Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Laspina v R [2016] NSWCCA 181 Hearing dates: 20 July 2016 Decision date: 19 August 2016 Before: Hoeben CJ at CL at [1]; Rothman J at [2]; R A Hulme J at [9] Decision: 1. Grant leave to appeal against sentence. 2. Allow the appeal. 3. Quash the sentence imposed in the District Court on 14 August 2015 for the offence of ongoing supply of firearms contrary to s 51B(1) of the Firearms Act. 4. In lieu, sentence the offender to imprisonment comprising a non-parole period of 3 years 8 months with a balance of the term of the sentence of 2 years 4 months. The sentence will date from 5 February 2015. The non-parole period will expire on 4 October 2018 at which time the offender will become eligible for release on parole. Catchwords: CRIMINAL LAW – appeal against sentence – ongoing supply of firearms – s 51B(1) of the Firearms Act 1996 (NSW) – where judge found causal connection between psychiatric conditions and offending conduct – judge failed to adequately take that finding into account in assessment of moral culpability and in moderating weight given to general deterrence – necessary to re-exercise sentencing discretion – appeal allowed Legislation Cited: Crimes Act 1900 (NSW) s 527C Drug Misuse and Trafficking Act 1985 (NSW) s 25(1) Firearms Act 1996 (NSW) ss 51B, 51BA Weapons Prohibition Act 1998 (NSW) s 7(1) Cases Cited: Aslan v R [2014] NSWCCA 114 Athos v R [2013] NSWCCA 205 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Lachlan v R [2015] NSWCCA 178 Ngati v R [2014] NSWCCA 125 R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep) R v Howard [2004] NSWCCA 348 R v Pitt [2005] NSWCCA 304 R v Wright (1997) 93 A Crim R 48 Category: Principal judgment Parties: Mario Antonio Laspina (Applicant) Regina (Respondent) Representation: Counsel: Mr A Chhabra (Applicant) Ms V Lydiard (Crown) Solicitors: Campbell Paton & Taylor Solicitor for Public Prosecutions File Number(s): 2014/38399 Decision under appeal Court or tribunal: District Court Date of Decision: 14 August 2015 Before: Lerve DCJ File Number(s): 2014/38399 Judgment 1. HOEBEN CJ at CL: I agree with R A Hulme J. 2. ROTHMAN J: I have had the advantage of reading in draft the judgment of R A Hulme J and his reasons for judgment. It is therefore unnecessary to deal at any length with any of the major issues raised by the parties. 3. It is often slightly unfair, when dealing with an experienced criminal judge, as was his Honour below, to find error based upon a failure to expressly deal with a particular point, particularly one that would be well-known to the judicial officer. Nevertheless, it is also inappropriate to treat judicial officers who are experienced differently from judicial officers who are not. 4. As a consequence, even though it seems to me the issues of mental illness have probably been taken into account by the sentencing judge in synthesising the various purposes of sentence and the issues associated with them, when one has particular regard to the extent to which his Honour dealt with general deterrence, I am required to agree with the comments of R A Hulme J in relation thereto. 5. His Honour, when sentencing, selected a range based upon a mid-range of objective seriousness, with which no party has sought to cavil. Further, it is only in very rare circumstances that this Court would interfere with such a determination. 6. Nevertheless, for far too long courts have dealt with firearm offences in a way which has had regard to whether the firearms were intended to be used in a criminal offence of another kind. In so doing, in my view, we are underplaying the seriousness of firearm offences generally, including mere possession, but particularly when those firearms are possessed for the purpose of sale to other persons who, for obvious reasons, will not be in possession of them legally. 7. Nevertheless, this offender should not bear the brunt of a view that the range being imposed for firearm offences is set too low. As a consequence, I agree with all of the reasons of R A Hulme J and with the orders that his Honour proposes. 8. Even though it is not central or even relevant to the reasons for judgment or orders, I would also reiterate the comments as to the competence of counsel for the applicant and the professional manner in which the oral submissions were delivered. 9. R A HULME J: Mario Antonio Laspina ("the applicant") was sentenced by his Honour Judge Lerve in the District Court at Dubbo on 14 August 2015 to a term of imprisonment of 7 years 9 months with a non-parole component of 5 years 2 months. 10. The sentence was imposed in respect of two offences. For supplying a prohibited drug, namely cannabis, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), for which the maximum penalty is imprisonment for 10 years and/or a fine of 2000 penalty units, his Honour imposed a fixed term of imprisonment for 2 years commencing on 5 February 2014. 11. For selling three or more firearms within a 12 month period, contrary to s 51B(1) of the Firearms Act 1996 (NSW) ("ongoing supply of firearms"), for which the maximum penalty is imprisonment for 20 years and there is a standard non-parole period of 10 years, his Honour imposed a sentence of imprisonment for 6 years 9 months with a non-parole period of 4 years 2 months commencing on 5 February 2015. 