Solicitors:
Director of Public Prosecutions - Crown
Legal Aid - Mr Dowell
File Number(s): 2014/00370847; 2014/00370712
[2]
SENTENCE
HIS HONOUR: Thomas Dowell and James Robert Hearne appear today for sentence in relation to one charge which is common to both of them and clearly is the most serious charge to which they have admitted their guilt. That charge alleges that they, between 24 November 2014 and 13 December 2014 at Cootamundra in the state of New South Wales, did break and enter the dwelling house of Mark Kingwall situate at Eloula, 1088 Back Brawling Road, Cootamundra, and then in the said dwelling house did commit a serious indictable offence, to wit larceny in circumstances of aggravation, to wit they were each in company of the other.
This is an offence contrary to s 112(2) Crimes Act 1900. It carries a maximum penalty of 20 years imprisonment, has a standard non-parole period of five years imprisonment.
The two offenders have other charges for sentencing in each case emerging substantially from the same facts.
In respect of Mr Dowell he was also committed for sentence for an offence contrary to s 7A Firearms Act 1996 of possessing a firearm, to wit an air rifle, not being authorised to do so by licence or permit. It carries a maximum penalty of five years imprisonment. There is no standard non-parole for that offence.
There are also two matters on a s 166 certificate to which the prisoner admitted his guilt. Those two offences, one described as sequence 3, the other described as sequence 4, were offences of possessing ammunition without holding a licence permit or authority to do so and not keeping a firearm safely.
Those two offences are offences which can be dealt with summarily but will require discrete sentencing in this exercise.
Both the s 7A committal for sentence matter and the two s 166 certificate matters are offences arising out of the to the commission of the principal offence. In other words, the possession of the air rifle arises out of the fact that the prisoner, with Mr Hearne, stole the air rifle, amongst other firearms, and for a period of time possessed it after the commission of the offence, likewise the ammunition charge. Of course, in the facts as they emerged which I will refer to in a moment, the prisoner failed to safely keep the air rifle because when he took police to find it, it had gone.
In relation to Mr Hearne, he faces five other committal for sentence charges. Four offences contrary to 7A Firearms Act, each carrying a maximum penalty of five years imprisonment. The other offence is possess unauthorised prohibited firearm contrary to s 7 Firearms Act 1996. I am mindful in relation to that offence that it carries with it a maximum penalty of 14 years imprisonment and has a standard non-parole period of three years imprisonment.
I note the greater maximum penalty for a s.7 offence as opposed to a s.7A offence, but in my examination of the facts of the matter, such as I understand them to be, in reality the objective gravity of the s 7 offence seems to be no greater than the objective gravity of any particular s 7A offence. One of those arises out of his possession, on the particulars in the court attendance notice, of a 12 gauge side by side double-barrel firearm and not authorised being to do so by licence or permit.
The s 7 offence which carries the greater maximum penalty arises out of his possession of a .22 calibre firearm not being authorised to do so by licence or permit. I am no ballistics expert obviously. I am certainly not a possessor of firearms and have no particular familiarity beyond my legal experience. However it seems to me, that even though the legislature recognises one firearm as being an unauthorised firearm in the particular category, the offence brought against Mr Hearne contrary to s 7A is concerned with a firearm with what have potentially more lethal power than the firearm concerned with the offence under s 7.
Be that as it may, the s 7A and the s 7 offences concerning Mr Hearn arise from the commission of the principal offence.
There are three other offences under 7A arising out of the same circumstances, including possession of .22 calibre semi-automatic rifle, possession of another .22 calibre rifle, possession of a single barrel shotgun, all contrary to s 7A themselves the proceeds of the principal offence.
The principal offence committed by the two offenders was committed as part of a joint criminal enterprise. It was committed at a property in the ownership of the victim, Mark Kingwall, who lived at that property with his family including three of his five children.
The prisoners apparently entered the property and took a metal box from the bedside table of the victim's bedroom in which the victim kept two sets of keys for his firearm safe and cabinet. The box also contained a key to his Land Cruiser used as a farm vehicle. The offenders used the keys found within the metal box to open the firearm safe and cabinet which was housed in a cupboard within an enclosed room connected with the shed adjacent to the residence.
The prisoners opened both the entrance door to the enclosed room and the cupboard door to access the victim's firearm safe and cabinet. The doors that were forced or opened were kept closed but not locked. A number of firearms and amounts of ammunition were removed by the prisoners from the firearm safe and cabinet. The firearm safe required one key to open the main door where some firearms were stored and another key to open the top locked section inside the safe in which the victim used to keep bolts for his firearms.
The firearm cabinet had two sections, top and bottom. The top section stored the victim's ammunition and registration papers with the bottom section storing his remaining firearms. Each was secured by a lock and also by a padlock. The padlock on each door had first to be opened and removed before a further key could be used to unlock each cabinet door.
It was on 13 December the victim first noticed the metal box missing from his bedside table. He went out to the room housing his firearms and found the door to the room, the cupboard door and all firearm safe doors opened with firearms missing. The keys were hanging out of the top and bottom locks of the firearm cabinet with the key to his Land Cruiser found on the floor near the firearm safe. The metal box, which I would take it to be the metal box containing the keys initially, was unable to be located and police were notified.
