R v Okwechime [2015] ACTSC 129

Firearms Act 1996 (ACT) s 42; 249 (1)

Magistrates Court Act 1930 (ACT) s 90B

Prohibited Weapons Act 1996 (ACT) s 5

Thalari v R [2009] NSWLR 307

1. During the execution of a search warrant at premises where you, Mr Okwicheme, were living on 14 April last year, police located a prohibited firearm; namely, a Winchester 1200 Riot 12-guague pump sawn-off shotgun, a firearm, being an air rifle, and four prohibited weapons; namely, a taser, two black extendable batons and a knuckle duster. You were subsequently charged with and pleaded guilty in the Magistrates Court to the following charges:

(a) one offence of possessing a prohibited firearm contrary to S 42 (1) (a) (iii) of the Firearms Act 1996 (ACT), carrying a maximum penalty of 10 years' imprisonment (CC14/8084);

(b) one offence of possessing a firearm without a licence contrary to s 43 (1) (a) (iii) of the Firearms Act 1996 (ACT), carrying a maximum penalty of five years' imprisonment (CC14/8085); and

(c) three offences of possessing a prohibited weapon contrary to s 5 of the Prohibited Weapons Act 1996 (ACT), each carrying a maximum penalty of five years' imprisonment (CC14/0806; CC14/8087; CC14/8088).

2. On 20 February this year, you were committed for sentence to this Court on these charges. In addition, a charge of possessing ammunition for a firearm, being four shotgun rounds contrary to s 249 (1) of the Firearms Act 1996 (ACT) (CC14/11608) was transferred to this court by the Magistrates Court pursuant to s 90B of the Magistrates Court Act 1930 (ACT) as a related offence to the charges which were committed for sentence. The ammunition was also found at your premises during the search on 14 April 2014. The maximum penalty for that offence of possession of ammunition is a fine of $1500.00. The other occupants of the premises where these items were located were your partner and your two-year-old son.

3. On 15 April 2014, you participated in a digital record of interview in which you admitted possession of the firearms, weapons and ammunition. You told police that you kept the shotgun and other weapons for protection against the Rebels motorcycle gang.

4. The proceedings concerning the items located on 14 April last year were commenced by way of summons in the Magistrates Court. Those summons were returnable on 21 October last year. Those proceedings were then adjourned from time to time.

5. On 12 November 2014, police executed a further search warrant at your premises. At that time, your partner and your infant child were also present. During the search the following items were located: one Winchester 12-guage shotgun round found in the lounge room of the residence next to a large black speaker; a small mushroom-shaped tin containing less than one g of cannabis; a clip-seal bag containing 40 g of cannabis; a black crossbow with a pistol grip and trigger found in the lounge room of the residence; a further black crossbow crosspiece with red tape on two sections in the middle of the piece found on a shelf in the garage of the residence; a black Barnett Trident short crossbow with pistol grip and trigger found in a tool kit in the garage of the residence; and one small .22 calibre gold live round found in a blue gun cleaning kit in the garage.

6. You were arrested on 12 November 2014 and charged with two offences of possessing a prohibited weapon contrary to s 5 of the Prohibited Weapons Act 1996, being the black crossbow and the Barnett Trident crossbow respectively (CC14.11082; CC14/11083). You entered pleas of guilty to those charges in the Magistrates Court and you were committed to this Court for sentence on 20 February this year. At the same time, one charge of possession of ammunition (CC14/11084) and one charge of possession of cannabis (CC14/11085) were transferred to this Court as related matters.

7. You have an extensive criminal history commencing in 2002 and including offences of burglary, possession of drugs for supply, assault occasioning actual bodily harm and possession of illicit drugs or other substances. You are also heavily recorded for possession of firearms and other weapons offences.

8. In 2004, you were convicted of an offence of possession of a knife in a public place without a reasonable excuse. In 2009, you were convicted of a similar offence and also an offence of possessing a prohibited weapon, being a form of tear gas or red pepper spray. You were sentenced to a suspended term of three months' imprisonment. On 18 February 2013, you were convicted of two offences of possession of a prohibited weapon, being a 28-centimetre dagger and a 15-centimetre knife respectively. You were sentenced to terms of imprisonment to be served by way of a short period of full-time imprisonment followed by a term of periodic detention with the remainder of the sentence suspended. A Good Behaviour Order was also imposed for a period of two years.

9. I also note that you are previously recorded for breaching court orders and that the offences presently before me also breach good behaviour orders imposed on 18 February 2013 for similar offences, and for offences of possession of drugs and declared substances.

10. It is an aggravating circumstance attending the commission of the current offences that you were subject to conditional liberty by reason of the suspended sentences and good behaviour orders when you committed the current offences. The charges concerning the offences on 14 April 2014 were also pending before the Magistrates Court when you committed the further offences on 12 November 2014.

11. It is an aggravating circumstance attending the commission of the offence of possession of the Winchester shotgun on 14 April last year that it was loaded with four shotgun rounds. It is also an aggravating circumstance surrounding the firearm and ammunition offences that the items were kept unsecured in a home in which a young child was living.

12. The Crown did not submit that I should find as a circumstance of aggravation that you were in possession of these firearms and other weapons for use in other illegal activity, and I make it clear that I make no such finding.

13. I take into account the contents of the Pre Sentence Report and also the Court Duty Report which speak of your past failure to comply with community based orders and your problematic behaviour in custody. I note that you are 28 years old, so that you no longer have the excuse of extreme youth to explain your ongoing criminal activity.

14. You have longstanding alcohol and other drug dependencies and it appears that you have done little to address these, although I have been told at the sentence hearing that you proposed completing the SMART Recovery program at the Alexander Maconochie Centre during your present incarceration, which is of course to be encouraged.

