NSW Police v FA

The Facts

1. A facts sheet was tendered without objection. It indicated that the defendant (who is aged 39 years) resides in a one bedroom unit at Waterloo. On Tuesday 5 April 2016 police attended at the defendant's premises to serve a firearm prohibition order and a weapon prohibition order. Upon entry to the premises police conducted a search in the presence of the defendant and in the course of doing so, and whilst in the accused's bedroom, police located strapped to the bottom of a wooden table a small white/cream canvas bag. Inside the bag was a black hand gun that was loaded and had its ammunition magazine intact. Police seized the firearm and rendered it safe. When asked about the possession of the loaded pistol the accused replied "I have it for protection, especially with my line of work". During the same search of the bedroom a black steel silencer was found in a bedside table drawer. A search was then conducted of the defendant's vehicle and the facts reveal that a silver flick knife was located underneath the driver's seat. That knife is one of the items that constitute the possess prohibited weapons offence. In addition to that silver knife (and although not specifically referred to in the facts) police also located during the search a further two silver flick knives, a silver throwing knife, a silver butterfly knife and a black telescopic baton. Further located during the search were quantities of both methylamphetamine and cannabis leaf.
2. Tendered along with the facts by the prosecution was the defendant's criminal history. Of importance so far as this sentencing task is concerned are entries from 2004 and 2010. In 2004 he was convicted of using an offensive weapon with intent to commit an indictable offence and received a sentence in the District Court of periodic detention for 30 months with a non-parole period of 15 months. In 2010 he was convicted in the Local Court of possessing a prohibited weapon and possessing a prohibited drug. He was placed on a s 9 bond for 18 months in respect of the weapons matter and was fined for the drug offence.