Dwelling on the firearms that were, taken which is the gravamen of the principal offence, although the prisoners have not been charged in relation to the stealing of the ammunition identified generally in the facts, there were nine firearms in all taken of which three remained unrecovered. One was a Lithgow .22 calibre rifle, one was a 12 gauge side-by-side double-barrel shotgun, one was a 12 gauge single-barrel shotgun, another was a .410 single-barrel shotgun, there was a .177 calibre rifle which I am told is an airgun, there was a 12 gauge under and over double-barrel shotgun, there was a Tikka .222 calibre rifle, a .308 rifle and a .22 semi-automatic rifle.
The three firearms that remain unrecovered are the .22 rifle I first mentioned, the air rifle as I have described it and the .308 rifle.
Police received information that the firearms, or some of the firearms, may be found at the residence of the prisoner's father. I point out from the outset that the prisoner Mr Hearne's father, to whom I refer, gave evidence before me and presented as a perfectly respectable, responsible person. He gave an explanation for the circumstances in which it would appear his son, or his son and the co-accused, had placed a number of the firearms in the father's gun safe, he being a licensed or authorised firearms owner.
When police arrived to inspect Mr Hearne senior's gun safe, five firearms not registered to Mr Hearne were located and seized by the police. Mr James Hearne, the prisoner, was present and out of no doubt considerable embarrassment, or perhaps fear of the consequences of the truth being revealed in the presence of his father, told the police he wished to speak to them privately. He then made admissions to being in possession of the five unauthorised firearms seized by police from Mr Hearne senior's gun safe.
To his credit, Mr Hearne junior, that is the prisoner, participated in a recorded interview and made full admissions regarding the breaking, entering and stealing of the victim's property and in company with Mr Dowell taking a number of firearms from the premises and consented to a buccal swab for DNA testing to be undertaken.
Mr Dowell was located by police on 17 December 2014 at 26 Warren Street Cootamundra. Police located a box of Winchester .222 calibre ammunition and a rifle magazine for a .222 calibre rifle. He was later arrested at his mother's residence and he participated in a recorded interview and he, to his credit, made full admissions to the breaking, entering and stealing offence with a slightly varied version to that of his co-accused, the details of which are not revealed to me.
He said he retained possession of the air rifle which he hid in a shed at the back of 22 Warren Street, Cootamundra. He said that the magazine of the .22 calibre rifle and the box of Winchester .22 calibre ammunition had been secured in a cabinet drawer in the rear yard of the address at Cootamundra.
Mr Dowell advised police that he and Mr Hearne had discussed stealing firearms to sell or use in exchange for drugs. Mr Dowell said that the victim's property was targeted as he, that is Mr Dowell, was aware that the victim had firearms and knew where they were stored.
He accompanied police back to the address at Warren Street, Cootamundra, to recover the firearm that he identified, the air rifle, but the rifle was not located. During the relevant period neither accused was the holder of a valid firearms licence or permit.
Thus, ultimately six of the nine firearms that were stolen were recovered. The details of the recovery of the sixth gun I am denied beyond some information from the bar table today that another person was in possession of the firearm.
Mr Dowell was younger than Mr Hearne. He was born on 27 June 1995 and thus was, as was pointed out, approximately 19 and a half years of age at the time of the commission of the offence.
Mr Hearne was born on 5 August 1990, thus he was, on my rough calculation, five years older than Mr Dowell. However, for reasons I will explain in a moment, the distinction in their ages is of no moment. There is no suggestion, on my understanding of the facts, that Mr Hearne's greater age gave him more criminal experience or in any way influenced the commission of the relevant offences.
Mr Hearne has a significant criminal history for one so young. He has a number of appearances in the Children's Court and the Local Court and has been convicted or found guilty of a number of offences including offences of dishonesty and of violence. In the Children's Court he has been found guilty of entering inclosed lands and being carried in a convenience without the consent of the owner and misuse of a motor vehicle. He has been convicted in the Local Court of driving a vehicle recklessly or dangerously in February 2013 for which he was placed on an 18 months good behaviour bond. He was also convicted on the same date of driving whilst disqualified for which he received an 18 month good behaviour bond which was also given to him in relation to another less serious offence.
On 4 November 2013, he was convicted at Cootamundra Local Court of assault occasioning actual bodily harm and sentenced to a term of imprisonment of 12 months with a non-parole period of four months. There was a finding of special circumstances and he was directed to undertake some form of supervision which required him to address his drug dependency issues which in fact he did, which is a matter I will come to in a moment.
He was convicted at the Cootamundra Local Court on 1 December 2014 of common assault, an offence committed in August 2014, for which he was placed on a bond to be of good behaviour for 18 months. He was also convicted of an offence of common assault or found guilty of an offence of common assault in March 2013 and wielding a knife in a public place in the Children's Court for which he was placed on probation for a period of 18 months.
It can be fairly said of course that his criminal history is not an aggravating factor under s 21A(2) Crimes (Sentencing Procedure) Act 1999, but it is a relevant matter to the assessment of the appropriate sentence. He is not entitled to any special leniency, even allowing for the fact of his youth, on account of his criminal history alone. Of course, I bear in mind that courts have given him opportunities to address the matters that underline the offending with which I am concerned, which I am quite satisfied is his dependency upon prohibited drugs.
