CRIME - SENTENCE - possess unregistered firearmspossess ammunition without a licencepermit or authoritynot keep firearm safelynot keep a prohibited firearm safely
Judgment (1 paragraphs)
[1]
judgment
Mana Donje, you appear for sentence today in relation to one principal offence (sequence 2), and that is possessing more than three unregistered firearms, one of which was a prohibited pistol. This offence involves a contravention of s.51D(2) of the Firearms Act 1996 (NSW). The maximum penalty for that offence is imprisonment for 20 years. There is a standard non-parole period of imprisonment for 10 years.
In addition to that principal offence, you have asked the Court to take into account, in sentencing you, three matters on a Form 1, which I have certified, they being: possessing ammunition without holding a license, permit or authority (sequence 8); not keeping a firearm safely (sequence 9); and not keeping a prohibited firearm safely (sequence 11).
The facts surrounding the principal offence and the matters on the Form 1 are, to an extent, contained in an agreed statement of facts. Those facts have been supplemented by the oral evidence that you gave today, evidence which on the balance of probabilities I accept.
Slightly recast by me, as to chronological outcomes, but not as to substance, the facts are as follows.
You were born in March 2001. The circumstances of your birth and upbringing I shall return to. But, from the age of 17, you have been involved with the criminal justice system.
On 9 January 2021, you committed three offences for which you were ultimately sentenced to an aggregate term of imprisonment of 18 months. Those offences were: affray; possessing or using a prohibited weapon without a permit, of which the weapon was a set of knuckle dusters; and deemed supply prohibited drug. You were released to parole in connection with that aggregate sentence on 8 February 2022.
Very soon after you were released to parole, and specifically on 28 March 2022, you were the victim of a vicious and unprovoked attack in which you received serious stab injuries. Those injuries resulted in you being hospitalised for almost two months. You were released from the hospital on 15 May 2022.
You successfully completed that period of parole on 8 July 2022 - unlike an earlier time when you were admitted to parole in 2020.
Whilst you were imprisoned from 9 January 2021 to 8 February 2022, you became acquainted with a particular inmate. He was a man of violence. Nevertheless, you became friendly with him. The Court is not unaware of the unusual survival techniques which can be required in the custodial setting, and that, on occasion, it is necessary for an inmate to be friendly with people of violence in order to survive.
Whilst you were on parole, and through your brother, this man made contact with you. You and he socialised: sometimes, just the two of you; at other times, with others. He knew where you lived because he would collect you and drop you off from these social gatherings in his motor vehicle.
There is no evidence to suggest that, in these social interactions, there was anything criminal being engaged in by you and him, or that you were in any way risking your parole.
At about the time of the expiration of the parole, you and he were in a car outside your home and, without warning to you, he produced a pistol. He requested you to take possession of it for him and to store it for him until he had further need of it. Initially, you refused to assist. But, during the course of the conversation, you acquiesced. He did not use any particular, or explicit, threat to acquire your ultimate acquiescence; he did not need to. He was a man, as I have said, of violence, and he knew that you knew that fact. He also knew where you lived.
I am satisfied, on the balance of probabilities, that your ultimate acquiescence was born from fear, and that that fear was reasonably based by having regard to that man's antecedents and the matters that you had seen him do in jail to others.
In addition to the quite reasonable fears that you had, your perceptions were amplified because of the fact that you were suffering from post-traumatic stress disorder as a result of the stabbing that had occurred some months beforehand.
You took the pistol, and you hid it in your bedroom in the home unit that you shared with your parents and your brother - they, of course, knowing nothing of what you had done.
A few days after you had been given the pistol, your former prison associate contacted you again. He asked to meet you in the car park of the home unit block, which you agreed to do. You had no way of knowing what the purpose of this meeting was to be - in other words, whether it was to be anything other than one of your normal social functions with him.
When you attended the carpark, this man had three bags. He said he had something to show you and "asked" if he could show you in your flat, which you agreed to. When you and he went into your bedroom in your parents' flat and shut the door, it was revealed by him that the bags contained firearms and ammunition. Again, he pressed you to take those weapons in slightly more colourful language than on the previous occasion a few days beforehand. You ultimately acquiesced, having again expressed initial reluctance. This time, you acquiesced out of a more heightened sense of fear, fear not only for your own safety, but fear for the safety of your family. That fear was reasonably held.
