R v Gordon

District Court of NSW|2024-09-03

Solicitors: Office of the Director of Public Prosecutions NSW (Crown) Marsdens Law Group (Offender) File Number(s): 2023/00123307

Judgment

The Offender entered pleas of guilty and is to be sentenced for two counts of the offence pursuant to s 62(1)(b) of the Firearms Act 1996 (NSW) ('Firearms Act'), possess shortened firearm not pistol without authority. The maximum penalty is 14 years imprisonment. There is no standard non-parole period. The offending occurred on 16 to 17 April 2023 and the Offender was arrested on the second of those dates. There are no Form 1 matters. At the time of the offending, he was on parole for a firearm offence committed 15 August 2020 for which he was sentenced by Townsden DCJ on 25 March 2022, and subject to two Intensive Corrections Orders for assault and two Community Corrections Orders related to driving offences.
His offending breached the conditions of each of those recognisances and his parole. With the concession of the Crown that I do so, I confirm the order already made that no action be taken on the breaches of the Community Correction Orders.
The Offender was born in November 1979. He was 43 years of age at the time of offending. His present age is nearly 45 years. Generally, his antecedent criminal history includes assaults, custody of a knife in public, demanding property with menaces, resisting police in execution of duty, stalk, intimidate, intend fear and harm domestic.

AGREED FACTS

About 2am on Monday 17 April 2023, police responded to reports of a firearm being discharged at 63 Charles Street, Liverpool, the apartment complex. Upon arrival, police located a Mitsubishi Canter truck bearing New South Wales registration xxx9JB (hereafter referred to as the truck), parked in the car park of the apartment complex. Kimberley Hunter was found inside the truck, along with her personal property. She appeared to be living in the truck. Police then went to Unit xx/63 Charles Street, Liverpool, where the Offender and his brother, Desmond Gordon, were living. The Offender, his brother, and two other people were arrested and taken to Liverpool Police Station. Desmond and the two other people were later released without charge.
On 17 April 2023, in execution of a crime scene warrant, police searched the truck. During the search, police found a blue coloured Nike branded bag. Inside the Nike bag, police found a prescription in Desmond Gordon's name, a pillow case containing ammunition, and two firearms being: (a) a shortened 30-30 calibre Winchester Model 94 repeating lever action rifle, serial number 3402269, which was loaded with two rounds of ammunition; and (b) a shortened 0.410 calibre BOITO single barrel shotgun, serial number 50992, which was not loaded.
The Offender participated in an electronically recorded interview. During the interview he told police he had lived at xx/63 Charles Street, Liverpool for 12 months, and that he was in an intimate relationship with Kimberley Hunter. The Offender told police that he had handled the firearms and that he put them in the back of the truck the day before. He told police that one firearm was a broken 410 shotgun and the other was a 30-30 lever action. The Offender also participated in a forensic procedure. The firearms were examined by a ballistics expert.
The firearms were confirmed to be: for the Winchester, as described above, it being a shortened firearm as defined in the Firearms Act and the regulations to the Act; for the 0.410 calibre BOITO single barrel shotgun, a shortened firearm as defined also in the Act and regulations. Police analysed the Samsung phone belonging to the Offender which was located in a bedroom of the apartment. Police located numerous videos and photos on the phone, amongst which were three videos depicting the Offender handling the Winchester firearm on 1, 3, and 16 April 2023. There were two photos from 2 April 2023 of the Winchester and BOITO firearms on a mattress in the Offender's apartment, and another photo of the Winchester on a blue lounge in the Offender's lounge room.
The Offender did not hold a firearms licence or permit in New South Wales which authorised the possession or use of firearms, imitation firearms, firearm parts, or ammunition. He also did not hold a licence or permit which authorised the possession of a prohibited firearm under sch 1 of the Firearms Act. Records indicate that there is no record of the Winchester firearm being registered. The facts display photographs of the two firearms.
I return to the nature of offending. The legislative guidepost of a maximum penalty of 14 years' imprisonment is to deter and punish possession of shortened firearms. As Hulme J noted in R v Najem [2008] NSWCCA 32 at paragraph 40, "...firearms and pistols, if possessed, are liable to be used, and if used, are liable to be a source of great danger or damage." On behalf of the Offender, it is conceded that possession of firearms is an objectively serious offence and of concern to the broad community given that they are liable to be a source of great danger or damage.
Also, that there can be no legitimate purpose for possessing a shortened firearm. Possession for a non-criminal purpose does not enliven any sort of excuse, nor is it a matter of mitigation. Shortened firearms are particularly dangerous due to their capacity for concealment which makes them suited for serious criminal activity as recognised by the Court of Criminal Appeal in R v Brown [2006] NSWCCA 249; El Jamal v The Queen [2017] NSWCCA 243 at paragraphs 34 to 35.
The Offender's duration of possession of the firearms was not so momentary as to reduce the objective seriousness of the offending. The Winchester firearm was operational and loaded with two rounds of ammunition. Common sense dictates that the loaded Winchester firearm was more dangerous because of that state than had it been unloaded. The BOITO firearm was not loaded. It was not operational. The firearms were located by police in a bag amongst belongings of the Offender's girlfriend, Ms Hunter, within a private vehicle parked in a suburban area. The firearms were not locked or secured away from access.
Whilst the Offender cannot be punished further for his earlier offending, nevertheless, the 2020 offence for which he was sentenced by Townsden DCJ is relevant antecedent history of his unlawful possession of and conduct involving firearms.
On that occasion, the Offender, on the first day of the trial, pleaded guilty to the offence of discharge of firearm with disregard to the safety of any other person pursuant to s 93G(1)(c) and to possession of ammunition without holding a licence or permit or authority. Video evidence showed the Offender with his arm straight out holding a firearm at about the time he shouted at persons in the roadway to "get the fuck out of here". A gunshot was heard, but Townsden DCJ was not satisfied beyond reasonable doubt that the Offender fired the firearm in the direction of persons. An offence of possession of unauthorised ammunition was dealt with on a s 166 certificate. The maximum penalty was 10 years' imprisonment. Following a discount of 5% for his plea, the Offender was sentenced to imprisonment of 3 years with a non-parole period of 1 year and 10 months. The 2020 offending, like the current offending, was committed whilst the Offender was subject to conditional liberty.