The offender, on the information provided to me by the Crown and not disputed by the defence, was subject to conditional liberty in respect of good behaviour bonds and probation ordered in the Children's Court which were current at the time of the offending with which I am concerned.
I mention the fact the offender had been released to parole and I understand from the detail of the report dated 16 July 2015 that in January 2014, which coincides with shortly after he is released to parole in early 2014, the offender entered the Triple Care Farm - TCF - programme and successfully graduated from the programme in April 2014. A document that was given to me sets out the character of the programme he undertook and it was said that he participated well in all aspects of the programme and was welcome to reapply in the future.
Unfortunately for reasons that he is other in part referred to, the opportunity offered to him by undertaking that programme fell away when he went back to the use of prohibited drugs.
In the matter of Mr Dowell, I have evidence from his mother and I have evidence from a psychiatrist who examined him in June 2015. I will deal with the evidence from the psychiatrist's report first which was tendered without objection. That sets out some matters of history that were touched upon by the mother. It notes that the offender has a two and a half year old daughter despite his youth, and the daughter is in the care of his parents.
He was diagnosed with ADHD around the age of nine or ten, although his mother suggests that it was when he was eight, and he was subject to medication for treatment of that condition until he was about 15 or 16 years of age. He did, on occasions, stop using the Ritalin that was provided to him to socialise, as he described it, because he felt restricted by it. He denied any other contact with psychiatrists. He had commenced on an antidepressant whilst in custody to treat what would appear to be symptoms of reactive anxiety and depression. He was sad and depressed when commencing that medication and felt hopeless. He said that the symptoms he was suffering whilst in custody in relation to the current matter had improved with that medication.
He has other medical issues that are referred to in the report that I do not propose to dwell upon, and he gave a history of long-term drug and alcohol abuse and particularly the use of methamphetamine, as it is described, on a daily basis using up to half a gram, costing approximately $250 a day before he was charged in relation to the current matter.
He said, however, that when he finished the programme that I referred to at TCF, he relapsed back into drug use pretty quickly and he said that he found it difficult to avoid the use of those drugs.
His history of alcohol and drug abuse goes back to his early teens, starting with abuse of alcohol and then moving on to prohibited drugs.
He has lived in Cootamundra, as I understand it, all of his life except for a period of time when his family moved to Cowra when he was in primary school. He is close to his family. He has two younger sisters and I got the impression from his mother that the family, apart from the prisoner's conduct, is a stable, law abiding family. He had difficulties at school and he did not do particularly well there. Again use of medication for his ADHD and then conduct lapses and alcohol abuse and the like did not assist him.
So far as the commission of the offence is concerned, he said to the psychiatrist that he had been using "ice heavily" and he committed the offences to get more drugs.
He wished to remain abstinent from illicit substances as he told his mother and the psychiatrist and the support from his family. He said that he has difficulties in custody concentrating and sitting still. This may be a reflection of continuing symptoms of ADHD as an adult. He said that he had tried to avoid using drugs in custody with negative results from urinalysis.
The summation of the psychiatrist was that his offending history was closely linked to his addiction to methamphetamine and the background of ADHD and a poor compliance with prescribed medication. He gave some symptoms of what I would call obsessive-compulsive disorder, or as the psychiatrist describes it alternatively, obsessive-compulsive personality disorder, although this diagnosis was not altogether clear. He has some mild symptoms of depression. He has what is described as the criteria for Adjustment Disorder with depressed mood. That is essentially depressed mood in reaction to his current circumstances. He also met the criteria for 'substance dependence'.
The medical practitioner thought there was insufficient evidence to support a diagnosis of 'antisocial personality disorder' or 'conduct disorder' as a child, and although he had some appearances in the Children's Court, he does not have an ingrained history of antisocial conduct reflected in that history. There are some further tests that need to be undertaken. He is deemed to be a person addicted to an illicit substance and he would, under the influence of those drugs, have difficulty rationalising his conduct in a thoughtful manner. The psychiatrist recommended that he should receive some ongoing assistance whilst in custody from a psychologist or a psychiatrist and he would need to improve his vocational skills and it was obviously important for him to remain abstinent from prohibited drugs. That is self-evidently so, and if he does not understand that by now, he will never understand it.
His mother gave evidence that they continued to support him. She encouraged him when he was arrested to admit his wrongdoing. She spoke about his history of drug use which I am prepared to accept is correctly identified from the history given to the psychiatrist and from the evidence of the mother.
She confirmed that the prisoner was a friend of the son of the victim. She mentioned that the prisoner and the son had some falling out before this principal crime was committed, but I do not understand there to be any suggestion the crime was committed as a revenge to that falling out. The evidence reveals the prisoner was aware of the fact the firearms were in the custody of the victim.
She spoke of the relationship that he entered into when he was 15 with a woman that was somewhat older than him from which a child was born. How that came to pass without some sort of parental intervention I do not know. There was a suggestion by the mother that the older person introduced him to drugs. She also spoke about his ADHD and she felt that he came to use prohibited drugs as a substitute for the medication that he had previously taken as a child.
She talked about, in her evidence, the disruption to his education, his attempts to find employment, usually unsuccessful, although he had worked from time to time at the abattoirs. She thought he was a person who was attracted to older people and she thought those people were a bad influence upon him from time to time.