An indicator of the genuineness of your fearfulness arose in the course of your evidence‑in‑chief today. When your counsel asked you why you did not get rid of the weapons, your unrehearsed and immediate response was: "I'd be dead for sure."
That question had been asked by Mr Berents because you had also given evidence that, in the period after which you received this second lot of weapons, you kept texting the man, inquiring or demanding that the weapons be removed, and he was evasive. It was in that context that that specific question was asked of you.
You were an impressive witness, Mr Donje, and I accept that, although no explicit threat was made, you were operating from a genuinely and reasonably held fear of your own safety and the safety of your family when you received both tranches of weapons; and that in those circumstances your actions were reasonable (cf. Tiknius v R [2011] NSWCCA 215 at [41] to [54] per Johnson J, with whom Tobias AJA and Hall J agreed).
Not long after you received the second delivery (for want of a better term), the police were conducting an investigation into matters involving you and your brother. These matters are described in the agreed facts as being unrelated matters to the current offence, and I do not speculate, adversely to your interests, about what those unrelated matters might have been. But they resulted in the police obtaining a search warrant, which was executed at the unit that you lived in with your parents and brother on 26 July 2022. In your bedroom, five firearms were found, and it is the possession of those five firearms that constitutes the principal offence. You had been in possession of these firearms for a little over two weeks.
One of those firearms was a 9mm Parabellum CZ model 75 SP01 pistol. It was in working order. It had been hidden under your bed, wrapped in a t‑shirt. The second firearm was a .22 long rifle calibre shortened Stirling self‑loading rifle. It was in working order. It was stored on the top shelf bedroom cupboard wrapped in a blanket. The third weapon was a 12-gauge pump-action shotgun. At the time the police found it, it was not in working order because of rust and corrosion in the trigger mechanism, but it was capable of being used if properly cleaned. It was also found in the top shelf of the bedroom cupboard. The fourth weapon was a 7.62x39mm calibre self‑loading rifle. It was in working order. It, too, was found in the top shelf of that cupboard. The fifth weapon was a .22 long rifle calibre Ruger self-loading rifle. It was in working order, and also found in that shelf in that cupboard.
None of the firearms were registered, and each was a prohibited firearm, and it is the possession of those five firearms that constitutes, as I have said, sequence 2.
None of the firearms were safely stored; that gave rise to two of the matters on the Form 1, namely sequences 9 and 11.
Under your bed was a shoe box, which contained various bags of ammunition, as well as a detachable firearm magazine which was loaded with ammunition. In a suitcase under the bed, there were also multiple boxes of ammunition and a further third detachable firearm was also located. The total amount of the ammunition found is set out in para 9 of the agreed statement of facts, and it is the possession of that ammunition which is sequence 8 in the Form 1.
You were arrested on the date of the execution of the warrant, and you have been held in custody continuously since that date. You have not been held exclusively in connection with that offence and those matters - you have also been refused bail in the Local Court in connection with a series of matters listed for hearing in that Court on the 31st of this month.
The Court is required to make an assessment of the objective seriousness of sequence 2 for an offence of its kind. In this respect, in substance, your counsel and the advocate for the Crown are in broad agreement, and that is, that the matter falls below the middle of the range but not significantly below. I accept that submission.
By having regard to the nature of the matters on the Form 1, sequences 9 and 11 will not result in any meaningful increase in this sentence for the principal offence. Sequence 8 will result in a slight increase in the sentence for the principal offence.
I have taken the non exculpatory duress I have referred to earlier into account in forming my (above) assessment of the objectivity gravity of the offence. I have also taken it into account in the following assessments of your subjective and moral culpability and your prospects of rehabilitation.
I have already said something about your subjective circumstances; it is appropriate that I say more now.
Your parents fled from the vicious and protracted civil war in South Sudan, initially to Kenya, and then to South Africa where you were born in March 2001. When you were two and half years old, your parents, you and your brother, came to Australia.
From the age of 14, you have abused alcohol, but you have not abused illicit drugs.
You completed year 11 in the government school system but, at around that same time, you first encountered the criminal justice system as a juvenile, when you were sentenced to full time custody for a robbery offence.
