Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Atkinson v R [2014] NSWCCA 262 Hearing dates: 29 May 2014 Decision date: 28 November 2014 Before: Simpson J at [1]; Adams J at [23]; McCallum J at [81] Decision: 1.Leave to appeal granted. 2.Appeal allowed. 3.The sentence imposed for the first offence, possession of the .22 calibre Ruger self-loading pistol, be quashed and a sentence of a term of imprisonment with a non-parole of 5 years and 3 months commencing on 24 September 2009 and expiring on 23 December 2014 and a balance of term of 2 years and 9 months expiring on 23 September 2017 be substituted. 4.The sentence imposed for the second offence, possession of the .45 automatic Colt pistol, be quashed and a sentence of a term of imprisonment with a non-parole of 4 years and 3 months commencing on 24 September 2010 and expiring on 23 December 2014 and a balance of term of 3 years and 9 months expiring on 23 September 2018 be substituted. 5.The earliest day on which the applicant will become entitled to be released on parole is 23 December 2014. Catchwords: CRIMINAL LAW - appeal - appeal from sentence - whether offences in worst category of case - offender's intended use of firearms - whether evidence supported finding as to intended use of firearms CRIMINAL LAW - appeal - appeal from sentence - whether lawyer's delay provided appropriate basis for reducing discount CRIMINAL LAW - appeal - appeal from sentence - parity - whether principles of parity in sentencing applicable CRIMINAL LAW - appeal - appeal from sentence - whether relevance ascribed to offender's subjective features and history of social deprivation consistent with Bugmy v R [2013] HCA 37; (2013) 249 CLR 571 Legislation Cited: Crimes Act 1900 (NSW), s 188(1) Crimes (Sentencing Procedure) Act 1999, s Pt 3 Div 3, s 44 Criminal Appeal Act 1909 (NSW), s 6(3) Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) Firearms Act 1996 (NSW), ss 7(1), 65(3), 39(1), 51(1A)(a) Weapons Prohibition Act 1998 (NSW), s 7(1) Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1) Cases Cited: Bugmy v R [2013] HCA 37; (2013) 249 CLR 571; (2013) 229 A Crim R 337 Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540 Lowe v The Queen [1984] HCA 46; 154 CLR 606 Postiglione v The Queen [1997] HCA 26; 189 CLR 295 R v Borkovski [2009] NSWCCA 102; 195 A Crim R 1 R v Bugmy [2012] NSWCCA 223 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 Category: Principal judgment Parties: Rodney Phillip Atkinson (Applicant) Regina (Respondent) Representation: Counsel: P Boulten SC (Applicant) P Ingram SC (Respondent) Solicitors: Hanna Legal (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2009/213105 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-04-11 00:00:00 Before: Bennett SC DCJ File Number(s): 2009/213105 Judgment 1SIMPSON J: I have read in draft the judgments of Adams J and McCallum J. It is unnecessary to restate the facts, other than to explain the somewhat different approach I take. 2With respect to Grounds 1, 2 and 4, I agree with McCallum J that the findings concerning the objective gravity of both firearms possession offences (unauthorised possession of the Ruger, and unauthorised possession of the Colt) were open to his Honour. Generally, consideration of whether an offence falls into the category of "worst case" is directed to the objective gravity of the offence. Such a conclusion exposes the offender to the possibility of the imposition of the maximum sentence, but does not mandate that that sentence be imposed. Whether such a sentence is to be imposed will depend upon the variety of other sentencing considerations. 3In this case, it is clear that the sentencing judge made the assessment that the firearms possession offences fall into the worst case category on the basis of the objective circumstances (including the applicant's motivation, or purpose, in the possession), but, having regard to other circumstances, imposed penalties that fell considerably below the maximum sentences available. 4In my opinion, the argument about whether the applicant had either firearm in possession for the purpose of re-sale or for use in his criminal activities, could have had little, if any, impact on the sentencing decision. On-sale would clearly have been to the criminal milieu, with no control on any future use of the weapon. In terms of criminal culpability, possession of a firearm for the purpose of on-sale is no better and no worse than possession of a weapon with the intention of using it in criminal activity. Nor do I see any major distinction between possession of a weapon with the intention of using it to threaten, as distinct from using it to cause death or serious injury. Use of a weapon to threaten in a criminal context clearly carries the inevitable risk that it will in fact be used to kill or cause injury, whether intentional or impetuously or even accidentally in the circumstances as they arise. 5For these reasons I would not uphold Grounds 1, 2 or 4. Ground 3 6The substance of this ground of appeal is the asserted failure of the sentencing judge to have regard to the sentence imposed upon Paul Colvin. 7Paul Colvin was, in the applicant's proceedings, accepted as having been the person who had sold the Ruger to the applicant. Colvin was charged with an offence against s 51(1A)(a) of the Firearms Act 1996 (NSW), of selling a prohibited firearm to a person not authorised to possess it; such an offence carries a maximum term of imprisonment for 20 years (that is, 6 years longer than the maximum sentences carried by the firearms possession offences committed by the applicant). Colvin's criminal record and personal circumstances were scarcely distinguishable from those of the applicant. 8Colvin pleaded guilty and appeared for sentence before Keleman DCJ. He was sentenced on 4 October 2012, six months before the applicant. Keleman DCJ was not prepared, on the evidence before him, to find, beyond reasonable doubt, that Colvin had in fact sold the Ruger to the applicant (something that was accepted in the present proceedings). He treated Colvin as: "... a middleman conducting negotiations with [the applicant] for the purpose of selling [the applicant] a prohibited firearm in exchange for money ..." He sentenced Colvin to imprisonment for 4 years and 6 months with a non-parole period of 2 years and 6 months. 9The Remarks on Sentence with respect to Colvin were available to Bennett DCJ, when sentencing the applicant. 10The question which arises under this ground of appeal is whether principles of parity in sentencing are applicable: Lowe v The Queen [1984] HCA 46; 154 CLR 606; Postiglione v The Queen [1997] HCA 26; 189 CLR 295. 11Primarily, these principles apply to co-offenders strictly so called. But their application is not so confined: Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540 at [202]-[203]. 12In this case, as the legislation prescribing maximum penalties recognises, the offence (of selling the Ruger) committed by Colvin is more serious than the offence of possession of the Ruger (committed by the applicant), in respect of which the applicant was sentenced to imprisonment for 10 years with a non-parole period of 7 years. 13Bennett DCJ turned his mind to issues of parity. He held: "There is no sufficient comparison between Colvin and [the applicant] to justify concerns regarding parity in this case. The determination of Colvin's sentence was upon his role as a middleman for the transaction in the acquisition of the pistol by [the applicant]. Upon the findings of fact I make that places his offence in a less serious category to that with which I am now concerned." This observation of Bennett DCJ was specifically directed to the offence concerning the Ruger. 14Bennett DCJ went on to identify disparities in the circumstances of the two offenders. Colvin stood for sentence in respect of a single offence, the applicant in respect of a total of seven offences. Consistently with what I have said above, in a different context (see [4]), the offence of selling a firearm into the criminal milieu, as committed by Colvin, is at least as serious as possessing a prohibited firearm (whether for sale or for the purpose of criminal activity). That is consistent with the maximum penalties prescribed for the two offences. 15In my opinion, having regard to what was said in Jimmy, it was not possible so lightly to discard principles of parity with respect to the Ruger offence. The disparity is enhanced when regard is had to the maximum penalties. 16That conclusion does not carry the consequence that the applicant ought to be sentenced, in respect of the Ruger offence, in the same way as was Colvin. His possession of the Ruger cannot be separated from his concurrent possession of the Colt, nor of his possession of the significant quantities of ammunition suitable for both weapons, of his failure to keep the weapons safe, or from his possession of a ballistic vest, and the police badge and warrant card. These circumstances elevate the seriousness of the Ruger possession offence, as well as justifying a significantly lengthier term of imprisonment overall. 