidence in whole or for all purposes. Moreover, the applicant is not entitled to expect some special status because the Crown declined his offer to enter the witness box to be cross-examined. The applicant made a decision not to give evidence. Responsibility for the consequences of that decision rests with him. The Crown cannot be criticised for not responding to the applicant's offer to be cross-examined when there was nothing to be cross-examined about. His Honour was therefore confronted with the consequences of two competing forensic decisions and was entitled to treat the evidence that came before him upon the assumption that the parties, but in particular the applicant, knew and understood what they were. Any views that his Honour might thereafter have formed or expressed about the reliability of the applicant's assertions to Dr Furst were the reasonable and logical product of that process. 3. It should also be emphasised that the agreed facts made no reference to any other offender being involved in the commission of the offences. His Honour made specific comment about that fact. It would otherwise have been obvious to the applicant that there was potentially a tension between those facts and the version of events proffered by him to Dr Furst. There existed in those circumstances the unremarkable possibility that his Honour might arrive at his decision, such as the one he arrived at in fact, by reference to the whole of the evidence as it was presented to him. The applicant took the procedural risk that his failure to give a first hand account of the events in question would thereby leave his Honour free, in accordance with authority, to approach the hearsay material with "considerable caution". That is what he did. That led his Honour to reject a version of events suggesting that the applicant acted in concert with others who influenced him. His Honour otherwise accepted Dr Furst's medical opinion concerning the applicant's cognitive impairment. 4. There was no denial of procedural fairness because his Honour approached the matter in this way. No error has been demonstrated. This ground of appeal should be rejected. Ground 2 1. His Honour found that the quantity of drug that was the subject of the charge was "substantially less than the commercial quantity" of 250g. He then said the following: "However, the circumstances of the location of the drugs, together with firearms, stolen property, and all of the indicia of drug supply, being five mobile phones, a box of weights, two sets of electronic scales, and an exercise book recording names and dollar amounts, and the location of $1,000 in cash, indicates that the offender was participating in a significant commercial operation regarding the supply of the prohibited drug. In the circumstances, although the quantity of the drug is far less than the commercial quantity, the offence should be regarded as falling within the mid-range of seriousness for such offences." 1. The applicant was being sentenced for possession of 23.04g of methylamphetamine for the purpose of supply. The applicant emphasised that the principles referred to in cases such as R v Gu [2006] NSWCCA 104 and R v Harmouche [2005] NSWCCA 398 applied and, absent exceptional circumstances, called for a full-time custodial sentence if the offender was involved in drug trafficking to a substantial degree. The applicant submitted that a single instance of the possession of 23.04g of methylamphetamine would not necessarily indicate trafficking to a substantial degree. He conceded that his Honour was undoubtedly entitled to take into account the surrounding circumstances when considering this question, including the evidence that the offence was not an isolated incident. The applicant also conceded that his Honour's finding that he was involved in trafficking to a substantial degree and ought to be sentenced to full time imprisonment was clearly open to him. 2. However, the applicant contested his Honour's finding that the applicant was involved in a "significant commercial operation". He submitted that in coming to that conclusion his Honour failed to have regard to the following matters. First, the drug was of a very low purity. Secondly, no cutting compounds or mixing equipment were located. Thirdly, the uncontested evidence was that the applicant had been selling to support his own drug addiction and was a "user/dealer". Fourthly, the absence of any evidence to indicate that any stolen goods said to have been the proceeds of earlier supplies had ever been sold or disposed of. Fifthly, the evidence of the value of the stolen goods was the retail value, which would have been considerably higher than the value of the goods in the hands of the applicant. Finally, the indicia of supply were consistent with street level supply. 