R v Peter [2019] ACTSC 22

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - manufacturing a firearm - possessing a prohibited weapon - possessing more than three but less than ten prohibited firearms - possessing firearms - plea of guilty - remorse - assistance to the administration of justice - very good prospects of rehabilitation - good behaviour order

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33, 35, 35A

Crimes (Sentencing Procedure) Act 1999 (NSW) s 22

Firearms Act 1996 (ACT) ss 42, 43, 228

Prohibited Weapons Act 1996 (ACT) s 5

Markarian v The Queen [2005] HCA 25; 228 CLR 357

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80

R v Hill (unreported, Nield AJ, 4 September 2012, SCC 97 of 2010)

R v Hill [2016] ACTSC 310

R v Hughes (unreported, Nield AJ, 8 August 2013, SCC 174 of 2012; SCC 176 of 2012)

R v Mack [2009] NSWCCA 216

R v Massey [2018] ACTSC 221

R v Mitchell [2016] ACTSC 85

R v Okwechime [2015] ACTSC 129

R v Thompson [2017] ACTSC 141

R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103

Xiao v R [2018] NSWCCA 4; 96 NSWLR 1

Zdravkovic v The Queen [2016] ACTCA 53

SCC 285 of 2017; SCC 286 of 2017

1. On 29 November 2018, Jack Bernard Peter (the offender) pleaded guilty to the following offences:

(a) Two offences of manufacturing a firearm contrary to s 228(1) of the Firearms Act 1996 (ACT) (the Firearms Act) (maximum penalty 10 years imprisonment, a fine of 150,000 dollars, or both);

(b) Two offences of possessing a prohibited weapon contrary to s 5 of the Prohibited Weapons Act 1996 (ACT) (maximum penalty 5 years of imprisonment, a fine of 75,000 dollars, or both);

(c) An offence of possessing 3 or more prohibited firearms, but less than 10 prohibited firearms, contrary to s 42(a)(ii) of the Firearms Act (maximum penalty 14 years of imprisonment); and

(d) An offence of possessing 1 or 2 firearms contrary to s 43(1)(a)(iii) of the Firearms Act (maximum penalty 7 years of imprisonment).

2. The agreed facts are set out in the statement of facts which forms part of the Crown tender bundle, Exhibit 1 on sentence. In short summary, on 18 January 2018, members of the Australian Federal Police executed a search warrant at the offender's residence. During a search of the premises a number of firearms, including prohibited firearms, homemade firearms and prohibited weapons were located. During a record of interview, the offender admitted to possessing the items and to manufacturing firearms.

3. The items associated with those counts are as follows:

(a) A homemade device (improvised shotgun)(Count 1 (CC2018/1531));

(b) A homemade device ('airgun') (Count 2 (XO2018/31398));

(c) An extendable baton (Count 3 (CC2018/7214));

(d) A slingshot (Count 4 (XO2018/31400));

(e) The following firearms making up Count 5 (CC2018/1530):

• (i) Two Air Soft Pistols;
• (ii) Two 'Glock' style Air Soft Pistols; and
• (iii) A shortened .22 WMR calibre repeating rifle, and

(f) A .177 calibre air rifle (Count 6 (XO2018/31408)).

4. In relation to objective seriousness, I was addressed on this question by both counsel for the offender and by the prosecution. In relation to those matters individually I was addressed on the basis that they were on the lower end of objective seriousness and, in particular, going to Count 1, that it was of a rudimentary nature; Count 2, similarly, of a rudimentary nature. Those items were exhibited before me as Exhibit 3. In relation to those counts, the prosecution agreed that they were in the lower end of objective seriousness.

5. In relation to Count 5, there were five items and I was addressed in relation to the nature of those items, Air Soft guns, and I was also referred in that regard to the decision of R v Massey [2018] ACTSC 221 (Massey). The most serious item in Count 5 is the modified shortened calibre rifle. Nevertheless, in relation to those items, again, I was addressed in relation to the objective seriousness being at the lower end of the spectrum in relation to matters of this sort, and the prosecution did not cavil with the description of low-range in that regard, and similarly in relation to Count 6, the possession of an air rifle.

6. I was also addressed, in relation to those matters, on the factors to be taken into account in relation to objective seriousness, in particular, the decision of R v Mack [2009] NSWCCA 216. In relation to my assessment of objective seriousness, I agree with the submissions of both the counsel for the offender and prosecution as they are broadly in agreement and accord with my view of the objective seriousness of these particular matters.