17However, I am satisfied that a material consideration was overlooked. Ground 5 (the consideration for the pleas of guilty) 18There was, before the sentencing judge and this Court, a complex history of the applicant's pleas of guilty to the counts on which he was sentenced. Put briefly, the applicant believed that he had entered pleas of guilty at a much earlier stage than was in fact done, and it was accepted that he had given those instructions to his legal representatives. It is clear that the focus of the applicant's legal representatives was on the count of conspiracy to murder, of which he was ultimately acquitted. It appears that his intention to admit the other offences was never translated into the formal entry of pleas of guilty until 3 June 2011. The evidence establishes that this was no fault of the applicant. His Honour said: "The reason for the delay in the plea until the arraignment is, as his Honour [Howie J in R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1] pointed out, irrelevant because it is the fact of the plea forthcoming which provides utilitarian value. That is a general observation, but [the applicant] chose his representation and indeed had the presence of mind to change his representation to another solicitor of his choice. It is a matter for [the applicant] to have given clear and unequivocal instructions if his course was to plead guilty in the Local Court and to ensure that that was done. There is no suggestion that his solicitors or any one of them along the way have misrepresented to him what they did or did not do." 19In my opinion, this observation places too much weight upon the applicant, who was in custody, refused bail, and who was facing the very serious charge of conspiracy to murder. Moreover, it has not been demonstrated to me that the delay in entering the pleas of guilty significantly affected their utilitarian value. It is unlikely that these matters would have been disposed of in advance of the conspiracy charge. 20It appears to me to be implicit in the judgment of McCallum J that her Honour considers that the applicant ought to have been given the benefit of a more significant reduction in sentences, to the full extent of the 25 per cent envisaged in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. I agree with her Honour. Ground 6 21The evidence showed that the applicant came from a significantly "dysfunctional family background". His parents abused substances, and his mother was physically abusive towards him. He himself also used illicit substances, and had a long history of psychiatric disturbances. The evidence is such as to bring the applicant within the principles stated in Bugmy v The Queen [2013] HCA 37; 249 CLR 571. It was therefore an error, as McCallum J says, to relegate those circumstances to only "modest" relevance. 22It follows from what I have said that it is necessary for this Court to intervene, quash the sentences imposed, and re-sentence the applicant. Although, without the benefit of seeing the sentences proposed by McCallum J, I might have come to a slightly different result, I am prepared to concur in the sentences her Honour proposes. 23ADAMS J: Introduction 24The applicant seeks leave to appeal from sentences imposed in the District Court on 11 April 2013. The applicant was arraigned in the District Court on 3 June 2011 on an indictment containing four counts, on the first of which (conspiracy to murder) he was acquitted whilst he pleaded guilty to the others. Counts two and three charged the unauthorised possession of, respectively, a .22 calibre Ruger self-loading pistol, and a .45 calibre automatic Colt pistol, contrary to s 7(1) of the Firearms Act 1996 (NSW) (the Act), carrying a maximum penalty of 14 years imprisonment with a standard non-parole period of 3 years. Count four was a charge of supplying 10.08 grams of heroin contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), for which a maximum penalty of 15 years and/or a fine of 2000 penalty units was prescribed. In respect of count two, four offences were taken into account on the Form 1: unauthorised possession of .22 calibre ammunition contrary to s 65(3) of the Act (maximum penalty of 50 penalty units); not keeping the .22 Ruger pistol safely, contrary to s 39(1) of the Act (maximum penalty of imprisonment for 2 years and/or a fine of 50 penalty units); unauthorised possession of a ballistic vest contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW) (maximum penalty of 2 years imprisonment and/or 100 penalty units); and receiving a police badge and warrant card knowing them to have been stolen contrary to s 188(1) of the Crimes Act 1900 (NSW) (maximum penalty of imprisonment for 2 years and/or a fine of 20 penalty units). In respect of count three, two offences were taken into account on a second Form 1: unauthorised possession of .45 calibre ammunition; and failing to keep the Colt safely. In respect of count four, one offence was taken into account on a third Form 1: possession of 12 vials of steroids, contrary to s 16(1) of the Poisons and Therapeutic Goods Act 1966 (NSW) (maximum penalty of imprisonment for 2 years and/or a fine of 20 penalty units). 25The following sentences were imposed on 11 April 2013 - Count two (taking into account the offences on the first Form 1): imprisonment for 10 years commencing on 24 September 2009 with a non-parole period of 7 years expiring on 23 September 2016; Count three (taking into account the offences on the second Form 1): imprisonment for a period of 10 years commencing on 24 September 2010 with a non-parole of 6 years expiring on 23 September 2016; Count four (taking into account the offence on the third Form 1): imprisonment for a fixed term of 2 years commencing on 24 September 2009. The total effective sentence was, therefore, 11 years imprisonment commencing on 24 September 2009 with a non-parole period of 7 years expiring on 23 September 2016. 26The grounds of appeal are - 1. The primary judge erred in finding that the applicant's possession of the Ruger .22 calibre pistol fell within the worst-case category. 2. The primary judge erred in finding that the Ruger .22 calibre pistol was acquired for purposes to do with the applicant's role as an enforcer and was not for the purpose of on sale; 3. The primary judge erred by failing to have regard the sentence imposed upon Paul Colvin for the purpose of ensuring parity and/or proportionality with the sentence imposed upon the applicant for the possession of the .22 calibre Ruger pistol; 4. The primary judge erred in finding that the applicant's possession of the Cold .45 calibre pistol fell within the worst case category; 5. The primary judge gave inadequate weight to the applicant's pleas of guilty; and 6. The primary judge erred in determining that the applicant had reached the stage when his subjective circumstances could only modestly ameliorate his sentence. Facts 27Tendered on sentence was a document headed Facts Relevant to Sentence together with a folder of material from the Crown comprising witness statements, telephone intercepts and SMS transcripts, and photographs. This material was not disputed. The parties differ, however, as to the inference properly to be drawn from the material as to the use which the applicant intended to or had put the weapons, this being a relevant, perhaps decisive, factor in assessing the objective seriousness of the offences. The following summary is taken from these documents. 28The applicant had agreed with Michael Ibrahim to attempt to obtain a large sum of money from John Macris and a payment of $380,000 from Hesham Ibrahim. Police searched the applicant's premises on 24 September 2009 and discovered the Ruger fitted with a silencer inside a kitchen cupboard, a box of .22 ammunition on the floor of an upstairs spare bedroom which was used by the applicant, together with a holster in which there were two magazines, each fully loaded with .22 rounds, a black bag hidden behind the cupboard where the pistol was found, containing two photographs of John Macris and a piece of paper with his address and the Colt pistol, which was loaded, together with the police identification badge and wallet and a pair of latex gloves; the heroin, steroids and body armour vest were found upstairs in the wardrobe of the spare room where the ammunition had been found. One of the photographs had the applicant's fingerprint on it and the other, his DNA. His fingerprints were also found on the piece of paper with the address on it. The applicant obtained the Ruger pistol at the Parramatta Railway Station at about 7.30pm on 23 September 2009. 29I have mentioned that the applicant had been acquitted on count one of the indictment. He had not given evidence at the trial. The only evidence in the sentence proceedings from him came from an affidavit concerning his intention to plead guilty which was tendered in the proceedings without objection, upon which he was not cross-examined. 