R v Lynch

[2024] NSWDC 168

District Court of NSW|2024-05-02|Before: Mr P

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At a glance

Source facts

Court

District Court of NSW

Decision date

2024-05-02

Before

Mr P

Source

Original judgment source is linked above.

Judgment (28 paragraphs)

[1]

Solicitors: Director of Public Prosecutions (Crown) Pollack Greening & Hampshire (Offender) File Number(s): 2021/198961

[2]

Overview

On 10 July 2021 there was a serious gun-related incident in South Grafton wherein a man, Adam Pacey ("Mr Pacey") was knocked unconscious after the offender's elbow connected with his head. Very shortly after that, a pistol in the possession of the offender was discharged on two separate occasions, injuring two teenage boys.
As a direct consequence of that event, the offender was arrested and charged with a number of offences.
Ultimately he pleaded guilty to most of those charges but defended the two most serious, and after a 15-day trial before me and a jury at the Grafton District Court commencing on 29 January 2024, the jury acquitted the offender of those two charges, being that he assaulted Mr Pacey (the father of the first boy who was shot, Kayne Pacey) and that he deliberately shot Kayne Pacey with the intention of causing him grievous bodily harm.
Consistent with the jury's verdict, and by reference to the way the case was run before the jury, the jury must have accepted, in relation to the alleged assault of Mr Pacey, his movement in hitting the victim was an involuntary act, being a reflex reaction.
As far as the firearm charge was concerned, it is clear enough that the jury was not satisfied that the Crown had disproved beyond reasonable doubt that the discharge of the firearm was a voluntary act as opposed to being caused by an unknown and unidentified person hitting the offender's hand at a time when the gun was cocked, loaded, and pointed towards the victim thus causing the gun to discharge.

[7]

Agreed facts

The offender was aged 30 at the time of each of these offences.
On 2 July 2020 the offender was served with an FPO dated 24 June 2020. The Order was current at the time of the alleged offending.
In breach of that Order, the offender had possession of multiple guns, gun parts and ammunition prior to his arrest on 26 July 2021.
Most significantly, he had regular possession of a .22 Long Rifle calibre RECK Single Action revolver, serial number 111528, with capacity to hold six .22 Long Rifle calibre bullets. The barrel of the gun had been shortened, with visible tool marks, obscuring the end of the serial number (on the barrel only). This is the pistol the subject of Count 3 (trial indictment) and Count 2 (sentence indictment) ("the pistol").
The pistol had a "light" trigger-pull, being only 1.28 pounds as opposed to the four to six pounds expected as standard; making the gun inherently more dangerous.
The offender would carry the pistol "everywhere with [him]", loaded and concealed on his person, within a black Nike sock. The purpose of the sock was because it was dark and it's easy to hide".
It is unknown from what date the offender came into possession of the pistol, but it was for a lengthy enough period for him to need to replace his sock "holder" multiple times; due to holes caused by the barrel.
The intercepted communications reveal multiple conversations about the offender possessing guns from early into the warrant period. While many references were not as overt, in March he referred to "pulling a gun" on someone in the street, and in May was asked by someone "was I safe when you were pointing a gun at my fucking head?"
In June the offender was contacted a number of times by his ex-girlfriend and co-offender about collecting "things" he had left at her home (where a child lived), which included multiple items in a sock which would explode if burnt; this is accepted to have been ammunition.
The offender has been convicted of dealing drugs during the time period he was in possession of these items.