OFFENDER EVIDENCE

The Offender gave oral evidence, and his affidavit made 27 August 2024 was read. He was cross-examined. He deposed that the facts recorded in the report of Ms Constable, Clinical Psychologist, dated 21 August 2024, and the SAR report are accurate. In both his oral evidence and in his affidavit, he stated that he regretted his offending conduct and that his possession of firearms was "stupid". His evidence is that he is aware of the seriousness of his offending and of the risk which firearms present for community safety. In oral evidence he also said that the shortened firearms were given to him by someone, and that he was "showing off". He said that he had no other reason for possession of firearms.
Particularly given his antecedent history of firearms' offending, I considered his reason for possession of being "stupid" and attributed to "showing off" to show a recklessness not reflective of the real measure of the seriousness of the offending. The Offender's evidence in that way displayed limited insight in his offending.

OBJECTIVE SERIOUSNESS

Both parties submit that the offending falls below the mid-range for offending of this type. In relation to each offence, that the firearm was shortened is inherent to the offence and therefore that fact does not increase the gravity of the offending. The videos on the Offender's phone showed him handling the Winchester firearm on two earlier days in the month and a photograph of it on a mattress in his residence on another day earlier in the month. A photograph on his phone showed the BOITO shotgun on the mattress on the same day earlier in the month.
The parties addressed the period of possession for the index offending as being between 16 and 17 April 2023. The Crown submitted that the length of time of the possession of each of the firearms was not so momentary as to reduce the objective seriousness of the offending. The Defence submission agreed and added that the period of possession was not such as to amount to an aggravating factor. The evidence is that the possession was acquired from another person for the purposes of the Offender showing off to Ms Hunter. What fashion that showing off took was not explored.
I proceed on the basis of possession only on the period 16 to 17 April 2023, that being the basis on which the sentencing hearing was conducted by the parties. The evidence is not suggestive of other engagement of the Offender with either firearm. Specifically, there is no evidence of a foreshadowed let alone a planned use of them in association with a further or other illegal undertaking or activity. The only evidence is that the BOITO shotgun did not work. That is what the Offender told police. The firearms were not tested for operation. It was not loaded. The Winchester rifle was loaded with two rounds of ammunition. On the evidence, it was operable, loaded, and ready to fire.
In summary, the Offender is to be sentenced on the basis of possession uncontaminated by association with purpose of further antisocial or criminal activity, the possession being for a duration which neither mitigates nor aggravates the objective seriousness of the offending. A concerning feature of the offending, which does add to the gravity of the objective seriousness, is that the weapons were not secured, although in a bag amongst belongings of Ms Hunter within her truck, they were not visible and readily to be noticed and accessed by other persons.
For the offending involving possession of the shortened .30-30 calibre Winchester Model 94 repeating (lever action) rifle loaded with two rounds of ammunition, the offending was of a gravity below the middle range for offending of this type, but not in the very low range. The offending in relation to the 410 calibre BOITO single barrel shotgun, I assess as of lower objective seriousness because the weapon was not operational and was not loaded.

