Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Athos v R [2013] NSWCCA 205
• Hearing dates: 31 July 2013
• Decision date: 03 September 2013
• Before: Beazley P at [1]; Johnson J at [2]; Price J at [3]

Decision

Leave to appeal against sentence be granted.

Appeal dismissed.

• Catchwords: CRIMINAL LAW - appeal against sentence - possession of prohibited firearms and weapons - whether less weight is to be afforded to good character in firearms offences - whether quantity of firearms increase the objective seriousness of individual offences - whether error in assessing the applicant's prospects of rehabilitation - whether marked disparity with sentence imposed on co-offender - whether court should intervene
• Legislation Cited: Crimes Act 1900 s 115, a 527C(1)(a); Crimes Act (Cth) 1914 s 16A(2)(m); Crimes (Sentencing Procedure) Act 1999 s 21(3)(h), s 21A(2)(m), ss 21A(3)(e)-(f); Criminal Appeal Act 1912 s 6(3); Drug Misuse and Trafficking Act 1985 s 10(1); Firearms Act 1996 s 7, s 51(1A), s 58(1), s 58(2), s 65(3); Weapons Prohibition Act 1998 s 7
• Cases Cited: Cooper v R [2005] NSWCCA 428; Gebara v R [2012] NSWCCA 107; Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462; Hristovksi v R [2010] NSWCCA 129; Mulato v R [2006] NSWCCA 282; Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; R v AZ [2011] NSWCCA 43; (2011) 205 A Crim R 222; R v Baker [2000] NSWCCA 85; R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29; R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267; R v Howard [2004] NSWCCA 348; R v llbay [2000] NSWCCA 251; R v Kennedy [2000] NSWCCA 527; R v Kollas and Mitchell [2002] NSWCCA 491; R v Leroy (1984) 2 NSWLR 441; R v Najam [2008] NSWCCA 32; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270; R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740; Application by the Attorney General under section 37 of the Crimes (Sentencing Procedure) Act [2004] NSWCCA 303; (2004) 61 NSWLR 305; Ryan v R [2001] HCA 21; (2001) 206 CLR 267; (2001) 118 A Crim R 538
• Category: Principal judgment
• Parties: Nicholas Athos (Applicant); Regina (Respondent)
• Representation: Counsel: P Lange (Applicant); S Herbert (Respondent); Solicitors: Hanna Legal (Applicant); Department of Public Prosecutions (Respondent)
• File Number(s): 2011/147758

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2012-10-25 00:00:00
• Before: Marien DCJ
• File Number(s): 2011/147758

Judgment

1 BEAZLEY P: I agree with Price J.

2 JOHNSON J: I agree with Price J.

3 PRICE J: Nicholas Athos, the applicant, seeks leave to appeal against the sentence imposed upon him by Marien DCJ (the judge) in the District Court at Sydney on 25 October 2012.

4 The applicant had pleaded guilty in the Local Court to seven charges. Charge 1 was an offence of possession of a pistol, namely a Smith and Wesson revolver, not being authorised to do so by a licence or permit, contrary to s 7 Firearms Act 1996; charges 2 and 3 were each an offence of possession of a prohibited firearm, namely a bolt gun, not being authorised to do so by a licence or permit, contrary to s 7 Firearms Act; charge 4 was an offence of possession of a prohibited weapon, namely handcuffs, without being authorised to do so by a permit, contrary to s 7 Weapons Prohibition Act 1998; charges 5 and 6 were each an offence of possession of a prohibited weapon, namely a detachable firearm magazine, without being authorised to do so by a permit, contrary to s 7 Weapons Prohibition Act; and charge 7 was an offence of possession of a prohibited weapon, namely a silencer, contrary to s 7 Weapons Prohibition Act.

5 The maximum penalty for an offence contrary to s 7(1) Weapons Prohibition Act is 14 years imprisonment. A standard non-parole period of 3 years imprisonment has been prescribed. The maximum penalty for an offence contrary to s 7(1) Firearms Act is also 14 years imprisonment with a 3 year standard non-parole period.

6 The judge was asked to take into account on sentence eight matters that had been placed on a Form 1. These matters were:

Possession of a barrel for a prohibited weapon without being authorised to do so by licence or permit, contrary to s 58(2) Firearms Act.

Three charges of possessing a barrel for a firearm without being authorised to do so by a licence or permit, contrary to s 58(1) Firearms Act;

Possession of ammunition without holding a licence, permit or authority, contrary to s 65(3) Firearms Act;

Having in his possession property, namely a GPS unit, reasonably suspected of being stolen or unlawfully obtained, contrary to s 527C(1)(a) Crimes Act 1900; and

Two charges of being in possession of a prohibited drug, namely an unspecified quantity of methylamphetamine and unspecified quantity of cannabis, each contrary to s 10(1) Drug Misuse and Trafficking Act 1985.

7 The applicant was sentenced as follows:

Charge 4 (handcuffs): sentenced to a fixed term of imprisonment of 12 months commencing on 5 May 2011 and expiring on 4 May 2012.

Charge 7 (silencer): sentenced to a fixed term of imprisonment of 18 months, commencing on 5 May 2011 and expiring on 4 November 2012.

Charges 5 and 6 (magazines): sentenced to concurrent fixed terms of imprisonment of 2 years commencing on 5 November 2011 and expiring on 4 November 2013.

Charges 2 and 3 (bolt guns): sentenced to concurrent fixed terms of imprisonment of 2 years commencing on 5 May 2012 and expiring on 4 May 2014.