[8]

Supply firearms

Around 7:30pm on 5 July 2021 the offender initiated contact with an associate, Jake Elmasri.
Elmasri has a criminal record, including for committing offences while armed, and has never held a firearms licence. He had been on parole until approximately 6 months prior.
Elmasri asked the offender if he could get a "silencer" and the offender responded "Nah, but I make em". That was not mere boasting; when arrested on 26 July 2021 in Queensland, the offender had in his room what was confirmed by ballistics analysis to be a homemade silencer.
Elmasri asked the offender to send him a "list of what you can get + what you got now". The offender replied to the effect that he would, but had something else to do first.
The following morning, 6 July 2021 at 6:22 am, Elmasri reminded the offender to send him "the list". The offender replied that he had a "4.10 single" (being a .410 calibre shotgun), a "12 single" (being a 12-gauge shotgun) and "mi 22 6 shot" (being the .22 prohibited pistol the subject of Count 4 and used for Count 3). The conversation then continued as follows: Elmasri Prices (8:47 am) Offender 500 for the first two (9:33 am) Elmasri For both or (9:39 am) Offender Each (9:39 am) Offender Each (10:11 am) Elmasri Yeah keep the 410 got rounds 4 them? (15:26) Elmasri Do they come with rounds and send me pic of both
Following the above, at 9:54:08pm on 6 July the offender took a "selfie" of himself holding a gun with a silencer attached and pointed at the camera.
He then took another photo of himself posing in front of the mirror in his bedroom with the pistol.
The conversation continued in the afternoon and evening of 7 July 2021 as follows: Offender No rounds of 410 (16:53) Elmasri Swear you got pics of them and it pumpt or single load (18:23) Offender Single (18:45) Offender The 410 is out of town the twelve is at my mates (18:50) Elmasri Swear fuck spewing I need a pumpy or revolver or stuff with clips preferably semi-auto but will get the bolt actions with the bigger rounds (18:50)
Over the course of three days the offender offered to supply two shotguns to Elmasri for $500 each and the prohibited pistol for an unknown amount. Elmasri accepted the offer in relation to "the bolt actions" (being both shotguns), but that sale did not ultimately eventuate.
By the time of his arrest, the offender did end up in possession of a "pumpy" as Elmasri required; being a pump-action shotgun which he filmed himself with.

[9]

10 July 2021

On 10 July 2021 the offender's nephew, Jack Rainbow, was socialising with a group of young men, Kayne Pacey, Liam Gordon, Willy Gordon and others at the Pacey residence in South Grafton.
Mr Rainbow was clipped in the back of the head by Willy Gordon. He got very angry and left, threating to get a gun or his uncle (the offender), or both. Nobody seemed to have taken him seriously.
Mr Rainbow ran over the street and jumped the fence to where the offender was residing. He told him what had occurred.
The two came back to outside of the Pacey residence, the offender deliberately bringing with him the loaded pistol, concealed down his pants. This act was deliberate in the sense that the offender always carried it. The offender clearly wanted to fight Willy Gordon and teach him a lesson.
There was an altercation between the offender and Mr Pacey on the footpath which resulted in Mr Pacey being rendered unconscious. The pistol then discharged and Kayne Pacey was shot. After that gun discharged, the offender attempted to flee the scene. These two events were the subject of the trial and the not-guilty verdicts.
Kayne's brother, Zach Pacey, started to follow the offender down a dark pathway toward a park.
Before Zach Pacey could reach the offender, the victim for Count 3, Zach Roberts, grabbed the hockey stick out of Zach Pacey's hands.
Mr Roberts pursued the offender and struck him to the back/side of his head with the hockey stick, although not with great force.
The offender was unhurt but enraged by the act. On his own evidence he thought the victim was a "mother fucker" and wanted to shoot him. He was of course still holding the loaded pistol.
The offender ducked down and turned around, halfway to the ground, pointing the gun down low and deliberately discharged it in a "swinging motion". He did so as Mr Roberts was running away. This is the discharge firearm the subject of Count 3 of the trial indictment.
Immediately afterwards, the offender pointed the gun at Zach Pacey, who was still standing nearby. However, Zach Pacey raised his two hands in submission and told the offender he was just getting his phone. The offender did not shoot again and left through the park.
Mr Roberts did not realise immediately he had been shot but did as soon as he put weight on his leg.
The bullet had gone through his overalls and grazed his left knee, leaving a scar.

