R v Jarrod Craig Hussey

Evidence of the offender

1. The offender relied on a bundle of documents which became Ex 1. Ex 1.1 was an affidavit by the offender himself; Ex 1.2 an affidavit by his partner, Charlene Handiside, and Ex 1.3 an affidavit by his sister Teagan Hussey. Exibit 1.4 was a letter from his manager, showing evidence that he was employed as a truck driver on a full time basis since September 2017.
2. Neither the offender, his partner, nor sister were required for cross‑examination on their affidavits.
3. The offender was born in September 1994 and is 24 years of age. He left high school in year 11 and in 2012 joined the Australian Defence Force and completed his training in 2012. He was at first deployed to Brisbane, however, in 2014 he was deployed to Malaysia, Thailand and Singapore for a period of four months. In 2015 he was honourably discharged from the Army due to his mother's long illness and struggle with a cancer diagnosis. The offender described what happened following his discharge from the Army in the following terms: "25 When I came back from the Army I started working and quickly found myself to be mixed up with the wrong crowd. 26 I think given my emotional state at the time, combined with the people that I was now being exposed to, I was vulnerable, easily influenced and had mentally kind of given up, which is why I began to associate with bad people."
4. In 2016 he left behind his bikie associations, however, in 2017 he was hospitalised following being stabbed because of his decision to leave. He now had good pro-social support from his partner and family.
5. The offender's partner, Charlene Handisid, affirmed that since being arrested the offender's behaviour had changed and his main focus was to work hard and have a happy family life with herself and their son.
6. The offender's sister, Teagan Hussey, deposed as to the family background and their mother's illness with cancer. She described what happened when the offender left the Army in 2015 as follows: "18 My brother Jarrod then unfortunately found solace around people who may not have been the best influence. He felt he found a support network and reminded him of the camaraderie when he was in the Army. He eventually realised that he needed to distance himself from these friends, albeit a little late."
7. She also deposed to the changes that he had made in his life following his arrest.

The offender's submissions

1. Counsel for the offender submitted that the maximum penalty of 14 years imprisonment and Standard Non-Parole Period of four years for an offence pursuant to s 7(1) of the Firearms Act 1996, were guideposts in respect of an offence for actual possession of a firearm pursuant to that section. However, given the findings made by me in [65] of my judgment on verdict, namely, that the offender was "taken to be in possession" of the firearm, the Standard Non‑Parole Period here should be given little weight. It was submitted that the offence was a lesser offence than actual possession of a firearm. Counsel submitted that the Standard Non-Parole Period applied to an offence pursuant to s 7(I) simpliciter rather than an offence by way of the extended definition pursuant to s 4 and s 4A of the Act. It was submitted therefore that this was less than a mid-range offence.
2. Counsel referred to the Court of Criminal Appeal's decision in R v Farrell [2015] NSWCCA 68 as authority that permitted a finding that the Standard Non‑Parole Period was of limited utility as a factor to be taken into account on sentence here.
3. Counsel also referred to Judicial Commission statistics that indicated when combined with the previous s 12 suspended sentence, Intensive Correction Orders were, for first offences, ordered in a majority of cases (or the equivalent thereof).
4. Counsel submitted that the offender had spent one month and 13 days in custody in respect of the subject offence. Pursuant to s 66 of the Crime (Sentencing Procedure) Act 1999 ("CSPA"), the court would take into account the community safety as a paramount consideration (s 66(1)), and further, what was more likely to address the risk of re-offending 9s 66(2)), together with any common law principles that were applicable. It was submitted that the court could apply the mandatory conditions pursuant to s 73, together with any additional conditions pursuant to s 73A, including home detention, curfew, Community Service and non-association orders.
5. It was submitted that the offender's prior offences would have limited impact as an aggravating factor pursuant to s 21A(2)(d), as they were for different offences. Further, mitigating factors that would apply pursuant to s 21A(3) were that the offending was not a planned or organised criminal activity, he had no record for similar offences, he was unlikely to re-offend and he had good prospects of rehabilitation. Further, pursuant to s 21A(3)(l) the offender had made a pre-trial disclosure to the Crown at an early stage, that the trial would be run on a point of law only. This was conceded by the solicitor appearing for the Crown.
6. Counsel emphasised that he had been assessed at a low to medium risk of re‑offending. He had cut his ties with the outlaw motorcycle gang and had good support from his family. This would lead to a finding that he was a low risk of re-offending and had high prospects of rehabilitation.
7. By referring to R v Farrell, supra, Counsel submitted that the weapon in that case, which involved actual possession of two weapons, were more dangerous than the weapon here, and thus the offending was more serious. It was submitted that there was no evidence here that the offender was a member of the outlaw motorcycle gang at the time of the offending, although it was conceded that he had been a member previously.
8. It was accepted that the s 5 threshold had been crossed, however, it was submitted that a full time custodial sentence was not called for here and an Intensive Correction Order was more appropriate, having regard to s 66 and s 3A of the CSPA. It was further submitted that general deterrence has less weight here because he was found guilty of constructive possession and the length of time of that possession was relatively short. Having regard to his prospects of rehabilitation and protection of the community, any sentence would best be served by way of an Intensive Correction Order.