Charge 1 (revolver)

including matters on Form 1: sentenced to 5 years imprisonment commencing on 5 May 2012 and expiring on 4 May 2017, with a non-parole period of 3 years expiring on 4 May 2015.

8 As a result of partial accumulation and concurrence, the total effective sentence was 6 years commencing on 5 May 2011 and expiring on 4 May 2017 with a non-parole period of 4 years commencing on 5 May 2011 and expiring on 4 May 2015. The earliest date that the applicant is eligible to be released on parole is 4 May 2015.

9 The judge had discounted the sentence by 25 per cent for the utilitarian value of the pleas of guilty. His Honour found special circumstances permitting a variation in the statutory ratio between the total sentence and non-parole period being that the applicant was serving his first custodial sentence, a part of which was to be served in protective custody and his psychological state.

The Grounds of Appeal

10 The notice of appeal identifies four grounds:

Ground 1: His Honour erred in holding that, due to the nature of the

offences, the applicant's prior good character was not to be accorded as great a weight as may be afforded for other offences.

Ground 2: His Honour erred in finding that, in the case of all of the offences, the objective seriousness fell within the upper range, because of, inter alia, the quantity of items involved.

Ground 3: In concluding that the Court could not make a finding that the applicant had favourable prospects of rehabilitation, his Honour erred in giving conclusive weight to the finding that the applicant had not given truthful evidence concerning the circumstances surrounding his offending.

Ground 4: The applicant has a justifiable sense of grievance in the light of the sentences imposed upon the co-offender, Tuhukava.

Facts

11 An agreed statement of facts was tendered which the judge recounted in his remarks on sentence (ROS 3-5):

"...during February and March 2011 Queensland police were electronically monitoring the co-offender, Matahiva Tuhukava, in relation to his possession and use of an iPhone stolen during the course of an armed robbery in February 2011 in Queensland. Shortly after, the offender before me, Mr Athos, moved from Queensland to New South Wales. On 22 March 2011 the co-offender Tuhukava attended Miranda Police Station to hand himself in to police in relation to unrelated matters and he was remanded in custody.

On 24 March 2011 Tuhukava telephoned the offender from custody. The offender informed Tuhukava that an associate, Michael Urbiztondo, was going to Queensland to collect him and drive him down to New South Wales as he was relocating back to New South Wales. The offender told Tuhukava the reason for this was because he had "a lot of shit to put in the car" and that he could not take it by plane. The offender then resided with his grandparents in Miranda, being a suburb of Sydney.

On 27 March 2011 Urbiztondo drove the offender down from Queensland to New South Wales. The offender brought firearms and ammunition with him. The New South Wales police were then alerted and commenced monitoring the offender Tuhukava, Urbiztondo and the man William Siryani. At about 6.42pm that day Tuhukava telephoned the offender who was with Urbiztondo at the time. When Tuhukava asked the offender about the bag containing firearms the offender asked, "Which one?" Tuhukava replied, "My one". The offender confirmed he had brought it. Tuhukava then told Urbiztondo that he was going to grab the bag for "something". At 9.09pm the offender telephoned the co-offender referring to him as "Usi" and confirming meeting the next day.

At 10.40am on Thursday 5 May 2011 surveillance police observed the co-offender leave his residence and take a taxi to the Mug Shots Café attached to the Speedway service station on Captain Cook Drive, Caringbah. There the co-offender Tuhukava met Urbiztondo and the man Siryani. The cafe was owned by Siryani and operated by Urbiztondo.

At 11.06am Tuhukava telephoned the offender and spoke in what the facts describe as 'Pig Latin'. He asked the offender, "You know what we were talking to you the other day, yeah, can you bring it down to where we are, the akbay (slang for bag) of the ungdrays (slang for guns)." After the offender confirmed he would come, Tuhukava sent him a text saying, "All the bags please, everything, thanks Malaka". The offender replied, "There's only one bag, chief" and Tuhukava replied, "Okay".

At 12 noon the offender was driven to the café by his grandfather. He took two bags out of the car and walked into the café carrying the bags. Tuhukava and Urbiztondo were inside the café at the time and Siryani was outside by the car wash. The offender placed the two bags on the floor near the counter and went behind the counter to make himself a drink. The police then entered the café and identified themselves.

When the offender was asked what was in the bags he admitted the bags contained guns and ammunition that he had brought down from Queensland. Inside a blue bag police located a radio, earpiece and a Navman GPS, an unloaded 38 special calibre Smith and Wesson revolver without a serial number and documents identifying the offender. Inside a black and red bagpolice located ninety-six rounds of thirty-eight special ammunition, forty-eight rounds of 9 millimetre ammunition, forty-two rounds of twenty-five auto ammunition, forty-six rounds of thirty-eight auto ammunition, 133 rounds of 40 calibre ammunition, 643 rounds of 22 calibre ammunition, ninety-one rounds of 45 auto ammunition, two magazine holders with two empty magazines for a .40 Smith and Wesson, a firearm holster, a firearm cleaning kit, handcuffs, two single shot pen pistols without serial numbers, .22 short/long rifle barrel, two 32 calibre barrels from a single shot pen pistol without serial numbers that could be fitted to the pen pistols that were located, and a .22 long rifle calibre barrel.

The offender, Tuhukava and Siryani were arrested. Urbiztondo was arrested on 10 May 2011. The offender agreed to participate in a recorded interview with the police. In this ERISP he admitted possession of the firearms and ammunition and admitted he brought them down from Queensland about five weeks prior. I shall in these reasons refer in more detail to what the offender said in that interview with the police.

