R v Johnson [2019] ACTSC 117

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence -firearms offences - unauthorised possession of firearms and ammunition - drug offences - trafficable quantity of cannabis - Intensive Corrections Order - deemed not suitable - term of imprisonment

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33

Firearms Act 1996 (ACT) ss 42(a)(iii), 43(1)(a)(iii), 180(1)(a)(i), 249(1)

R v Johnson [2018] ACTSC 137

SCC 96 of 2018; SCC 97 of 2018; SCC 104 of 2018; SCC 105 of 2018

1. On 26 November 2018 the offender entered a plea of guilty to the following three charges in an indictment dated 23 May 2018:

(a) Unauthorised possession of a prohibited firearm contrary to s 42(a)(iii) of the Firearms Act 1996 (ACT) (Firearms Act). The maximum penalty is 10 years' imprisonment. The offence took place on 14 November 2017.

(b) Unauthorised possession of a firearm contrary to s 43(1)(a)(iii) of the Firearms Act. The maximum penalty is 5 years' imprisonment. The offence took place on 15 November 2017.

(c) Trafficking in a trafficable quantity of cannabis, contrary to s 603(5) of the Criminal Code 2002 (ACT). The maximum penalty is 10 years' imprisonment, a fine of $150,000, or both. The offence occurred on 15 November 2017.

2. There are also five additional related charges which have been transferred from the Magistrates Court. Only three of those charges proceeded. Those offences and their maximum penalties are as follows:

(a) Two charges of failing to comply with storage requirements (CC2018/757; CC2018/760), contrary to s 180(1)(a)(i) of the Firearms Act, with a maximum penalty of 2 years' imprisonment; and

(b) One charge of possessing ammunition generally (CC758/2018), contrary to s 249(1) of the Firearms Act, with a maximum penalty of a fine of $1,500.

3. The Crown noted that the balance of the transfer charges (CC761/2018 and CC776/2018) are no longer relevant and accordingly, I will dismiss these charges.

4. I heard submissions on sentencing on 7 May 2019 but adjourned the imposition of the sentences until today. This was because, as seen from Exhibit 1, the offender punched a wall on 22 April 2019. The reason for him doing so is unclear but he did manage to at least fracture one of his fingers and there is perhaps additional injury. His need for further medical review, and possible treatment, led me to delay final sentencing for two days.

5. The details of the offences can be found in the Statement of Facts included in Exhibit A. By way of summary, on 14 November 2017, police were called to an address in Lyons where three males, including the offender, were present. The offender had a blue bag. Police searched the bag and found a modified rifle. The gun was loaded.

6. Early the following morning the police, pursuant to a warrant, searched the offender's premises. They found a rifle bolt, a rifle and some ammunition. They also found three bags of cannabis. The weight of the cannabis was 520.8 grams. This exceeds the trafficable quantity of 300 grams.

7. The offender was not licensed to possess any of the firearms that the police located.

8. At the time of the offences the offender was on bail in respect of a charge of aggravated robbery.

9. The offender pleaded guilty on 26 November 2018. By this time the matter had been set down for trial but nevertheless the plea has considerable utilitarian value. I think it generates a discount of about 15 per cent.

10. The offender has been in custody in respect of the current offences for five days. Accordingly the starting date for his sentences will be 4 May 2019.

11. The offender was born in 1997. He was exposed to alcohol abuse and a lack of contact with his mother, who separated from his father when he was an infant. The offender remained with his father who re-married. He has no contact with either of his biological parents. He does however have a close relationship with his stepmother.

12. The offender left school during Year 12. He held casual employment as a plumber but his criminal activity brought this to an end in July 2017.

13. Alcohol has not been a problem for the offender but drugs have been. He has tried, and used, a selection of illegal substances. He told the Pre-Sentence Report authors that he stopped using methamphetamine in mid-2017, after a detox program. He however continued to use cannabis. The authors assessed him as having a high risk of re-offending although they note that he understands the seriousness of the offences.