30As I have mentioned, the factual dispute concerned the purpose for which the Ruger was acquired and the use, if any, to which the Colt had been put. The Crown prosecutor on sentence, had, in his written submissions, contended, in substance, that what the applicant had said in intercepted telephone conversations tendered in the trial (and the verdict of the jury) was consistent with the applicant having acquired the Ruger for the purpose of on-sale. In oral submissions, the prosecutor confirmed that this was the Crown's position. The situation concerning the Colt pistol was, however, submitted to be different. It was submitted that the applicant possessed this weapon for purposes related to what he described as the applicant's "debt recovery work". During the course of hearing submissions, the learned primary judge expressed disagreement with the prosecutor's concession as to the Ruger, indicating (with respect, rightly) that he was not bound by it. The prosecutor then made further written submissions to the effect that, although the Crown's submission was that the Ruger was obtained in order to be on-sold, it was also open to conclude that the offender intended to keep the Ruger for what he called (in an intercepted telephone call on 11 September 2009 - dealt with below) "special occasions", when a silencer might be necessary. The submission concluded - "Apart from noting that John Macris was a person from whom the offender was to obtain a sum of money, it is not proposed to submit that any particular action with any particular firearm was proposed with respect to him ..." 31That the applicant was a standover man, providing services for persons engaged in organised crime was not disputed. For the purposes of sentence, the evidence relied on (and not disputed) was that of Detective Abdy as follows - "Q. Now just finally there was a call ... where Mr Atkinson is suggesting that as part of his money collecting activities he just turns up and people just hand over money, it's just to - so it is not suggested we are being unfair, it's correct isn't it... the chit chat is usually covered with either the actual threat of violence or implied threat of violence... A. Yes." 32The applicant had also told Professor Greenberg - whose report was tendered by the Crown - that he had been involved with organised crime and "bikie gangs", stating that he was known as "the enforcer", telling Dr Greenberg, "I made it all happen. If told to enforce, it was my job, freelance work." 33On behalf of the applicant it was submitted that the evidence did not permit the conclusion beyond reasonable doubt that the applicant intended to do other than to on-sell the weapon. As to the Colt, it was submitted there was no evidence one way or the other as to why it was in the applicant's possession and, although it must have been for an unlawful purpose, it could not be concluded beyond reasonable doubt that it had been or was intended to be used for his business. 34This was the context for the primary judge's interpretation of the telephone intercepts involving the applicant, which led his Honour to reject the reasonable possibility that the purchase of the Ruger was only a commercial venture and conclude beyond reasonable doubt that it was "acquired for purposes to do with the offender's role as an enforcer". His Honour accepted that the applicant's statements in the intercepted conversations indicated the purchase was for the purpose of on sale but considered these statements were misrepresentations made because the applicant did not wish to disclose to the seller his true purpose for acquiring the weapon. His Honour also accepted that, although it was not possible to conclude that the Ruger was to be used to enforce payment of the debts owed by Mr Macris or Hesham Ibrahim, he was satisfied that the gun was acquired to be used in the applicant's business as a standover man. His Honour concluded that he possessed the guns for the purpose of using - "them in the services he provided for others engaged in the pursuit of organized criminal activities, and by his participation as a member of the society [outlaw motor cycle club] in which they conducted themselves in those pursuits, places the offences in the worst case examples of such offences". 35His Honour added - "Even so, upon the ... hypothesis that the Crown initially conceded [i.e. that the Ruger was acquired for resale], this was a .22 calibre self-loading pistol... [and the applicant] had a significant quantity of ammunition to go with the weapon. It was fitted with a noise suppressor. It could have had no legitimate purpose, and whether he had the weapon as part of his tools of trade, as the phrase has been used, as an enforcer, or whether he had it to sell it on to some other member of the underworld, for whatever purpose that person might have, I am of the view that his possession of this weapon in the context I earlier described, places this offence in the worst case example." His Honour came to the same conclusion as to the Colt. 36It should be noted that the defence case at trial on the charge of conspiracy to murder was that the applicant's involvement was no more than agreeing to recover money as distinct from agreeing to kill Mr Macris. Were the offences in the worst case category? 37In the course of the appeal we were taken by Mr Boulten SC for the applicant to the relevant portions of the intercepted telephone calls concerning the purchase and use of the Ruger to the effect that he was acquiring the Ruger for the purpose of resale. It is not submitted that the primary judge was bound to accept the truth of these statements by the applicant. The gravamen of this ground of appeal is that, even if what the applicant said was unreliable and did not prove positively that he was acquiring the weapon for resale, it could not be inferred beyond reasonable doubt from those conversations and from the fact that he was a standover man that he had acquired the Ruger or was in possession of the Colt for the purposes of this activity, thus, the conclusion of the primary judge in respect of both weapons was in error. 38It is further submitted that, if the applicant merely acquired the Ruger for on sale, the offence could not properly be regarded as being in the worst case category. In the alternative, it was submitted that, even if the Ruger had been acquired and the Colt was possessed to be used in some way in the applicant's criminal activities, this was not sufficient to place the offences in the worst category of case. 39So far as the objective seriousness of an offence of the kind in question here is concerned, both the nature of the weapon and the purpose for which it is possessed represent, to my mind, the most significant factors. It cannot be a circumstance of aggravation, of course, that the weapon in question is a pistol, since this is an element of the offence. However, some such weapons are more dangerous than others, for example, a replica or single shot pistol is, for obvious reasons, less dangerous than the Ruger and Colt pistols in the applicant's possession. They are semi-automatic or self-loading so that they automatically re-cock after each shot is fired, unlike an automatic which will continue to fire whilst the trigger is depressed. Unless there was some particular factor which suggested they were significantly more dangerous than the general run of pistol or prohibited weapon to which the offence applied, there would be no basis for concluding that, as a type, possession of them would place the offence in the most serious category. Many of the weapons in Schedule 1 to the Act (and thus prohibited under s 7(1)) are long arms and, accordingly, are difficult to conceal but, by the same token, are accurate at longer ranges). To my mind, the Ruger falls within the middle of the range of seriousness for this offence. The addition of the silencer added to the seriousness of its possession, taking it significantly above mid-range objective seriousness. 40So far as the purpose for which such a weapon is possessed, here again there is a wide range of relative seriousness. Acquiring the weapon as a collector, with no intention of using it for any criminal purpose is obviously less culpable than acquiring it, say, for the purpose of committing a murder. Acquiring it for self-defence is significantly less reprehensible than acquiring it for the purpose of committing crimes. It is inescapable, of course, that the principal criminality of possessing a firearm is the risk of its use in criminal activities and the danger of its causing death or serious injury. However, intending (say) to use the gun as a threat would, generally speaking, be less culpable than intending to use it to cause injury or, of course, grievous bodily harm or death. Possessing a pistol for the purpose of resale is, of itself, serious (for reasons mentioned by the primary judge) because of the likelihood that it will be used for a criminal purpose and, very probably, for the purpose of threatening or causing serious injury or death. Of course these distinctions all involve matters of fact and degree. In some cases the distinction will be very material and in others less so. Although bright line distinctions cannot, in the nature of things, be made, it is nonetheless necessary to address the question of objective seriousness as precisely as the circumstances permit. 