In a search warrant executed where the offender was residing with hisgrandparents, police located a box containing twenty-five rounds of 12 gauge buckshot live cartridges, four .22 calibre live ammunition, one .22 calibre used round, four .38 calibre live rounds and a barrel capable of being used as a firearm silencer."

12 In a tendered expert's certificate, Matthew Bolton, a ballistics investigator, found that the .38 special calibre Smith and Wesson six chamber revolver was in working order and capable of propelling a projectile that could inflict a lethal wound upon a human being. The two bolt guns were also found to be in working order and were capable of inflicting a lethal wound upon a human being.

The applicant's record of interview

13 On the day of his arrest, the applicant entered into a record of interview with police. It is only necessary to refer to those parts of the interview that bear upon the grounds of appeal.

14 The applicant told police that he had collected the bags (containing the firearms and ammunition) from the National Park near Grays Point that morning. He had buried the bags about a month or five weeks previously, which was about a couple of days after he returned from Queensland.

15 The record of interview includes the following questions and answers (Q&A 172-174):

"Q172 And what were you told when you grabbed it like, when you were given the firearm and the contents, what were you told?

A. I wasn't told anything, just, it's none of my business.

Q173. Why would someone give you a firearm?

A. Because I'm a reliable bloke."

16 The applicant said that he was given the firearm in New South Wales in 2008 and had it since that time. He declined to tell the police how the firearm got to Queensland and where he had stored it.

The applicant's evidence before the judge

17 In his evidence before the judge, the applicant said that he had the .38 revolver for five weeks and the red bag with the ammunition, handcuffs and gun cleaning kit for close to 12 months. He said that a firearm was not a dangerous weapon if it is "in the hands of good people, only when it's in the hands of irresponsible people can damage be done" (T13/09/12 T4 L33-34). He said he was very reckless in not taking into consideration where the items would have ended up down the track. The applicant gave the following evidence in answer to questions from the judge

(T13/09/12 T4 L44-50, T5 L1-25):

"Q. Mr Athos, where did you think they were going to go? You've said on a number of occasions I think to the psychologist and to the probation officer that you were just - you were holding them for someone, you were a custodian of these firearms?

A. Yes. Yes, your Honour.

Q. Well that means you are going to pass them on to someone?

A. Yes.

Q. Who were you going to pass them on to?

A. I can't really say, your Honour, because I fear for my safety, and that's always been the case.

Q. Are they persons with criminal backgrounds, is that why you fear for your safety? I am not asking you who they are, I'm simply saying is that the reason that you fear for your safety, that they are people with criminal backgrounds?

A. Yes.

Q. Well then if you're going to give these firearms to someone with a criminal background what did you think was going to happen with them?

A. That's where I was reckless, your Honour, I didn't think that far ahead. I didn't think it was my business.

Q. Are you seriously saying to me that you didn't think that far ahead, that if you give these firearms and ammunition to people with criminal backgrounds that you didn't think about what might happen, where they might end up, that they could be used in criminal activity? You didn't think of that?

A. No, that's where I was reckless, your Honour.

Q. What did you think they were going to do with them, polish them and clean them?

A. I didn't think that far I'm sorry."

18 In cross-examination by the Crown Prosecutor, the applicant said that he knew that the firearms and ammunition were prohibited items. He denied that he was receiving any benefit for holding onto these items in order to deliver them to someone. It was his evidence that "[i]t was just a foolish favour" (T13/09/12 T9 L45-48). On this topic, the applicant gave the following further evidence (at T13/09/12 T11 L5-14):

"Q And yet you were prepared to just hand over a bag full of firearms and ammunition to a person who you knew had a criminal history of assaults, do you agree with that?

A. I do, because I was reckless.

Q. It's more than reckless, you were actually a party to acts of violence - or potential acts of violence and aggression, you'd agree with that?

A, I do, but I don't think it's fair to be persecuted for an offence I had no knowledge of, if there was an offence to begin with, that was going to be committed."

19 A report dated 14 June 2012 from Sam Borenstein, a clinical psychologist, was placed before the judge. Mr Borenstein reported that the applicant told him that he was given the guns to mind, they were in his house, and he was holding onto them for someone. Mr Borenstein recounted that the applicant denied "knowing what the weapons might be used for. [The applicant] states that he became caught up in events and he acted as a delivery person" (AB 166).

Some findings by the judge

20 During submissions, the applicant's counsel informed the judge he had been instructed that the applicant did not bury the items in the National Park, but had said that he had to protect his grandfather from being implicated as the weapons and ammunition were kept by the applicant at his grandfather's home.

21 The judge placed little weight on the applicant's account in the ERISP noting that the applicant "admitted to police that he lied about certain matters in the interview but it is very unclear from the interview as to which matters he was saying he was lying about" (ROS 9). His Honour observed that whilst the applicant continued to assert in his sworn evidence that "he was merely a custodian of these firearms, prohibited weapons, and an enormous quantity of ammunition, he agreed that he intended to pass them on to persons who he knew had criminal backgrounds. Indeed, in his cross-examination by the Crown, he agreed that he knew that the co-offender Tuhukava, who he was handing the weapons to, had a criminal record for assaults" (ROS 10).

22 His Honour was unable to accept the applicant's assertion "that he did not consider that by handing over what he agreed was an arsenal of weapons and ammunition to men who he knew had criminal backgrounds, that these items might be used in criminal activity" (ROS 11). His Honour did not accept that the applicant's role was merely as a custodian of these weapons and his possession of them was nothing more than a foolish favour. Given his findings as to the lack of credibility of the applicant both in his ERISP and in his evidence, his Honour was unable to determine what were the true circumstances in which the applicant came to be in possession of the weapons and ammunition. The judge was satisfied beyond reasonable doubt that the applicant would have been fully aware that by handing over the weapons and ammunition to these associates with criminal backgrounds, as he intended to do, that there was a real chance that these weapons would be used in criminal activity.