She said that in custody he professed the wish to avoid the use of drugs and to try and be a better father to his child and a son to his parents. Of course, these high-minded ideals are well and good to state, but as he has found out in his short life they are very difficult to achieve. Reflecting upon, for example, his time in a rehabilitation centre and relapsing back into drugs shortly afterwards.
In relation to the submissions made by his learned counsel, she submitted that obviously the maximum penalty in relation to the principal offence was a significant issue in the case as was the standard non parole period, but the Court was also required to have regard to the maximum penalty of the relevant serious indictable offence pleaded in the charge, that is, the charge of aggravated breaking, entering and stealing, that maximum penalty being five years, and I was also to have regard to the pleaded circumstance of aggravation, that is of being in company, to be seen at the lower level of seriousness of circumstances of aggravation that can be pleaded.
I was referred to Ponfield factors as they are sometimes described and having regard to the matters identified by Grove J in that judgment, it was submitted that there were very few matters of aggravation. There was no vandalisation of the property and the like. One feature of the matter that emerges from Ponfield factors that are picked up, I hasten to say, in s 21A when it was subsequently introduced, was the fact that the prisoner was in breach of his conditional liberties in various form. Whilst it was submitted there was some degree of planning, there was no professional planning although it was conceded the prisoner was the person who knew the guns were in the safe.
It was pointed out he made voluntary admissions and endeavoured to assist the police to relocate the air rifle. It is a shame neither he nor his co accused could find their way to assist the police to find the other three firearms. The gun he was in possession of or admitted to possession of after the event was the least dangerous of the firearms.
He was entitled to 25% discount for the utilitarian benefit of his pleas of guilty. This is accepted by the Crown, I hasten to say, as it is accepted in relation to the co-accused. Both accused will receive that 25% discount to reflect the guideline judgment of Thomson and Houlton.
It was also submitted, and correctly so, that his moral culpability had to be assessed in the context of his relative youth, being 19 and a half at the time. It was also pointed out that drug dependence was a contributing factor to his offending and whilst this is not a mitigating factor it was the case that it was a relevant matter to take into account, and it was pointed out that he had attempted, after his last term of imprisonment, to rehabilitate himself but no doubt his immaturity and other factors have contributed to the failure of that.
Whilst his criminal history was conceded not to entitle him to any special leniency, bearing in mind he had the support of his family, he had the capacity to find employment, and the critical issue was need to address the drug dependency of the past and other issues, there ought be a finding of special circumstances.
With regard to Mr Hearne, the general facts obviously are the same. As I have already pointed out, the only matter absent in his case - and of course not relevant to him - is the fact that he was not in possession of the air rifle. It likewise should be pointed out in relation to him that he has provided no assistance to the recovery of the three other firearms.
Mr Hearn is in a different position in a range of ways from his co accused in respect of matters which are of substance. Firstly, he has no relevant prior convictions. He has a finding of guilt in the Children's Court for driving whilst suspended but that is, to my mind, irrelevant, so I am prepared to regard him firstly as a person without significant convictions - in fact without any convictions - and I am prepared to regard him as a person of good character.
I have a presentence report in relation to him which speaks positively of his family circumstances which was impressed upon me by the evidence of his father. The circumstances of his arrest and charging in this matter has brought considerable stress to his family, particularly given his father's background, and his father naturally has expressed disappointment, shock and disbelief, but his parents remain supportive but conditionally supportive, as his father pointed out.
The employment and education of the prisoner has been unremarkable save for the fact that on leaving school in Year 11 he has been in regular employment. He commenced an electrical apprenticeship, however, lost his driver's licence and could not complete that. He had other employment before entering the Royal Australian Navy on 20 February 2012 and remained in the Australian Navy until discharged on 12 January 2015.
He was discharged on return of a positive urinalysis report for an illicit substance and this was a matter the subject of evidence from his father which I will come to shortly.
I have all the certificates that have no doubt been seen by the Community Correction Service to confirm his service with the Royal Australian Navy and various qualifications which I accept he has achieved within that service.
On returning to Cootamundra he was able to obtain employment managing a hotel. But he, because of a dependence which was really not fully appreciated by his parents, became a person who was prepared to commit a serious crime in order to obtain funds to obtain the relevant prohibited drug.
The Community Corrections Service suggests that his use of cannabis and methamphetamine remain current at the writing of the report, and this is not a very good thing. One would have thought his arrest in relation to this matter and no doubt impressed upon by his father the inevitable consequence of committing such a serious crime would have prompted him to try and address his underlying problems. He has been referred to various facilities and there will be some evidence I will refer to in a moment from the father about that matter, and he has been assessed as suitable now for a particular programme but far, far too late. If the prisoner was going to be concerned to persuade a court that he should not serve full-time custody, he should have been prepared to address the issue of his rehabilitation in a more constructive manner some time before he did so.
The prisoner had some difficulties discussing his attitude to the offending with the Community Corrections officer and he made some admissions which reflected some change in attitude perhaps for the better. It is noted that when in the Navy he convinced the Navy psychologist into believing that he was abusing alcohol rather than admitting to the use of prohibited drugs in order, no doubt, to remain within the Navy community.
So far as his general attitude to offending, he could not provide much insight into why he became involved, and on the fourth interview, ultimately he said that he was well affected by drugs when he committed the offences but was not fully appreciative of the seriousness of his actions. He is assessed as being at a medium risk of re-offending with particular criminogenic needs identified in the report.