SUBJECTIVE FACTORS

To the extent that the Offender expressed remorse, his evidence causes me to assess that remorse as limited, in that it is based on limited insight and his irresponsible attitude toward firearm possession.
In his oral evidence, the Offender described being assaulted in 2010 when at a train station. The assault was such that he does not even recall the violence, but police told him in hospital that he had been set upon by two Islander males. I note that in his affidavit, the Offender timed the assault as having occurred in or around 2014, but there is only one event of the Offender having been assaulted by two men of Pacific Islander descent. The Offender described the reciprocal domestic violence he experienced in an earlier domestic relationship. A feature of this is that his earlier domestic partner was convicted of stalking and assaulting his later partner, being his current partner at the time of the 2020 offending. The assault was serious. She was stabbed, a drill put through her hand, and she was nearly drowned. He gave this evidence in order to accurately characterise his antecedent domestic violence offences.
In 2015, his then-partner bashed him over the head with an iron object. She was of Pacific Islander descent. In combination with the assault by males described by police as Pacific Islanders in 2014 (also reported as having occurred in 2010), he experiences hyper-vigilance and concern of being around certain individuals, mostly those who appear to him to be of Pacific Islander descent. This concern regarding Pacific Islander males was a feature recognised by Townsden DCJ in his sentencing for the 2020 offence.
On 27 February 2024, the Offender was savagely assaulted whilst a prisoner at Bathurst Correctional Centre. The prior evening, he had been transferred from Junee Correctional Centre. On the morning of 27 February 2024, he worked in the prison textiles department before returning to his accommodation wing. On returning, his request to be moved to a different location within the wing was granted, and he began packing his belongings for the move, but decided to go to the kitchen area to get something to eat beforehand. When he entered the kitchen, six individuals, who appeared to him to be of Aboriginal background, and with whom he had never previously interacted, attacked him. He first felt a blow to the back of his head, and then lost consciousness. He regained a level of consciousness to find himself on the ground, with all six individuals kicking him in the back and stomping on his head. He heard someone shout that he had "had enough", and the assault ceased.
He gathered his belongings and went to the medical clinic for assessment. Out of fear of potential retaliation from the individuals who had assaulted him, he initially told medical staff that he had fallen in the shower. He was told that his injuries indicated that story to be false. He then admitted to having been assaulted by six individuals. He was taken to the hospital and was admitted overnight for medical tests including MRI investigation. He was diagnosed to have suffered multiple fractures of his nose, serious bruising to his body, and other injuries. Exhibit 1 contains photographs of his injuries suffered. He was transferred to the Metropolitan Remand and Reception Centre in Sydney. Although he has been referred for specialist assessment and treatment, this has not occurred.
The Offender continues working in prison. He completed the "Ready for Work" program. In his oral evidence, the Offender said that his course in and out of gaol since 2015 was on account of stupid choices, that his judgment was affected by his drug taking, and that he presently realises that he needs to stop that life course in order to have contact with his children. His youngest child was born whilst he was in gaol. He applied for the Drug Court ballot but was deemed ineligible. The Offender's oral evidence and the documentation includes that in 2013, he attended a 28-day residential rehabilitation program at Concord Hospital, and counselling through Odyssey House, in order to address his alcohol and illicit drug use. He was prescribed Antabuse in 2018, however he ceased the medication because it made him feel unwell. The
Offender says that he wants to undertake those, or very similar programs again.
In my view, his claims of willingness for rehabilitation are to be balanced against his having made those claims when standing for sentence before Townsden DCJ in 2020, at which time he had already the benefit of those programs, and then re-offended whilst on parole for his 2020 offending. The Offender said that his plan on release is to give priority to his being a better father for his children. In his affidavit, he stated: "I have had time to reflect during my incarceration. The impact on my relationship with my children is devastating. I realise that for things to change, my drug use needs to be addressed. I am willing and motivated to address it. I would like to engage with Odyssey House. Residential rehabilitation has been discussed by both the psychologist and Community Corrections officer. I am willing to properly commit to a program like this. My goal is to focus on treatment and achieving long-standing sobriety. I need to get away from drugs completely. Upon release, I intend to reapply for government housing and obtain stable accommodation. During the application process, I will stay in emergency housing, then traditional accommodation...I want to find employment in the long term, I would like to re-enter the construction industry, my primary focus will be improve my person and address my drug issues."
His reference to psychologist is to Ms Constable. His reference to the Community Corrections officer is to the author of the SAR.
In oral evidence, the Offender explained that he hoped to obtain a management role in construction following completion of his education. He obtained his Higher School Certificate and completed most of a tertiary course in business management, completion of which should be of utility in obtaining work in a management role. The Offender thinks this will help him lessen exposure to antisocial and negative influences of peers, with whom he previously engaged when labouring in the construction industry. He last held employment in 2020, which was in construction work. He worked for periods in construction from 2004.
In what I considered to be a well-directed cross-examination, the Offender agreed that the present offending occurred when he was subject to supervision by Community Corrections, and whilst on parole and subject to the ICOs and CCOs. He agreed that following his 2020 offence, he also acknowledged the dangerousness of firearm offences. He said what is different now is that his relationship with his son means a lot. His son wants to be there for him. He said that he has never had the degree of support from his children, which he now has, because previously they were younger.
The SAR, dated 6 August 2024, observes, consistently with the Offender's evidence, that he has a good relationship with his family and that they are aware of his offending and will support him. I note that when sentenced by Townsden DCJ, his relationship with his family was described as "somewhat distant" with his parents and with his siblings. His daughter was then in community care. There had been a recent improvement in those relationships.