[10]

Post-offence conduct

The offender ran to the nearby home of a friend and drug associate where he "got rid of the gun" in the roof gutter of his house.
Cassandra Williams and Holly Vasquez then made arrangements for the offender to be collected from near the scene. Williams contacted her associate, Daniel Gilbert (also known as Gilbo), and arranged for him to transport the offender from a location in South Grafton.
The offender was driven by William McKittrick to his property in Braunstone. That was arranged by Vasquez who accompanied them.
At 4:24 am on 11 July 2021, police executed a search warrant at an address in South Grafton. The offender had been residing at that address which was principally occupied by Virginia Polley. She alerted the offender's co-offenders to the presence of police "surrounding" the property.
On 14 July 2021, the offender travelled to Coffs Harbour from McKittrick's property in Braunstone, with both McKittrick and Vasquez. Vasquez purchased a new mobile phone for the offender, who had deactivated his previous number.
Around 2:00 am on 15 July 2021, the three travelled from Coffs Harbour to a residence in Coomera on the Gold Coast.
Just after midnight on 25 July 2021, the offender filmed two videos of himself, in the garage of that Coomera address, using a pump-action shotgun in a threatening manner, which he sent to someone he believed was dating his girlfriend at the time.
The following day, 26 July 2021, the offender was arrested at that residence. Amongst his possessions was a homemade silencer.
On the same date police executed a search warrant at the residence of Williams (aka Skinner) and the younger brother of the offender, Malachi Lynch (aka Tonkin). In the top right-hand drawer of a dresser in the main bedroom of the residence in Grafton, police located what is accepted to be the same pistol used by the offender on 10 July 2021. The pistol was still loaded with three live rounds of ammunition in the six-cylinder chamber. The offender's DNA profile was one of several later found on the trigger. Malachi Lynch was subsequently charged with and pleaded guilty to possession of that pistol. I sentenced him on 27 March 2024: R v Lynch [2024] NSWDC 92.
The offender was extradited back to NSW on 28 July 2021. He declined to be interviewed after receiving legal advice.
Up until 24 October 2023 the offender maintained what he later accepted to be a false alibi; which was formally communicated to the Crown pre-committal. Along with the communication which provided four other witnesses in support of his alibi (which included the individual who had harboured him following), was attached three handwritten notes. Two were in support of the false alibi and detailed the offender's presence at the BBQ. The third was a handwritten note from Mr Rainbow, claiming he no longer remembered anything about the evening and had been coerced into speaking to the police.

[11]

The alleged assault and shooting of Kayne Pacey the subject of the jury's verdict of Not Guilty

The agreed facts do not cover in any detail what happened when the gun was first discharged on the evening of 10 July following the return by the offender with Mr Rainbow to the premises.
As I have said, it must be accepted that Kayne Pacey was shot by the gun whilst the gun was cocked and loaded and in the hands of the offender with his finger on the trigger.
The jury has found the offender not to be criminally responsible for discharging that pistol with the intention of causing grievous bodily harm. As I have said, I think it is likely the jury was not satisfied that the Crown had proved that the pulling of the trigger by the offender was a voluntary act. It may be (although the case was not run on this basis) that they were not satisfied of an intention to cause grievous bodily harm - although I think this is highly unlikely as there was no issue at all as to that element. Be that as it may, the jury found that the act of the offender pulling the trigger and discharging that gun was something for which he was not criminally responsible. I am not punishing him for shooting Kayne Pacey.
However, it was common ground before the jury and indeed part of the offender's sworn evidence that the offender went to the premises with the intention of fighting Willy Gordon, had brought the gun to the premises (as was his habit, as he always carried the gun) and that after the incident with Mr Pacey (again, something for which the jury held him not to be criminally responsible), he removed the gun from his pants, was pointing it towards various people including Kayne Pacey, had cocked it in circumstances where he knew it was loaded. It then discharged and Kayne Pacey was shot.
It seems to me that those facts, which are entirely consistent with the jury's verdict and as I have said were common ground before the jury, are matters that can and must be taken into account when assessing the objective seriousness of the possession charge. The simple fact is that a direct consequence of the gun being in the possession of the offender on that evening was that, without him being criminally responsible for it discharging, it did discharge and shot a young man causing him serious injury. The offender went to the premises with the intention of having a fight so as to teach someone a lesson and brought with him to that fight a loaded pistol.
Those facts are also very relevant to assessing the context of what happened next, that is, the interaction between the offender and Zach Roberts which is the subject of the discharge firearm in a manner dangerous (Count 3 of the trial indictment). The circumstances of that discharge include, to my mind, most tellingly the objective fact that the same gun had just been discharged in the hands of the offender in circumstances where, whether he knew it or not, he had already shot someone.
It is in that context that he, not unsurprisingly, found himself hit over the head by a hockey stick. He became enraged and formed the view that he wanted to shoot Zach Roberts who he described as a "mother fucker".
Immediately after discharging the firearm, and in fact shooting Zach Roberts, the offender then pointed the same gun at another person who raised his hands in submission and the offender thankfully decided not to shoot him.
It is against those facts and in that context the objective seriousness of the possession and discharging matters relating to the pistol needs to be assessed.