15. Whilst you are in a longstanding and stable relationship, having continuing family support and the offer of employment as a roofer, I cannot be satisfied that you presently have good prospects for rehabilitation. Your persistent breaches of community based orders, your persistent reoffending, your apparent continued use of illicit drugs and your problematic conduct in custody militate against a finding that you currently have good prospects for rehabilitation.

16. I take into account the letter written by your partner, and I accept that you incarceration has been emotionally difficult for her and also for your son. You, of course, must bear responsibility for that. She speaks of your potential and her belief that you can turn your life around. This Court naturally supports her hopes for your future, but I must observe that to date you have shown few signs of commitment to change. I also take into account the testimonials from your mother and your brother-in-law. I take into account your letter to me in which you profess a desire to change. On behalf of the community and for your own sake, I hope that this is true, but, as I have already observed, to this point you have demonstrated little commitment to change.

17. Through your counsel, you have suggested that you were in possession of these weapons and firearms for the purpose of self-defence, fearing an attack by the Rebels motorcycle gang. Such a proposition unsupported by evidence from you can be given little weight. In any event, such a claim can have little effect in mitigating sentence for this type of offence. As the New South Wales Court of Criminal Appeal noted in the matter of Thalari v R [2009] NSWLR 307:

The rule of law, and the authority of courts, depends upon the proposition that persons do not, by illegal means, take their protection into their own hands.

(Citations omitted)

18. In sentencing you, both general and specific deterrence are relevant considerations. In the past, community based orders, suspended sentences and even short periods of imprisonment have not been effective in deterring you from committing criminal offences. A perusal of your criminal history makes it clear that you have been given many opportunities for rehabilitation, but unfortunately you continue to offend. Whilst rehabilitation is still a relevant sentencing consideration, it must be now given less prominence and other sentencing considerations, such as punishment and deterrence, must be given greater significance.

19. I am satisfied that the just and appropriate sentences for the offences of possessing a prohibited firearm, possessing a firearm without a licence and possessing a prohibited weapon are terms of full-time imprisonment. Nothing less will be adequate to appropriately punish you and to deter you from committing further offences. In sentencing you, I take into account your pleas of guilty and I will reduce by approximately 20 per cent the otherwise appropriate sentence in order to mark your pleas. As many of your offences were committed at the same time, it is appropriate that there be a significant degree of concurrency with respect to many of the sentences which I will impose.

20. I note that I recorded convictions with respect to all offences on 1 May 2015. This places you in breach of the good behaviour orders imposed on 18 February 2013 in the Magistrates Court. It is appropriate to cancel those good behaviour orders and resentence you. Resentencing is complicated by the fact that, as I understand it, you completed a period of full-time imprisonment and also a period of periodic detention with respect to those offences for which you were subjected to good behaviour orders. In my opinion, the most appropriate way to deal with this is to impose sentences akin to those imposed by the Magistrate, but to make all those sentences concurrent. I therefore cancel the good behaviour orders imposed on 18 February 2013 and I will resentence you on those offences.

21. With respect to the offences of which you were convicted in the Magistrates Court and on which I am resentencing you (CC12/8898; CC12/8899; CC12/8897; CC12/8896; CC12/8895; CC12/8894; and CC12/8892), you will be sentenced to one month imprisonment commencing on 12 November 2014 and expiring on 11 December 2014.

22. With respect to the further offences of which you were convicted in the Magistrates Court and on which I am resentencing you (CC12/8891; CC12/8890; CC12/8889), you will be sentenced to four months' imprisonment commencing 12 November 2014 and expiring 11 March 2015.

23. With respect to the charge of possessing a prohibited firearm (CC14/8084), you will be sentenced to 16 months' imprisonment, which I have reduced from 20 months in order to reflect your plea of guilty, commencing on 12 March 2015 and expiring on 11 July 2016.

24. With respect to the charge of possessing a firearm without a licence (CC14/8085), you are sentenced to eight months' imprisonment, which I have reduced from 10 months, commencing on 12 March 2016 and expiring on 11 November 2016.

25. With respect to the first charge of possessing a prohibited weapon (CC14/8086), you will be sentenced to eight months' imprisonment commencing on 12 April 2016 and expiring on 11 December 2016.

26. With respect to the second charge of possessing a prohibited weapon (CC14/8087), you are sentenced to eight months' imprisonment commencing on 12 May 2016 and expiring on 11 January 2017.

27. With respect to the third charge of possessing a prohibited weapon (CC14/8088), you are sentenced to eight months' imprisonment commencing on 12 June 2016 and expiring on 11 February 2017.

28. With respect to the first charge of possessing ammunition (CC14/11608), there will be a Good Behaviour Order for a period of six months, commencing immediately.

29. With respect to the fourth charge of possessing a prohibited weapon (CC14/11802), you are sentenced to 12 months' imprisonment, which I have reduced from 15 months to mark your plea of guilty, commencing on 12 September 2016 and expiring on 11 September 2017.

30. With respect to the fifth charge of possessing a prohibited weapon (CC14/11083), you are sentenced to 12 months' imprisonment commencing on 12 November 2016 and expiring on 11 November 2017.

31. With respect to the second charge of possessing ammunition (CC14/11084), there will be a Good Behaviour Order for a period of six months, commencing immediately.

32. With respect to the charge of possessing a prohibited substance (CC14/11085) there will be a Good Behaviour Order for one month.

33. The effect of the sentences that I have imposed is that you are liable to serve an aggregate term of imprisonment of three years commencing on 12 November 2014 and expiring on 11 November 2017. I have set a non-parole period of 22 months commencing on 12 November 2014 and expiring on 11 September 2016.

I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.