The defendant's submissions

1. An affidavit sworn by the defendant on 23 November 2016 was tendered without objection, and the defendant was not cross examined in respect of its contents. Mr Gartelmann of Senior Counsel carefully presented the defendant's subjective case and noted that he had been the victim of two home invasions within about a week in 1996/97. He said it was in that context, and given his fears, and the need to protect himself from further home invasions, that he had possession of the loaded pistol. He noted that the firearm was kept under a table, that it was secreted, that it was only accessible to the defendant and that he lived alone. He observed that its use was limited to circumstances if the defendant were to be the victim of a home invasion.
2. Mr Gartelmann properly acknowledged that the fact that the firearm was loaded increased the seriousness of the offence. He observed that the fact that the defendant possessed the firearm for his own protection was not a mitigating factor, but that there was no evidence to suggest that his possession of the firearm was connected to or linked with any other type of criminal activity. He submitted that so far as the most serious offence being the possession of the loaded firearm was concerned that its objective seriousness could be assessed at or about the mid-range.
3. In respect of the silencer, Mr Gartelmann noted that it was kept in a drawer, was not attached to the loaded firearm and that its separate location was indicative of an intention that it would only be used in some limited hypothetical contingency, that is, in the event of the defendant again being the victim of a home invasion. His submission so far as the remaining knives and the telescopic baton were concerned was of a similar nature; that is that these items were in the possession of the defendant solely for his personal protection.
4. So far as the drug offences were concerned he submitted that the quantities of each of the drugs found in the defendant's possession were relatively small. In this regard, I note that the Court Attendance Notices in respect of these two offences, as amended by consent on 24 November 2016, contained no reference to the weight of either drug. That being so, it seems to me that I ought accept Mr Gartelmann's submission and regard the quantity of each drug as small. As earlier noted one of those charges being possession of cannabis leaf is to be dealt with on a Form 1.
5. The defendant relied on two reports, one of Mr Lee Knight dated 12 April 2016 and the other of Dr Olav Nielssen dated 29 June 2016. Both of those reports have been considered. Dr Nielssen opines that the defendant suffers from a substance use disorder and an anxiety disorder being post-traumatic stress disorder. The diagnosis of post-traumatic stress disorder is said to be based upon the defendant's account of intrusive anxiety producing memories, disturbed sleep and hyper vigilance following the home invasion to which he was subject some 20 years ago. Mr Gartelmann submitted that given what he suggested was the causal relationship between the defendant's condition and his offending that his moral culpability was lessened and that in those circumstances general deterrence ought to be given less weight in all the circumstances. I will deal with this submission shortly.
6. It was further submitted that the defendant had now taken steps to distance himself from the business interests he had at the time of the offending, which involved the conduct of a high class adult escort company. I was told that the defendant is no longer associated with the management of the company. It was submitted that this demonstrated recognition by him that the conduct of such a business may have added to his overall anxiety and that as he had now taken steps to distance himself therefrom, a favourable conclusion could be reached in respect of his prospects of rehabilitation.
7. So far as the defendant's prior weapons convictions were concerned Mr Gartelmann advised the court that the 2004 conviction involved an incident of road rage and the use of a club lock; and that the 2010 convictions involved the possession of a whip and hand cuffs which were apparently deployed during sexual activity, and the possession of a knuckle duster that was shaped in the form of a belt buckle which was not in fact able to be used as a weapon. Mr Gartelmann characterised the latter items as "essentially ornamental". He submitted that those prior matters would not allow the court to conclude that the defendant had poor prospects of rehabilitation. Indeed and as referred to earlier, Mr Gartelmann submitted that given the steps the defendant had taken to distance himself from his business, and the fact of his ongoing engagement with Dr Nielssen, that he had a demonstrated capacity for rehabilitation.
8. So far as the plea of guilty was concerned, Mr Gartelmann submitted that whilst the plea had not been entered at the first available opportunity, it was nevertheless of utilitarian value and that a discount should be afforded the defendant in the range of 15-20%.
9. There is a further discount pursuant to section 23 of the Crimes (Sentencing Procedure) Act 1999 that it is submitted ought be given considerable weight. The defendant has provided information to police in respect of unrelated criminal activity that is said to have been useful. Mr Gartelmann submitted that a discount in the order of 15-20% for assistance to authorities would be appropriate. In relation to this issue an Affidavit sworn by Superintendent Luke Freudenstein on 21 November 2016 was tendered by the prosecutor.
10. Mr Gartelmann acknowledged, as was entirely appropriate, that the section 5 threshold had been crossed and that no sentence other than one of imprisonment was required. He observed that the defendant had spent a period of 24 days in custody prior to his being granted bail in respect of these offences and that this should be taken into account and it will be. He finally submitted that given the period of pre-sentence custody, the discounts for the plea and assistance that would be allowed and the ongoing relevance of the defendant's mental condition, that the court might be minded to suspend any sentence that was deemed appropriate. I made it clear at the time that submission was made that in my view the offending was far too serious for a suspended sentence to be imposed and it was in those circumstances that I referred the defendant for assessment in respect of an intensive correction order.