[12]

Objective seriousness

Dealing firstly with Count 4 of the trial indictment and Count 3 of the sentence indictment, that is the possession of the prohibited pistol in contravention of an FPO.
As was discussed between bench and bar during the sentence hearing, insofar as the pistol itself is concerned, there is a large, if not, complete degree of overlap between the two charges. The fact that the possession took place in contravention of an FPO must, to my mind, be a significant aggravating factor to the possess prohibited pistol charge. There is, therefore, a real risk of and care needs to be taken to avoid any double counting in that regard.
However, the possess firearm in contravention of an FPO does not just relate to the possession of that pistol, it relates to the supply of the shotgun, being Count 1 of the sentence indictment and a host of other firearms which are the subject of the agreed facts.
Accordingly, whilst there is almost total overlap between the facts underpinning these two charges in relation to the pistol itself, there is not total overlap because of the many other guns possessed in contravention of that same order.
So far as the objective seriousness of the possession of the pistol is concerned, the following matters are, to my mind, significant: 1. The offender's admitted constant possession on his person of this concealed shortened pistol with it being loaded; 2. That constant possession persisted for a prolonged period of time; 3. It is very significant that the offender was not merely carrying that loaded pistol for protection, or to show off in some way, or as some sort of hobby, but in fact used it in a shooting, that is to inflict actual violence as well as to threaten violence to multiple other people on various occasions. This is a specific aggravating factor under s 21A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"). 4. The offender's intention in possessing the pistol, as well is his use and threatened use of it from time to time, can only be considered both violent, premeditated and as part of his wider criminal activity including selling drugs. 5. It is inevitable that the intent of the offender in his persistent possession of a loaded pistol was to use it for criminal purposes. It was almost certainly something he used in connection with his drug supply activities but also, it would seem, so that he could use it to threaten, and if necessary, shoot people with it. 6. Given his familiarity with the pistol he must have known of its very "light trigger" and the ease with which it could discharge. 7. As I have said, whilst I am not sentencing the offender for deliberately shooting anyone, it is an objective fact that the consequence of his illegal possession of the firearm on the night was the root (if not legal) cause of two young people being shot.
All in all, I consider the possession charge and the contravention of the FPO charge to be in the highest range of objective seriousness.