3. The applicant contended in all of these circumstances that a finding that he was involved in a "significant commercial operation" was not open to his Honour. He submitted that his Honour's assessment of the objective seriousness of the offence therefore miscarried. It was submitted that his Honour should have found that the applicant's level of criminality fell towards the lower to lower-middle end of the scale for an offence of this type. 4. The following responses should be noted. There was evidence that goods to a value of more than $12,000 had been exchanged for drugs as part of the applicant's operation. He had drugs stored in two locations. He had record keeping books consistent with the fact of earlier transactions. There were other indicators of the existence of a commercial drug supply operation. His Honour appears to have used the word "commercial" in its ordinary or generic sense, and not in the sense used in the Drug Misuse and Trafficking Act. 5. The Crown emphasised that low purity was not inconsistent with a commercial operation. The absence of cutting compounds or mixing equipment only spoke to the level of the operation conducted by the applicant, not to its commerciality. The existence of stolen goods suggested that the sale of drugs by the applicant was not limited to the circumstances associated with his addiction or use. The comparison between the retail value of the goods and the value to the applicant failed to take account of the commercial realities of the transaction in which such goods were traded and the particular value that must have been ascribed to them for that purpose. Street level supply is nonetheless a commercial operation. 6. The offence of supply was not an offence attracting a standard non-parole period so that it was not necessary for his Honour to make a finding of where the subject offence fell on a hypothetical scale of objective seriousness: Sivell v R [2009] NSWCCA 286 and Georgopolous v R [2010] NSWCCA 246 at [32]. It was not, however, an error for his Honour to have done so: Nguyen v R [2011] NSWCCA 127 at [40]. 7. In my opinion, his Honour made findings that were reasonably open to him. A sentence of 2 years and 6 months against the background of a maximum penalty of 15 years imprisonment is wholly unexceptionable in the circumstances of this case. This is particularly so having regard to the fact that in passing sentence for this offence his Honour took into account in addition the matters contained on the Form 1B. I am unable to detect any error either in his Honour's approach or in the conclusions that he reached. Ground 3 1. In his remarks on sentence his Honour referred to the firearms offence in terms that included the following: "In respect of the offence of possessing the prohibited firearm, that is the weapon modified to resemble a walking cane, it is of significance that the modification of the weapon appears not merely to make it a concealable weapon, but to make it a weapon which can be concealed in public places by having the appearance of a walking stick or cane. Indeed, such a modification can reasonably be regarded as sinister. It is not the type of modification that one would expect if the weapon was to be used in the course of a robbery. It is more consistent - although this is not to suggest that this was the purpose of the modification - but it is more consistent that the type of weapons that are occasionally referred to in relation to public assassinations. However, as indicated, I do not draw the inference that that was the purpose of the modification. However, in the circumstances the offence must be regarded as falling at least within the mid-range of objective seriousness. Having said that, the Court will deal with the matter on the basis that it falls at the high end of the mid-range of objective seriousness." 1. The applicant contended that the formulation of the finding in this way was itself indicative of error. This was because his Honour was required to decide whether the offence fell within, above or below the mid-range and, if above or below, to what extent. The applicant contended that his Honour's formulation implied a degree of variation within the mid-range itself, which is inconsistent with the task. The applicant relied on R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 at [13] as follows: [13] The following propositions emerge from Way and subsequent cases: (i) while s 54B(2) requires, in sentencing in respect of an offence to which Division 1A applies, unless the sentencing court determines that there are reasons not to do so, that it set the standard non-parole period as the non-parole period for the offence, that obligation exists where the offence in question is an offence in the middle of the range of objective seriousness of offences of that kind; one reason permitting departure from the standard non-parole period is that the offence in question falls outside the middle of that range (para [67]); (ii) the standard non-parole period was intended for a middle range case where the offender is convicted after trial: a plea of guilty might be in itself a reason for departure from the standard non-parole period (para [68]); (iii) a sentencing judge will be required, in relation to any given case, to hypothesise what is an abstract offence in the middle of the range of objective seriousness in order to determine where the subject offence lies in relation to such an offence; such an exercise is, in reality, little different from the traditional sentencing exercise of evaluating objective seriousness of any offence, and should be approached intuitively and based upon the general experience of courts in