The present evidence is supportive of the Offender's claimed expectation of greater support from his children, whilst noting his three eldest children reside in Queensland. He does have weekly contact with them and fortnightly contact with his youngest child whilst in prison. I agree with the SAR description of his antecedent behaviour: "Mr Gordon has an extensive criminal history, dating back to 1998. Perusal of his criminal history illustrates Mr Gordon's antisocial behaviour primarily relates to assault, driving, domestic violence, drugs and firearm-related offences."
The Offender has described his pattern of aggressive behaviour and utilising violence against others as being associated with when he feels threatened. He claimed that he makes attempts to avoid violence, however the author of the SAR recorded that the Offender "verbalised that he stands his ground if need be", and commented that this behaviour is evident when perusing his criminal history. The Offender disclosed to the author of the SAR that he often lacks self-regulation and subsequently consequential thinking when he feels as though he is faced with threatening situations.
The SAR assessment that the Offender shows only some insight into his offending, when acknowledging the potential seriousness of the offences, meets with my earlier expressed assessment that his expression of remorse is based upon an underlying irresponsible and incomplete insight into the seriousness of the index firearm offences. The SAR author reports (consistent with his oral evidence) that the Offender is willing to engage with intervention services. He has requested to engage with Cognitive Behavioural Therapy. I note that he experienced CBT, as it is known, during the 2013 intensive in-house rehabilitation at Concord Hospital.
The SAR records the Offender's readiness to undertake community service work, however he is assessed as unsuitable due to his unaddressed substance abuse. Further, and not surprisingly, given his offending occurred whilst he was subject to Community Corrections supervision, the SAR observes the Offender's response to supervision is "borderline". The SAR assessed the Offender's recidivism risk as T3/Medium-High. As already recognised, this is an elevation since the assessment following his 2020 offending. The SAR set out the supervision plan which Community Corrections would implement if the Offender was supervised in the community.
The Offender was 43 years of age at the time of offending and is now nearly 45 years of age. He is not married or partnered. I acknowledge the responsibility of the Crown's submission that the principles of Bugmy v The Queen (2013) 249 CLR 571 ('Bugmy') are applicable, given the circumstances of hardship he suffered from age 12, and through his adolescence until early childhood at about age 20. When the Offender was at early pre-adolescent age, his father suffered a serious workplace injury, following which he declined in mental health. The reporting psychologist, Ms Constable, reported the relevant history, which was not challenged during cross-examination of the Offender, and therefore is to be accepted. His father was admitted to a psychiatric facility on two occasions for his suffering psychosis. The Offender witnessed his father attempt to take his own life.
As his mental health declined, his father became physically violent. The Offender witnessed violence between his father and his mother, and was the victim of weekly physical abuse, such as being hit with a fist, kicked, shoved, or had objects thrown at him. The Offender would intervene when his father was violent toward his mother and other family members. He "felt terrified because the one person who was meant to protect him was the one who hurt him." He felt constantly on edge because his father's anger was sporadic and unpredictable. Ms Constable recorded: "Due to the abuse at home, Mr Gordon became rebellious and aggressive. He identified substance reliance on cannabis and alcohol for escapism from age 13 years old".
The Offender assesses himself as having been a pretty good student in primary school, but of disruptive behaviour. His father's workplace injury coincided with him entering high school. The trauma endured by violence at home and adjustment to the new high school environment left him feeling overwhelmed, which he externalised with aggressive outbursts. He misbehaved in class, threw objects, physically fought with peers and had verbal conflicts with his teachers. His academic results declined and frequency of detentions increased. On completion of his Higher School Certificate, he scored in the bottom 20th percentile.
The Offender completed certificates 2 and 3 in Information Technology between 2001 and 2003. In 2010, he commenced, but did not complete, a Bachelor of Business tertiary degree. Between ages 18 and 20, the Offender was employed in construction, mainly for his uncle's company. However, his alcohol abuse meant that he lived the revolving door of "do a job, drink, don't go to work, lose the job". From ages 20 to 24, he was unemployed. He was married from 2007 to 2012, to the woman who is mother to his first three children. She did not approve of his alcohol or drug abuse. She did not drink alcohol or take illicit drugs. The marriage failed.
From 2013, aged 34 years, when the stresses of Family Court proceedings prevailed, his drug use impacted his ability to sustain steady employment. Between 2015 and 2019, he was in the violent domestic relationship associated with the assault charges and breaches of ADVO orders which antecedent history I have already observed and identified with his hypervigilance and anxiety related to individuals of Islander background appearance.
The Offender's alcohol and cannabis abuse from age 13 had elevated to serious binge drinking by age 16 years. He significantly reduced his cannabis use from age 21 due to paranoia. The Offender was introduced to methamphetamine in 2013 when aged 34 years. In 2008, aged 29 years, the Offender was diagnosed with depression and treated with Mirtazapine for one year. He sought treatment from a psychologist for Depression, Anxiety, and Post-Traumatic Stress Disorder.
In 2022, reporting in relation to the earlier 2020 offending, Mr Borenstein, clinical psychologist, diagnosed the Offender to suffer from Depression, Anxiety, and Post-Traumatic Stress Disorder and recommended he re-engage with psychological treatment. Ms Constable diagnosed the Offender to presently suffer from complex Post-Traumatic Stress Disorder, Amphetamine Use Disorder severe in early remission in controlled environment, Alcohol Use Disorder moderate in early remission in a controlled environment, Cannabis Use Disorder moderate in early remission in a controlled environment. Ms Constable observed that the remission in a controlled environment is the consequence of his being incarcerated prior to and at the time of assessment.
