R v Aird

Facts giving rise to the offending

1. According to the agreed statement of facts, [1] the Offender resided at Pheasants Nest Road, Pheasants Nest. At about 8:30am on 24 August 2017, the Offender was observed by police as the driver and sole occupant of a Toyota Prado on Rockford Road, Tahmoor. The Offender was arrested in relation to an unrelated matter. During a search of his vehicle, police located: 1. A knife concealed as a credit card, being sequence 1; and 2. One extendible baton, being sequence 2 on the Form 1A;
2. Following his arrest, the Offender was taken to Narellan Police Station. Police were granted a search warrant for in respect of the Offender's residence. At 1:10pm police attended the residence and executed the search warrant. Within the residence, police located: 1. A set of knuckledusters, being sequence 12 on the Form 1A; and 2. Two railway detonators, being sequence 16 on the Form 1A
3. In a tool box found within a large six door garage at the rear of the property, police located the following: 1. 1 x SAKO .22/250 calibre rifle, serial number 78255 2. 2 x .22 calibre tubular firearms commonly known as 'pen guns' 3. 1 x SAKO .243 calibre bolt action rifle 4. 1 x Stirling .22 calibre rifle, serial number 330446; 5. 1 x Winchester .22 calibre lever action rifle, serial number CHF3387 6. 1 x Harrington & Richardson semi-automatic .22 rifle, serial number AX539842 7. 1 x Daisy .177 calibre rifle 'BB gun' 8. 1 x Ruger semi-automatic mini 14.223 calibre rifle, serial number 184-59488 9. Assorted calibre ammunition (Sequence 13- Form 1B) 1. 2 x 12 guage fired rounds 2. 1 x .22 long rifle rounds 3. 27 x .233 Remington rounds 4. 38 x .22-250 Remington rounds
4. The items referred to in 6 (a)-(h) above were the subject of the Sequence 17 offence. The non-safe keeping of the non-prohibited firearms was Sequence 14 on the Form 1B and the non-safe keeping of the prohibited firearms was Sequence 15 on the Form 1B.
5. All the items seized by police were photographed and are contained in Annexures A - H in Exhibit A. A photograph of the credit card knife was tendered as Exhibit C.
6. According to a statement tendered during the course of sentencing submissions as Exhibit B, police used a set of keys to unlock the toolbox which was located on the back of a Ute. Exhibit B was tendered only to demonstrate the security utilised in respect of the storage of the various items. [2]
7. The Offender agreed to participate in an electronically recorded interview where he stated that:

• He possessed the extendable baton seized from his car
• He possessed all firearms seized from the garage of his property
• He has not fired any of the firearms in the time he had possessed them
• He purchased the firearms to use for hunting
• He did not remove any serial numbers from the firearms, stating they were in the same condition as at the time of purchase
• He intended to hand the firearms and ammunition in to a gun shop in Campbelltown due to an amnesty and stated "I done the wrong thing by havin' 'em but I was… gunna do the right thing by getting rid of them"
• His firearms licence was revoked in 2000
• He possessed the knuckledusters seized by police

1. It was not in issue that the Offender does not possess any permit or licence required to lawfully possess the seized firearms or ammunition. At no stage were the firearms seized registered in the name of the Offender.
2. A sentence assessment report interview was conducted by Christine Chenoweth from Bowral Community Corrections Office. Despite the reference in the police interview as to "purchasing the firearms" the sentence assessment report [3] recorded that the Offender stated that he inherited the majority of the guns in 2006 from his deceased brother and father and that they were too sentimental to dispose of. He conceded that despite not having a gun licence, he purchased three other firearms stating that they were "good guns". He also stated that he had forgotten he had the knife concealed as a credit card, the railway detonators and the baton. He stated that whilst his gun licence had expired several years ago, he enjoyed hunting/shooting with licenced peers.
3. The Offender also submitted a statement of his own. [4] In that document he recorded that in relation to Sequence 1, the knife was identical to a box cutter which is what it was used for. He stated that the extendible baton was broken and the knuckledusters were used as a decoration. He stated that the two railway detonators were obtained in 1996 whilst he worked in the Railway Corridor and they were locked in a safe. In relation to the guns, he stated that he had grown up on a farm his whole life and they were an essential feature of having a farm. He explained that as long as he could remember, he hunted for vermin and used the gun as protection against snakes on his property. He stated that most of the guns he had were passed down from his father and brother, and were of sentimental value to him. He appreciated that he should not have had the guns, but at the time there was an amnesty and a couple of days previously he walked in 'Abellas Gun Shop' with Richard Crane (who police have spoken to) and confirmed that he intended to hand his guns in. The Offender also stated that his property and car was searched for an unrelated matter, of which he was never ultimately charged.