The Crown submissions

1. The Crown submitted that only a custodial sentence would suffice here. The maximum proscribed by Parliament of 14 years, together with a Standard Non‑Parole Period of 4 years were guideposts in the sentencing process which were not distinguished by whether the accused was found guilty of actual or constructive possession.
2. Further, the evidence established that as at November 2015 the offender was in association with an outlaw motorcycle gang. It was referred to by the Community Corrections officer and also by the affidavit of Teaghan Hussey, as outlined above.
3. The Crown further submitted that no distinction could be drawn between the weapons referred to in R v Farrell, supra, and the present offence. The offender was found guilty of possessing a weapon which was capable of killing or causing grievous bodily harm. It was submitted that both general deterrence and personal deterrence were important in the sentencing process with respect to firearms offences.
4. With respect to the subjective matters relied on by the offender, the Crown accepted that some repair had taken place since the offence. The offender now had the support of his family and was in employment. However, the court would take into account his defiance in the face of the verdict of guilty, and his association with the outlaw motorcycle gang by imposing a full time custodial sentence. However, the Crown's secondary position was that if that sentence was less than 2 years, given the "repair" that had taken place by way of his rehabilitation and employment, an Intensive Correction Order would be appropriate in those circumstances.
5. In submissions in reply, Counsel for the offender submitted that there was a distinction between an association with and membership of an outlaw motorcycle gang. He rehearsed his submissions that the maximum penalty and Standard Non-Parole Period should not be applied given the constructive possession finding, and further that significant repair had taken place, relying on the subjective factors set out above, which would leave the court to impose a sentence of 2 years or less, which should be served by way of an Intensive Correction Order.