Ms Constable performed a dynamic recidivism risk assessment and opined that the Offender presents a high risk of general re-offending, which directly translates to a need for high-level intensity intervention and monitoring. She stated, "His un-managed complex trauma, polysubstance abuse, possible long-term brain damage from the substance abuse and head traumas leading to poor executive functioning and criminal affiliations appeared to be his main criminogenic factors."
Ms Constable concluded: "Mr Gordon's offending behaviour appeared to be driven by his abusive family upbringing which impaired his social, emotional, and moral development; his unresolved complex trauma which led him to a constantly hypervigilant and fearful state and impaired his emotional regulation capabilities, executive functioning impairments from his early alcohol and cannabis abuse, and later methamphetamine use, possible long-term brain damage which likely contributed to his poor ability to appreciate consequences or risk and manage impulsivity, was further worsened by being under the influence of drugs and alcohol. Based on the available information and the RNR model, he presented a high risk of general re-offending especially if he did not receive proper support and intervention. His consistent criminal history suggested that he would require significant and ongoing support to reduce the risk of re-offending. He needed sufficient strategies and skills typically taught in residential rehabilitation."
Ms Constable provided the following opinion as to his future, which is particularly important in regard to his recognition of risk of recidivism and to the opportunity for his rehabilitation: "...the moment he is given additional liberty, he would likely relapse, given that he had not yet acquired the relevant skills to manage his substance use disorders, especially when he felt significantly distressed or in the company of drug-abusing peers. Residential rehabilitation should be able to address this skill deficit. His prognosis is fair, especially because he had not received standard psychological intervention in the community for the above diagnoses and the complexity of his mental health issues."
In the above-quoted passage, Ms Constable has been careful to focus on psychological intervention whilst in the community, she having observed that in 2013 at Concord Hospital, the Offender received a 28 day residential rehabilitation course focused on alcohol and substance abuse. As acknowledged by the Crown, Ms Constable's report observes that the Offender has shown an emerging insight into the complex relationship between his criminal behaviours, illicit substance use, and mental health. This is consistent with the SAR. I accept this expert opinion to mean his insight emerging from the limitations I have observed.
Self-induced intoxication is not a factor in mitigation, nor can it be taken into account to explain an Offender's behaviour where such explanation effectively minimises the Offender's moral culpability s 21A(5AA) of the CSP Act. I agree with the Crown's observation that the SAR level of service inventory assessment of recidivism risk and Ms Constable's dynamic assessment are not significantly at variance. The Offender represents a medium-high risk of re-offending, which risk will remain high of general offending pending successfully remediating his illicit substance use and maintaining successful psychological intervention.
His antecedent history shows that the imposition of CCO and ICO orders with the supervision of community corrections has not achieved that remediation successfully to date. His supervision was subject to specific conditions attached to address his drug and alcohol use. I agree with the Crown submission that the prospects of rehabilitation are to be assessed as very guarded. As I listened to and observed the Offender during his oral evidence, he impressed me as being a person of reasonable intelligence. His academic achievements show that.
He had the benefit of the Concord Hospital in-house 28-day rehabilitation prior to all of his offending from the conclusion of that in 2013. On the other hand, in the following period, he experienced the stresses of the death of a grandparent, the breakdown of his marriage, which produced his first three children, and his extremely violent domestic relationship with his partner, the violent assault by that partner of his subsequent partner, and a predominantly loner lifestyle.
The Offender will, as the Crown accepts, suffer ongoing hardship whilst incarcerated. This is, and will continue to be, the consequence of his mental health diagnoses. He is hypervigilant and anxious. His PTSD is real. The vicious assault he suffered whilst incarcerated in February 2024 should be accepted as compounding his anxiety, hypervigilance, and hardship of his experience.
The history recorded at Bathurst Base Hospital Emergency Department included multiple blunt force blows to the head and torso and confirmation on CT of nasal bone fractures. He also underwent CTs of his brain, abdomen, and pelvis, which revealed no further significant injuries, but the undertaking of which indicates the seriousness with which the attending medical practitioners viewed his injuries, such as to warrant those precautionary investigations.
The Defence submits that some moderation of the Offender's moral culpability and deterrence is warranted by Ms Constable's opinion of the unresolved consequences of the complex trauma in his upbringing appearing to drive his offending behaviour. The Defence concedes that the s 5 threshold has been crossed. Independently, that is my opinion. The Defence concedes that principles of general and specific deterrence are significant in this sentencing synthesis. Again, that meets with my opinion after consideration of the Offender's mental health and the effects of hardship from his upbringing.
In Bugmy, the Court recognised that circumstances of being raised in an environment of violence and substance abuse may mitigate the sentence because the Offender's moral culpability is likely to be less than the culpability of an Offender whose formative years have not been marred in that way. Individualised justice requires recognition of the Offender's background in this regard. In my assessment, the Offender's deprivation during upbringing was substantial, and individualised justice requires recognition of mitigation of his moral culpability. In my opinion, this is so, even following the 2020 offending. The effects of such profound deprivation are continuing. In Bugmy the Court stated at paragraph 44, "Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision."
In sentencing, this Court is required to give weight also to the conflicting purposes of punishment. Whilst the Offender's recourse to criminal behaviour is to be recognised as of mitigated moral culpability because of his inability to control that impulse, that inability to control his criminal behaviour response must be weighed with the importance of protecting the community from the Offender. I have referred to the Crown's acceptance of the application of Bugmy principles. I agree that because of his experience of a traumatic upbringing and its consequences, now identified with his mental health diagnoses, a degree of moderation of moral culpability must be found and applied to appropriate individual sentencing.