41In this case the context was that the applicant was in the business of being a standover man, one of the undoubted features of his methods being the making of threats which would be taken seriously by the victim. Exhibiting a weapon such as the Ruger or the Colt with the implication that he would not scruple to use it if necessary would be an obvious use especially so far as the former is concerned, if it were fitted with a silencer. The argument sought in this respect to be made by Mr Boulten SC for the applicant is that possession of the pistol for the purpose of causing fear is less culpable than having it for the purpose of causing injury. 42It is agreed that the only evidence available to the primary judge and relevant to the issue was, in effect, the evidence that the applicant was a standover man, that he was engaged to act for Michael Ibrahim to recover money from two men and a number of intercepted telephone conversations on 11 and 12 September 2009 between him and Michael Ibrahim and some with others, including Colvin, who delivered the Ruger to him. He and Michael Ibrahim used "girl", "slut" and "dirty slut" (and related language) to denote a weapon. The distinction implied is uncertain, possibly (one or another) referring to a gun with a silencer. By and large I have given the effect of the coded conversations which was not controversial. 43In the call on 11 September 2009 at about 8.25pm, the applicant said that he attempted to find a gun but his contacts could not provide one and he did not know where to get one. He said he "was going to try and go out either Saturday night or Sunday", to which Michael Ibrahim's response was, as I understand it, the applicant would have to find his own weapon. About 20 minutes later the applicant called an unidentified male, and told him that his "mate" (presumably Michael Ibrahim) would pay for a gun if he (the applicant) could get one. The man said "one of the boys" might bring a gun with him "tonight". The applicant said he would charge (Michael Ibrahim) $6000 for the gun the applicant already had (presumably the Colt) and that way, "We can get six for nothing". (This suggests, I think, that Michael Ibrahim was to pay for the gun for the applicant to have and, inferentially use.) The man urged the applicant to wait until he contacted his mate to see if he could get a gun. The applicant said he would prefer to sell his gun and get a "nice girl ... for special occasions", adding, "You know what I mean, if we have a party ... or a buck's night or something, fuckin' pull her out ...". There is then a discussion about the noise of a party. (This is a reference, I think, to some activity at which it was proposed to produce a gun and the desirability of a silencer. The Crown pointed to this passage as conveying the applicant's intention to keep the newly purchased gun, if it had a silencer, for the purpose of his criminal activity.) Three minutes later the applicant and the man talked again. The latter suggested he had found someone with a gun and silencer. The applicant said he knew someone who wanted one, "and I can get a couple of bucks out of it too... because, honestly there, I could probably get five bucks out of it too, you know what I mean?" (This implied that he had decided to sell this gun for a profit.) The applicant asked if the man knew someone else with guns to sell and was told he would ask another person. The applicant called again after a few minutes, but whether this was to speak to the same man or another is not disclosed by the evidence. The applicant asked if he knew anyone with a "dirty" gun which he "just needed to take out", adding, "like tonight or like it's for myself anyway just so I can take her out if I want to go out ... just find out how much she is for the night". Some two hours later (2.25am on 12 September), the applicant sent Michael Ibrahim a text message to the effect that he had found a weapon for $7000 and Michael Ibrahim should arrange for that amount to be put in the applicant's TAB account. At about 9am, the applicant telephoned a female to say, in effect, the proposed purchase was not going ahead and asked if she knew someone else who could supply a gun. The woman said she would ask around. The applicant reminded her of someone who had "the super duper ... thing ... with the laser light [which] I just want ... for myself" but he thought he had gone to gaol. The female agreed to make inquiries. At about 7pm later the applicant sent Michael Ibrahim another text to the effect he had found a weapon which "I will take out tomorrow night" (I think meaning it would then be purchased, but it might suggest it would be used for a reason Michael Ibrahim understood) if $7000 were placed in his TAB account. Several calls follow about the arrangements to pay. 44On 16 September the applicant and Colvin spoke on the telephone discussing prices of weapons ($4000 or $5000), the applicant suggesting he wanted them for resale. After a number of other (inconsequential) calls ultimately they met and Colvin delivered the Ruger and silencer to the applicant. 45As I have mentioned, the Crown prosecutor on sentence conceded initially that the tendered conversations were consistent with the applicant's intention of buying the Ruger for resale. In rejecting this hypothesis, the primary judge said - "The difficulty that I have with that proposition is that it requires me to disregard the content of the conversation that was captured between the offender and Michael Ibrahim, and the terms of the conversation which had Michael Ibrahim willing to provide the sum of up to $7000 for the acquisition of a weapon, all occurring at a time when the offender was to attend upon John Macris to recover a debt of money allegedly owed." 46Leaving aside the uncertain language of the intercepted conversations, this reasoning depends upon the assumption that they convey the entirety of communications between the applicant and Michael Ibrahim at this time. The evidence is consistent with the hypothesis that the applicant intended to purchase a gun for resale to Michael Ibrahim for $7000, having acquired it through Colvin for $4000 or $5000 as well as them having an arrangement that the applicant would use the weapon to threaten the debtors. After all, he already had the Colt if he needed a gun for that purpose. In my respectful view, the evidence does not permit the conclusion beyond reasonable doubt that the applicant intended to use the Ruger for the purpose of making unlawful threats, though the references to "going out" suggested such a use. Given the nature of the applicant's criminal enterprise, it is reasonable to infer that he might have intended to use the Ruger to make threats but this is, as the evidence goes, no more likely than that he intended to sell it. 47However, since the putative buyer must be taken to have some use for the weapon, which could well involve unlawful threats or even an attempt to cause death or serious injury or a threat to do so, the fact that the applicant himself did not intend to use it in these ways does not, to my mind, significantly reduce his criminal culpability. This view is fortified by the circumstance that resale of the weapon would have entailed the commission of an offence under s 51(1A)(a) of the Act, carrying a maximum penalty of imprisonment for 20 years and a standard non-parole period of 10 years. The distinction sought to be made thus being practically inconsequential, it does not matter whether the primary judge erred in concluding beyond a reasonable doubt that the applicant acquired the Ruger for use in his criminal business. 48Mr Boulten contends, however, even if the Ruger had been acquired to be used in the applicant's business, that would not place his possession of it in the worst category of case. I accept the correctness of this submission. An intention to use a prohibited weapon to kill or cause grievous bodily harm in the course of standing over a victim would almost certainly put the case in the most serious category. On the other hand, although undoubtedly serious, an intention to use the weapon only to threaten or to sell it to a buyer who might use it for the same reason does not, as I think, place it in this category. The fact that the applicant's business involved using a weapon to make threats does not take the matter any further. Undoubtedly the offence is a serious one, but it does not, in my respectful opinion, come within the worst category of case. The same conclusion must apply to possession of the Colt on the basis, to which no real issue was taken in this Court, that it was part of the applicant's "tools of trade". 