R v Lott

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

REMARKS ON SENTENCE 1 HIS HONOUR: On 16 February, the offender, Warwick John Lott, was arraigned on an indictment containing five counts. The most serious of the offences contained in those allegations was one that he had, between January 2000 and September 2001, knowingly taken part in the supply of a quantity of methylamphetamine that was not less than the large commercial quantity for that drug. The applicant pleaded not guilty to that matter on arraignment and was ultimately put to his trial before a jury. He was acquitted of that offence. 2 He had, however, on his arraignment before the jury, pleaded guilty to the other four counts on the indictment, and he now comes to be sentenced in respect of those matters. 3 The first count for which the applicant has to be sentenced is one that on 24 September 2001, at Wallsend, he possessed a firearm, namely a single-barrel shotgun without being authorised to do so by licence or permit. That is an offence that carries a maximum penalty of imprisonment for 5 years. It is a matter that could be dealt with by a magistrate under Table 2 of the Schedule to the Criminal Procedure Act. If it had been dealt with in the Local Court, the magistrate's jurisdiction would have been limited to a sentence of imprisonment for 2 years. 4 The third count on the indictment and the second matter for which the offender is to be sentenced is that on the same day, that is, 24 September 2001, at Wallsend, he possessed ammunition being a quantity of shotgun cartridges and 9 millimetre pistol bullets without being the holder of a licence or permit for a firearm which takes that ammunition, or authorised to possess it by a permit. That is an offence that carries a maximum penalty of 50 penalty units, that is, $5,500. It is also a matter that could be dealt with in the Local Court. 5 The fourth count in the indictment and the third matter for which the offender is to be sentenced is that on 24 September 2001 at Wallsend he did possess a prohibited weapon, namely, a set of handcuffs without being authorised to do so by a permit. That is an offence for which the maximum penalty prescribed is 14 years imprisonment and one that could have been dealt with in the Local Court. 6 The last matter on the indictment and the fourth matter for which he is to be sentenced is that on 24 September 2001 at Wallsend, he possessed a prohibited weapon, namely a silencer, without being authorised to do so by a permit. That is also an offence that carries a maximum penalty of 14 years imprisonment. 7 The offences arose from the search by police of the offender's premises on 24 September 2001. As I understand it, police were led to believe that the offender then had in his possession a large amount of amphetamine allegedly being stored by him on behalf of two acquaintances of his, a man named Walsh and his wife, Melinda Love. I think it is not unfair to say that the offender was a very small fish in a very large pond with some very significant sharks also present in the water. There is little doubt that the only reason the offender came under police notice was because of his association with Walsh and Love and because of information that Love had given to police about his involvement or alleged involvement in their business of supplying amphetamine. 8 No such large amount of drug was actually located by police, but what was found was a small quantity of cannabis and the weapons, firearms and ammunition that are the subject of these charges. The offender had, in fact, told the police before they searched his bedroom, that they were likely to find the objects and in particular, the firearm and the ammunition, in the cupboard. The offender was asked to give some explanation for these items, in particular, the ammunition, and he said that he had been in possession of it for some 12 months. He said he had no intentions in respect of it and did not volunteer the provenance of that ammunition to police. 9 In respect of the silencer, the offender told police that it was from his father's .22 rifle. In respect of the handcuffs, the offender said they had been there for about 10 years and that they were used by a female with whom he, at one stage, had a sexual relationship. 10 The facts of this matter are contained in an outline of submissions made by the Crown. I have been asked to assume that they are the agreed facts for the purpose of sentencing the offender and that there is no other material in the prosecution brief that is relevant to the task before me. The only other materials handed up to me were some photographs of the items located by police and a ballistics report in relation to the silencer. It discloses that the weapon found and the silencer were non-compatible. 11 The offender has given evidence before me. That evidence generally is in accordance with what he told a probation officer who prepared a pre-sentence report, and is really not in dispute. The offender had some history or involvement with firearms, at least earlier in his life, with his father who was involved in shooting. His father had, in April 1998, voluntarily handed to police during an amnesty period, a Winchester .22 calibre rifle and approximately 250 rounds of ammunition. The offender confirmed that he was aware of his father's actions in that regard. 12 In relation to the shotgun, the offender told the probation officer, and has confirmed in evidence before me, that he obtained the weapon from a work mate who asked the offender to take it and the ammunition because he was to move into his mother's home. Apparently he did not think it was appropriate for him to have it in his possession. In those circumstances, it apparently never occurred to the offender that in some way, it was inappropriate, if not illegal, for him to have it in his possession. 13 The offender gave uncontested evidence before me that he had not fired the shotgun. The weapon was not loaded when discovered by police, however, the matter is somewhat aggravated because the shotgun was not in a safe and secure place, but rather, was found outside its case just in a wardrobe in his bedroom in close proximity to ammunition which could have been fired in the weapon. That, as I have indicated, is a matter which aggravates the seriousness of his possession of the weapon notwithstanding that there is no suggestion that he had intended to use it. 14 As I pointed out to his counsel, and as his counsel readily accepted, the concern arising from some a factual situation is that, despite a person's best intentions in relation to the weapon, an occasion can arise when the offender is driven to use the firearm in a situation which leads very often to ultimate tragedy not only for the victim, but the offender as well. 15 It is, as was pointed out in the case of R v Cromarty [2004] NSWCCA 54, part of the legislation intent to disarm all persons in the community, not simply those who have criminal intentions. Otherwise law-abiding citizens who have a firearm in their possession without being authorised to do so, and particularly where the firearms is unsecured and easily obtained by either the person or a criminal who happens to be aware of its existence, pose an unacceptable risk to the community in general. 