12. The applicant asked the judge when sentencing him in respect of the firearms offence to take into account his guilt in respect of four further offences listed on a Form 1 document: Supply firearm part, contrary to s 51BA(1) of the Firearms Act, for which the maximum penalty is imprisonment for 5 years. Two offences of having custody of a thing which may be reasonably suspected of having been stolen or otherwise unlawfully obtained, contrary to s 527C(1)(a) of the Crimes Act 1900 (NSW) for which the maximum penalty is 6 months imprisonment and/or a fine of 5 penalty units. Unauthorised possession of a prohibited weapon, contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW) for which the maximum penalty is imprisonment for 14 years and a standard non-parole period of 5 years applied at the time of the offence (when the offence is prosecuted on indictment). (The standard non-parole period for such an offence was subsequently increased to 5 years for offences committed on or after 21 August 2015.) 1. The applicant seeks leave to appeal but only in relation to the sentence for the ongoing supply of firearms offence. He relies upon one ground (others were abandoned at the hearing of the application): The learned sentencing judge erred in failing to adequately take into account the applicant's mental condition in assessing either the degree of moral culpability involved in his offending conduct, or in moderating the weight to be given to general deterrence. Facts 1. There was a police operation carried out over a 12 month period from February 2013. It involved the use of electronic surveillance, telephone intercepts and a number of undercover operatives. 2. From 5 February 2013 to 19 January 2014 in about 20 transactions the applicant supplied a total of over 13 kilograms of cannabis. These transactions involved undercover operatives but the applicant was also heard to be discussing cannabis sales to other customers. 3. In four transactions between August and December 2013 the applicant supplied a total of eight firearms for $13,200. They comprised a sawn-off 12 gauge shotgun (not in working order); two .22 calibre rifles; a .410 gauge shotgun; a .22 calibre bolt action repeating rifle with scope; a .223 rifle with scope (later confirmed as stolen from a recent break and enter); a .303 rifle; and a .228 seven shot revolver. 4. The applicant also supplied quantities of ammunition on two occasions. On the last occasion when three firearms and some ammunition were supplied he also supplied a timber stock crossbow. 5. The applicant was also involved in discussions about the supply of Glock pistols. He agreed to supply three of them for $5000 each but this never eventuated. 6. The applicant was arrested at his property in Orange on 5 February 2014. 7. The learned sentencing judge found that the cannabis supply offence was "at the upper end of the mid-range of seriousness". He regarded it as "clearly a commercial or money-making venture". He regarded the ongoing supply of firearms offence as also "a commercial venture" and assessed it as falling "within the mid-range of objective seriousness". Personal circumstances of the applicant 1. The applicant was born in 1962 so he was aged 50 and 51 at the time of the offending. 2. He has a criminal record going back to 1983. It includes a conviction in the Local Court in 1985 for possession of a prohibited weapon for which he received a community service order. There were convictions in the District Court in 1991 for two offences of cultivating and one of supplying cannabis for which he was imprisoned. He received a recognizance to be of good behaviour in the Local Court in 1995 for another offence of supplying cannabis. He received a suspended sentence of imprisonment for supplying cannabis in 2001. 3. A relatively lengthy report by Dr John Roberts, psychiatrist, dated 20 July 2015 was tendered to the sentencing judge. The judge was not impressed by the style of the report (calling it "confusing and convoluted") but, nevertheless, he gave it careful consideration. He noted that there was reference to the applicant likely having suffered a head injury during the course of a serious assault in 1987. There were a number of admissions to Bloomfield Psychiatric Hospital at Orange. There was a history of almost daily cannabis use since the 1980's with only brief periods of abstinence. Dr Roberts' opinion was that the applicant "has suffered the inevitable results of long term substance use which relates to cannabis". 4. The judge also had regard to reference in the report to the applicant having been diagnosed over the years with Depression; Bi-Polar Affective Disorder; Borderline Personality Disorder; Substance Abuse Disorder; and Dependent Personality Type. 5. Towards the end of his Honour's reference to the applicant's psychiatric condition he said: "… I am prepared to proceed to sentence on the basis that there is a causal connection between the offending behaviour and the psychiatric conditions referred to in the report of Dr Roberts …". 1. A Pre-Sentence Report indicated that the applicant's past response to supervision by Community Corrections (formerly the Probation and Parole Service), which had placed focus upon mental health and substance abuse issues, had been positive. The applicant's conduct in custody since his arrest in respect of the present matters was also positive. It was noted that he was found to have symptoms of "acute detoxification" after his admission and he was taken to hospital. 