49It follows that grounds 1 and 4 have been made out. It is not necessary to decide the other grounds of appeal, since the Court must consider for itself what sentences were warranted and whether they should have been passed: s 6(3) Criminal Appeal Act 1909 (NSW). Subjective features 50The applicant is 34 years of age. As the primary judge mentioned, the evidence as to the applicant's history comes from the reports of Dr Nielssen (tendered by the defence) and Professor Greenberg (tendered by the prosecution) together with the records of Justice Health. Also relevant in the present context is his statement to Professor Greenberg quoted above as to his (longstanding) criminal business activities. The primary judge referred extensively to this material and also to statements from the applicant's mother and the uncle of his partner. 51Although a deal of psychiatric material was tendered, it was not, and could not, be suggested that there was anything in it which was connected with the offences in a way that could mitigate their seriousness. However, it provides some insight into the reasons for the applicant's criminal behaviour and his prospects for rehabilitation and some brief reference to salient points is appropriate. At the time of his examination in custody by Professor Greenberg the applicant said that his mood was normal and his sleep episodic, he worked out in the gaol gym three times a day, his appetite was good and he had lost some weight in gaol. His energy levels were low despite his exercise regime and he reported poor concentration. He denied current thoughts of self-harm. 52He told Professor Greenberg that his father was a builder's labourer, killed in an accident while bushwalking when the applicant was 15 years of age. In some ways, he had a difficult upbringing. He said there was no physical violence between his parents in the home but at 13 he began moving out of home periodically, supporting himself by selling drugs, because of his mother's physical abuse towards him and other problems he had. He fractured his skull at age five when bike riding and was unconscious for four days in Waratah Hospital Newcastle being in due course referred to Parramatta Brain Behaviour Centre. He denied any long-term consequences. At 16 years of age he moved out of home permanently. He reported binge alcohol drinking from his mid-teens and suffered alcoholic blackouts, early morning drinking and alcoholic shakes. He began smoking cannabis when he was 12, using up to 4 grams a day. He also used LSD from the age of 15 and, amphetamines from 16 years and crystal amphetamine from the age of 21 though he has never injected drugs. He said he had used cocaine from the age of 17 and regularly did so from 21, using crack cocaine from 2006 and heroin on occasion since 1995. He told Professor Greenberg that he first joined an outlaw motorcycle gang at the age of 24 and had been associated with several clubs, but reported that he had distanced himself from his former associates since entering custody. 53The applicant said that he had been depressed for most of his life, with varying severity. There is a family history of mental illness involving his maternal grandfather and suicide of a cousin. (He told Dr Nielssen, however, that he was not aware of any diagnosed psychiatric disorder in either his mother's or father's families.) 54The applicant was sickly as a child because of asthma. He was suspended from school because of conduct problems and ultimately expelled, moving to another school but again being asked to leave because of behavioural problems. He was a poor pupil but has fair literacy skills and is competent with numeracy. Between the ages of 5 and 10 years he saw a school counsellor or psychologist because of his conduct at school. He was not treated for ADHD or with any stimulant medications. He saw a psychiatrist when he was 22 for psychosis and bipolar disorder and was prescribed antidepressants and antipsychotics. At this time he was abusing drugs including methamphetamine. In 2001 he took an overdose of alcohol and pills and was admitted to the John Hunter Hospital. In 2003 he attempted to hang himself and was referred to the Newcastle Drug and Alcohol Services. In custody he experienced hallucinations and was treated with antidepressants. 55In 2010 the applicant was stabbed whilst in custody. He fractured the bones in his right hand on three occasions and suffered a stab wound to that hand in a fight. He has been using steroids for his bodybuilding but in 2001 attended a rehabilitation program and managed to remain abstinent for two years. He denied using drugs in custody. He has hepatitis C. 56The applicant has had limited work in the open labour market, lawn mowing, as a fire sentry and a labourer. He was on a disability support pension between 18 and 25 because of psychotic episodes from his drug use. He formed a stable relationship with his partner with whom he has a four year old daughter. 57Professor Greenberg diagnosed the applicant as having poly-substance abuse dependence, post traumatic stress disorder, dysthymia disorder with associated anxiety symptoms, and a history of drug induced psychosis and psychotic symptoms. He has a personality disorder with antisocial features. He does not suffer from any major psychiatric illness such as schizophrenia or bipolar disorder. There is no evidence of any current psychotic symptoms. He suffered auditory and visual hallucinations whilst in segregation, having developed sensory deprivation symptoms. Professor Greenberg did not consider that the applicant's use of alcohol and illicit substances was directly related to his involvement in organised crime or directly caused his criminal behaviour. 58Dr Neilssen did not find the applicant to be depressed. Nor was there an indication of underlying psychiatric illness. The applicant's registration and retrieval of information was largely unimpaired and his intelligence appeared to be about average. Dr Nielssen diagnosed substance dependence and abuse disorders in remission, dysthymic disorder (despondent) and drug induced psychosis, also in remission. 59The applicant's mother provided a letter that was tendered on the sentence proceedings. She said, amongst other things, that she had been visiting him in gaol, that he expressed great regret over his actions and is embarrassed and ashamed at the fact that his actions have caused him to be away from his daughter since September 2009. She referred to his express desire to live with his partner and daughter and rebuild the family on his release from gaol. She said that she was close and supportive of the applicant and would continue to be supportive of him (although this was not the picture of their relationship given by the applicant to Professor Greenberg). Mrs Atkinson referred to the applicant's "very difficult upbringing" and the fact that he was affected substantially by the death of his father at a young age and the suicide of his cousin. She mentioned also his addiction to illicit substances. She believed that if he could refrain from using drugs and, being appropriately supervised on release, he would not commit any further offences and that his three and half years in custody to that point had changed his way of thinking. The uncle of the applicant's partner also provided a testimonial in which he said, amongst other things, that he had visited applicant in gaol on a number of occasions and the applicant has expressed regret about his actions which have not only affected him but his young family and his intention to live a full and productive life with his family once he is released from custody. 60The primary judge considered that the applicant's expressions of remorse and his desire to avoid reoffending when he is released should be considered "with some reservation", given that the applicant gave no evidence. However, his Honour brought into account that the applicant had intended to admit his wrongdoing from the inception of the police search at his home and had persisted in his desire to plead guilty at the earliest possible opportunity. His Honour concluded, however, that he was unable to come to the view that the applicant was unlikely to reoffend, given his antecedents. Criminal history 61His Honour summarised this as follows - "His record of criminal antecedents began in November 1998 when he was sentenced in the Local Court to brief periods of imprisonment for cultivating a prohibited plant and larceny. Thereafter he accumulated a record of convictions for common assault (3), offensive language, intimidate a police officer (2), causing damage to property two, assault occasioning actual bodily harm (2), use an offensive weapon in company, drive whilst suspended (4), possess a prohibited pistol, offensive behaviour two, resisting police and driving whilst disqualified (3). There are other entries for traffic offences that I have not included in this summary. In respect of two of the offences, using offensive language and intimidating a police officer ... the offender was taken to hospital on 3 February 2003 upon an order pursuant to s 33 of the Mental Health (Forensic Provisions) Act 1990 ...The provisions empower a magistrate to order the defendant be taken to a mental health facility for assessment if it appears to the magistrate that the defendant is a mentally ill person. Subsequently, on 4 February 2003, the offender was convicted of the street offence and fined and sentenced to six months imprisonment, suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act upon him entering into a bond to be of good behaviour conditioned as to residence and attendance upon a medical practitioner. That was in respect of the intimidation charge." 