16 Part of the ammunition that he had was in reference to the shotgun, but another substantial part of it was not of his concern in the fact that he had no plans to use it or ability to use it. He was holding it in his possession at the request of Mr Walsh, or at least, Melinda Love, simply to assist them in having their large cache of weapons and ammunition distributed in places where the police were unlikely to find it. 17 The matter which, on its face, raises most concern is the possession of the silencer. Anyone in the community who would be in possession of such a weapon can have no possible lawful excuse for it and it raises a serious implication, or at least, a question about the person's intention in having such an item. 18 I am satisfied in this case, and it is not really in dispute by the Crown, that his possession of this weapon had nothing to do with any criminal intent, but rather was to assist his father by relieving him of the possession of it after it had been located at some time subsequent to the father having rid himself of the weapon to which it could be affixed. 19 The possession of handcuffs is also a matter which will raise concerns because obviously, again, there is little legitimate reason for any person to have in his or her possession handcuffs, and they clearly give rise to a grave suspicion that their use is to be for some seriously illegal purpose. Again however, I am satisfied, and there is no real dispute about the matter, that that was not the case with the offender and it was simply left over of the past relationship to which it was used for no unlawful purpose. 20 The offender has no prior criminal record. More than that there is no suggestion that apart from his involvement with these weapons and the small amount of cannabis that was located, that he is, generally speaking, a person of bad character or a person who is not other than an upstanding, law abiding, model citizen in the community. He has worked for the greater part of his life, he now being aged 37 years, ultimately ending up in the mines, but as is unfortunately the case with many other people who have made that their profession or occupation, he was retrenched when the mines closed. 21 He has been left with the legacy however, of an injury to a shoulder and to his right hand which have limited the opportunities for him to find other work. The shoulder injury has resulted in a very recent payment or award of compensation to him and he is pursuing compensation in relation to the hand injury. The offender really has no matter which would cause the Court concern about him. There is nothing in his present situation which needs to be addressed by the Probation and Parole Service. He has a close relationship with his mother and father, who, there is nothing to suggest are not as he is, well respected members of the community. 22 He has simply allowed himself to become involved with some drugs at the stage at which he was arrested, although it is clear now that part of his life has also passed him by and he has foolishly, I think more than criminally, come into the possession of these weapons and ammunition. 23 In forceful submissions placed before me by Mr Marr on behalf of the offender, it has been stressed that these are matters which could have been dealt with in the Local Court, and I have little doubt that had it not been for the first count on the indictment, nobody would have required any of these matters to be dealt with in the District Court. They come to be dealt with in the Supreme Court. Again, simply as a matter of chance or mischance because of the charge being involved with a large number of persons who have been charged with very serious criminal activities much of it more serious than that with which Mr Lott was involved. 24 Statistical information has been placed before me as to the way firearms offences are dealt with in the Local Court. The Chief Judge of the Common Law Division of this Court has recently expressed his surprise and dissatisfaction with the way courts in general and particularly, the Local Courts, have been dealing with offences such as those before me. 25 There is a growing view in this Court, either in single justices of this Court, myself included, or in the Court of Criminal Appeal, that courts of this State are not being sufficiently concerned to reflect in the sentence imposed the obvious legislative intention that firearms offences generally are to be treated as serious criminal conduct, and that the Courts must play their part in the attempts made by Parliament to disarm the community and therefore, to try in some way to limit the ever increasing use of firearms and firearm related objects in serious criminal activity. 26 Matters that were at one time almost unheard of are now unfortunately, frequently reported in newspapers, of members of the community shooting one another in situations where it is difficult to understand how anybody could think that it was necessary to use force of any sort, let alone force by way of the use of a discharge of a firearm. 27 The Courts are required to have regard to the maximum penalties imposed in relation to these offences, and magistrates must understand that the 2 year limit that they have upon their jurisdiction, although as I understand is to be increased, is only a limit on their jurisdiction and is not to be viewed as a replacement for the maximum penalty for an offence if it is dealt with on indictment. 28 For example, weapons offences carry a maximum penalty of 14 years whether they are dealt with in the District Court, the Supreme Court or the Local Court. And it has been stated on a number of occasions, perhaps most relevantly in a case of R v Shankley [2003] NSWCCA 253 that the Court's first regard in relation to sentencing persons for any offence, let alone a firearm offence, is to have regard to the maximum penalty prescribed by Parliament because that reflects Parliament and therefore, the general community's attitude to the seriousness of the criminal conduct engaged in by the offender. 