2. The report is quite detailed but is well-summarised by its author, Ms Kirkwood, a senior community corrections officer, in the following passage: "Mr Laspina is a fifty-two year old man who has repeatedly come into contact with the criminal justice system in relation to drug related offences. It would appear that the offender has a significant and entrenched history of cannabis abuse and later alcohol abuse, which appears to have occurred in response to the death of his mother in 2013. By all accounts, it would appear that the offender has suffered from significant mental health issues for a number of years and it is noted that he has suffered significant deficits after incurring a head injury in 1987. By the offender's account, his mental health issues arose after this incident and were not sufficiently managed at the time of his offending. Mr Laspina has engaged in prior interventions while under the supervision of Community Corrections in the past; however it would appear that the offender's continued substance abuse has again resulted in his involvement in criminal activity. Of concern, Mr Laspina failed to take full responsibility for his offending on this occasion, attributing blame to investigating police. It is encouraging that the offender showed a degree of insight in relation to the impact of the sale of illegal firearms upon the community." 1. The applicant was assessed as being a medium risk of re-offending. Ms Kirkwood said that he would benefit from a period of supervision which would involve referral for drug and alcohol and mental health/disability assessment and treatment. Grief and loss counselling was also thought to be appropriate. 2. The judge made a finding of special circumstances which had the effect of reducing the proportion of the sentence represented by the non-parole period. He did so partly in recognition of the applicant's mental health issues. 3. The applicant's early pleas of guilty resulted in a 25 per cent reduction of the sentences to be imposed to reflect their utilitarian benefit. Ground of appeal: error in failing to take into account the applicant's mental condition in assessing the moral culpability of his offending or in moderating the weight to be given to general deterrence 1. Mr Chhabra of counsel appeared at the hearing of the application pro bono following the late withdrawal on medical grounds of senior counsel who had been briefed. Mr Chhabra adopted a very helpful and pragmatic approach in focussing on the sole ground of appeal that potentially had merit. 2. The point was put clearly and succinctly in Mr Chhabra's oral submissions and may be expressed shortly. The judge found that there was a causal connection between the unchallenged psychiatric condition of the applicant and his offending conduct. It had been submitted to the sentencing judge that this should have resulted in less weight being given to general deterrence. Despite the judge mentioning in his judgment that general deterrence was an important consideration he did not deal with the submission. It was also submitted that the judge should have found that the applicant's moral culpability was reduced for the same reason. The judge mentioned the applicant's mental condition as one of the bases upon which he found special circumstances but it was relevant to the overall sentence and not just the non-parole period. 3. In written submissions the Crown contended that the evidence was to the effect that the applicant well-knew what he was doing in committing both the drug and ongoing firearm supply offences and accordingly there was no error in the judge not finding that the need for general deterrence was diminished. Reference was made to the often quoted passage in the judgment of Hunt CJ at CL in R v Wright (1997) 93 A Crim R 48 at 51 where his Honour said that if an offender "acts with knowledge of what he [or she] is doing and with knowledge of the gravity of his [or her] actions, the moderation [of the weight to be given to general deterrence] need not be great". 4. Mr Chhabra took the Court to R v Pitt [2005] NSWCCA 304 where Hall J (with the concurrence of Grove and Hoeben JJ (as the latter then was)) drew attention to the two components of what Hunt CJ at CL had said in the above quote from R v Wright. His Honour said (at [25]): "[T]here is a necessary distinction to be made between a mentally disabled offender who acts with knowledge of what he or she is doing, on the one hand, and possessing knowledge of the gravity of his or her actions, on the other." 1. It was Mr Chhabra's submission that R v Pitt demonstrated that R v Wright (in terms of the passage I have quoted) "does not have general application". I note that in R v Pitt, Hall J concluded that it was inadequate for the sentencing judge to have confined the relevance of the offender's mental condition to a finding of special circumstances, which coincides with what the judge did in the present case. Mr Chhabra's submission on the application of R v Pitt to the present case bears repeating: "The decision in Pitt concerned an offender who had longstanding alcoholic abuse, as Mr Laspina has longstanding abuse of cannabis. The offender in Pitt also had issues concerning frontal lobe damage to her brain. It was not conclusive, but there were some material suggesting that could have been problematic regarding impulses and cognitive impairments. Similarly, with respect to Mr Laspina, there are, on pp 3, 4 and 14 of Dr Roberts' reports, references to cognitive impairments or decreased cognitive capacity." Consideration 1. It is apparent from the transcript of the sentence proceedings that it was not an easy sentencing exercise that was presented to Lerve DCJ. That is for a variety of reasons, one of which was that senior counsel then appearing for the applicant raised a substantial issue about whether his client's moral culpability was reduced on account of the actions of the police undercover operatives. In the end his Honour rejected the point but the dimension this issue assumed during the course of the hearing might well explain why the focus upon the applicant's moral culpability was diverted from a consideration of his mental condition. 