General principles

1. Offences relating to firearms and prohibited weapons are some of the most serious offences prosecuted in the Local Court. This is clear from a consideration of the maximum penalties prescribed by the legislature and of the comments made in the sentencing authorities concerning such offences. They are offences to which the principles in R v Doan (2000) 50 NSWLR 115 apply, and the seriousness of the offending is to be assessed by reference to the maximum penalty prescribed and not the jurisdictional limit of the Local Court. It is incumbent upon courts to impose sentences that act as a significant general deterrent in matters of this type. It is the inherent danger to public safety that firearms and prohibited weapons represent which ground this duty. It is also relevant to consider the principles and objects of the Firearms Act 1996 "which the courts must seek to implement": R v Tolley [2004] NSWCCA 165 at [53]. The principles of the Act include confirming that firearm possession is a privilege that is conditional on the overriding need for public safety, the improvement of public safety by the imposition of strict controls on firearms and the promotion of safe and responsible storage and use of them. In R v Najem [2008] NSWCCA 32 Hulme J explained (at [40]) the rationale underlying the seriousness with which firearm offences are to be treated as "a recognition that firearms and pistols, if possessed, are liable to be used, and if used, are liable to be a source of great danger or damage".
2. The fact of there being "no criminal purpose" for the possession of firearms is not a decisive consideration. In R v Hamze [2005] NSWSC 136, Howie J dealt with, amongst other things, an offence under section 7 of the Firearms Act 1996. While the firearm offence in this case is one contrary to s 7A(1) of the Act, his Honour's observations nevertheless have real resonance in the circumstances of this matter. There his Honour observed at [20]: They were serious offences because of the nature of the weapons, because there was ammunition found in the offender's possession that fitted one of the weapons and because they were found in unsecured places in a suburban dwelling. It is not a matter of mitigation that there is no evidence that the offender was going to use them for any unlawful purpose. The policy behind firearms offences is to control the use of weapons in the community generally and not simply to disarm the criminally minded. The Court of Criminal Appeal has emphasised the seriousness with which these types of offences must be treated: R v Cromarty (2004) 144 A Crim R 515.
3. The authorities make it abundantly clear that the fact that possession of a prohibited firearm is for personal protection is not a matter to be given weight in mitigation, particularly in circumstances where the policy of the legislature evinced by the enactment of the offence and maximum penalty is to deter and punish the possession of firearms per se: R v Krstic [2005] NSWCCA 391 at [14].
4. In R v AA [2006] NSWCCA 55 the respondent had possession of a prohibited pistol for self-protection following a severe assault, a circumstance not dissimilar to that which is said to be the circumstance pertaining to this defendant, where it is suggested that he had a pistol for self-protection following a series of home invasions which occurred almost 20 years ago. Rothman J said at [46]: It cannot be emphasised enough that the rule of law and the authority of courts depends upon the proposition that persons do not take into their own hands the enforcement of the law, retaliation for past offences or protection by means inconsistent with the law. It is for law enforcement agencies to protect members of the community and it is for the courts to enforce the law.
5. The principles in R v Krstic and R v AA were again confirmed by the Court of Criminal Appeal in Thalari v R [2009] 75 NSWLR 307. In Thalari v R the court observed (at [88]) that the fact that a firearm is loaded with live rounds of ammunition bears upon the seriousness of the possession. Plainly this is a relevant consideration in this case, where the subject pistol was not only loaded but also inappropriately secured.
6. So far as the offence under the Weapons Prohibition Act 1998 is concerned it is relevant to consider the number of prohibited weapons in the possession of the defendant (in this case 7 including a silencer), the maximum penalty available for conviction on indictment being 14 years and the fact that all of the weapons were highly dangerous, easily concealed and capable of causing significant damage to other members of the community. In respect of the possess prohibited drug matters (including that offence to be dealt with on a Form 1), I will have regard to the relatively small quantity of the drugs and the fact that they were for the defendant's own use in circumstances where Dr Nielssen opines that he is suffering from a substance use disorder, which although not "especially severe or disabling" does appear to have contributed to his general anxiety.
7. As there are 3 offences to be dealt with on a Form 1, I may take those further offences into account in dealing with the principle offence provided that in all the circumstances I am satisfied that it is appropriate to do so. Given the nature of the offences on the Form 1 I am satisfied that it is appropriate to deal with them in this way. As a result I should focus on the sentence that is appropriate for the principal offence and then adjust by increasing that sentence by reason of the Form 1 offences for which guilt has been admitted.