62The possession of a prohibited weapon offence (with one offence of common assault on a Form 1), for which he was sentenced in March 2007, resulted in a sentence of 2 years and 3 months imprisonment with a 1 year non-parole period. He produced the pistol following an altercation with the victim and threatened to shoot him (the common assault). However, when the police were called, he left. It later appeared the gun was not loaded. The plea of guilty 63The applicant relied upon an affidavit sworn 10 April 2013 concerning his intention to plead guilty to the present charges. The affidavit was read without objection and no application was made by the Crown to cross-examine him. The primary judge (with respect, correctly) accepted the truthfulness of the affidavit. The applicant said that, when the police came to the premises and before they searched them he was asked whether he had any items of interest to disclose and immediately informed the police of the Ruger, drugs, ammunition, ballistic vest and steroids, admitting ownership of them. He did not disclose at this time his possession of the Colt and the police warrant card and badge. When he was arrested and taken to Parramatta Police Station, he was questioned about the items which had been found, including the bag containing the photo and addresses of Mr Macris, the warrant card and badge and the Colt. He told Detective Abdy that everything found in the house was his, that he was in possession of it and, specifically, that the bag and everything in it was his. However, he declined to answer questions about the identity of the person who supplied the weapon or the reason for which it was in his possession. 64The applicant says that, before his first hearing in the Local Court, he instructed his solicitor that he wished to plead guilty to everything found in the house because he had already admitted to it but would plead not guilty to the conspiracy to murder because he knew nothing about such a conspiracy. The solicitor advised him, in substance, that he should wait until the brief of evidence has been served. The applicant, shortly after, changed his solicitors. In due course, his new solicitor visited him at the Metropolitan Remand and Reception Centre and, on that occasion, the applicant repeated the effect of his earlier instructions. There were negotiations, it seems, as to the possibility of a guilty plea to the conspiracy charge with the other matters being placed on a Form 1 but the applicant rejected this suggestion and repeated his earlier instructions. 65The applicant was rarely present in the Local Court, either in person or via AVL, and even when he was brought physically to the Court building he opted not to be present so that he was absent during the overwhelming majority of occasions when his matter was before the Local Court. The committal proceedings commenced on 9 May and concluded on 13 May 2011 with the applicant being committed for trial. He believed, by this time, he had pleaded guilty to the possession charges and the committal hearing was confined to the conspiracy to murder charge. On 3 June 2011 the applicant's solicitor conveyed another offer from the Crown to accept a plea to the supply of heroin and possessing the two firearms, putting the other possession offences on a Form 1. The applicant said that he was surprised by this and asked the solicitor why should he plead guilty again since he thought he had already done so. 66In summary, the applicant provided his solicitor with unequivocal instructions to enter the pleas of guilty and was unaware that this had not occurred until the last conversation to which I have referred, believing that pleas of guilty had been entered in the Local Court. He therefore had no reason to believe that pleas were not entered and assumed that, in accordance with his instructions, his solicitor had entered the pleas of guilty as instructed. 67His Honour decided that he should accept and act upon what was contained in the affidavit. The primary judge, citing the observation of Howie J in R v Borkovski [2009] NSWCCA 102; 195 A Crim R 1 at [32], "generally the reason for the delay in the plea is irrelevant because if it is not forthcoming the utilitarian value is reduced", said that it was for the offender to ensure that his instructions had been followed and, in effect, he could not rely upon an assumption that his solicitors had followed his instructions. His Honour concluded that "fairness and justness dictates that in this case there should be a discount allowed of 15 per cent". 68Given that the evidence on the conspiracy charge depended to a significant extent on the evidence relating to the possession of the firearms and the applicant had already admitted both to that possession as well as the offences concerning the other items, there was very little preparation that would have been additionally necessary had all matters gone to trial. In short, so far as any utilitarian value (and there was undoubtedly some) was to be gained from an early plea of guilty, the fact that it actually occurred late in this case, made very little difference. The crucial question is whether the delay provides an appropriate basis for reducing the discount. In my view, it was reasonable for the applicant to believe that his legal representatives had entered pleas to the other charges when he instructed them to do so. The public policy underlying the availability of the discount for an early plea would be undermined if, in those circumstances, it was refused or reduced for reasons of which an offender, acting reasonably, was unaware. Accordingly, I would respectfully differ from the primary judge's view of this matter and allow the applicant the full discount of 25 per cent on his pleas of guilty of the present offences. The sentence of the co-offender 69Paul Michael Colvin had sold the Ruger to the applicant. He pleaded guilty to selling a prohibited firearm to a person not authorised to possess it contrary to s 51(1A)(a) of the Act, prescribing a penalty considerably greater than that applicable to its possession. The factual basis accepted for the purposes of sentence was derived, essentially, from intercepted telephone calls and text messages between Colvin and the applicant which were also tendered in the applicant's sentence proceedings. There was a dispute in Colvin's proceedings as to whether he had actually handed over the Ruger to the applicant, although he was present at the time this was done. Keleman DCJ, who sentenced Colvin, thought it probable that Colvin had handed the gun to the applicant but could not make the finding beyond reasonable doubt. This was, of course, a distinction without a difference. Colvin was sentenced "on the basis that he acted as a middle man conducting negotiations with Atkinson for the purpose of selling Atkinson a prohibited firearm in exchange for money, as evidenced by the recorded calls". 70Colvin was 30 years of age at the time of sentence with a criminal history commencing in 1995 with convictions including breaking entering and stealing, stealing, other offences of dishonesty, assaults, assaults occasioning actual bodily harm and affray. In February 2007 he was sentenced to a term of 2 years and 6 months imprisonment with a non-parole period of 18 months for the offence of firing a firearm in a manner likely to injure persons or property. Colvin's subjective features were not markedly dissimilar to those affecting the applicant, including periods of homelessness and problematic schooling, effectively ceasing at primary school level. He had worked as a labourer and a scaffolder but was unemployed at the time of his arrest on 30 March 2011. His drug use was also not dissimilar to the applicant's but he ceased this, unaided, when his second child was born in 2009 and since then had only occasionally used cannabis although he had problems with alcohol. Keleman DCJ accepted that Colvin was remorseful but was guarded about his prospects for rehabilitation. Colvin had pleaded guilty when he was due to stand trial and received a discount of 10 per cent for the utilitarian value of this plea. Special circumstances were found. The starting point for Colvin's sentence was 5 years, resulting after discount in an overall sentence of 4 years and 6 months with a non-parole period of 2 years and 6 months. Consideration 71It seems to me that an issue of parity is raised by Colvin's sentence for the offence of supplying the pistol to the applicant. Given the very much greater maximum sentence (20 years) that applied to his offence, as distinct from that faced by the applicant (14 years) it must be regarded, on the face of it, as a significantly more serious offence than that for which the applicant was sentenced. This difference is all the greater when the standard non-parole periods (respectively 10 and 3 years, for an offence in the middle of the range of objective seriousness) are taken into account. Indeed, even use of a pistol is, under s 7(1), also subject to a significantly less serious regime than the offence of supply under s 51(1A). Categorising the relative seriousness of the two offences for the purposes of parity must take the statutory scheme into account, as reflecting the legislative scale of culpability - albeit within a very wide range of relevant scenarios - as well as the objective and subjective facts operating in each case. 72There is, as Mr Boulten submits for the applicant, little difference between him and Colvin so far as their criminal records are concerned, both having convictions for offences of violence and possession or use of firearms. Even if the applicant acquired the gun for the purpose of threatening victims in the course of his standover business, the fact that Colvin handed over the gun indifferent as to its use but plainly aware of the risk that it might be used, not only to threaten but of course to cause injury, marks his culpability as much the same as that of the applicant. However, Colvin was a middleman who delivered rather than sold the weapon to the applicant. This justified the significant departure from the standard non-parole period applicable to his offence. Colvin's culpability was, therefore, significantly less than that of the applicant as the purchaser. Furthermore, the applicant was charged with two offences. 73So far as objective seriousness is concerned, the offences are serious. The fact that the Ruger was fitted with a silencer renders its possession more culpable than possession of the Colt. I have mentioned that the offence carries a standard non-parole period of 3 years, representing objective seriousness in the middle of the range. It seems to me that possession of the Colt is objectively in the middle of the range whilst that of the Ruger is somewhat more serious. Of course, the 3 years specified in this regard is not prescriptive and represents only a guide or benchmark. I have mentioned that the applicant is entitled, in my view, to a 25 per cent discount for his pleas. This must result in a corresponding reduction of the non-parole period otherwise appropriate on the assumption that the balance of term is calculated without variation of the calculus specified in s 44 of the Crimes (Sentencing Procedure) Act 1999. The Form 1 offences to be taken into account in respect of the possession counts increase the seriousness of those counts by making the possession more dangerous, as the possession of the specified articles facilitate the use of the weapons, which must inevitably be dangerous. 74It is reasonable to regard the applicant's background of a troubled history from a young age well into adulthood, involving problematic schooling, homelessness, significant psychological problems and drug addiction, as, to some extent, (to use the language in Bugmy v R [2013] HCA 37; (2013) 249 CLR 571; (2013) 229 A Crim R 337 at [43]) having compromised his "capacity to mature and to learn from experience" and remaining, "a feature of ... [his] make-up ... relevant to the determination of the appropriate sentence, notwithstanding ... a long history of offending". The apparent irrationality of the earlier firearms offence seems to reflect to some degree these problems. It can readily be accepted that ill-advised early decisions - here, becoming involved with criminals, on his own admission - can lead to commitments and then criminal acts by a process which may be difficult to step away from, especially when addiction to drugs is present. But there is no evidence that the applicant's business "as an enforcer" was other than a way of making money in a manner that suited his personality though this was, in perhaps important respects, a product of his earlier problematical life. In no sense was the acquisition of the Ruger impulsive and there is no suggestion that possession of the Colt was other than a deliberate decision for considered reasons. In these circumstances, the applicant's difficult upbringing approaches, if it does not quite reach, the inconsequential. 75It was not controversial that this Court should accept the primary judge's finding (with the reservation that the applicant gave no evidence himself) that the applicant was remorseful and his intentions to rehabilitate himself were genuine. Nor was issue taken with his Honour's view that the applicant's antecedents did not permit a finding that he was unlikely to reoffend. 76The applicant was taken into custody on 24 September 2009 which must be the commencement date of the first sentence. Dealing with his pre-sentence custody, the primary judge noted that the applicant spent significant periods in segregation generally because of safety issues arising from his criminal associations. His Honour accepted, on the evidence as to the nature of this imprisonment, that "the time he has spent in custody has involved a measure of punishment greater than that suffered by others in the general prison population" and made some allowance under this head. 77The primary judge found special circumstances but made only a slight reduction in the non-parole periods. The Form 1 offences are by no means trivial and reflect increased culpability for the principal offences. 78In respect of the offence of supplying heroin, the only complaint relates to the discount for an early plea. For the reasons already mentioned, I consider that the appropriate discount is 25 per cent and the sentence should be adjusted accordingly. This sentence was entirely subsumed in the sentenced imposed for Count 2, presumably for reasons of totality. Since I propose significant reductions of the sentences imposed for the firearms offences, the question of concurrency is necessarily enlivened. The same is the case in respect of the firearms sentences themselves, which were also entirely concurrent. In my view the possession of two firearms rather than one is a significant increase in criminality, if not quite twice the culpability and some accumulation is necessary to reflect the total criminality involved in their commission. Furthermore, supply of heroin is also a serious offence of a different kind, requiring some accumulation on the other offences. Result 79I propose the following sentences (after discounts in the order of 25 per cent) - Count 4, taking into account the Form 1 offence of possession of steroids: a fixed term of 1 year and 9 months commencing on 24 September 2009 and expiring on 23 June 2011. Count 2, taking into account the Form 1 offences of possessing ammunition and a ballistic vest, failing to keep the Ruger safe and receiving a stolen police badge and warrant card: a non-parole period of 3 years and 6 months imprisonment commencing on 24 March 2010 and ending on 23 September 2013 and a balance of term of 1 year and 2 months imprisonment expiring on 23 November 2014. Count 3, taking into account the Form 1 offences of possession of ammunition and failing to keep the Colt safe: a non-parole period of 2 years 9 months imprisonment commencing on 24 January 2012 and ending on 23 October 2014 and a balance of term of 11 months imprisonment expiring on 23 September 2015. 80The effect of these orders is to substitute for the overall sentence under appeal of 11 years imprisonment with a non-parole period of 7 years, an overall sentence of 6 years imprisonment with a non-parole period of 5 years and 1 month. This represents a variation of the statutory calculus, reducing the parole period somewhat. However, in my view, the effective non-parole period is necessary to reflect the applicant's overall criminality. 81McCALLUM J: I have had the advantage of reading the judgment of Adams J in draft. I agree that the appeal should be allowed. However, I have reached that conclusion on different grounds from those stated by Adams J. 82I would respectfully not share his Honour's conclusion concerning the learned sentencing judge's finding as to the purpose for which the Ruger was acquired. In my view, it was well open to the sentencing judge to be satisfied beyond reasonable doubt that the Ruger was acquired "for purposes to do with the offender's role as an enforcer". 83The document tendered by consent as the "facts relevant to sentence" included the fact that the offender had agreed to attempt to obtain a substantial sum of money from John Macris for Michael Ibrahim and that he was also seeking to obtain payment of $380,000 from Hesham Ibrahim for Michael Ibrahim. It was also established by the material tendered on sentence that Michael Ibrahim had agreed to pay for a "hooker" (plainly a reference to a gun) for the applicant. The Crown submitted to the sentencing judge, however, that "the offender's plan for a firearm and Michael Ibrahim's plan for payment from John Macris should be recognised as separate". 