sentencing for the particular offence (paras [74] - [77]); (iv) circumstances that affect the evaluation of the objective seriousness of any offence include (but are not necessarily limited to) the actus reus, the consequences of the conduct, such factors as impinge upon the mens rea of the offender, matters of motivation, mental state, mental illness or disability (where causally related to the commission of the offence). Factors that affect the circumstances of the offender as distinct from the offence (for example, youth or prior sexual abuse) do not affect the evaluation of objective seriousness (paras [85] - [86]); (v) that an offence is "typical" or "common" does not dictate that it is in the middle of the range of objective seriousness (para [101]); (vi) the numerical frequency with which an offence of a particular kind is committed is not an indicator of the objective seriousness of any individual instance of that offence: (paras [101] - [102]); (vii) where a court determines that there are reasons for departing from the standard non-parole period, the standard non-parole period nevertheless remains of relevance in the sentencing determination, as a reference point, benchmark, sounding board or guidepost (para [122]); see also R v GJ Davies [2004] NSWCCA 319." 1. The applicant also argued that his Honour had failed to consider a number of factors relevant to an assessment of the objective seriousness of the offence including the nature of the firearm compared to other prohibited firearms including machine guns. His Honour should also have considered the fact that the weapon was of a small calibre and was neither automatic nor semi-automatic. The weapon was not loaded and no ammunition was found. 2. His Honour made no findings of what, if anything, the applicant kept the weapon for or why it had been modified. The possession of the gun was wholly consistent with the applicant's statement to police that he liked weapons. The applicant asserted that his Honour's failure to make a finding one way or the other about the purpose for which the applicant possessed the weapon caused the exercise of his discretion to miscarry. There had been competing contentions advanced before his Honour about whether the weapon had anything to do with drugs, which his Honour failed to decide. 3. In Mack v R; Mack v R [2009] NSWCCA 216 at [40], Davies J identified a number of matters of the type that the applicant contended the sentencing judge in the present case should have taken into account when determining the objective seriousness of a firearms offence. Davies J said this: "[40] His Honour did not, as he should have done, identify the matters which go to determining the objective seriousness of the offence. Simpson J in AJP at [13](iv) identified the factors and matters in general terms that ought to be examined. Applying those to the facts in the present matter suggests that the following would be the relevant considerations: (a) the number of the firearms; (b) the number of the firearms that were prohibited or were pistols; (c) the nature and type of the firearms; (d) the purpose for the possession of the firearms; (e) evidence which would show any relationship between the possession of the firearms and the drug industry being carried on at the premises; and (f) the location of the property and the security under which the firearms were kept." 1. The applicant submitted in this particular case there had not been a finding that the firearms were kept for drug related purposes which was a significant matter in relation to the objective seriousness of the firearms offence. 2. The applicant also submitted that if the objective seriousness of the offence fell within the mid-range, his Honour should have given reasons for not applying the standard non-parole period. The only matter identified was the plea of guilty. The applicant contended that his Honour should have considered and decided whether or not any of the applicant's subjective circumstances, including his brain injury and his need for special programs of rehabilitation, also provided reasons. 3. More particularly, the applicant contended that in the light of a finding of objective seriousness in the mid-range and the application of a 25 per cent discount for the plea of guilty, the sentence imposed necessarily indicated error. This was because the starting point for the sentence was 5 years and 4 months before the application of the 25 per cent discount. Absent special circumstances, a "usual" 75 per cent non-parole period would have been 4 years, or 1 year longer than the standard non-parole period for this offence. The applicant submitted that given his Honour's finding that the offence fell within the mid-range of objective seriousness, even at the upper end of that mid-range, his Honour has necessarily fallen into error: he should have determined a non-parole period of no more than 3 years if the offence fell within the mid-range or a starting point, apart from special circumstances, of 4 years. A discount of 25 per cent would have produced a term of 3 years and a non-parole period, absent special circumstances, of 2.25 years. The non-parole period that his Honour imposed was 2.5 years. 