Sequence 1

1. The Crown contended that Sequence 1 fell below the mid-range of objective seriousness but was not at the low end.
2. In the case of the credit card knife the Offender stated that it was used as a box cutter. It was an extremely sharp object which was easily concealed that was found in his car following his apprehension, together with the extendable baton referred to on the Form 1A By his plea, the Offender accepted that he had in his possession a prohibited weapon in circumstances where he was not authorised by a permit.
3. Bearing in mind the wide range of prohibited weapons embraced by the section, [5] and that it was found in the Offender's car and not on his person, in my view the objective features of this offence fall within the lower range of seriousness.

Sequence 17

1. So far as Sequence 17 is concerned, the Crown drew attention to the quantity of items seized, the type of firearms including the fact that there were four prohibited firearms, [6] the relative lack of security and proximity to ammunition, [7] as well as the fact that the Offender's license had been revoked since 2000 and he was unlicensed at the time. [8] The Crown accepted that there was no evidence that the firearms were to be used for an illegal purpose. [9] Although a submission was made that there could be no legitimate use for the pen guns, that submission was later withdrawn. [10] The Crown referred to the Offender's claims that he was intending to surrender the firearms as untested and fortuitous in the context of the timing of his arrest. [11]
2. The Crown also submitted that in light of the Offender's statements, overall the Court could accept that the firearms were in working order. [12]
3. The Defence drew attention to the fact that the firearms were not intended to be used for illegal purposes. It was however, accepted that the weapons included prohibited weapons, that the number of weapons involved were as described and that the firearms were proximate to ammunition although not loaded. The Defence conceded that the firearms were stored in the garage, although drew attention to the fact that the toolbox in which they were stored was locked.
4. The Defence submitted that the Offender had expressed an intention to surrender the firearms which included giving some details to police to follow up. [13] Whilst it acknowledged that the Offender's statement was untested, it also submitted that it was not challenged. [14]
5. Much of the Defence submissions rested on the fact that section 51D(2) of the Firearms Act 1996 (NSW) encompassed more serious offending, including where the weapons are connected to other illegal activity where firearms would be available for immediate use by others. It was further submitted that the firearms were not in possession for sale. [15]
6. Whilst the Defence submitted that there was no evidence that the firearms in Sequence 17 were in working order, [16] it accepted that the Offender described the guns he purchased as "good guns" and were "purchased for hunting", [17] and accepted that there was no evidence that the guns were modified or touched. [18]
7. The Defence acknowledged that the possession of the firearms was illegal and his licence was revoked. [19]
8. The Defence submitted that Sequence 17 fell within the low end of the scale.
9. In Mack v R, Davies J referred to the following matters as relevant to the assessment of objective seriousness for an offence under section 51D(2) of the Firearms Act 1996 (NSW): (a) the number of the firearms; (b) the number of the firearms that were prohibited or were pistols; (c) the nature and type of the firearms; (d) the purpose for the possession of the firearms; (e) evidence which would show any relationship between the possession of the firearms and the drug industry being carried on at the premises; and (f) the location of the property and the security under which the firearms were kept.
10. In this instance there were nine firearms in total. Two of them were pen pistols that were capable of being concealed. [20] Four firearms being the pen guns and the 2 semi-automatic were prohibited. There is no evidence that the possession was associated with illegal activity on the premises and I accept that the firearms were not associated with any other illegal activity nor intended for sale. [21]
11. None of the firearms were registered at any time by the Offender. [22] The Offender knew that he was not licensed to lawfully possess the firearms in circumstances where his license had previously been revoked. [23] These factors go to the objective seriousness of the offence. [24]
12. The firearms were stored in the garage in a toolbox which though locked, did not comply with mandated storage requirements. They were also proximate to quantities of ammunition, although there is nothing to suggest that any of the firearms were loaded at the time.
