Sumrein v R [2019] NSWCCA 83

Sumrein v R [2019] NSWCCA 83 · Read the judgment on AustLII

Catchwords: Firearms – assessment of objective seriousness – relevance of motive for possessing firearm

In what looks to be a departure from an earlier line of authority, the CCA has held that possession of a firearm for personal protection might be a factor which mitigates the sentence – at least where the personal protection is unconnected with criminal conduct.

The applicant pleaded guilty to possessing a loaded firearm in a public place, and related offences on a Form 1. He had a bag which contained a fully loaded pistol. He was in a car which was being followed by police. When the car stopped, he got out and ran away, tried to secrete the pistol, and kept running. He was stopped and the pistol found. He told the police that he feared for his safety and that the pistol was for his protection. He felt the protection was, so he eventually deposed in an affidavit, necessary because he had been having an affair which was discovered by the woman’s family. Then his family home was sprayed with bullets while his mother, wife and children were there (nobody was hurt). Because he suspected that shooting was related to his infidelity, he got a firearm (it actually turns out to be more likely that the shooting was targeted at his brother, who was later shot and seriously wounded).

In the course of assessing the objective seriousness of the offence, the sentencing judge found that the proffered reason for the possession of the firearm (self-protection) did not lower the objective seriousness of the offence; the fact that he did not contact the police but instead resorted to obtaining an illegal firearm did not assist him. He was sentenced in the District Court to imprisonment for 3 years and 9 months, with a non-parole period of 2 years. He appealed, centrally on the basis that in assessing the objective gravity of the offence, the sentencing judge did not take into account the offender’s motive in possessing the firearm.

The CCA (Hidden AJ, Ierace J agreeing; Leeming JA agreeing with some brief additional remarks) allowed the appeal and resentenced the applicant. A line of authority was cited by the Crown in support of the proposition that self-protection was not a mitigating factor on sentence (at [23] to [33]). That line of authority had commenced with some dictum from Latham J in R v Dusan Krstic [2005] NSWCCA 391, which the Court here found should be approached with some caution given its original context (at [38]). The judgment does not say so in as many words, but by implication it also appears to have been relevant to the Court’s view of those authorities that the self-protection in question was, or was not, related to the offender’s criminal conduct (see [36]).

Here, the plurality (Leeming JA declined to express a view on this limited aspect) held that, rather than approaching sentencing by reference to factors which are ‘aggravating’ or ‘mitigating’, it is preferable to examine the extent to which an offence shares features commonly encountered for offences of that kind, bearing in mind that ultimately objective gravity turns on the facts of the particular case (at [44]; Leeming JA’s reservation is at [1]). In firearm offences, it is common for the offender to possess the firearm in connection in connection with a criminal enterprise, and that is a factor which elevates the objective seriousness of an offence. That feature was absent in this case, and that did not deserve to be characterised as being of ‘minor consequence’, as it was by the sentencing judge (at [45]). The applicant’s motive in obtaining the gun (to protect not only himself but his family) was relevant in assessing objective gravity and moral culpability. There was some debate in the appeal about whether senior counsel who had appeared in District Court had conceded that self-protection was not something which could mitigate a sentence for illegal possession of a firearm, although it was unclear. Even if there was a concession by senior counsel below about whether that could be taken into account, the failure to take it into account was an error which ought to be corrected (at [46]). The Court duly resentenced the offender to a sentence of imprisonment of 3 years, with a non-parole period of 1 year, 5 months (no particular reason was given for the unusual departure from the statutory ratio for the non-parole period but, presumably coincidentally, it expired shortly before the judgment was delivered).