4. The Crown contended that because his Honour found that the objective seriousness of the offence was at the higher end of the mid-range it justified a sentence with a non-parole period greater than the standard 3 years for this offence. The Crown also emphasised that his Honour was required to take account of the three matters on the Form 1 as well. The Crown referred to Attorney General's application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 and submitted that the appropriate sentence for Count 2 could not be determined in isolation from the matters on the Form 1. The Crown contended that the applicant's submissions incorporated that mistake. 5. In this case only one firearm was found. It does not appear to have been in the possession of the applicant for any particular purpose. Certainly none was suggested and none was established. It may simply have been the case that the applicant's avowed affection for weapons was the true explanation. There was also no obvious or distant relationship or connection between the drug offence and the weapon concerned. It is difficult to conceive of any. The applicant's commercial drug enterprise was not dependant upon the use of force or the threat of it. The two offences have no discernible or apparent connection. There was simply no evidence, which would show any relationship between the possession of the firearm and the drug industry being carried on by the applicant. There does not appear to have been any attempt by the applicant to conceal the firearm upon the premises so as to avoid discovery. 6. Clearly minds may differ about the level of objective seriousness of this offence. His Honour formed the view that the firearm and its idiosyncratic modifications were "sinister". His Honour was undoubtedly well placed to express that view. Having regard to the wide range of firearms that falls to be considered within the terms of the section defining this offence, I would for my part have thought that its position in the scheme of objective seriousness was below the middle of the range. I am not, however, prepared to say that his Honour fell into error in exercising his discretion in this respect. On the other hand, I do consider that there is scope for acknowledging the existence of different views about this in considering the extent to which the firearms offence and the drug offence should be accumulated. This is dealt with under grounds 5 and 6 referred to later in these reasons. 7. I would reject this ground of appeal. Ground 4 1. The applicant complains that even though his Honour found special circumstances in relation to the firearms offence, the only circumstance considered was the fact of accumulation. Accordingly, the departure from the statutory ratio was only sufficient to produce an overall effective sentence with a non-parole period of 75 per cent of the total sentence. The applicant submitted that his Honour does not appear to have considered whether or not there were any other special circumstances that were referable to the firearms offence. The applicant contended that his Honour ought to have considered his long standing addiction to drugs, his cognitive deficits and the fact that those deficits meant that he was likely to require special rehabilitation programs. This was also the first lengthy period of imprisonment, which might amount to a special circumstance justifying a departure from the statutory ratio in relation both to the firearms offence and the overall effective sentence as well. 2. His Honour dealt with this matter in his remarks on sentence as follows: "The practical effect is that the total term, when the two matters are added together, is a term of imprisonment of six years with a non-parole period of four years and six months. In varying the statutory relationship between the non-parole period and the balance of term in respect of the firearms offence, I have taken into account special circumstances in relation to the total term of imprisonment, and providing for the overall term of imprisonment for the balance of term to correspond with the statutory relationship provided for an individual offence. So that a total period of custody of four years six months before being eligible for parole represents seventy-five per cent of the overall sentence of six years." 1. The Crown emphasised that merely because his Honour consciously determined that the appropriate non-parole period for the totality of offending was one of 4 years and 6 months it did not mean that he failed somehow to consider whether or not there were or may have been other relevant special circumstances. His Honour was not obliged to outline his reasons for not varying the ultimate ratio of 75 per cent. This Court has made it clear that the allocation of the non-parole and parole periods following a finding of special circumstances is generally a matter for the discretion of the sentencing judges. See, for example, Clarke v R [2009] NSWCCA 49 at [13] per McClellan CJ at CL and R v Cramp [2004] NSWCCA 264 at [31] to [36] per Spigelman CJ. 2. The applicant was burdened with long-term drug addiction, cognitive deficits requiring treatment and the likely consequences to him of adjustment following his first lengthy period of imprisonment. It is certainly arguable