Plea of guilty

1. As has been earlier referred to, Mr Gartelmann submitted that an appropriate discount for the plea of guilty was in the order of 15-20%. Despite the fact that the defendant first appeared before the court on the 6 April 2016, a plea of guilty was not entered until 15 September 2016, a period of more than 5 months following his arrest. In fact, a plea of not guilty was initially entered on 18 May 2016 and orders had been made for the service of a brief, it having been made clear by the defendant's legal representative on 18 May 2016 that there was an issue concerning the legality of the search that was undertaken by police at the defendant's premises. Thereafter the matter came back before the court on a number of occasions for the allocation of a hearing date. It was only on 15 September 2016 and prior to a hearing date in fact being set that the plea of guilty was entered. On that occasion the court was advised that the facts were being settled and a Form 1 was being negotiated. The matter was then adjourned for sentence until 24 November 2016. As is clear from R v Borkowski (2009) 195 A Crim R 1 the discount for the utilitarian value of the plea will be determined largely by its timing. It cannot be said in this case that the plea of guilty was entered at the earliest possible time, although I accept that the plea of guilty entered on the 15 September 2016 was nevertheless of significant utilitarian value. I have assessed the value of the plea of guilty in this matter to warrant a discount in the order of 17.5%.

Assistance to authorities

1. Section 23 of the Crimes (Sentencing Procedure) Act 1999 provides that the court may impose a lesser penalty than would otherwise be the case having regard to the degree to which an offender has assisted or undertaken to assist law enforcement authorities whether that is in relation to the offence the subject of the charge or any other offence. Section 23(2) sets out the factors that are to be taken into account and all of those have been considered.
2. Any lesser penalty that is imposed for assistance must not result in a sentence that is unreasonably disproportionate to the offending (s 23(3)) and it is necessary for a court that imposes a lesser penalty to indicate that it has done so and state the penalty that would otherwise have been imposed (s 23(4)). In assessing the discount to be provided, I have had regard to the affidavit material tendered by the prosecutor. The evidence indicates that the defendant has provided police with information concerning unrelated criminal activity of which he was aware. In my view and given the affidavit evidence the assistance provided can be regarded as significant, useful, truthful and timely. I have concluded that a discount for assistance in the order of 15% is appropriate. This means the discount for both the plea of guilty and assistance is in a total amount of 32.5% of the sentence that would otherwise have been appropriate. In my assessment, such a total discount will not result in a sentencing outcome that is out of touch with either the circumstances of the particular offending or broad community standards.

The Statutory Scheme

1. Section 21A of the Crimes (Sentencing Procedure) Act 1999 requires the court to take into account the aggravating and mitigating factors set out therein in determining an appropriate sentence. These factors are in addition to any common law principles required and/or permitted to be taken into account.
2. In my view the single relevant aggravating factor as contained in s 21A(2) is that the defendant has a record of previous convictions. Notably, some of these convictions are for offences of a similar type. The relevant mitigating factors as contained in s 21A(3) are: (k) the defendant's plea of guilty; and (m) the defendant's assistance to law enforcement authorities. Both of these factors have been considered by me earlier.