[16]

History of the various pleas

Each of the offences for which the offender now falls to be sentenced were listed for a trial as a special fixture in the Grafton District Court, commencing on 29 January 2024. Initially the case was to be run on the basis of an alibi the offender eventually conceded was false.
It was not until late 2023 that there was any suggestion of any counts being the subject of guilty pleas; around the time of several readiness and directions hearings and well after a previous trial listing had been vacated. Following the defence case changing to one of self-defence, it was indicated that the possession of the pistol and the breach of the FPO charge would be subject to pleas of guilty.
The already strong Crown case in relation to the two firearms supply charges was strengthened considerably toward the end of 2023, with the service of further material from police. On 19 January 2024 (about a week prior to trial) it was communicated that those charges would also be the subject of pleas.
The defence case changed again to include involuntary act, one and a half business days before the special fixture was due to commence, which caused delays in the trial commencing. On the first day of trial the Crown presented two new indictments; one for sentence and one for trial, upon which the accused, as he then was, was arraigned. He pleaded guilty to the sentence charges but not guilty to the trial charges. A jury was empanelled but sent away until the trial proper was ready to commence.
The defence case changed again when the accused unexpectedly entered a plea of guilty to Count 3 of the trial charges at the close of the Crown case, on Day 10 of the trial. It changed again in respect of Count 1 when the accused gave evidence.
What that all means is that the offender is entitled to a 10% discount in relation to the possess prohibited pistol (trial indictment Count 4) and a 5% discount for Counts 1 and 2 of the sentence indictment (the supply matters) and a 10% discount for the possess firearm in contravention of an FPO.
I should say at this stage however that, not just the timing of the various pleas, the clear strength of the Crown case, but also the obvious chopping and changing of his position by the offender is a very poor starting point for any further leniency in his favour based on some implied contrition or remorse from the pleas themselves.

[21]

Offender's subjective case

The offender rightly calls in aid the principles described in cases like Bugmy v The Queen (2013) 249 CLR 571.
He undoubtedly has had to deal with a deprived upbringing. He is indigenous and his young life was profoundly disrupted by the circumstances he found himself in through no fault of his own. He was also the victim of sexual assault, for a long period of time has been a drug user which, by reference to when he started, I do not think can fairly be said to be his own fault.
Dr Rae records the following as to the offender's history, which I accept: My Lynch was born in Grafton and was one of four children to his mother and father. His father had 22 additional children. He is the oldest child and was living in a small Housing Commission home with his younger three siblings and his mother as his father was in custody for firearms offences. His mother used opiates and was incapable of caring for the children. He would spend his days outside playing with the other children on the housing estate and playing "war games" in the bush. It was here that he was molested by an older man on several occasions. Mr Lynch said that the family was frequently homeless when his mother would get evicted, and they would live on the streets often sleeping in the back seat of cars. He recalls living in a share house in one room which was frequented by drug users. His sisters were sexually assaulted in this house. He was finally placed into foster care at the age of 10 after his younger brother broke into a fire and rescue helicopter when he was seven. My Lynch's schooling was disrupted by his neglectful home life and his frequent moves between family members and foster carers. He attended at least four primary schools before attending Woolgoolga High and completed Year 10. He was housed in numerous very short-term foster placements before living with one-to-one carers for three years. He said he would "go to sleep with one carer and wake up with another one present" as they were on a shift rotation. He was briefly placed into care with his auntie who he described as a "jealous and spiteful lady". It was during this placement that he attempted to hang himself from the ceiling. He was placed with a foster family until the age of 16 and described them as "good people". He was thus able to complete his Year 10. At the age of 16 he moved to Geelong in Victoria to see his mother but discovered that she was dependent on heroin. It was here that he started dealing drugs. At the age of 17 he was evicted by his mother and he returned to Grafton, homeless. He started to commit armed robberies to get food to eat and recalls believing that detention in Juvenile Justice was preferable to living on the streets. Whilst in custody at the age of 16 he reconnected with his uncle, but that relationship soured when he was arrested on his uncle's property. In 2009 he met a woman and was in a stable relationship for about nine years. He worked doing fencing, cutting sugar cane and tree planting for at least four years. The couple had a child who is now 10 years old and lives with his [sic her] mother. He said the relationship ended due to his use of methamphetamines and his infidelity. He was reincarcerated in 2017 in the context of their relationship breakup where he poured petrol into the interior of her car.
He is entitled to leniency as a result of his deprived upbringing for the reasons described in the case law.
That being said, this consideration does point both ways. The fact of his deprived upbringing together with his long period of criminality to date and his lack of contrition and remorse, and his personality traits are telling factors against his prospects of rehabilitation and therefore exacerbate my concerns as to the need to protect the community from the offender.
Moreover, as I have sought to explain, the connection between his deprived upbringing and his antisocial personality disorder is tenuous at best. Nonetheless his personality is not his fault although his failure to try and change his instincts to violence is something he must take responsibility for.
Whilst I accept that his drug addiction is a direct consequence of his deprived upbringing, in circumstances where I think he cannot be morally responsible for his drug addiction, and he does seem to have taken positive steps to try and deal with his drug addiction, the same cannot be said for his personality disorder. Of course, it is not his fault that he has a personality disorder of the type diagnosed but the fact is he has it, it has been diagnosed for a long time and as far as I know, he has taken no steps at all to seek any treatment (if treatment be available) to deal with that problem, the starting point for which would obviously be an acceptance by him that he has a serious issue with which he needs to deal. Whilst there is no need to find causation when considering principles in cases such as Bugmy, the lack of a strong link between his upbringing and the personality disorder is not irrelevant.