that a combination of these features may have entitled his Honour to allow for a longer period on parole had he so desired. The question for determination in this Court is whether it was reasonably open to his Honour to refrain from varying the statutory ratio to any greater extent than he did. The manner and extent to which his Honour may have factored any of these matters into the way that he structured the applicant's sentences was entirely for him to determine. It cannot in my opinion be said that there is any demonstrated error affecting the way that his Honour did so. Grounds 5 & 6 1. It was the applicant's case that the total non-parole period vastly exceeded the totality of the criminality involved in the two sets of matters, even taking into account the matters on the forms. In the circumstances the overall effective sentence was said to be manifestly excessive. The applicant complained about his Honour's approach to both totality and the extent of accumulation. 2. Neither of the offences fell into the upper half of the range of objective seriousness. The offences taken into account on the two forms were described as "relatively minor". They could have been dealt with summarily. The applicant's subjective case was described as "relatively positive". He had a generally minor record of convictions, an unfortunate background and a serious medical condition. He had pleaded guilty and had accepted responsibility for his actions. On the other hand he had been on conditional liberty for a firearms offence. 3. His Honour imposed a fixed term of 2 years and 6 months for the drug offence. The amount of methylamphetamine (23.04g) possessed by the applicant was less than ten per cent of the highest amount of the drug capable of amounting to this offence. The applicant had no prior convictions for drug supply. He received the benefit of a 25 per cent discount for his plea of guilty. The maximum penalty was 15 years. The applicant submitted that this sentence was manifestly excessive. 4. The sentence for the firearms offence carried a maximum penalty of 14 years and a standard non-parole period of 3 years. The applicant was sentenced to 4 years with a non-parole period of 2 years and 6 months, which would have been 3 years but for the finding of special circumstances. The weapon in question was a .22 calibre shortened rifle, disguised but not loaded and without ammunition. He received the benefit of a 25 per cent discount for his plea of guilty. The applicant submitted that this sentence was manifestly excessive. 5. The applicant referred this Court to statistics for equivalent offences. Caution must be exercised in the way that these statistics are applied. 6. The Crown conceded that his Honour's decision not to commence the sentence for the firearms offence until 2 years into the non-parole period of the supply prohibited drug offence was clearly one of the major factors that resulted in the total non-parole period of 4.5 years. 7. In R v AZ [2011] NSWCCA 43 at [85], Johnson J said the following: "[85] In my view, proper consideration of the above principles required at least a partly cumulative sentence for the firearm offence. The sentence on the drug supply offence could not comprehend and reflect the criminality for the firearms offence. The failure to impose at least a partly cumulative sentence contributed to the fact that the total sentence failed to reflect the Respondent's total criminality for these offences. The offences involved discrete and independent criminal acts." 1. These comments are pertinent in the present case. The sentence necessary to reflect the criminality for the drug supply offence could not comprehend or reflect the criminality for the firearms offence. There was clearly a need for partial accumulation. The question is whether or not 2 years partial accumulation was excessive. In R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 at [52], Hall J said: "[52]… It is well established that questions of accumulation are, subject to the application of established principle, discretionary. What is important is that, firstly, an appropriate sentence is imposed in respect of each offence; and, secondly, that the total sentence imposed properly reflects the totality of the criminality: Regina v Wilson [2005] NSWCCA 219 at [38] per Simpson, Barr and Latham JJ agreeing." 1. The Crown quite properly conceded that his Honour's approach produced what the Crown described as "a stern total effective sentence for the totality of the criminality involved". The Crown maintained that the sentence was not however manifestly excessive in the result. 2. I disagree. Even though the drug offence and the firearms offence were separate and distinct acts of criminality, and deserving of recognition as such in the penalty that is imposed for each offence, I consider that the manner in which the sentences have been accumulated has in terms of totality resulted in a sentence that is manifestly excessive. The drug offence consisted in a series of related or interconnected ongoing commercially oriented acts. The firearm offence was, by comparison, a passive offence apparently not directed to or associated with any demonstrated criminal intent or activity. While it must be clearly accepted and understood that the firearms offence is made out even in the absence of such collateral characteristics, it does seem to me that the community's disapprobation of this particular offence can be adequately recognised if the sentences remain as imposed but with a greater degree of concurrence between them. This is in my view a preferable course to adopt than one that attempts to vary the particular sentences imposed by his Honour, which, as I have indicated, are in my view not individually vulnerable to attack. 