The assessment of the Community Corrections Service was that he had longstanding and unresolved substance issues. Bearing in mind he had no history of supervision with Community Corrections, it was difficult for them to identify a constructive plan for him. It was thought that he displayed avoidant behaviour regarding his involvement in the offences, attempting to divert the interview process, and also trying to divert the officer from delving into the circumstances of the commission of the offence, although there was change in attitude, as I said, in that regard.
It was said that it appeared that the offender's substance abuse issues had impacted on most facets of his life and that is self-evident given his fall from grace, and the report sets about case management strategies including regular reporting and close supervision including admission to a rehabilitation facility should supervision be required of Community Corrections. He also needs some assistance in relation to treatment in respect of his use of prescribed medications and the like.
There is some reference to "mental health" issues, but there is no evidence of substance to indicate the prisoner has a mental illness or a psychological condition that might invoke principles in cases such as De La Rosa from 2010 or Hemsley from 2004, summarised by respectively McClellan CJ at CL and Sperling J.
The father's evidence I found impressive. His father is a former police officer and now works in a non-investigative capacity with the Australian Federal Police and is a military reservist. He is a licensed person to own and use firearms and no doubt has an intimate knowledge of firearms, their use and misuse and their capacities.
He supported the account of the prisoner and his regular employment but also said that he and his wife were totally unaware of the prisoner's dependence on prohibited drugs. He noted that when he joined the Navy or at least left home to join the Navy he weighed about 100 kilograms but by the time he left the Navy he weighed about 70 kilograms.
The prisoner was involved in naval operations off the borders of Australia in what is called, as I understand it, the Sovereign Borders Campaign or 'Exercise'. He appears to have been affected by his experience in these matters but had not discussed the matter with his father and it does not appear to be a matter that he has raised with Community Corrections. I have the feeling that he has withheld things. I do not say these things detrimental to him, but it appears he withheld relevant information to particular people because he has difficulty discussing them.
As the other evidence reveals, he failed a drug test with the Navy and was discharged and returned to Cootamundra, but what flows from the evidence of the father is that he has always tried to maintain regular employment and has the capacity to do so.
The father gave a reason for the guns being placed in his safe without his knowledge which I accept. Initially not knowing anything about the background of the father, I suggested to his counsel that he would need to explain how he came to have the guns in his safe without knowing. But it is clear on the evidence he gave to me, which I accept, that he was completely blameless.
He is extremely unhappy about his son's conduct. The father and the family have been placed in a very compromising position through no fault of their own. He felt that his son had not completely broken his dependency upon drugs but was anxious to seek help and spoke of his acceptance into a rehabilitation programme. There is evidence of that in the material provided to me, and he believed the son had taken responsibility for his actions and the family would continue to support him, albeit it on a conditional basis, and that is that he stopped using drugs and there was no further criminality.
Counsel for the prisoner generally adopted the submissions of counsel for the co-accused about the objective facts, noting the two offenders stood equally liable on a joint criminal enterprise basis, although there was evidence that the co-accused was the person who knew where the guns could be found. He submitted that nothing extra flowed from the separate charges of possession of a firearm, given the character of the original offence. However, subjectively this prisoner was in a much more favourable position with no relevant criminal history, not being on conditional liberty, and his age difference was not a factor in his sentencing, with which I agree.
He pointed to his favourable subjective circumstances such as his employment history, his naval service, which obviously needs to be taken into account, and all things considered, it was submitted he had good prospects of rehabilitation. But his family were not blind to the struggles that lay ahead.
It was conceded in submission that a term of full-term custody was required, but it was submitted that the Court should make a finding of special circumstances.
The Crown's submissions in reply to the submissions of learned counsel for the two prisoners were that the two prisoners were equally liable. The Court should have regard to the relevant standard non-parole periods in the appropriate fashion, which I do. The Crown said that parity of sentencing was an issue. They both pleaded guilty at the first reasonable opportunity, thus the relevant matters that arose to distinguish them, if at all, arose from the subjective circumstances.
It was pointed out that the victim had lost three of the firearms, which I note. I have not been given the value of those missing firearms. I wish I was provided with the value of such matters in the facts.
There was, it was submitted by the Crown, perhaps on my reference, an aggravation in the case of both offenders that the offences were committed without regard to public safety as an aggravating factor under s 21(2) and this was accepted, as I understand it, by the two counsel for the prisoners.
It should be pointed out that the lack of regard or disregard of public safety arose from the moment the guns were taken out of the gun safe where they were safe, in carrying them away to another place. Also, with their possession of the firearms at relevant times, then their failure to either properly secure the guns that were missing or by giving the guns or selling the guns to others. The prisoners are silent on that last aspect. The Crown submitted that full-time custody was required.
I should point out in passing, that in the material provided by Mr Hearne was a reference from his former master in the electrical trade. He confirmed the prisoner's employment as an apprentice and the prisoner's good qualities of honesty and punctuality. The referee told him that the prisoner did not hesitate to tell him of the offending with which I am concerned.
In relation to this matter, quite a number of legal issues obviously arise for consideration as they always do in the sentencing of offenders. Amongst other things obviously I have to have regard to the maximum penalties for each offence and measure the appropriate sentence with the maximum penalties in mind.