13. The circumstances in which the firearms came into the Offender's possession are not entirely clear.
14. In his statement to the Court he referred to some of the firearms having "sentimental value" as they had been inherited from his family and others that he subsequently acquired. [25]
15. This was reiterated in the account recorded in the Sentence Assessment Report, where the Offender stated he acquired the majority of the guns in 2006 after he inherited them, and that they were "too sentimental to dispose of." Beyond that, the Sentence Assessment Report records the Offender stating that he purchased three other firearms, although the timing of that purchase is not apparent. [26]
16. In the agreed facts, the record of the Offender's police interview states that he purchased the firearms to use for hunting. No mention is made of the Offender stating that he inherited any of them from family members. [27] The timing of the purchases is not apparent.
17. I have noted the Offender's statements to police and that that he intended to hand the firearms (and ammunition) in to a gun shop in Campbelltown due to an amnesty. [28] In his statement to the Court he said that he went to Abella's gun shop two days prior to this end. [29] Even accepting that he had made an approach to the gun shop and accepting this was a designated drop off point, there is nothing to suggest that he took any items to surrender, what form any inquiry took, nor what follow up was to occur. No evidence was provided by Richard Crane whom the Offender says accompanied him and believes the police spoke to. Ultimately the Court only has the information provided by the Offender noting that the agreed facts contain no detail beyond an expressed intention "to hand in the firearms and ammunition to a gun shop in Campbelltown". [30]
18. Accepting that the amnesty embraced all the items in Sequence 17, it had already been in place for nearly two months prior to the Offender's arrest and was due to expire the following month. [31] It was not submitted that it provided protection in circumstances where a person does not actually act to surrender the items.
19. Overall the limited evidence relating to an intention to surrender has to be seen in a context of prevarication and procrastination. I am unable to afford it any weight in mitigation of sentence. [32]
20. The submission that there was no evidence that the firearms were in working order has to be viewed in light of the offender's plea and the definition of firearms in section 4 of the Firearms Act 1996 (NSW) as a gun or other weapon, that is (or at any time was) capable of propelling a projectile.
21. Beyond that, the Offender described the firearms he purchased as "good guns" [33] and "purchased to use for hunting." [34] Those firearms were described as being in the same condition as when they were purchased and there is no evidence of serial numbers being removed. [35] More broadly the Offender himself described that guns were an essential feature of having a farm. [36] Although he informed police that he had not fired the firearms in the time he possessed them, [37] he reported in the sentence assessment report that he enjoys hunting and shooting with licenced pears. [38]
22. Beyond these statements the Offender has given no evidence of the firearms not being in working order and the state of the firearms when seized appears from the photographs in Exhibit A, annexures A-H.
23. Taking into account all the matters referred to, I am satisfied that the objective factors in Sequence 17 fall within the mid-range of seriousness, albeit at the lower end.

Plea of guilty

1. The Offender pleaded guilty at the earliest opportunity. He is to be afforded a plea discount of 25%.

Conditional Liberty

1. The offences were committed whilst the offender was on bail in relation to offences of Stalk/Intimidate Intend Fear Physical etc Harm (Personal) and Assault Occasioning Actual Bodily Harm. This is an aggravating factor on sentence. [39]

Prior Record

1. The Defence contended that the Offender's antecedents, whilst not an unblemished record, indicate that the last offending was in 2005. This is incorrect. In fact the last offending was in respect of the offences that the Offender was on bail for which date to 20 December 2016. However, I have noted that the Offender's antecedents have a gap in offending between 2004 and 2016 and further that there were no previous firearms offences. Nevertheless, it cannot be said that the Offender did not have a record or significant record of previous offending overall, [40] a matter conceded by the Defence. [41]