14. Further details of the offender's personal history can be found in the sentencing remarks of Mossop J on 7 May 2018 (R v Johnson [2018] ACTSC 137).

15. Despite his youth the offender has a criminal record which includes offences relating to firearms, and violence.

16. I do not know why the offender possessed the firearms. I have no doubt that he had no good reason for doing so and that they formed a part of his illegal activities. Firearms have the capacity to maim and to kill and any offence involving their unlawful possession is objectively serious. The possession of ammunition suggests an intent, or at least a preparedness, to use the firearms if necessary.

17. In addition, general deterrence is important. Potential criminals must be aware that obtaining and possessing firearms will be treated appropriately by the courts.

18. The objective seriousness of the trafficking charge is a little difficult to ascertain because it is not known where in the hierarchy of supply the offender sat. Nevertheless the offence must be of more than minor objective seriousness because of the dangers of the illicit supply of drugs and in particular the potential of those drugs to harm other persons.

19. Sentencing requires consideration of the objects and principles of sentencing as set out in ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). Section 33 is also relevant as is s 10. The latter section says a person should not be sent to prison except as a last resort.

20. At the request of the parties I referred the offender for an Intensive Correction Order (ICO) assessment on 1 February 2019. The report is dated 6 May 2019 and is somewhat revealing. His compliance has been unsatisfactory. For example in 2019 he failed to attend 12 appointments despite being directed to do so. This fact alone renders an ICO an inappropriate option. The report itself says that the offender is not suitable for an ICO.

21. An ICO in this case was the only viable alternative to full-time imprisonment. Now that it has been excluded, full-time imprisonment must follow. A suspended sentence will suffer from the same impediments as an ICO. Plainly the offender is unlikely to obey the conditions of any good behaviour order that is attached to a suspended sentence.

22. I note at this point that the offender has seven months outstanding on the two ICO's that have been imposed on him. There seems to be some uncertainty about the effect my sentences will have on these ICO's. However, the ICO assessment indicates his breaches of the conditions of the ICO's and states that he has been referred to the Sentence Administration Board to be dealt with in this regard on 14 May 2019.

23. If any difficulty arises from the sentences that I will impose, the parties have leave to relist the matter before me.

24. Another important element that must be taken into account is to ensure parity with the sentence imposed on Mr Cooper-Lyon where the offences match those of this offender. I intend to apply the same sentences where applicable.

25. The final consideration for me to take into account is to apply the principles of totality, although there must be a degree of accumulation in the sentences to recognise that they are separate and serious individual charges.

26. The discount described above has been applied to the sentences I will now impose.

(a) For the offence of unauthorised possession of a prohibited firearm (CC2018/12546), the offender is sentenced to nine months' imprisonment commencing on 4 May 2019 and ending on 3 February 2020.

(b) For the offence of unauthorised possession of a firearm (CC2018/759), the offender is sentenced to nine months' imprisonment commencing on 4 August 2019 and ending on 3 May 2020.

(c) For the offence of traffic in a trafficable quantity of cannabis (CC2018/3414), the offender is sentenced to 12 months' imprisonment commencing on 4 November 2019 and ending on 3 November 2020.

(d) For the first transfer charge of failing to comply with storage requirements (CC2018/757), the offender is sentenced to three months' imprisonment commencing on 4 May 2019 and ending on 3 August 2019.

(e) For the second transfer charge of possessing ammunition (CC2018/758), the offender is sentenced to a fine of $75 with no time to pay.

(f) For the third transfer charge of failing to comply with storage requirements (CC2018/760), the offender is sentenced to three months' imprisonment commencing on 4 May 2019 and ending on 3 August 2019.

(g) The total period of imprisonment is 18 months' imprisonment commencing on 4 May 2019 and ending on 3 November 2020.

(h) I set a non-parole period of 10 months, starting on 4 May 2019 and ending on 3 March 2020.

(i) The transfer charges of possessing ammunition generally (CC761/2018 and possession a prohibited substance (CC776/2018) are dismissed.

I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.