In relation to the issue of parity, as it might be described, I am mindful of the observations of the High Court in the 1984 decision of Lowe v R concerning the need to ensure that when co-offenders are sentenced in relation to common offending, no particular offender can claim a justifiable sense of grievance.
I am also mindful of the decision of the High Court in Postiglione (1998) 189 CLR 295, particularly in the joint judgment of Dawson and Gaudron JJ which discussed the issue of parity in sentencing in the context of the concept of "equal justice".
As Rothman J in Jimmy v R (2010) 77 NSWLR 540 observed:
"Equal justice is an artefact of Aristotelian principles of equality. The like shall be treated alike and the unalike shall be treated unalike in proportion to their un-alikeness."
In terms of the objective facts, their respective possession of particular times of different firearms does not render greater or any significant un-alikeness between the two offenders. The critical offending is the offending for which they are jointly liable.
I am mindful of the fact that the standard non-parole period of five years to what I have called the principal offence. In respect of one of the firearm offences affecting Mr Hearne's situation there is also a standard non parole period. Of course, the issue of the appropriate approach to standard non-parole periods was discussed by the High Court in Muldrock v R (2011) 244 CLR 120. In the aftermath of that judgment we had amendment to ss 54A and 54B of the Act. It is now quite clear by reference to those respective provisions that a standard non parole period is a matter to be taken into account only in relation to the objective factors affecting the relative seriousness of the offence which carries a standard non-parole period, and the standard non-parole period does not limit the matters which are otherwise required or permitted to be taken into account in determining the appropriate sentence for the offender. The standard non parole period provides some guidance in relation to the matter, but it is not determinative of what the appropriate non-parole period should be.
The general principles enunciated in the High Court decision of Markarian v R (2005) 228 CLR 357, particularly in the judgment of McHugh J at [51], set out the proper approach to sentencing and the need to instinctively synthesis all the matters to be taken into account in relation to the offending.
With regard to Ponfield, the guideline judgment in relation to breaking, entering and stealing, I take on board what was put by learned counsel for Mr Dowell. But, as I said, many of the matters - in fact most of the matters identified in Ponfield - have been translated into general sentencing principles subsequently by the legislature, sometimes word for word. They are a great tribute to the judicial wisdom of Grove J.
With regard to the observations of counsel for Mr Dowell concerning the significance of the serious indictable offence pleaded and the significance of the circumstance of aggravation - adopted by Mr King, I hasten to say - I note the decision of Harris v R [2007] NSWCCA 130 where, in an examination of the relevance of the serious indictable offence of larceny, it was pointed out that as an offence per se it is a lesser indictable offence by reason of its maximum penalty than other serious indictable offences that the section contemplates. Furthermore, the aggravating feature of being in company is one of the least aggravating of the features encompassed by the definition of circumstances of aggravation.
I hasten to say, of course, as we all know, there will be cases about which one cannot make any general rules where being in company could be a very, very significant circumstance of aggravation such as, for example, in the case of a sexual assault. But in this case, there is nothing significant about being in company other than the fact that the two men entered into a joint criminal enterprise and the two of them were able to thus carry away more than what one person could do. As I said, the premises were not seriously vandalised. Some of the property they stole, by reason of its character, attracts greater maximum penalties for its possession than the offence of larceny.
I am also mindful in this regard of the decision of Huynh v R [2005] NSWCCA 220 which picks up the same points that were discussed in the decision of Harris.
I note in the case of both prisoners that the observations of Wood J in Henry, the guideline judgment in respect of armed robbery matters ((1999) 46 NSWLR 36), particularly at [273], arise. Though this is not an armed robbery matter. There his Honour pointed out that the need to acquire funds to support a drug habit is not a mitigating factor, but it may be relevant in the assessment of the objective facts such as throwing light upon the impulsivity of the offence and the extent of planning, whether in fact there are other circumstances of aggravation that arise which do not arise in this case, and the state of mind or capacity of an offender to exercise judgment. Certainly on the part of both prisoners there was a serious lapse of judgment in the commission of this offence.
It is relevant subjectively to the impact of the dependency upon drugs, upon the prospects of recidivism and rehabilitation which of course can be a two edged sword. It may be also relevant to point out that addiction may not be a matter of personal choice.
In this case, I bear in mind two features of the matter, one relevant to Mr Dowell, one relevant to Mr Hearne. It would seem in relation to Mr Dowell that he became dependent upon drugs, or certainly a user of drugs, at a very young age when he was obviously very immature and probably under the influence of other people. This is an important matter to bear in mind in his favour.
In relation to Mr Hearne, his father gave evidence - which I am prepared to accept - of a culture within the Australian Naval forces into which the prisoner fell where the use of drugs appears to have been widespread. It is a very difficult matter for a young man to avoid the peer pressure involved in that type of environment, particularly a military environment, where one is closely dependent upon one's colleagues in a range of ways.
This is not a case, I hasten to say, in the context of the observations of Wood J where I could find that there was a display of gross irresponsibility to be taken into account.