2. However, during the course of submissions there was the following exchange: HIS HONOUR: Yes, Mr Coleman, subject to - I'll obviously have to hear the Crown, but given the fact that that report of Dr Roberts has come in without opposition I'd be prepared to find on balance that causal connection referred to on page 14. I'll hear the Crown, if you want to be heard on that I'll hear you, but that's just a preliminary view, Mr Crown. I will hear you on that when you address. [CROWN REPRESENTATIVE]: Sorry, your Honour, I'll just have a look at it. HIS HONOUR: Page 14 of Dr Roberts' report. You're aware, no doubt, that line of authority in N'gati and Aslan from the Court of Criminal Appeal last year are requiring a causal connection before it can be taken into account, so as to reduce the impact of general deterrence and the like? 1. The two cases to which his Honour referred were Aslan v R [2014] NSWCCA 114 and Ngati v R [2014] NSWCCA 125. 2. In Aslan v R at [35], Simpson J (as her Honour then was) (helpfully) wrote: "[33] This Court has frequently had to grapple with the effect on sentencing (especially with respect to serious or violent crimes) of mental illness, intellectual handicap or other mental or emotional impairment or disability. The compassion and sympathy that such a condition engenders collide with the need for sentences to reflect the objective gravity of the offence in question, the community's interest in general deterrence, and that criminal conduct must be met with appropriate denunciation and retribution. Over the years, the applicable principles have evolved. They were most recently re-stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]. They are as follows: '[Principle 1] Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence... [Principle 2] It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed... [Principle 3] It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced... [Principle 4] It may reduce or eliminate the significance of specific deterrence... [Principle 5] Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence ... Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public ...' (internal citations omitted, italics added) [34] It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for. [35] A central question (but not the only question) is whether the mental illness or other condition had a causative role to play in the commission of the offence or offences for which the offender is to be sentenced. Counsel who appeared for the applicant accepted that this was the principal issue in this case. If it is concluded that there was a causal connection, then the offender's moral culpability may be reduced (see principle 1). That connection may also warrant lesser attention being paid to the need for the sentence to reflect considerations of general deterrence (principle 2)." 1. In Ngati v R, Beech-Jones J engaged in a discussion about how an offender's mental condition (in that case an impaired intellectual capacity) may impact upon their moral culpability for an offence. He referred to Aslan v R and quoted [34] therein. 2. So, whilst having indicated an awareness of relevant sentencing principles in relation to offenders with an impaired mental condition, having had it expressly raised in the written submissions by senior counsel for the applicant, and having expressly concluded that "there is a causal connection between the offending behaviour and the psychiatric conditions referred to in the report of Dr Roberts", it would seem that the learned judge overlooked the need to deal with that conclusion. What his Honour might have concluded if he did is moot. But one thing that is clear is that his Honour indicated how important he regarded general deterrence in the assessment of sentence. He referred to it a number of times and even devoted seven paragraphs to the subject under the heading "Issue of General Deterrence" which commenced as follows: "[24] Any sentence imposed in respect of the illicit possession or dealing in firearms, particularly prohibited firearms, must involve a real and meaningful acknowledgement of the need for general deterrence." 1. His Honour then discussed the subject, with reference to a number of authorities, one concerned with the need for general deterrence in relation to drug supply (R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep) and three in relation to firearms offences (Lachlan v R [2015] NSWCCA 178; Athos v R [2013] NSWCCA 205; and R v Howard [2004] NSWCCA 348). He observed that the three firearms cases involved possession but held that the same consideration "must surely apply so far as the supply or sale of firearms is concerned". There could be no argument with that observation. 