CONSIDERATION AND SYNTHESIS

I have assessed the objective seriousness of the offending involving the Winchester firearm as below middle gravity for offending of this type, and for the offending involving the shotgun as a lower level gravity for offending of this type. The Offender's antecedent record, particularly the 2020 firearm offence, disentitles him the extension of leniency which would otherwise be afforded a first Offender. An aggravating feature is that he offended whilst on parole for the 2020 offending and when he was subject to two ICOs and two CCOs. He offended whilst under supervision and required to comply with the conditions of his parole and those orders. The CCOs had been imposed only about a month prior.
One of the underlying principles of the Firearms Act is the overriding need to ensure public safety, as I have observed. Both personal and general deterrence require consideration for this offending. I note that the Crown accepts that general deterrence in circumstances of his compromised mental health, carries less weight than it might for another offender. I agree. The central issue in the consideration of the synthesis of sentencing is to determine the most appropriate balance between, on the one hand, the protection of the community from the Offender's High risk of general recidivism, and on the other hand, the risk to community safety he presents. It is in the community's interest for safety, to encourage and facilitate his rehabilitation so as to reduce that risk.
A course is recommended by Ms Constable with a prognosis she assesses as "fair". The Offender's criminal history of antisocial behaviour, primarily relating to assaults, driving, domestic violence, drugs, and firearm-related offences, displays, on the expert opinion evidence of the author of the SAR and clinical psychologist Ms Constable, an offending pattern illustrating his use of illicit substances and alcohol as a common risk factor. That common risk factor is recognised to have been present and influential in the subject offending. I am troubled by the Offender's own evidence that he is willing to stand his ground when he feels threatened. The factor of intoxication is observed by him to contribute to his failure to exercise appropriate behaviour in such situations. Common sense dictates that life will present challenging and threatening situations. The expert opinion of Ms Constable is that the high risk of general recidivism, which is the measure of the risk he presents to community safety "directly" translates to a need for a high level of intensity of intervention and monitoring.
Ms Constable identified the focus for future intervention to be his unmanaged complex trauma, polysubstance use, possible long-term brain damage from substance abuse and head traumas, and consequent poor executive functioning, as well as criminal affiliations. As I have observed, the Offender has in the past had the benefit of a 28-day in-house rehabilitation course at Concord Hospital as well as education, counselling, and monitoring by Odyssey House. He has had the benefit of prescription of Antabuse.
What is more, he had the benefit of those interventions before he committed the 2020 firearm offence for which Townsden DCJ sentenced him in 2022. His antecedent history includes repeated breaches of recognisances, and specifically, the present offending occurred during his parole from full-time imprisonment serving the sentence ordered by Townsden DCJ. Correction Service New South Wales records indicate that the Offender's most recent response to supervision was deemed "borderline".
I have assessed the Offender's prospects of success for rehabilitation to be very guarded.
According to the SAR report, if the Offender were to be at liberty in the community on sentence, he would be supervised according to a plan that:

assesses suitability to participate in EQUIPS Foundation and addictions to address his generalised offending and illicit substance use.
Weekly third-party checks to verify and monitor his behaviour in the community.
Referral to Head to Health to provide counselling to address his anger and aggression, as well as any mental health concerns.
Referral to Odyssey House to engage in counselling to address his illicit substance abuse.
The use of Corrective Services NSW Practice Guide for Intervention (PGI) to address targeted risk factors, such as managing cravings, managing environment, and managing stress and anger.

Recommendations by Ms Constable are:

While in custody, regular psychiatric reviews to manage his current symptoms, psychological intervention for his poor coping and drug dependence, engaging in programmes aimed to reduce the risk of re-offending, and qualification courses aimed to improve his employability following release.
Upon release: residential drug rehabilitation for at least eight weeks, a full functional assessment in all areas of his life to specify where he requires the most support, including an assessment of his adaptive function, follow-up assessments with specialists for potential brain damage and attention deficit hyperactivity disorder, including brain scans and comprehensive neuropsychological assessments including general intelligence, learning, and executive function. Ongoing psychological intervention for drug relapse prevention to treat his complex trauma, including dialectical behaviour therapy and/or schema therapy. Ongoing patient drug use counselling, Narcotics Anonymous, supervision to ensure compliance with his treatment plan and so to ensure proper rehabilitation that he cease contact with his antisocial peers.

It is important, therefore, crossing of the s 5 threshold being conceded, to evaluate the appropriate sentence with consideration of why his prospects on this occasion offer an improved chance of rehabilitation compared to those in the past. Ms Constable commented that his extensive treatment plan whilst in the community should result in a prognosis of "fair", "because he had not received standard psychological intervention in the community for the above diagnoses and the complexity of his mental health issues" before.
It is significant that the subject offending was unassociated with violence or other related antisocial activity. The subject conduct was antisocial. I have observed the limited insight which behaviour and his evidence given in court revealed, but the expert opinion is that his insight into his antisocial criminal behaviour is improving. I have observed that neither the 2020 firearm offence of discharge of firearm with regard to the safety of another person, s 93G(1)(c) Crimes Act, nor the subject offending, displays possession of or use of shortened or any firearm for a broader criminal purpose.
His antecedent history of violence does not include him having used weapons at all, or firearms in particular. 24 years ago he committed the offence of custody of a knife in a public place, but I infer from the penalty of a modest fine in the local court that it was not a serious incident of that type of offending. I observed that his past history of violence in the period of 2015 to 2016 was associated with a single person being his then partner, in what was a reciprocal violent relationship.