Personal Circumstances

23 The applicant was born on 21 March 1985 and was 27 years old when sentenced. He did not have any criminal antecedents.

24 When referring to the applicant's background, Mr Borenstein stated in his report that he had treated the applicant as a child on a referral from the Family Law Court who held concerns about the applicant's psychological state as a result of his parent's separation and changed living circumstances. The applicant was raised predominantly by his father. Mr Borenstein reported that the applicant had responded favourably to counselling.

25 He left school midway through Year 11 and took up a traineeship in hospitality for six months. He had worked at various jobs including as a bicycle courier for Australia Post and in a call centre for Taxis Combined. Mr Borenstein noted that the applicant has a long-standing history of depressed mood, anxiety and panic which dates to childhood. The applicant's current diagnosis, Mr Borenstein opined, is that of Chronic Adjustment Disorder with mixed Anxiety and Depressed Mood.

26 The psychologist expressed the following opinion as to the applicant's prospects of rehabilitation (at AB 167):

"[The applicant's] prospect for rehabilitation is sound. He impressed as highly motivated to ensure the type of behaviour which brought him to prison is never repeated. He has a definite plan, and is party to a very supportive relationship, very different from those of the past, 'this one's a good girl'.

[The applicant] appreciates and understands the seriousness of his offences. [The applicant] insists he was the custodian of the weapons,

and had no idea of how they were intended to be used."

27 Mr Borenstein stated that with further counselling the likelihood of the offending being repeated was extremely low.

28 Sapfo Sakis, the applicant's girlfriend, told the judge that the applicant was a sweet, caring person. They had been planning to buy a house together and to get married. She said that the applicant had the support of his family.

29 A Probation and Parole report was tendered in which the author of the report noted that the applicant has a long history of depression and anxiety with associated panic attacks. The author observed that the applicant accepted responsibility for his offending behaviour, but "continues to be guarded with respect to some details of the current offences and did not provide an explanation, which clarifies his involvement in the possession of numerous weapons, other than his actions were 'naïve and stupid'" (AB 154).

Ground 1: His Honour erred in holding that, due to the nature of the offences, the applicant's prior good character was not to be accorded as great a weight as may be afforded for other offences.

30 The applicant submitted that the judge erred in giving reduced weight to the applicant's prior good character. The Court's attention was drawn to the following passage in the judge's remarks on sentence (ROS 20):

"The [applicant] has no criminal record. Whilst that entitles him to leniency, the weight to be given to his prior good character for offences of this kind is not, in my view, to be accorded as great a weight as may be afforded for other offences. This is because a person of prior good character is less likely to come under the notice of police and, therefore, it might be expected less likely to be detected by police in possession of firearms and prohibited weapons. But he is entitled to a reduction in the sentence that I would otherwise impose upon him because of his prior good character."

31 It was contended that his Honour's conclusion that good character might be used by persons to enable weapons to be transported was purely speculative. The applicant argued that there was no material to suggest that persons, in general, let alone the applicant, are selected to transport firearms, because of a lack of a criminal record. The applicant's reason on the evidence that he was selected for his role was because he was "a reliable bloke" (ROS 7). In the absence of evidence that either the applicant or Tuhukava exploited the applicant's good character, it was submitted that his Honour erred in giving reduced importance to the applicant's good character.

32 In oral submissions, the applicant argued that the judge had erred by stating there was a general principle that less weight is to be afforded to good character for offences of possession of firearms and prohibited weapons. The applicant accepted that this argument would be diminished if the judge had given less weight to the applicant's good character for reasons based on the evidence.

33 The Crown submitted that it was within the judge's discretion to determine the weight to be given to evidence of good character. The Crown referred to the objective seriousness of the offences and to general deterrence being an important factor. The Crown reminded the Court that a complaint about the attribution of weight to a particular sentencing factor does not ordinarily give rise to an error that enlivens appellate intervention.

34 In oral submissions, the Crown contended that the judge's finding related to the case and his findings of fact in relation to the applicant. It was appropriate to give less weight to good character in the circumstances of the applicant.

Decision

35 The lack of a record of previous convictions and good character are identified in ss 21A(3)(e)-(f) Crimes (Sentencing Procedure) Act 1999 as mitigating factors that a sentencing judge is obliged to take into account in determining the appropriate sentence for an offence. If an offender is a person of good character, the weight to be given to that factor is a matter for the sentencing judge and may vary according to all the circumstances including the nature of the offence: Ryan v R [2001] HCA 21; (2001) 206 CLR 267; (2001) 118 A Crim R 538 [25], [143].

36 There are certain categories of offences where it has been held that limited weight may be given to good character. These offences include:

• Child pornography offences (R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29 at [64]);
• White-collar crime (Gent at [59]);
• Drink driving offences (Application by the Attorney General under section 37 of the Crimes (Sentencing Procedure) Act) [2004] NSWCCA 303; (2004) 61 NSWLR 305);
• Drug couriers (R v Leroy (1984) 2 NSWLR 441 at 446-447);
• Federal drug importation offences to which s 16A(2)(m) Crimes Act 1914 (Cth) has application (Gent at [56]); and,
• Child sex offences (Ryan at [34]).