Remorse

1. In the sentence assessment report it was recorded: Mr Aird displayed minimal insight into the offences in that he claimed he safely stored the firearms for many years and that he has been unfairly treated as he was to hand them in during the gun amnesty on the day of his arrest. [42]
2. The Offender in his statement added: Firstly I would like to apologise for coming before the Court in addition to what is contained in the sentence assessment report and agreed facts. When I was arrested I was cautioned several times to remain silent. I was very much aware of my rights and that I could refuse to answer any questions. I just wanted to be candid and provide police with an accurate account of the offences. …… I appreciate I should not have had the guns in fact at the time there was a gun amnesty. A couple of day prior I walked into Abella's Gun shop with Richard crane (who police have spoken to and confirmed that I intended to hand my guns in). Unfortunately my property was searched and an empty shell was found which my kids used as a whistle. [43]
3. The statement of the Offender was untested; a matter which might otherwise afford it limited weight or at least require it to be treated with considerable circumspection. [44] However that would not necessarily preclude remorse being found.
4. In this case I have noted that the Offender's employer has stated in a testimonial that the Offender was noticeably emotional when talking about the "the charge" which has taken a toll on his family. [45]
5. However, also noted are the statements in the Sentence Assessment Report which referred to the Offender displaying minimal insight, claiming that he safely stored the firearms for many years and that he was unfairly treated as he was to hand them in during the gun amnesty. [46] The Defence contended that I should not pay any weight to that opinion as it is just a conclusion that was drawn. However, it did not challenge the basis on which the opinion was expressed, which to an extent also found reflection in the Offender's own statement to the Court where he describes himself as unfortunate and otherwise sought to minimise the circumstances of his offending. [47] Accordingly, I accept that the Offender lacks insight.
6. I further accept that the Offender has regretted his involvement and the impact that it has had on himself and his family. On the basis of his plea, assistance to police, his statement, his apology and the testimonials, I accept that the Offender is contrite. The fact that he is so should be taken into account. [48]
7. However I am not satisfied on the balance of probabilities that remorse has been established within the terms of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('the 1999 Act'). [49]

Prospects of Rehabilitation and Likelihood of Reoffending

1. The Offender is presently aged 49 years. He is recorded by the sentence assessment report to reside in his own home with a supportive wife and children as well as having a close relationship with his sisters. [50]
2. The Sentence Assessment Report confirms that the offender was self-employed as a telecommunications contractor; however, as a result of the publicity around the offences he lost numerous contracts and ceased his small business. It notes that he subsequently obtained a foreman's position with another telecommunications company where he is valued and works 13 day fortnights.
3. The Court was also supplied with a testimonial form the Offender's previous employer David Oxley, NSW Operations Connect Pty Ltd, dated 20 August 2019, and Courtney Halden, Construction Manager Transport and Infrastructure. Both references speak highly of the Offender in terms of his work.
4. Overall the Offender has been assessed in the Sentence Assessment Report as being at low risk of reoffending.
5. On the evidence before me I accept this assessment noting the significant gap in any offending earlier referred to and the fact that he has not reoffended in the time that has elapsed since these matters. There is no evidence of other illegal activities, nor negative peers. In the circumstances, I accept that there are good prospects of rehabilitation.