2. I am satisfied that error has been established that "vitiates the exercise of the sentencer's discretion" and that it is thereby necessary for this Court to re-exercise the sentencing discretion: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [42]. Resentencing 1. I accept the finding by the sentencing judge that there was a causal connection between the applicant's mental condition and the offending behaviour. I am also of the view that the connection was quite marginal. The judge had the benefit of considering the oral evidence of the applicant in the light of having read the (selected) transcripts of his recorded conversations with the undercover operatives that were tendered. They were tendered in support of the unsuccessful effort to persuade the judge that the applicant's moral culpability for the offences was reduced on account of the manner in which the operatives interacted with him. His Honour's conclusion on that issue was adverse to the applicant. But his Honour immediately proceeded to discuss the applicant's "psychiatric condition". Relevantly, he said: "At p 11 Dr Roberts opines: 'On psychiatric grounds I consider that to a substantial degree Mr La Spina's interaction with the undercover operative arose as a result of a psychiatrically vulnerable man being manipulated by his feelings of affection for the undercover operative Amy to act in the manner that he did and that a substantial but not necessarily the only reason why he acted in the manner is understandable in the context of his feelings for Amy, the impression being that these feelings were capitalised on to induce him to act in the manner that he has'. This opinion must be considered in the light of a number of matters to which I have already referred when dealing with the issue of the use of undercover operative in the controlled operation, namely, that the offender was more than willing to become involved in the supply of relatively large quantities of cannabis with Troy and Jason and, further, he was covertly recorded discussing the supply of firearms before he had even met Amy and further, the first firearm was supplied at or about the time that the offender first met Amy. Further, the offender obviously was able to source the cannabis and the firearms. Dr Roberts concludes at p 14 of his report: 'I would be of the view on reasonable psychiatric grounds that to a substantial but not necessarily total degree the behaviour of Mr La Spina arose as a result of the combination of circumstances which included the presence of a pre-existing psychiatric illness, the presence of a cluster of these conditions which would be virtue of their existence would impact upon cognitive capacity and in this case most significantly the present of dependent personality traits exemplified by his past dependent relationship with his mother and of a simple vulnerable mentally disturbed dependent man seeking to comply with the requests made by the undercover operative Amy, a person whom he had the hope – fantasy would by virtue of her demonstration of what he interpreted as affection to him to be a potential future partner and in essence care for him as his mother had done following the death of his father'. While I am prepared to proceed to sentence on the basis that there is a causal connection between the offending behaviour and the psychiatric conditions referred to in the report of Dr Roberts this must be tempered, at the risk of repetition, with the fact that the offender was engaging in the conduct well before he met Amy, that he was recorded discussing the supply of firearms before he had met Amy and that the first of the firearms was supplied at or about the time he had first met Amy. Further, it was the offender's perception not the conduct of the operative." 1. I am prepared to accept that the applicant's moral culpability for his offending and the need for general deterrence is reduced to a degree but not greatly. 2. No submissions were made on the application about other aspects of how the applicant might be re-sentenced if error were established. No affidavit was read as to any events that had transpired since sentencing. In these circumstances there is no need for me to engage in a lengthy discussion of all of the relevant circumstances and I can confine my reasons to stating that I have made my own assessment of the other considerations that bore upon the primary judge's assessment of sentence and I agree with them. Of course, this includes the allowance of a 25% reduction of sentence on account of the applicant's plea of guilty. I am of the view that a starting point for the sentence should be one of 8 years before such reduction. The offences on the Form 1 document have been taken into account. 3. I reiterate that there is no complaint about the 2 year fixed term of imprisonment that was imposed for the drug supply offence. A period of partial accumulation of 1 year as adopted by the primary judge remains appropriate and no submission was made to the contrary. 4. As to the ongoing firearms supply offence, the primary judge found special circumstances because (a) "the offender will require significant assistance to reintegrate into the community and he will require intensive and extensive supervision to ensure he remains free of illicit substances"; (b) "there is also the issue of his mental health"; and (c) "there is also the issue of partial accumulation of the sentences or the drug and firearm offences". I consider factors (a) and (c) to be relevant and appropriate but not (b) because there would be double counting as I have factored that into the assessment of the head sentence. Orders 1. I propose the following orders: 1. Grant leave to appeal against sentence. 2. Allow the appeal. 3. Quash the sentence imposed in the District Court on 14 August 2015 for the offence of ongoing supply of firearms contrary to s 51B(1) of the Firearms Act. 4. In lieu, sentence the offender to imprisonment comprising a non-parole period of 3 years 8 months with a balance of the term of the sentence of 2 years 4 months. The sentence will date from 5 February 2015. The non-parole period will expire on 4 October 2018 at which time the offender will become eligible for release on parole. ********** 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: 19 August 2016