Whilst in the custody of juvenile justice, you completed year 12. When you were released from that period of imprisonment, you worked in the demolition industry, as well as being an offsider to a plumber. That work continued until the imposition of the aggregate sentence that I referred to at the commencement of these reasons. You have not had any meaningful employment since that date.
I have already referred to the stabbing incident which occurred in March 2022. Not only has it resulted in the post-traumatic stress disorder, but you have also suffered from significant depression; and you have significant physical and constant pain as a result of the wounds that you received on that occasion.
To date, because you have been held on remand, you have been unable to access any meaningful coursework, either in an employment sense or from a psychological treatment perspective.
Whilst in custody, there have been a number of infractions, but I accept the evidence that you have given today in which you have explained the nature of those infractions, which are of a quite minimalistic kind. More significantly, for my purposes in assessing the appropriate sentence, is the fact that the experienced officers have sufficient trust in you that you have been appointed a sweeper.
Your hope for the time that you remain in custody is that you will be able to complete a course which would enable you to establish a business once you are released, and in this context, your parents are willing to fund such a business for you and your brother from the equity in their home.
Your criminal offending as a juvenile is not to be held against you, but your offending as an adult means that you are not entitled to the leniency which, in appropriate circumstances, can be extended to a first offender.
I have mentioned your post-traumatic stress disorder a number of times this afternoon, Mr Donje. My assessment of why you did this crime is significantly independent of that condition. You agreed to hold these weapons out of a genuine fear of the man that you knew; but that fear was aggravated, not caused, by the post-traumatic stress disorder.
You are remorseful for what you did in the sense that you are remorseful of the danger you placed your family in. But I do not think that you have a proper understanding or insight of the real danger of your offending, because the community as a whole is placed in danger when criminals are able to warehouse guns which are associated with their activities. So that, not only, Mr Donje, did you place yourself and your family in danger, you placed the whole community in danger because that man (of whom you were afraid) had no good reason and no good purpose in mind in having those illegal weapons. It is for that consideration that the superior Courts have stated unambiguously that general deterrence (that is, fixing a sentence that will deter others) is an important sentence in consideration for offences of this kind. In your case, because of your criminal history, specific deterrence (that is, fixing a sentence that will deter you from re-offending) is also substantially engaged.
There is some reduction in your moral culpability because of the post-traumatic stress disorder, and because of the circumstances in which you offended, namely the sense of fear.
Although you do not have full insight into your offending conduct, and although you have, at 21 years of age, a most sad criminal history, I was impressed by your engagement today, Mr Donje, and I have some confidence that you will, in time, have reasonable prospects of rehabilitation. Those prospects would be enhanced by a substantially longer period on parole.
It follows from what I have said this afternoon, Mr Donje, that I am satisfied that no sentence other than a period of imprisonment is appropriate for the principal offence.
You will receive a discount of 25% because of the early plea of guilty. In that respect, except for that plea, the term of imprisonment would have been imprisonment for five years. After the discount of 25%, the term of imprisonment is three years and nine months, starting 26 July 2022.
Ordinarily, the Court is required to fix a non-parole period of 75% of that head sentence, unless the Court is satisfied that special circumstances have been established to reduce that percentage. I am satisfied that there are special circumstances to reduce the non-parole period. They are: your youth; and the fact that your prospects of rehabilitation, now that you are maturing, would be significantly enhanced by a longer period on parole.
For those reasons, the non-parole period is fixed at 18 months, and you will be eligible for parole on 25 January 2024. There will then be a balance of the sentence of two years and three months, to date from 26 January 2024 and which will expire on 25 April 2026. That is a significantly longer period on parole, Mr Donje, than would ordinarily apply. You will be supervised by Probation and Parole during the course of that lengthy period on parole, and it is my hope that, whilst on parole and building on the skills that you will acquire for the remainder of your time in custody, you will give your parents something to be proud of. They, of course, are an important protective factor for you because they have continued to give you their strong support, including being in Court today.
Sequences 3, 5, 6, 7 and 14 are withdrawn and dismissed.
I direct that exhibit 1 goes with the warrant.
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Decision last updated: 17 November 2023