37 It appears from the reference in the passage quoted at [30] above to "the weight to be given to his prior good character for offences of this kind is not...to be accorded as great a weight as may be afforded for other offences", that the focus of his Honour's determination was on the type of the offence and not on all the circumstances of the offending. The possession of a prohibited firearm is not an offence that the courts have said that an offender's good character will have less significance than in other crimes. However, the category of offence is not closed. In Gent, Johnson J observed at [61]:

"An analysis of the authorities supports the Crown contention that there is no closed category of offences in relation to which courts have said that less weight should be given on sentence to evidence of prior good character."

38 The rationale behind extending less weight to good character in certain categories of offence was discussed by Howie J in R v Kennedy [2000] NSWCCA 527 at [21] - [22]:

"It is unnecessary for the purposes of determining this appeal to consider the circumstances in which a court may legitimately determine that it will give less weight to prior good character as a mitigating factor. Generally speaking such a situation might arise where general deterrence is important, the particular offence before the court is serious and it is one frequently committed by persons of good character. Another situation may be where the prior good character of the offender has enabled him or her to gain a position where the particular offence can be committed.

Less weight might also be given to prior good character in a case where there is a pattern of repeat offending over a significant period of time. That will frequently be the case in child sexual assault offences because such offences are often committed during a period of an ongoing relationship between the offender and the complainant. But that was not this case."

39 It is inarguable that offences involving the possession of prohibited firearms are serious and general deterrence has an important role to play. As Johnson J observed in R v AZ [2011] NSWCCA 43; (2011) 205 A Crim R 222 at [73]:

"The legislature views possession of such an item seriously. The policy of the legislature evinced by the enactment of the offence in s. 7(1) is to deter and punish possession of firearms ..."

40 On the question whether such an offence is frequently committed by persons of good character, the Crown cited R v Howard [2004] NSWCCA 348 in which the sentencing judge referred to the identification by police of a systematic trade in illegal firearms from the general area of northern New South Wales and Queensland and then observed that it seemed to him that there was a group of people who would not ordinarily commit other crimes but had a blind spot of dangerous proportions when it came to dealing in firearms. The offender had pleaded guilty to two charges of selling unauthorised pistols contrary to s 51(1A) Firearms Act. Spigelman CJ at [56] considered that the sentencing judge "was drawing on his own experience, and the evidence in the particular case, that persons of otherwise good character became involved in offences of this type because of their attitude to firearms." The Chief Justice went on to say at [57]:

"Nothing in his Honour's remarks on sentence suggested that this material was relevant to the objective seriousness of the offence. The references were of significance in the sentencing exercise because they put the applicant's reliance on his good character in its proper context. That was perfectly appropriate. Persons who would not offend in other ways would commit this crime because they did not believe that such conduct should be criminal. That does not work for drug users. It does not work for arms traders."

41 It seems to me that Howard is not a strong basis for accepting as a general principle that offences involving prohibited firearms are frequently committed by persons of good character. The observations of the sentencing judge were drawn from his experience of persons of a rural background and people who have a keen interest in firearms, together with the evidence in the case. No other authorities were brought to our attention where this Court has observed that such offences are rarely committed by people who have a criminal history or that these offences are predominately committed by persons who otherwise have a clear criminal record.

42 In any event, the judge's reason in the present case for limiting the weight to be afforded to prior good character was found not on the attitude of such persons to firearms, but on the expectation that because of their lack of a prior record, they are less likely to attract the attention of police. His Honour's reasoning is similar to the approach adopted in Leroy for drug couriers where Street CJ said (at p 446-447):

"This Court and other criminal courts have said on many occasions that, in the drug traffic in particular, the circumstances that the accused person has a clear earlier record will have less significance than in other fields of crime. Very frequently, those selected to play some part in the chain of drug trafficking, as the appellant plainly enough was, are selected because their records, their past and their lifestyles are not such as to attract suspicion. It is this in particular which has led the courts to take in the case of drug trafficking a view which does not involve the same degree of leniency being extended to first offenders."

43 I do not think that there is sufficient material before this Court to enable a finding that the existence of good character places a person in a position where he is more likely to be selected to be the possessor of a prohibited firearm. Indeed, the facts of the present case do not permit such a finding. The applicant's explanation in the ERISP for being given a firearm was because he was a "reliable bloke" (Q&A 173). There is a difference between being a person of good character and a reliable one. Good character does not necessarily connote reliability.

44 In my opinion, there is not a sufficient basis for concluding that offences of possession of prohibited firearms are committed frequently by persons of otherwise good character. I am not persuaded that such a crime falls within the category of offence where less weight is afforded to prior good character.

45 I am satisfied that the judge erred when he gave less weight to the applicant's good character because he was charged with offences involving the possession of prohibited firearms. It would have been perfectly acceptable for the judge to consider the question of the weight to be given to the applicant's good character in all the circumstances of the offending but, in my respectful opinion, the error occurred when the reduction in weight was tethered to the type of offence.

46 I would uphold the first ground of appeal.

Ground 2: His Honour erred in finding that, in the case of all of the

offences, the objective seriousness fell within the upper range, because of, inter alia, the quantity of items involved.

47 The focus of the applicant's complaint is upon the remarks made by the judge that are italicised in the passage below (ROS 15-16):

"In my view, all of the offences for which the [applicant] is to be sentenced today fall in the upper range of objective seriousness for offences of their kind. I reach that view on the basis of my findings that the offender would have been fully aware that these weapons and prohibited items might be used in criminal activities. And I also reach this view on the quantity of the items involved." (italics added)

48 The applicant submitted that the number of items was not material to the objective seriousness of the individual offences, but rather to the total criminality, which is to be taken into account at a subsequent stage of the sentencing process. It was contended that although the judge had not expressly alluded to s 21A(2)(m) Crimes (Sentencing Procedure) Act, his Honour fell into the kind of error identified in R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740. The applicant argued that the appropriate method is to consider the relevance of the number of prohibited items as part of the process of determining the level of concurrency or accumulation.