Of course, Henry itself is a poster case, notwithstanding the fact that it is a guideline judgment, for the need in each case to provide individual justice. The learned Chief Justice, even in formulating a guideline sentence for armed robbery, which could not be done in relation to break, enter and steal matters in Ponfield, pointed out from the decision of Lattouf, a decision of Mahoney ACJ, that there was a public interest in the sentencing process to recognise and maintain a residual discretion in the sentencing judge and a public interest in the adoption and articulation of sentencing principles which will deter the commission of serious crime, but also fulfil other objectives in the sentencing process, such as, for example, achieving justice in the individual case.
This same point was picked up by Wood J in a judgment in 2001 relating to the relevance or the significance of the newly introduced suspended sentences where his Honour adopted the principles laid down by the South Australian Full Court concerning the sentencing of young offenders and the interest of the community in returning young offenders back to the community in circumstances that might encourage rehabilitation, the encouragement of rehabilitation being in the community interest.
I am required to have regard to s 3A Crimes (Sentencing Procedure) Act, the purposes of sentencing, the need for some element of general and personal deterrence, but also to promote the rehabilitation of the offenders. They have to be made accountable for their offending, they have to be adequately punished, but at the same time there is public interest in assisting them, given their particular personal circumstances. I do not believe the prisoners represent a danger to the community.
With regard to s 21A, I have identified the aggravating factors that arise in relation to each offender. In respect of relevant mitigating factors that arise under s 21A(3), in the case of Mr Hearne there are many. I am prepared to conclude in his favour that he is a person of good character, I am prepared to obviously find that he was a person without criminal convictions. I am prepared to find in his case, if he is able to live up to the standards that his father would wish to impress upon him, unlikely to re-offend. He is also a person who, in my view, does have good prospects of rehabilitation, particularly having regard to the constructive life he was able to lead until his discharge from the Navy.
His plea of guilty is a relevant mitigating factor. For that he receives a discrete discount. I am prepared to accept that he was not involved in organised criminal activity.
I cannot find that he has shown relevant remorse, although he did make important admissions. I do not know whether he has fully taken responsibility for his actions.
With regard to his co-accused, Mr Dowell, likewise in his case I am prepared to find that if able to undertake rehabilitation from drug use he has good prospects of rehabilitation. I cannot find in his case that he is unlikely to re offend give his past history of offending, and he certainly was not a person of good character. Nor did he not have a record of previous convictions.
With regard to his remorse, there is some evidence of his remorse in the attempts to assist the police to recover one of the firearms, but I do not believe he has taken full responsibility for his actions. Again, the silence of Mr Hearne and him in respect of the outstanding firearms is a very substantial matter.
His plea of guilty is a mitigating factor for which he receives a discrete discount.
There was some degree of assistance to the law enforcement authorities or pre trial disclosure by him in the context of revealing where he said a particular firearm was to be found. But it is worth bearing in mind that it was not recovered.
With regard to planning, I am not prepared to find that the offences were planned offences as an aggravating factor. But I do not think I can find either as a mitigating factor that the offences were not part of planned criminal activity. The matter is a neutral matter. Certainly I agree there was no professional planning in the context of Ponfield principles.
Pursuant to s 44 Crimes (Sentencing Procedure) Act, I am satisfied that there are special circumstances in each case. In the case of Mr Dowell, there is his youth. He has previously been on parole and he has previously been subject to supervision but he is very young which is a very significant matter to take into account. I need only refer to the general principles set out in cases such as GDP and the like concerning that matter.
He would be far differently treated, I can assure him, had he been older and more experienced as a criminal. Mr Hearne likewise would have been far more severely dealt with in relation to this offending had he had prior convictions, particularly like convictions of dishonesty.
With regard to Mr Dowell, I believe that he needs an extended period of supervision to assist him to adjust to community living and he certainly needs direction in relation to drug counselling and rehabilitation programmes. He also obviously needs some assistance in relation to personal relationships and of course trying to get vocational skills that might provide him with some form of stable employment rather than casual employment down at the Cootamundra abattoirs.
With regard to Mr Hearne, likewise I find special circumstances in his case. This is his first time in custody. There are matters relating to his circumstances that are self-evident from the outline of his background that will need to be taken into account and it may turn out that there are aspects of his custody that may need to be specifically addressed to his detriment by the Corrective Services authorities and I do not propose to dilate upon that aspect of the matter at the moment.
He needs an extended period of supervision to assist him in relation to his drug usage, to seek counselling and rehabilitation and professional guidance in that regard. He will need professional assistance to adjust to community living as well.
With regard to the sentences I propose to impose I have foreshadowed that the sentences for the possess firearm matters will be concurrent with the most serious offence. In my view, that criminality is intimately bound up with the most serious offence.
In relation to that aspect of the matter, I am mindful of the principles in Pearce v The Queen, (1998) 194 CLR 610 (at [45]), concerning the need to address the totality of the criminality, but in my view the totality of the criminality is not increased by the continuing possession of firearms that were stolen and had to be in the possession of each of the prisoners in order to be taken away from the property from where the firearms were normally kept.
In relation to one of the possession charges, I am required to fix a non parole period notwithstanding the fact that it will be entirely concurrent with the principal non parole period because the Act requires where there is a standard non parole period the Court must fix a non parole period unless of course the sentence is non-custodial.
In the context of the principles arising from Pearce, I am mindful of decisions such as the decision of Hammoud that reflect upon the issue of concurrency and accumulation or partial accumulation as being very much discretionary matters having regard to all the circumstances of the case.