SENTENCE

1. Both offences are serious. I bear in mind the maximum penalties and standard non-parole periods earlier referred to as guideposts to sentencing.
2. Both parties submitted and I accept that the threshold in section 5(1) of the 1999 Act has been met and having considered all other alternatives no penalty other that imprisonment is appropriate.
3. In considering the purposes of sentencing is section 3A of the 1999 Act the Offender has to be punished, made accountable and his conduct denounced. In matters of this nature the need for general deterrence is an important aspect of the sentence. [51]
4. So far as the need for personal deterrence and retribution are concerned, I into account the matters on the Forms 1A and 1B in respect of sequences 1 and 17 respectively, in accordance with section 33 of the 1999 Act and what was said by Spigelman CJ in Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002). [52] This would generally but not universally require a longer sentence in the matter to which the Forms 1 offences relate by reason of giving greater weight to retribution and personal deterrence.
5. The offences on the Form 1A are in respect of additional prohibited weapons and the possession of explosives. Those matters would in my view lead to a longer sentence for Sequence 1. However in respect of the matters in the Form 1B, they relate to matters that have been taken into account in assessing the objective seriousness of Sequence 17. To the extent they have already been factored into that sentence a longer period is not indicated. The Crown accepted that this was so. [53]
6. Beyond that I have taken into account the fact that the Offender had low likelihood of reoffending and good prospects of rehabilitation, thus mitigating the need for specific deterrence. The sentence that follows will in my view adequately address this purpose.
7. For similar reasons I do not consider that the community has any particular need to be protected from the Offender.
8. Much of the Defence argument centred on whether a sentence could be served other than by way of full time custody.
9. I accept that the offences are not legislatively precluded from the availability of an intensive correction order by section 67, although the Court must first determine the length of the any sentence before considering the restraints of sections 66, 68 and 69 of the 1999 Act.
10. In respect of Sequence 17, the Defence drew attention to sentencing statistics published by the Judicial Commission. Those statistics go little further than those in respect of which the Court of Criminal Appeal last remarked that they are not of any real assistance. [54] At best the statistics provide a range of sentences for a small pool of cases and the relevant features involved are not identified.
11. In R v Lachlan Gleeson JA stated: The basic offence under s 51D(1) of the Firearms Act prohibits the possession of more than three firearms if the firearms are not registered and the person is not licenced to possess them. This offence attracts a maximum penalty of 10 years imprisonment. Section 51D(2) is directed to an aggravated form of this offence and applies where a person is in possession of more than three firearms at least one of which is a prohibited firearm or pistol. The higher maximum sentence of 20 years under s 51D(2) reflects that this is an offence which the legislature regards with considerable gravity: R v Brown [2006] NSWCCA 249 at [20] (Spigelman CJ; Howie and Rothman JJ agreeing). [55]
12. In Taylor v R Johnson J stated: The offence under s.51D(2) Firearms Act 1996 may be committed in a wide range of circumstances. The issue of public safety is a factor of significance with respect to offences under this section. The purpose of s.51D is not limited to the punishment of criminals who warehouse and harbor illegal firearms. The purpose of the prohibition is broader. It extends to the stockpiling of weapons by persons without any further criminal intent: R v Cromarty (2004) 144 A Crim R 515; [2004] NSWCCA 54 at 531 [86]. This is because of the risk that a stockpile, if vulnerable, may inadvertently feed the market in the illegal supply of firearms: R v Cromarty at 531 [86].
13. I have also reviewed other appellate decisions including R v Brown, [56] Mack v R, [57] R v Mahmud, [58] Dionys v R, [59] R v Lachlan, [60] and R v El Jamal. [61]
14. Each case ultimately falls to be determined on its own facts.
15. Taking all matters into consideration, particularly the seriousness of the offending, a sentence of imprisonment by way of intensive correction would not be consistent with sentencing principles. However, adoption of the standard non-parole periods are also not indicated in the circumstances as found.

Prior Custody

1. The Offender was in custody from 24 August to 24 October 2017. He should therefore receive a credit of 2 months and 2 days. Accordingly I propose to commence the sentence from12 July 2019.

Special Circumstances

1. The Defence argued that in the event full time custody was imposed the court should find special circumstances by reason of this being the Offender's first time in custody and the offender good prospects of rehabilitation. The Crown objected to a finding of special circumstances without elaboration. [62]
2. The Defence submitted that the Offender's good prospects and the fact that any custodial term would be the first, supported a finding of special circumstances.
3. I have noted the contents of the Sentence Assessment Report that records that the Offender's co-operation with Community Corrections and willingness to engage in interventions if required.
4. I am satisfied that by reason of this being the Offender's first substantive time in full time custody, his good prospects of rehabilitation and the desirability of an extended period on parole to consolidate the gains made, a finding of special circumstances is justified.