49 The Crown put to the Court that "'...the quantity of the items involved' was mentioned within the context of the judge making findings as to the applicant's knowledge and foresight as to how the firearms and weapons might have been used" (CWS para 15). The Crown pointed out that the judge's remarks had made no reference to s 21A(2)(m) and his Honour had specifically referred to the appropriate principles when sentencing for multiple offences. It was the Crown's further contention that, in assessing the objective seriousness of the offences, the judge was entitled to take into account the quantity of prohibited items in the applicant's possession.

Decision

50 I do not consider that the judge's remarks as to the quantity of items can be confined to his assessment of the applicant's knowledge of the future use of the prohibited items as his Honour had earlier said (at ROS 12):

"But I am satisfied beyond reasonable doubt that the offender would have been fully aware that by handing over the weapons and ammunition to these associates with criminal backgrounds, as he intended to do, that there was a real chance that these weapons would be used in criminal activity. This finding together with the quantity of weapons and prohibited items and ammunition found, makes the objective seriousness of these offences to be extremely high." (italics added)

51 A fair reading of the sentencing remarks reveals that his Honour took into account the quantity of prohibited items in his assessment that all of the offences fell within the upper range of objective seriousness. It seems to me that it is unnecessary to deal with the applicant's argument that is founded on s 21A(2)(m) as his Honour neither mentioned the section nor am I persuaded that he had it in mind when he assessed the seriousness of the offences.

52 In my opinion, the answer to the applicant's complaint is to be found in the application by the judge of the principles in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610. As he was sentencing the applicant for more than one offence, his Honour expressly noted that he was obliged to fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as totality. However, in my respectful opinion, his Honour did not bear in mind that in fixing an appropriate sentence for an offence, he should not have regard to the other offences for which the applicant was to be sentenced. As this Court (McClellan CJ at CL, Hulme, Hislop JJ) explained in R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at [39]:

"In Pearce v R (1998) 194 CLR 610 at [45] the High Court made it clear that a sentence should be appropriate for the offence for which it is imposed. It is a corollary that no sentence should reflect criminality extending beyond the particular offence to which it relates..." (italics added)

53 Although the applicant was found to be in possession of a quantity of firearms, ammunition, magazines and a silencer, he was charged with seven separate offences. Eight matters had been included on a Form 1. His Honour could not use the quantity of all of the prohibited items as a factor in determining that an individual offence fell within the upper range of objective seriousness. However, when carrying out the task mandated by Pearce, his Honour was obliged to have regard to the fact that the applicant was being sentenced for multiple offences and ensure that the ultimate sentence was appropriate to the totality of the applicant's offending (which included the quantity of prohibited items in his possession) and his personal circumstances.

54 This Court has emphasised that where there is a challenge to a sentencing judge's characterisation of objective seriousness of an offence, the question is whether the particular characterisation which the sentencing judge gave to the circumstances of the offence was open to him: Mulato v R [2006] NSWCCA 282 per Spigelman CJ at [37]. Ground 2 challenged the judge's characterisation of the objective seriousness of the individual offences. In my opinion, that challenge fails. Notwithstanding the error I have identified, each individual offence was otherwise objectively serious and the judge's characterisation of the individual offences as falling within the upper range of objective seriousness was open to him. The unchallenged finding by the judge that the applicant was aware that by handing over the weapons and ammunition to associates with criminal backgrounds, there was a real chance that these weapons would be used in criminal activity substantially enhanced the objective seriousness of each offence and placed the offence in the upper range of objective seriousness.

55 The judge said (at ROS 16):

"The criminality of the offender's conduct in this case may best be described in terms that through his actions he was seeking to effectively facilitate the proliferation of these weapons and prohibited items amongst criminals. That may not have been his actual intended purpose but as I say he would have been fully aware that by handing over these weapons and prohibited items to these men, that these items may well be proliferated amongst criminals and be used in criminal activities. This is criminal conduct in my view of a high order."

56 His Honour's observations are consistent with Cooper v R [2005] NSWCCA 428 and R v Najam [2008] NSWCCA 32 to which he referred in his sentencing remarks. The protection of the community from criminals armed with firearms must be recognised by regarding the knowledge of an offender that prohibited weapons are to be handed over to persons with criminal backgrounds as a substantially aggravating factor.

57 I would reject Ground 2 of the appeal.

Ground 3: In concluding that the Court could not make a finding that the

applicant had favourable prospects of rehabilitation, his Honour erred in giving conclusive weight to the finding that the applicant had not given truthful evidence concerning the circumstances surrounding his offending.

58 The applicant complains that having rejected his account that he was merely holding the items for other persons and had not given consideration as to what might happen to the weapons in the future, the judge erred by failing to give any consideration whatsoever to the remainder of the applicant's subjective case. It was submitted that the judge also gave no weight to the views expressed by Mr Borenstein and his Honour was not entitled to dismiss the opinions expressed by the psychologist who had significant prior experience with the applicant and had not been required for cross-examination.

59 The Crown submitted that the judge, having heard and seen the applicant give evidence was entitled to arrive at the finding that he did. It was, the Crown said, within his Honour's discretion to find that the applicant did not have good prospects of rehabilitation and no error was demonstrated.

Decision

60 Section 21(3)(h) Crimes (Sentencing Procedure) Act requires the Court to take into account as a mitigating factor that the "offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise." The applicant bears the onus of establishing this factor of mitigation on the balance of probabilities: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270.