[23]

Resolution

As I said at the start of these reasons, the totality of the criminality involved here is extreme. Leaving to one side the supply offences, which I consider to be mid-range, all of the other offences are, to my mind, to be considered as somewhere towards the very highest end of the scale of objective seriousness for these types of offences which carry very significant maximum penalties.
This State and this country has long considered the possession and use of firearms to be abhorrent. General deterrence must loom large. The community needs to understand with clarity that it is just not acceptable for people to possess illegal firearms for any purpose let alone, as is the case here, for criminal activities. More to the point, FPOs cannot be ignored without serious consequences.
The offender is, in my judgment, a dangerous, violent, habitual criminal from whom the community is entitled to be protected. His prospects of changing his ways are low. I do not think specific deterrence has much part to play. His personality includes "an inability to profit from punishment".
There is a large degree of overlap between many of the charges and I need to be cautious not to double-count at any point, which is why I think after having considered indicative sentences for each offence, it is very important that I step back and consider as a matter of totality whether the overall sentence is appropriately proportionate to the overall criminality involved.
As far as the offender's subjective case is concerned, it is to be judged against what I have described as an extremely high-level objective case and it really boils down to nothing more and nothing less than reliance on the principles explained in cases like Bugmy. I have considered the offender's deprived upbringing carefully and have taken it into account to afford him what I think is some leniency. However, as I have said, I am very concerned as to the offenders' low prospects of rehabilitation and therefore his high prospects of re-offending. He is proposing to return to Grafton upon release to live in the same street with a relative who is a known drug dealer. If that continues to be his plan it is inevitable that he will re-offend, at least in relation to drug dealing but also having regard to his history, almost certainly in relation to other crimes involving guns and violence.
I am very mindful that I need to protect the community from the offender who at the present time is, in my judgment, a dangerous criminal. The prospect of him returning to South Grafton and again roaming the streets, armed whilst engaged in crime is chilling.
I have taken into account all of the matters set out in s 3A of the CSPA. The most telling, as I have explained, are general deterrence, low prospects of rehabilitation, protection of the community in light of the offender's high prospects of re-offending, the various aggravating factors I have identified and the need for there to be an acknowledgement by society as to the seriousness of the crimes involved.
I have not lost sight of the offender's counsel's submissions, including that I must temper my judgment with mercy and that I ought try, if I can, to avoid a crushing sentence so as to deprive the offender of any hope of rehabilitation. I have great sympathy for the offender's childhood circumstances which are no fault of his own. I have taken that into account. The Court hopes that with time he does mend his ways and become a useful member of the community.
Taking all those matters into account, I have determined that an appropriate aggregate sentence, which is proportionate to the total criminality that I have before me, of 16 years imprisonment.