Aggregate Sentence

1. The Offender is convicted.
2. I propose to proceed by way of aggregate sentencing pursuant to section 53A of the 1999 Act.
3. The indicative sentences taking into account a plea discount of 25% are as follows: 1. Sequence 1: 16 months imprisonment taking into account the matters on the Form 1A 2. Sequence 17: 5 years and 9 months imprisonment taking into account the matters on the Form 1B
4. I impose an aggregate sentence of 6 years and 5 months imprisonment comprising of: 1. A non-parole period of 4 years from 12 July 2019 to 11 July 2023; and 2. An additional term of 2 years and 5 months imprisonment from 11 July 2023 to 11 December 2025 during which the Offender shall be eligible to be released to parole subject to the decision of the State Parole Authority.

Endnotes

1. Exhibit A, Tab 5.
2. I have otherwise not relied on Exhibit B which is in some respects is at variance with the agreed facts.
3. Exhibit A, tab 10.
4. Exhibit 3.
5. See Schedule 1 of the Firearms Act 1996 (NSW).
6. T 24.27-25.03.
7. T 25.33-.37.
8. T 28.30-42.
9. T 29.05.
10. T 29.05-.30.
11. T 27.26--.28.28.
12. T 25.26-.30.
13. T 7.22.
14. T 7.25-8.15.
15. Defence written submissions at pp 2-5.
16. T 5.10-.46.
17. T 5.19-.26.
18. T 12.22.
19. Exhibit A, Tab 6 at [9(g)] and [11].
20. See R v El Jamal [2017] NSWCCA 243 at [34].
21. See however Sadler v R (2001) 194 A Crim R 452 at [3]; R v Woods [2009] NSWCCA 55 at [52].
22. Exhibit A; tab 5 at [11].
23. T 14.6-.12.
24. Taylor v R [2019 NSWCCA at [64].
25. Exhibit 3.
26. Exhibit A; tab 10.
27. Exhibit A; tab [9(d)].
28. Exhibit A; tab 5 at [9(f)].
29. Exhibit 3.
30. T 28.05-.07.
31. This was accepted by the Defence see T 9.08-.11. The amnesty was from 1 July to 30 September 2017.
32. See Imbornone v R [2017] NSWCCA 144 at [57(g)].
33. Exhibit A; tab 10.
34. Exhibit A; tab 6 at [9(d)].
35. Exhibit A; tab 6 at [9(e)].
36. Exhibit 3.
37. Exhibit A; tab 5 at [9(c)].
38. Exhibit A; tab 10.
39. S 21 A(2) of the 1999 Act.
40. S 21 A(3)(e) of the 1999 Act.
41. T 15.11-.15.
42. Exhibit A; tab 10.
43. Exhibit 3.
44. Imbornone v R [2017] NSWCCA 144 at [57] per Wilson J (Hoeben CJ at CL and RA Hume agreeing).
45. Exhibit 2.
46. Exhibit A; tab 10.
47. Exhibit 3.
48. R v Johnson [2005] NSWCCA 80, [28] (Per Santow JA, with whom Bell and Howie JJ agreed).
49. Hereinafter referred to as the 1999 Act.
50. Exhibit 10; tab 10.
51. R v Howard [2004] NSWCCA 348 at [65]-[66].
52. (2002) 56 NSWLR 146.
53. T 26.47-27.11.
54. Taylor v R [2018] NSWCCA 50 per Johnson J at [64] (Hoeben CJ at CL and Price J agreeing) referring to R v Why [2017] NSWCCA 101 at [61]-[3].
55. R v Lachlan [2015] NSWCCA 178 with Johnson and Garling JJ agreeing.
56. [2016] NSWCCA 249.
57. [2009] NSWCCA 216.
58. [2010] NSWCCA 219.
59. [2011] NSWCCA 272.
60. [2015] NSWCCA 178.
61. [2017] NSWCCA 243.
62. T 30.37-.41. 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 September 2019