61 I have referred at [13]-[22] above to the applicant's record of interview, his evidence in the sentencing proceedings, his account to Mr Borenstein and the judge's credit findings. It is evident that his Honour gave careful consideration to Mr Borenstein's favourable opinion as to the applicant's prospects of rehabilitation: (see [26] - [27] above) but did not accept it. The judge said (at ROS 18-19):

"These opinions as expressed by Mr Borenstein, particularly that he has sound prospects of rehabilitation, are, however, based upon the apparent acceptance by Mr Borenstein of the [applicant's] assertion that he was merely the custodian of the weapons and that he had no idea how they were intended to be used. As I have said I do not accept that assertion by the [applicant].

The offender was clearly not being frank and truthful with the police in his interview and in my view he was not being entirely frank and truthful in his evidence before me nor with Mr Borenstein...

Further, given my finding that [applicant] was not frank and truthful in his evidence before me I am unable to find that he is genuinely remorseful for his serious criminal offence. In that regard it is to be noted that he pleaded guilty in the face of what can only be described as an overwhelming Crown case. He was caught red handed in possession of these weapons and prohibited items. Nor am I able to find that he has favourable prospects of rehabilitation. How can I make any determination about his prospects of rehabilitation when I have found that he was not frank and truthful in his evidence before me as to the circumstances surrounding his criminal behaviour?"

62 An important factor in assessing an offender's prospects of rehabilitation will sometimes be whether he has been truthful about his offending. Here the judge found that the applicant had neither been honest with him nor Mr Borenstein. This lack of honesty provided sufficient reason for his Honour not to accept the psychologist's opinions as to the applicant's prospects of rehabilitation, notwithstanding Mr Borenstein's professional experience with the applicant as a child.

63 In reality the applicant's complaint is that the judge did not give sufficient weight to the psychologist's views and to the evidence of family support when assessing his prospects of rehabilitation. As has often been said by this Court, the circumstances in which matters of weight in the exercise of a judge's sentencing discretion will justify intervention are narrowly confined: Gebara v R [2012] NSWCCA 107; R v Baker [2000] NSWCCA 85. It was clearly open to the judge not to be satisfied on the evidence before him that the applicant did have favourable prospects of rehabilitation.

64 I would reject Ground 3 of the appeal.

Ground 4: The applicant has a justifiable sense of grievance in the light of the sentences imposed upon the co-offender, Tuhukava

65 It was submitted that the applicant has a justifiable sense of grievance, both in respect of the individual sentences as well as the overall sentence imposed on the co-offender Tuhukava. The applicant pointed to a marked difference in the subjective cases between the co-offenders. The applicant had received a 25 per cent discount for the utilitarian value of his pleas, whereas Tuhukava's utilitarian discount was 20 per cent. The applicant was a man of previous good character whereas Tuhukava had numerous convictions for violence and had been previously sentenced to imprisonment. The applicant complained that despite the applicant's more positive subjective case, the sentences imposed for charges 2 to 6 were identical, with identical accumulation.

66 Furthermore, particular reference was made to Tuhukava's plea to the offence contrary to s 115 Crimes Act whereby he admitted that he intended to use the .38 Smith and Wesson pistol in criminal activity. Tuhukava was sentenced to a fixed term of imprisonment of 2 years for this offence, but this sentence was made wholly concurrent with the possession offence contrary to s 7 Firearms Act. The applicant submitted that despite the difference in both the subjective and (albeit in a limited fashion) objective cases, the difference between the sentences imposed, is almost entirely accounted for by the different utilitarian values of the pleas of guilty.

67 The Crown argued that the judge had given careful consideration when sentencing Tuhukava to the parity between the co-offenders and the level of parity between them was not such that the applicant could establish a marked disparity.

Decision

68 A comparative table for sentences imposed on the applicant and Tuhukava is as follows:

OFFENCE	SENTENCE ATHOS	SENTENCE TUHUKAVA
Armed with intent to commit an indictable offence		Count 1 Fixed term 2 years commencing 5.11.12
Possess an unauthorised pistol (Smith and Wesson .38 revolver)	Charge 1 Non-parole period 3 years commencing 5.5.12, balance of term 2 years [8 offences on a Form 1]	Count 2 Non-parole period 3.5 years commencing 5.11.12, balance of term 2 years
Possess a prohibited firearm (a bolt gun)	Charge 2 Fixed term 2 years imprisonment commencing 5.5.12	Count 3 Fixed term 2 years imprisonment commencing 5.5.12
Possess a prohibited firearm (a bolt gun)	Charge 3 Fixed term 2 years imprisonment commencing 5.5.12	Count 4 Fixed term 2 years imprisonment commencing 5.5.12
Possess a prohibited weapon (a pair of handcuffs)	Charge 4 Fixed term 1 year imprisonment commencing 5.5.11	Count 7 Fixed term 1 year imprisonment commencing 5.5.11
Possess a prohibited weapon: a detachable firearm magazine	Charge 5 Fixed term 2 years imprisonment commencing 5.11.11	Count 5 Fixed term 2 years imprisonment commencing 5.11.11
Possess a prohibited weapon (a detachable firearm magazine)	Charge 6 Fixed term 2 years imprisonment commencing 5.11.11	Count 6 Fixed term 2 years imprisonment commencing 5.11.11
Possess a prohibited weapon (a silencer)	Charge 7 Fixed term 18 months imprisonment commencing 5.5.11
Deal with proceeds of crime being reckless (an i-Phone)		Count 8 Fixed term 10 months commencing 5.5.11
Total effective sentence	6 years with non-parole period 4 years	7 years with non-parole period 5 years

69 A marked disparity between the sentences imposed on co-offenders of a degree of kind which gives rise to a justifiable sense of grievance is required before appellate intervention: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. The applicant must show that a reasonable person, looking at the circumstances of the case, would regard the applicant's grievance as justified: R v llbay [2000] NSWCCA 251; R v Kollas and Mitchell [2002] NSWCCA 491. The plurality (French CJ, Crennan, and Kiefel JJ) in Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 said at [31]:

"...The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise." (footnotes omitted)

70 The judge sentenced both the applicant and Tuhukava. When he sentenced Tuhukava on 1 February 2013, he noted that the principle of parity was relevant and cited Green v The Queen. His Honour assiduously noted that there were a number of differences in the respective cases but elaborated upon five matters (Tuhukava ROS 17-18).