3. In forming the views I have formed I have had regard to other decisions of this Court dealing with similar offences. For example, in Tran v R [2010] NSWCCA 183, the applicant had been convicted of two offences under s 7(1) of the Weapons Prohibition Act 1998 and s 7(1) of the Firearms Act 1996 respectively. He was sentenced following an appeal to a period of imprisonment on the first count consisting of a non-parole period of 6 months with a balance of term of 2 months and on the second count to a period of imprisonment consisting of a non-parole period of 3 years and 2 months with a balance of term of 1 year and 1 month. Hislop J recited the facts that gave rise to these charges at [5] and [6] as follows: "[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." 1. His Honour's view of the gravity of the offences in the case before the Court is exposed later in his reasons for judgment at [13] -[19] as follows: "[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." 1. A comparison of the objective criminality involved in that case with the corresponding weapons offence committed by the applicant in the present case in my view significantly favours the applicant. 2. I have also had regard to what was said by Mason P in R v Hammoud [2000] NSWCCA 540 at [7] - [11] on the question of concurrence and accumulation in the light of R v Pearce [1998] HCA 57; (1998) 194 CLR 610 as follows: " Concurrence or Accumulation [7] I wish to make it plain at the outset that I agree with the approach taken by Dowd J in the restructured sentences he proposes. My difficulty lies in the proposition expressed by his Honour in paragraph 69 of the draft. I do not agree that for the sentencing judge to take into account, in considering questions of concurrence and accumulation, features that were common to the two conspiracy offences, denotes an invalid reasoning process. Whether or not to accumulate sentences imposed in relation to multiple offences is, in the end, an exercise of discretion to be made in accordance with established principle. Features common to two or more offences are all matters relevant to be taken into account (pointing towards concurrence) as are features indicating the disparate nature of the offences (pointing the other way). There will be many cases in which sentencing judges might take differing views but neither view could be said to be wrong. [8] As a result of the decision of the High Court in R v Pearce [1998] HCA 57; 194 CLR 610, the question of whether to accumulate sentences for multiple offences has taken on a new dimension. Following Pearce, a judge is required to fix "an appropriate sentence" for each offence, before considering questions of accumulation, concurrence or totality. I take this to mean that, except perhaps in cases of multiple offences committed as part of a single, discrete, episode of criminality, the sentence for an individual offence is to reflect the criminality involved in the offence untainted by reference to the other offences for which that offender is to be sentenced. [9] Pre-Pearce, it was possible to discern two different approaches to sentencing for multiple offences. The first was to select a single charge (a lead or representative count) and, in accordance with the principle of totality, on that charge impose a sentence that properly reflected the overall criminality involved in all offences. On the remaining counts, comparatively lenient sentences, frequently fixed terms, were imposed. The second approach was, again with the principle of totality in mind, to select a sentence appropriate to the overall criminality and impose that sentence in respect of all or most of the charges. Both of these approaches avoided the need for elaborate exercises in accumulation of sentences. [10] Neither of these approaches would survive the application of the Pearce principles. In the case of a judge adopting the first approach, the lengthy sentence imposed in relation to the lead or representative count would appear excessive and those imposed on the remaining counts would appear inadequate. None would represent "an appropriate sentence" for the specific offence for which it was imposed. On the second approach, all sentences would appear excessive for the specific charges to which they related, even when the ultimate term to be served was unimpeachable. [11] The application of Pearce in the present case illustrates the reason that pre-existing sentencing practices need modification. "Appropriate" sentences imposed in relation to each individual conspiracy count would, if made wholly concurrent, fail to reflect the total criminality; if made wholly cumulative, would exceed what totality permits. The only solution is, as proposed by Dowd J, to make the sentences partly concurrent and partly cumulative." 