Determination

1. Section 3A of the C(SP)A sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community."
2. The objective seriousness of the offending here must be assessed by reference to all of the circumstances of the case. Having found that the offender was in possession of the relevant premises, and therefore in possession of a prohibited pistol, not being authorised to do so by a licence or permit, I find that the offending comes within the mid-range for an offence pursuant to s 7(1), but at the lower end of that mid-range.
3. I do not accept the submission made on behalf of the offender that the impact of the maximum penalty of 14 years, or the Standard Non-Parole Period of 4 years, is lessened by virtue of the finding that the offender was guilty of the offence by way of the extended definition in s 4 and s 4A of the Act. Counsel could put no authority in support of that proposition, and in my view, the submission was misconceived. I therefore take into account the maximum penalty and Standard Non-Parole Period as guideposts in the sentencing process. General deterrence is important in the sentencing process here. A clear message must be sent to the community and like-minded members of the community, that Parliament has proscribed severe maximum penalties for an offence pursuant to s 7(1), and that the courts will impose lengthy sentences in appropriate cases.
4. Also relevant to the sentencing process is specific deterrence. I find that the offender, by his own admission, did have an association with an outlaw motorcycle gang at the time of the offending. Clothing identifying him as a member of that gang was found within the premises. Any distinction between "membership" and "association with" an outlaw motorcycle gang is odious and irrelevant.
5. The offender's criminal antecedents as outlined above occurred after the subject offence. It is clear that he was not arrested for a period of 12 months after the offence in respect of the subject offence, and following his arrest was dealt with in respect of the subsequent offending.
6. I take into account that the Crown has conceded that the offender provided some assistance to the administration of justice by his pre-trial disclosures to the Crown, and the fact that the trial was run on a point of law only. However, the offender has not taken responsibility for his criminal conduct by continuing to deny his guilt and alleging that he was convicted on a technical basis.
7. I note that the offender has been assessed as a low to medium risk of re‑offending. Such prognostications' are notoriously unreliable, and it is difficult to reach a conclusion that he is unlikely to re-offend at all. I take into account, however, that he has cut off his ties with anti-social associates, that he now has the support of his partner and family, and that he has made some progress in his rehabilitation.
8. I do not accept the submission made on behalf of the offender that the Court of Criminal Appeal's decision in R v Farrell, supra, allows a finding that the Standard Non-Parole Period has limited utility as a guidepost in the sentencing process, having regard to the findings made against this offender. There is no evidence whatsoever of the circumstances of which the offender came into possession of the firearm and no evidence that he intended to use it. Further, the statistics relied on by the offender have to treated with some caution. I do not accept the submission made on behalf of the offender that the weapons referred to in R v Farrell, supra, were more serious than the weapon the subject of this offence, given that it was still capable of destructive power.
9. I have taken into account the subjective factors referred to above. The offender has made progress with his rehabilitation and is in employment, and has the support of his family. Having regard to all of those matters, I am satisfied that the threshold in s 5 of the CSPA has been crossed and that no penalty other than a full time custodial sentence is warranted. I have also taken into account that the offender has served one month and 13 days in custody in respect of this offence. I intend to impose a sentence of 2 years imprisonment, however, that sentence is to be served by way of an Intensive Correction Order in the community. I am satisfied, having regard to the progress made by the offender, that the safety of the community is protected in coming to that conclusion. In R v Pullen [2018] NSWCCA 264, Harrison J (with whom Johnson and Schmidt JJ agreed) said at [84]: "In determining whether an ICO should be imposed, s 66(1) makes "community safety" the paramount consideration. The concept of "community safety" as it is used in the Act is broad. As s 66(2) makes plain, community safety is not achieved simply by incarcerating someone. It recognises that in many cases, incarceration may have the opposite effect. It required the Court to consider whether an ICO or a full-time custodial sentence is more likely to address the offender's risk of re-offending. The concept of community safety as it is used in the Act is therefore inextricably linked with considerations of rehabilitation. It is of course best achieved by positive behavioural change and the amendments recognise and give effect to the fact that, in most cases, this is more likely to occur with supervision and access to treatment programs in the community."

Orders

1. I make the following orders: 1. You are convicted of the offence pursuant to s 7(1) of the Firearms Act 1996, that on 19 November 2015 at Homebush West in the State of NSW you did possess a prohibited pistol, namely, a 9mm IMI Baby Eagle pistol, not being authorised to do so by a licence or permit. 2. You are sentenced to a term of imprisonment of 2 years. 3. Pursuant to s 7(1) of the CSPA, the sentence imposed on you is to be served by way of an Intensive Correction Order. The sentence will commence on 28 February 2019 and terminate on 27 February 2021. 4. You must report to Community Corrections at Bankstown as soon as practicable, but no later than 7 days from 28 February 2019. 5. The standard conditions of the order apply, namely: 1. You must not commit any offence, and 2. You must submit to supervision by Community Corrections. 1. The following additional conditions apply: 1. A Community Service work condition requiring the performance of community service work for 100 hours. 2. A non-association condition prohibiting your association with any outlaw motorcycle gang or persons associated with such organisations.
2. If you fail to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or it may include revocation of this order. If the order is revoked, you may be required to serve all of some of the period of your sentence in full time custody.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 March 2019