INDICATIVE SENTENCES

Pursuant to s 3A CSP Act, the appropriate sentence must ensure that the Offender is adequately punished. Any adjustment of the s 44 non-parole to parole ratio must set a non-parole period which adequately meets this purpose. I bear in mind the importance of general deterrence for this type of offending, but also that the Offender's mental health makes him not a perfect example for deterring other persons. This lessens to some degree the utility of specific and general deterrence in this case.
In R v Struik [2023] NSWSC 1548, the Offender was an accessory after the fact of murder. The two shortened firearms in his possession were used in the murder. They were securely stored under padlock. The indicative sentences after a 25% discount for an early plea were imprisonment for 4 years, 3 months, and 2 years and 9 months.
In R v Tanti [2021] NSWDC 381, the Offender held the gun for a friend but did not know why. There being no legitimate reason for possession of a shortened firearm, it was contemplated that the friend's purpose was criminal. The serial number had been removed from the weapon, and it was working and readily available for use. Possession of a defaced firearm was a separate offence and received separate indicative sentences. After a 25% discount for early plea for the s 62(1)(b) offence, the indicative sentence, taking into account matters on a Form 1, was 3 years.
In R v Lizano [2021] NSWDC 54, the Offender held two shortened firearms: a double-barrel shotgun and a 0.22 long rifle, single shot. He stored the firearms for someone else to use in an illegal purpose. There was no ammunition, the guns were not loaded, and they were not properly secured. After a 25% discount for an early plea, the respective s 62(1)(b) offences earned indicative sentences of 5 years' imprisonment, including Form 1 matters, and 4 years' imprisonment.
A search of statistics recorded in JIRS shows that for all offenders for the subjective offence in the age category 41 to 50, after a plea of guilty, the sentence for a single count was CCO 6.3%, ICO 25%, and prison 50% incidents. Prison term statistics for a single count are 24 months or less 87.5%, and 36 months 12.5%.
Pursuant to s 53A CSP Act, in my opinion, it is appropriate to proceed by aggregate sentencing. For the offence H76932313/1, involving the Winchester firearm, after a discount of 25% for early plea, an indicative term of imprisonment of 24 months is appropriate. For the offence H76932313/2, involving the single-barrel shotgun, after a discount of 25% for early plea, an indicative term of imprisonment of 12 months is appropriate.
The Court is required, because there are two offences, to review the total sentence and consider whether the aggregate imposed is a just and appropriate measure of the total criminality involved. The Court is required to take a last look to see whether the sentence looks wrong when considering the totality of the criminal behaviour. In my opinion, an appropriate head sentence, which is just and appropriate to the totality of the offending behaviour of possession of the two firearms over a period of approximately two days, in circumstances of there being no identified associated criminal purpose but for the purpose of showing off to his girlfriend and after consideration in the synthesis of sentencing of all other matters, is 30 months (2 years and 6 months).
The high risk of re-offending is a relevant factor in setting the non-parole period (Bugmy). The weight to be attached to protection of society for the reasons given should contemplate the opportunity for rehabilitation.
In my view, a significant factor in consideration of rehabilitation in regard to this type of offending when setting the non-parole period for the Offender is that his firearm offences have not been associated with any related criminal activity. He is not to be sentenced for other behaviour on this occasion. The protection of the community consideration must take into account that his conduct in the firearm offences for which he is being sentenced does not include other than stupid showing off and irresponsibility, failing to secure the weapons better than possessing them in a bag amongst the belongings of Ms Hunter in the truck on the public street in which she lived. Having considered the special circumstance of rehabilitation and in order to give it practical effect (Crane v R [2024] NSWCCA 112), and his special circumstances of past and continuing hardship during imprisonment, in my opinion the appropriate non-parole period is 1 year and 6 months.
I agree with the submissions the Crown and the Defence made that it is appropriate to allow a degree of concurrency for the period served following the Offender's arrest on 17 April 2023 when, but for this offending, he would have been in the community subject to the conditions of his parole, ICOs, and CCOs. In the exercise of my discretion, pursuant to s 47 CSP Act, I backdate the commencement of sentence to 14 June 2023. The orders I make are as follows: 1. The Offender is convicted. 2. No action be taken for the breaches of the Community Corrections Orders. 3. The Offender is sentenced to a term of imprisonment of 2 years and 6 months, comprising a non-parole period of 1 year and 6 months. 4. The sentence commences on 14 June 2023 and will expire on 13 December 2025. 5. The non-parole period expires on 13 December 2024. 6. The Offender will be eligible for consideration for release to parole on 13 December 2024. 7. I direct the Offender accept the supervision and guidance of Community Corrective Services and obey all reasonable directions of the service. 8. I make the following recommendations to Community Corrective Services: 1. The Offender regularly undertake review toward management of his Post-Traumatic Stress Disorder, anxiety, hypervigilance, Substance Abuse Disorder, unresolved conflicts and trauma issues, his emotional regulation capabilities and executive function impairments. 2. The Offender be assisted in completing his education and training for workplace engagement. 3. The Offender undergo residential drug rehabilitation for at least eight weeks. 4. The Offender attend Odyssey House, Narcotics Anonymous, and comply with any mental health plan provided by a medical practitioner and receive supervision to ensure compliance with his treatment plan.

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