I again emphasise the issue that I have earlier identified, that but for a number of the subjective circumstances relevant to each offender, the sentences to be imposed in respect of the principal would have been much greater. The truth of the matter is the stealing of firearms is a matter of considerable concern for the community. After the Port Arthur massacre, the community rose up as one and governments rose up as one to ensure that penalties in relation to the possession of firearms would be greatly increased and that the restrictions upon access to firearms would be greatly increased. The supervision of those who had access to firearms would be made much more intense. This is for the public good and the prisoners should understand the fact that the stealing of firearms must be regarded as a serious matter. I just trust, for the conscience of the prisoners, if nothing else, that the firearms that are missing are not used to maim, kill other people or commit serious crimes.
I can assure the prisoners, there are states of the United States where, if that happened, they would be found liable for the principal offences caused by those firearms, including murder, as the Supreme Court of the United States has made clear in recent times.
Now Mr Dowell, I will deal with you first if I may. In relation the offence contrary to s 112(2) of the Act, you are convicted. In respect of that offence you are sentenced to one year and nine months by way of a non-parole period. That sentence will commence on 18 December 2014 and will expire on 17 September 2016. I fix in relation to that sentence a balance of parole of one year six months. That means the total sentence in relation to that offence is three years three months dating from 18 December 2014.
The assessment of your non-parole period, even in the context of special circumstances, has to be undertaken in the context of your previous performance whilst subject to supervision.
In respect of the offence contrary to s 7A, Firearms Act 1996, I convict you and sentence you to a term of imprisonment of 12 months to commence from 18 December 2014. That sentence will expire on 17 December 2015.
In relation to the two offences on the s 166 certificate, you are convicted and sentenced to nine months imprisonment in relation to each offence, each sentence to commence on 18 December 2014 and to expire on 17 September 2015.
All those sentences will be concurrent, one with the other.
Could you take a seat, thanks very much Mr Dowell.
HIS HONOUR: Mr Hearne, in relation to the offence contrary to s 112(2) Crimes Act, you are convicted. You are sentenced to a term of imprisonment by way of a non-parole period of 12 months. That term of imprisonment commences today, as I understand it. Is that right Mr King?
KING: Yes your Honour.
HIS HONOUR: That is 29 July 2015. It expires on 28 July 2016. I direct that you be released to parole at the end of that non-parole period.
In respect of that sentence I fix a balance of sentence of one year three months. That balance of sentence will expire on 28 October 2017.
In relation to the offences contrary to s 7A - there are four of those aren't there Mr Crown?
HALL: Yes, there is your Honour.
HIS HONOUR: In respect of each of those offences you are sentenced to a term of imprisonment of 12 months. In respect of each of those matters you are convicted, of course, and those sentences will commence on 29 July 2015 and expire on 28 July 2016.
In respect of the offence of possessing an unauthorised prohibited firearm contrary to s 7 Firearms Act 1996, you are convicted. You are sentenced to a term of imprisonment by way of a non-parole period of six months. That will commence on 29 July 2015 and expire on 28 January 2016 and I fix a balance of sentence of six months which expires on 28 July 2016.
Just take a seat, thanks very much.
What is the maximum penalty for that ammunition matter, I'm sorry Mr Crown? Do you know the answer to that Mr Murnane?
HALL: Yes, according to the Practice your Honour - can hand it to your Honour - it's a maximum penalty of 50 penalty units.
HIS HONOUR: Fifty penalty units is it? There's no term of imprisonment?
HALL: Perhaps I could hand that--
HIS HONOUR: I'll take your word for it. It's a quarter to 6.
HALL: I'm sorry your Honour.
HIS HONOUR: No, that's all right, don't apologise. It's just an oversight on both our parts.
In relation to the offence of possessing ammunition, the related offence, you are convicted. In lieu of the term imprisonment, obviously I cannot impose a term of imprisonment for an offence that carries a fine, you are fined the sum of $500. I give you 28 days to pay that fine.
Thanks very much.
Mr Dowell, do you understand the sentence I've imposed?
OFFENDER DOWELL: Yes your Honour.
HIS HONOUR: I've backdated the sentence to the date you came into custody. I had distinguished you from your co-accused for the reasons I've tried to explain. The distinction ultimately is a non-parole period - a difference of nine months in the non-parole period. You'll be eligible for release to parole on the date that I fixed, but that will be a matter for the Parole Authority. You're excused, thank you.
HIS HONOUR: Your client might not have those skills or that experience. Anyway, I've squarely raised the issue, Corrective Services understand it, they're nodding, and I appreciate their assistance. They've always been of great assistance to me and I appreciate it very much. Mr Hearne, you're in the hands of the Corrective Services officers now, thank you. Yes Mr Crown?
HALL: Can I just raise one matter while both counsel are here your Honour?
HIS HONOUR: Yes.
HALL: Only in relation to the firearms. Is your Honour mindful to make an order the firearms be returned to the owner?
HIS HONOUR: All firearms found should be returned to the owner.
HIS HONOUR: Hopefully he's got them. Anyway, I direct that all firearms be returned to the lawful owner.
HALL: Thank you your Honour.
HIS HONOUR: Yes, thank you, sorry to keep you.
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Decision last updated: 14 January 2016