The defendant's mental condition

1. Much was made by Mr Gartelmann of the relevance of the defendant's mental condition. The diagnosis by Dr Nielssen of an anxiety disorder or post-traumatic stress disorder (as described by Mr Knight) is said to mean that general deterrence should be given less weight, particularly where his offending is said to be causally related to his mental condition. As Mr Knight has noted in his report, his diagnostic impression is based solely on the defendant's self-report. He did not have available any corroborative material and Dr Nielssen was similarly constrained in the preparation of his report. It is to be observed that the events said to give rise to the defendant's compromised mental condition took place about 20 years, in circumstances where shortly after the events, according to Dr Nielssen, he saw a psychologist "on several occasions for advice on managing anxiety" and then some 7 years later in 2004 "saw a psychologist for anger management counselling". I note coincidentally that this counselling occurred at a time that the defendant had matters for sentence before the District Court in respect of matters of violence. Prior to his arrest for these offences, the defendant had not had contact with mental health professionals for about 12 years during which time he was engaged in the conduct and management of a number of apparently profitable and successful businesses including a tobacconist, an escort agency and a construction company involved in the development of duplex accommodation. In meeting with Dr Nielssen he did not report any history of depression or psychosis and Dr Nielssen notes that he has no history of admission to psychiatric hospitals. He is reported as having described himself to Dr Nielssen as "pretty stable in the head".
2. The self-serving and untested out of court statements made by the defendant to both Dr Nielssen and Mr Knight, the background of his treatment referred to above regarding his mental condition, and the connection that such condition is said to have to his offending, should in my view be treated by the court with caution bordering on circumspection and given little if any weight: R v Qutami [2001] NSWCCA 353; AK v R [2016] NSWCCA 238 at [99]. Despite the fact that the defendant was not subject to cross examination in respect of his affidavit the court is not bound to automatically and without question accept the matters asserted therein, particularly so far as they seek to link his mental condition to his offending conduct. In Chow v Director of Public Prosecutions (1992) 28 NSWLR 593, Kirby P while setting out a number of principles governing the functions of prosecutors and judges in sentencing proceedings said as follows (at 606): The foregoing rules do not oblige a sentencing judge passively, andunquestioningly, to accept facts as the basis for sentencing which arepresented by the prosecution and/or the accused.
3. Here I am unable to conclude that there is in fact a causal relationship between the defendant's mental condition and his offending. In my view the defendant's evidence in this regard is inherently implausible, given the history of his treatment (or lack thereof) and his personal circumstances over many years. In reaching this conclusion I have also borne in mind the words spoken to police by the defendant at the time of his arrest, being "I have it for protection, especially in my line of work". These words indicate possession of the firearm for purposes arising out of his business endeavours, rather than for any purpose associated with his home being invaded 20 years ago. The evidence concerning the defendant's mental condition does not render him a less appropriate vehicle for general deterrence. Indeed his possession of a loaded and lethal firearm necessarily calls for the imposition of a penalty that pays significant attention to the need for both general and specific deterrence.
4. I would further observe that even if I were to accept the defendant's explanation for the possession of the loaded firearm and the prohibited weapons, then given the authorities to which I have earlier referred, this would have been given little weight, as self-protection is not in any event a matter which mitigates penalty in cases of this type.