1. More recently Howie J expanded upon the principles of concurrence and totality in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27] as follows: "[27] In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." 1. His Honour drew upon what was said by this Court in R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 at [11] - [13] in these terms: "[11] One of the limiting principles that constrains a sentencing court in seeking to promote the purposes of punishment is the principle of proportionality. Another is the, not-unrelated, principle of totality and it is this principle that operated in the present case. It is the application of the totality principle that will generally determine the extent to which a particular sentence is to be served concurrently or cumulatively with an existing sentence in accordance with statements of the High Court as to the operation of the principle in Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen (1998) 194 CLR 610 and Johnson v The Queen (2004) 78 ALJR 616. [12] In R v Holder (1983) 3 NSWLR 245, Street CJ described the principle as follows: (at 260) '... The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing Judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing Judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. ...' [13] In some cases the fact that a sentence for a particular offence is to be served completely concurrently with another sentence for a different offence will result in a sentence that is erroneously inadequate because it does not reflect the totality of the criminality for which the offender was to be punished for the two acts of offending: see for example R v Brown [1999] NSWCCA 323. This may be so even if the two offences arise from the same precise criminal act, such as the dangerous driving of a motor vehicle on the one occasion: R v Janceski (No 2) [2005] NSWCCA 288. The same principle has been applied to sexual assault offences arising from a single incident of sexual assault: R v Gorman (2002) 137 A Crim R 326. Although, it has been held that a determination of the extent, if any, that a sentence is to be served cumulatively with another sentence is an exercise of discretion on which minds might differ, R v Hammoud (2000) 118 A Crim R 66, that discretion is generally circumscribed by a proper application of the principle of totality." (Emphasis added) 1. I am conscious of the fact that the exercise of the sentencing discretion, as with any discretion properly exercised, is prone, if not likely, legitimately to produce different and varying results. I have reaffirmed the sentencing judge's analysis of the seriousness of the weapons offence and the sentence that he imposed. However, as I have indicated, it is my view that in terms of the principle of totality it is not only legitimate but also necessary to increase the level of concurrence of the sentences for that offence and the drug offence, having regard to the circumstances of, and sentences imposed in, comparable cases with comparable offences, such as in Tran. I consider that his Honour accumulated the sentences excessively. Whilst deserving of recognition as a discrete and separate act of criminality, and even warranting the description "sinister", the weapons offence can be backdated by 1 year without derogating from the impact of the sentence imposed by his Honour for that offence. In my opinion, a proper application of the principle of totality drives me in this case to that conclusion. Conclusions and orders 1. Although the individual sentences imposed upon the applicant by his Honour were appropriate, the total effective sentence was excessive because of the way in which the overall sentence was structured. I consider that his Honour erred in his approach to totality and the extent of accumulation by ordering that the sentence for the firearms offence should commence on 11 May 2011. That does not of itself mean that this Court should intervene. The Court must be satisfied that some other sentence is warranted in law: s6 (3) Criminal Appeal Act 1912. In my opinion some other sentence is warranted. I consider that the commencement date for the firearms offence should be 11 May 2010. 2. Accordingly I would propose the following orders: 1. Grant leave to appeal. 2. Allow the appeal in part. 3. Order that in lieu of the sentence imposed on the applicant by King DCJ for the firearms offence the applicant be sentenced to a period of 4 years imprisonment with a non-parole period of 2 years and 6 months commencing on 11 May 2010 and expiring on 10 November 2012 and a balance of term of 1 year and 6 months commencing on 11 November 2012 and expiring on 10 May 2014. 4. Otherwise confirm the orders made and the sentences imposed by King DCJ on 13 August 2010. 1. It follows that the overall effective sentence remains the same but that the effective non-parole period is reduced to 3 years and 6 months. The first date upon which the applicant will become eligible for parole is 10 November 2012. ********** Amendments 07 July 2017 - Paragraph 57 correction 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. Decision last updated: 07 July 2017