(i) The applicant's utilitarian discount for the pleas of guilty was 25 per cent, whereas the allowance for Tuhukava was 20 per cent.

(ii) The applicant had no prior criminal convictions, whereas Tuhukava had prior convictions for numerous offences of violence. His Honour had earlier in his remarks recited these prior convictions which included "sentences of imprisonment in 2009 for use of an offensive weapon, assault occasioning actual bodily harm, armed with intent to commit an indictable offence" (Tuhukava ROS 16-17).

(iii) Tuhukava was charged with an offence contrary to s 115 Crimes Act whereas the applicant was not. The judge accepted the Crown case that Tuhukava was armed with weapons with intent to commit an indictable offence involving the forced entry into premises by kicking in a door or other point of entry. The judge proceeded on the basis that the indictable offence intended to be committed involved the intentional destruction or damage to property contrary to s 195(1)(a) Crimes Act which carried a maximum penalty of 5 years imprisonment (Tuhukava ROS 7). Tuhukava was also sentenced for an offence of possessing proceeds of crime being an Apple iPhone contrary to s 193B(3) Crimes Act, whereas the applicant was not. On the other hand, the applicant was sentenced for the possession of a silencer, which was a charge that Tuhukava did not face. A further distinction was that eight matters on a Form 1 were taken into account when the applicant was sentenced for possessing the .38 special calibre Smith and Wesson pistol, whereas there were no Form 1 matters taken into account when Tuhukava was sentenced for this offence.

(iv) The applicant did give evidence during the proceedings on sentence but Tuhukava did not. The judge was unable to find the applicant to be genuinely remorseful or that he had favourable prospects of rehabilitation. His Honour accepted that Tuhukava "to some degree" was remorseful but was guarded in his assessment of Tuhukava's prospects for rehabilitation.

(v) The judge was unable to make findings as to the true circumstances the applicant came into possession of the firearms and prohibited items, but "was satisfied that he was not a mere naïve custodian of these items" (Tuhukava ROS 19). Tuhukava acknowledged by his plea to count 1 that he was to use a pistol in criminal activity.

71 His Honour said (at Tuhukava ROS 19):

"...I have determined, considering all of the relevant factors, the objective seriousness of the offences, the subjective case of the offender and taking into account the principles of parity that I should impose a sentence of imprisonment on the offender which will comprise both a non-parole period and a total sentence which will be one year longer that (sic) the sentence I imposed upon [the applicant]."

72 The judge found special circumstances. The total effective sentence was 7 years imprisonment with a non-parole period of 5 years. Given the discount of 20 per cent for the plea of guilty, the undiscounted starting point of Tuhukava's sentence was 9 years 9 months whereas the undiscounted starting point of the applicant's sentence was 8 years. In the case of the applicant, the overall ratio of the non-parole period to the total sentence is 66.6 per cent. In Tuhukava's case, the overall ratio of the non-parole period to the total sentence is 71.4 per cent.

73 Other than the applicant's unblemished record, there was not much difference in the subjective circumstances of the co-offenders. Both were young men but Tuhukava was 3 years younger. Two reports from psychiatrists were tendered on behalf of Tuhukava. He was diagnosed by Dr Nielssen with panic disorder, agoraphobia in remission, substance abuse disorder in remission with a possible underlying psychotic illness. As previously recounted, Mr Borenstein considered that the applicant had a Chronic Adjustment Disorder with mixed Anxiety and Depressed Mood. The judge was unable to find in Tuhukava's case, that his mental state at the time of the commission of the offences reduced his moral culpability. In the case of the applicant, his Honour was unable to determine whether his psychological state had any part to play in the offending.

74 Although it is true that for charges 2 to 6, the sentences imposed were identical with identical accumulation, I am not persuaded that there is a marked disparity in the total effective sentences. The matters of difference identified by the judge justify the sentences that were imposed.

75 I would reject Ground 4 of the appeal.

Intervention?

76 Although I would uphold the first ground of appeal, I am not satisfied that some other sentence is warranted in law and should have been passed: s6(3) Criminal Appeal Act 1912. In my opinion, no lesser sentence is warranted.

77 It is important to mention that the Crown drew to the Court's attention that the judge had imposed fixed terms of imprisonment for charges 2 to 7 which is contrary to statute. As these are offences for which a standard non-parole period has been prescribed, his Honour was obliged to set a non-parole period for each of these charges. As there is no ground of appeal that complains of error by the judge in imposing fixed terms and the sentences are not to be quashed or varied, there is no basis for the Court to intervene and re-sentence the applicant for charges 2 to 7: Hristovksi v R [2010] NSWCCA 129 per Johnson J at [64] - [65].

78 I propose that leave to appeal against sentence be granted, but that the appeal be dismissed.

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Decision last updated: 03 September 2013