Conclusion

1. Despite the fact that the defendant was referred for an intensive correction order assessment, I have come to the view that the offending in this case is so objectively serious that the imposition of such penalty would not in all the circumstances be appropriate. This is notwithstanding that the defendant has been assessed as suitable to serve any sentence by way of an intensive correction order. The ordering of such an assessment and the fact that an offender is assessed as suitable does not result in the court being placed into some sort of sentencing straightjacket. So much was made clear by Johnson J in R v A2; R v Magennis; R v Vaziri (No. 24) [2016] NSWSC 737 in dealing with a positive home detention assessment. The court must still have regard to all of the relevant objective and subjective factors and to all relevant sentencing principles. What follow are my reasons for coming to the conclusion that the imposition of an intensive correction order is inappropriate, in accordance with s 67(5) of the Crimes (Sentencing Procedure) Act 1999.
2. Section 3A of the Crimes (Sentencing Procedure) Act 1999 sets out the purposes of sentencing. The purposes for which a court may impose a sentence on an offender are: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and others from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, 7. to recognise the harm done to the victim of the crime and the community.
3. The imposition of a sentence that did not involve a period of full time custody, would not, in my view, adequately reflect the need to punish the offender, the need to deter the offender, the need to protect the community from him, the need to make him accountable and the need to denounce his conduct. While an intensive correction order is certainly a substantial punishment this is not an appropriate case for its utilisation. This case is of such serious and dangerous offending as to warrant immediate incarceration. To do otherwise would not pay proper regard to all of the purposes of sentencing. The possession of loaded firearms and prohibited weapons poses such a significant risk to public safety as to warrant no other conclusion being reached. These offences are abhorred by the community and the court ought, in sentencing for them, seek to reflect that abhorrence.
4. Given my conclusion that there is no sentence other than full time imprisonment that is appropriate, it is necessary for me to consider the term of that sentence. So far as the charge of possess unauthorised firearm is concerned I am of the view that an appropriate sentence is in the order of 3 years imprisonment. This takes into account the objective seriousness of the offending which given the fact that the firearm was loaded, I assess at a point above the mid-range and the subjective case of the defendant. It also has regard to the matters to be dealt with on a Form 1. From that sentence there is to be a 32.5% discount, which after rounding down in accordance with what Adamson J (with whom Bathurst CJ and Simpson J agreed) said in Rios v R [2012] NSWCCA 8 at [42]-[43] means that the total sentence to be imposed upon the defendant is one of 2 years imprisonment. So far as the possess prohibited weapons matter is concerned, and given the maximum penalty prescribed of 14 years imprisonment, I am of the view that it can be categorised toward the lower end of objective seriousness for offences of that type and that a total term of imprisonment of 15 months is appropriate. This term has regard to the number of items found and the very real risk of harm to the public that attaches to the possession of such items. Allowing for a 32.5% discount and rounding down slightly, I have concluded that the total sentence in respect of those matters should be one of 10 months imprisonment. Both sentences will be backdated by 24 days to represent the period of time the defendant spent in custody prior to his release to bail. So far as the drug matter is concerned, it can be dealt with by a conviction being recorded with no further penalty imposed.
5. Having indicated the total terms of imprisonment that are appropriate I must now turn my consideration to the question of whether the statutory ratio as to the period during which the defendant must remain in custody should be varied. It can only be varied if there are special circumstances. In R v Egan [2016] NSWCCA 285 at [161], Bellew J had the following to say on this issue: Further, and perhaps even more fundamentally, whether circumstances are "special" will ultimately depend upon whether the evidence supports a finding that there are significant positive signs which show that if the offender is allowed a longer period on parole, his or her rehabilitation is likely to be successful. And further at [162] his Honour observed: Finally, the discretion to treat matters as amounting to special circumstances is constrained by the requirement that the non-parole period appropriately reflect the criminality of the offending …. A non-parole period is to be viewed as a mitigation of punishment in favour of rehabilitation through conditional freedom by parole. Ultimately, the non-parole period actually imposed must be the minimum period of custody appropriate to all of the circumstances of the offence.
6. I am not satisfied that there is evidence of the type referred to by Bellew J which would entitle me to make a finding that there are significant positive signs warranting a conclusion that a longer period on parole would assist the rehabilitation of the defendant. Accordingly I am not prepared to make a finding of special circumstances and vary the statutory ratio. Given the sentence to be imposed for the firearm offence, I do not propose to fix a non-parole period in respect of the possess prohibited weapons offence.

Orders

1. On each of sequences 10, 12, 13 and 14 the defendant is convicted. 1. Re sequence 10 - he is sentenced to a term of imprisonment consisting of a non-parole period of 18 months and a total term of 2 years, both to date from the 31 December 2016. He will be eligible for release subject to supervision on parole on 30 June 2018. 2. Re sequence 12 - pursuant to s10A there is no further penalty. I order that the drug is to be destroyed. 3. Re Sequence 14 - he is sentenced to a fixed term of imprisonment of 10 months commencing on 31 December 2016 and expiring on 30 October 2017.
2. Sequences 8, 11 and 13 have been taken into account on a Form 1 in the sentence imposed for sequence 10 pursuant to s 32, Crimes (Sentencing Procedure) Act 1999. Deputy Chief Magistrate C O'Brien Downing Centre Local Court 24 January 2017

Note: On 11 May 2017, the District Court (Conlon DCJ) determined an appeal against sentence by the defendant and varied the sentences of imprisonment imposed in the Local Court to the following: 1. Re sequence 10 (possess unauthorised firearm) - a term of imprisonment to commence on 31 December 2016 and expiring on 20 August 2018 with a non-parole period of 14 months. 2. Re sequence 14 (possess prohibited weapons) - a fixed term of imprisonment to commence on 31 December 2016 and expiring on 30 August 2017. 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: 22 May 2017