84In my respectful opinion, that was an artificial distinction. It is inconsistent with the intercepted material which, in my view, clearly reveals that Michael Ibrahim accepted, and treated with urgency, the need to pay the applicant for the gun before the applicant would carry out a further task. It beggars belief that the applicant would attend enforcement meetings without a loaded gun. In one of the intercepted conversations, he discusses his choices on that issue. Adopting the code of referring to guns as "sluts", he says (in the context of his search for a new gun): "see if there's just a nice girl around anyway, so, cause I'd rather just, we'll root the slut that I've got [apparently a reference to the Colt] and keep the...keep the other slut for special occasions...if we have a party or a buck's night or something, fuckin' pull her out" [apparently a reference to the proposed new gun - the Ruger had not then been located]. 85At the time of his arrest, the applicant may not have determined whether he would take the Colt (which was loaded) or the recently acquired Ruger with a silencer (or both) when he went to find John Macris but it is very clear, in my view, that he acquired the Ruger for the purposes of his criminal trade as an enforcer. To say that he acquired it instead for the purpose of on-sale or that he intended to make a profit out of the transaction poses a false dichotomy, in my view. The intercepted material reveals that he had both objects in mind. 86The possession of guns for use in the criminal enforcement of debts must be regarded as approaching, if not falling within, the worst category of that offence. If grounds 1, 2 and 4 were the only grounds of appeal, although I regard the sentences imposed to be severe, I would have been reluctant to intervene. 87However, I consider that the sentencing judge's discretion miscarried in denying the applicant the recognised discount for a plea entered at the earliest opportunity. That is the subject of ground 5. Adams J did not find it necessary to deal with that ground but has indicated for the purpose of re-sentence that he would allow the full discount of 25 %. 88The plea was not in fact entered in the Local Court but it was uncontested that those were the applicant's instructions and that he believed, evidently on reasonable grounds, that he had in fact pleaded guilty to the present offences at the time he was committed for trial for the conspiracy to murder. He had already made full admissions to police about those matters. I accept the applicant's submission that the judge ascribed too much fault to him in concluding that he should have ensured that his instructions to enter pleas of guilty were complied with - he thought they had been. In my view, this is one of those exceptional cases in which the reason for the delay must be regarded as being relevant: cf R v Borkowski [2009] NSWCCA 102 at [32](8). 89Accordingly, I would uphold ground 5. 90Adams J did not find it necessary to determine ground 3 (parity) or ground 6 (whether the applicant had "reached the stage" where only modest amelioration should be allowed for his subjective circumstances). However, his Honour had regard to the issues raised by each of those matters on the question of re-sentence. The material relevant to those grounds is set out at length in that part of his Honour's judgment, allowing me to state my conclusions briefly. 91It is logical first to consider ground 6. The sentencing judge said: I should say that notwithstanding my view that these are worse case examples of the weapons offences, I have not overlooked the subjective material that has been tendered in the offender's case which provides some explanation for his way of life. The stage is reached though when the extent to which those matters can be relied upon to ameliorate the punishment that is justly required for such misconduct is but modest. 92The Crown acknowledged in this appeal that, if those remarks referred to the passage of time since earlier periods in the applicant's life, his Honour's approach did not accord with the remarks of the plurality decision of the High Court in Bugmy v R [2013] HCA 37 at [43]. It is helpful to consider the whole of the relevant passage from that judgment (at [42] to [44]): It will be recalled that in the Court of Criminal Appeal the prosecution submitted that the evidence of the appellant's deprived background lost much of its force when viewed against the background of his previous offences. On the hearing of the appeal in this Court the Director did not maintain that submission. The Director acknowledges that the effects of profound deprivation do not diminish over time and he submits that they are to be given full weight in the determination of the appropriate sentence in every case. The Director's submission should be accepted. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender. 93The Crown submitted that the sentencing judge's remarks should be understood to reflect the approach approved in the third of those paragraphs. It must be recalled, however, that the judge sentenced the applicant almost 6 months before the publication of the High Court's decision and at a time when, as the judgment records, the accepted view was that the extent to which social deprivation in a person's youth and background can be taken into account, must diminish with the passage of time, as held by this Court in the decision under appeal in Bugmy: see R v Bugmy [2012] NSWCCA 223 at [50] per Hoeben CJ at CL; Johnson and Schmidt JJ agreeing at [57] and [58]. 94In my view, it is clear that his Honour took exactly that approach, which was accepted to be correct at the time but which was subsequently held by the High Court to be erroneous. That is not to say that the application of the correct approach as explained by the High Court would have conduced his Honour to a different result, but the consideration of that issue did, in my view, entail error. My conclusion on that issue is reinforced by my view that the sentence imposed on the applicant was very severe, even having regard to his Honour's findings as to the seriousness of the offences. 95As to parity, it may be acknowledged that there were stark differences between the two sentencing exercises. I do think, however, that the difference between the sentence imposed on Colvin and the indicative sentence stated in respect of the applicant's offence relating to the Ruger suggests that the two men did not receive equal justice. In any event, in light of the conclusions I have reached as to grounds 5 (the discount for the plea) and 6 (the Bugmy error), it is not necessary to determine ground 3. It is enough to indicate that I have had regard to the matters addressed by Adams J on that issue. 96In light of my conclusion as to grounds 1, 2 and 4, I do not agree with the orders proposed by Adams J. 97The judge started at sentences of 12 years for each firearm offence. After applying a discount of 15% (rounded up to 2 years) he reached individual sentences of 10 years which, with one year of accumulation, gave an aggregate sentence of 11 years with an aggregate non-parole period of 7 years. The ratio of the aggregate non-parole period to the total was about 63%. 98Had the applicant received the benefit of the full discount of 25% his sentence for each offence would have been 9 years; accumulation by one year would have produced an aggregate sentence of 10 years with a non-parole period of about 6 years and 3 months. 99However, having regard to the applicant's subjective case and the considerations to which Adams J has referred on re-sentence, I consider it appropriate to impose lesser sentences than achieved by that calculation. Adopting the structure of the sentences imposed at first instance, I consider that the applicant should be re-sentenced to terms of imprisonment for 8 years accumulated by one year with a non-parole period of 5 years and 3 months for the first offence and a non-parole period of 4 years and 3 months for the second offence, giving an aggregate sentence of 9 years with a non-parole period of 5 years and 3 months. I am not minded to intervene in the sentence imposed for the drug offence, notwithstanding my conclusion as to the appropriate discount for the plea. 100The orders I propose are: (1)That leave to appeal be granted; (2)That the appeal be allowed; (3)That the sentence imposed for the first offence, possession of the .22 calibre Ruger self-loading pistol, be quashed and in substitution therefor that the applicant be sentenced to a term of imprisonment with a non-parole of 5 years and 3 months commencing on 24 September 2009 and expiring on 23 December 2014 and a balance of term of 2 years and 9 months expiring on 23 September 2017; (4)That the sentence imposed for the second offence, possession of the .45 automatic Colt pistol, be quashed and in substitution therefor that the applicant be sentenced to a term of imprisonment with a non-parole of 4 years and 3 months commencing on 24 September 2010 and expiring on 23 December 2014 and a balance of term of 3 years and 9 months expiring on 23 September 2018. (5)The earliest day on which the applicant will become entitled to be released on parole is 23 December 2014. ********* 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: 28 November 2014