29 Although the weapons matters carry the greater maximum penalty and are therefore generally to be considered as the more serious offences, they are not so in the present case. Obviously the most serious offence from an objective practical point of view in relation to the facts of this particular matter, is the firearm offence particularly in the circumstances in which it was in the offender's possession and particularly, because ammunition which could be used in that weapon was so close at hand to it. 30 I am satisfied that these matters could have been dealt with in the Local Court and would have been dealt with in the Local Court as a matter of routine had it not been for the serious indictable offence with which the offender was charged. I am also satisfied that had the offender appeared in these matters in the Local Court, he would not receive a full-time custodial sentence. I am probably satisfied that he would have received a sentence less than the one that I am about to impose upon him, because as I have indicated already in these remarks, the range of sentences imposed by magistrates for these offences is inadequate and I do not intend to be bound by them. 31 However, the particular instances of these offences are not, in any way, in the most serious category. The silencer and handcuffs are really, in the scheme of things and in light of the provisions of the relevant Act, minor matters. The firearms matter is one which would, in my view, justify a prison sentence, although by reason of the particular facts in this matter and having regard to the offender's personal circumstances, would permit some alternative to be considered if one is available. 32 In this case, I think that I may have determined that the offender should serve a substantial amount of community service, probably the maximum available, in respect of the firearm offence and probably dealt with some of the other matters by fines or by bonds. However, unfortunately, that alternative is not available to me because of the offender's medical condition in relation to his shoulder and his hand. However, the law is that these are alternatives that are to be used only if available. The Court does not strive to find some sentence that the offender can perform, and go increasingly down the scale until one is achieved or found. 33 The simple fact is that before community service or periodic detention should be considered, the Court has to come to a view that they are alternatives to full-time custody. In this case as I have indicated, principally because of the seriousness of the offence of having the firearm in possession of the circumstances in which the offender had this firearm, and because of the overwhelming need for general deterrence in relation to this type of activity, that a custodial sentence was required in respect of that offence.

However, the Crown has conceded that in this particular case, a custodial sentence is not required in the terms that the offender must immediately serve a term of imprisonment. The Crown has conceded that a suspended sentence would be appropriate in this case if the Court came to a view that an appropriate sentence to meet the needs of punishment, denunciation and deterrence could be suspended. 34 As I indicated in R v Zamagias [2002] NSWCCA 17, one does not seek to find a sentence that can be dealt with other than by full-time custody simply in order to make such an order, but the Court is required to consider what is the appropriate term of imprisonment be imposed before looking at what alternatives are available. 35 The offender has asked me to take into account the offence on the form 1 which is the possession of cannabis. That matter is to be taken into account in relation to the silencer, that being at least on its face, the most serious offence and one carrying the most significant maximum penalty. In some way, one doubts the effectiveness or the usefulness of a suspended sentence. 36 Such a sentence is generally, but not exclusively, appropriate where it can be hoped to assist the offender in achieving rehabilitation or in assisting him in avoiding the criminal conduct for which he was being sentenced. In the present case, there is, as I have already expressed it, no requirement at all to impose a deterrent sentence so far as Mr Lott has to be deterred from any future criminal conduct. I think it highly unlikely in the extreme. Nor is a sentence required which will assist him by conditions such as supervision or some sort of regime to overcome some particular personal difficulty which has led to offending. In this case, there isn't any. 37 But as I have indicated in Zamagias, it has been stressed in the High Court, a suspended sentence can be an appropriate sentence notwithstanding that there is no need for the Court to attend to the rehabilitation of the offender before the Court. 38 In this case, the offender is also entitled to a discount by reason of the pleas of guilty in this matter. It is an unusual case because the pleas came shortly before the trial of the offender, however, there is little doubt that had he been advised to do so by his legal representative, he would have pleaded guilty to these matters in the Local Court and there is little doubt that had he done so, they would still be sitting in the Local Court waiting to be sentenced once the more serious matter was determined in this Court. 39 In those circumstances, it seems to me that the offender is entitled to a generous discount by reason of the pleas which would be taken as being given although not at the first reasonable opportunity, at a time when they were effective in being useful to the Court. The situation is that practically speaking, the Court has not been troubled in dealing with these matters either in the Local Court or the Supreme Court by failure of the offender to plead guilty to them at an earlier stage in the proceedings. In my view, a 20 per cent discount is appropriate. 40 In respect of the second count in the indictment (possession of firearm), the offender is sentenced to imprisonment for 15 months. That sentence, however, is suspended under section 12 of the Act on condition that the offender enter into a bond to be of good behaviour for the period of the suspended sentence. In respect of the third count in the indictment (possession of ammunition), the offender is fined a sum of $1,500. The fine is to be paid within 28 days from today. In respect of the fourth count in the indictment (possession of handcuffs) the charge is dismissed under s 10 of the Act. In respect of the fifth count in the indictment (possession of silencer) and taking into account the offence on the form 1 the offender is to enter into a good behaviour bond for a period of 12 months. The firearms, the weapons and the ammunition are to be forfeited to the Crown for destruction. **********

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