7. In evidence before me is the presentence report (PSR) prepared in relation to the offender. The offender was born in Canberra and is one of four children to his parents' union. He reported seeing his father once every two weeks and receiving significant support from his mother throughout his life. The offender has completed Year 10 and is currently employed as a removalist. The offender's employer reported to the author of the PSR that the offender is a significant contributor to the success of his business and that he intended to support the offender to obtain a heavy vehicle licence.

8. The offender commenced the use of alcohol at 16 years of age with friends on weekends and he reported to the author of the PSR that he discontinued his use of alcohol at the age of 17 years. At age 14 he commenced using cannabis with friends on weekends, and at age 20 the offender commenced smoking heroin with friends, but commenced treatment through pharmacotherapy one year later and has not relapsed since engaging in the treatment.

9. The offender acknowledged to the author of the PSR that the offences before the Court are associated with a peer group who are involved in criminal behaviour, but that he discontinued his associations with antisocial peers after his arrival at the Alexander Maconochie Centre. The PSR concludes with the following opinion:

[The offender] appears to receive strong support from his mother and employer. Based on the information provided for this report, he claims to have addressed his use of heroin through pharmacotherapy. However, his reported use of cannabis continues to expose him to the risk of reengaging with antisocial peers.

[The offender] has been assessed as a medium-low risk of reoffending, and it is noted that this could increase should his relationship with his mother or employer become impacted by his ongoing drug use or reoffending.

10. The PSR notes that the offender acknowledged the risk he posed to the community through the commission of the current offences and identified his involvement, as I have indicated, with an antisocial peer group as a contributor.

11. The Crown addressed me on the question of remorse, conceding that the offender has exhibited remorse through the admissions in relation to the matter upon arrest, and in relation to his plea of guilty.

12. There are some impressive references exhibited before me. First of all, from the manager of the removal company that the offender works for, who has indicated that:

While working with [the removal company], we have found [the offender] to be honest, reliable, conscientious and hardworking... a polite and courteous employee and has always been respectful to his fellow work colleagues and clients. [He] has always approached his work with enthusiasm and has been a valued team member since the start of his employment. [He] has continued to show throughout his employment his excellent work ethics and has set himself goals to move ahead within the company. We are very pleased to have [the offender] as part of our team.

13. I also have another reference from an individual who has known the offender before the Court for nine years, indicating that she understands that the offender is facing court and that she knows that he is upset about his actions and is remorseful for what he has done, and indicating that in the time that she has come to know the offender, he has proven himself to her to be an honest and genuine person, and goes on to say that he is the godfather of her daughter, and also goes on to say that she and her partner speak regularly to the offender and want him to get back on track with his life, and that they show their full support to the offender, "and we see how remorseful he is of his actions and want only to better his life for himself." That reference ends with these sentiments:

I believe [he] deserves this chance and if given the opportunity he will take full advantage to better his life and try to fix the issues that his actions may have caused. My partner and I will make sure he has all of our support in this time of need.

14. Finally, the third reference is from a friend who is a chef, who considers the offender to be one of his best friends and indicates that he believes that:

...his experiences in the past 12 months inside and outside of incarceration have changed [him] for the better... since being on the outside he has returned to his job and is working, he has stuck to his curfew every day and has abided by all the rules set out for him. I personally believe his time incarcerated has changed his outlook on life, he does not want to go back to that.

15. As indicated above, they are impressive references and I take them into account on sentencing.

16. The criminal history is predominantly of driving offences. The Crown accepted that there was prior good character on the part of the offender.

17. The offender entered pleas of guilty in the Supreme Court after a criminal case conference. Pursuant to section 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), when deciding how to sentence an offender, I'm required to take into account the plea of guilty by the offender and s 35 provides the matters that must be considered in that regard.

18. This provision may be compared with the less prescriptive terms of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 22 is focused on the utilitarian value of pleas of guilty: see R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo'ua) at [41]-[48]; see also Xiao v R [2018] NSWCCA 4; 96 NSWLR 1 in relation to the utilitarian value of pleas of guilty in Commonwealth matters.

19. Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 noted that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW at [47]. However, the ACT statutory scheme does differ from that of NSW: see Toumo'ua at [50].

20. I take into account the submissions on this question from both the offender's counsel and from the prosecution. I have formed the view that a discount of 15 per cent for the plea of guilty is appropriate.

21. I was addressed in relation to this question by both the prosecution and counsel for the offender, and again, as for the plea of guilty, there was general agreement as to the boundaries of this matter as between counsel. I have formed the view that a discount of 10 per cent pursuant to s 35A of the Sentencing Act is appropriate in this case relating to the admissions made to the police that were immediately made at the scene.

22. The prosecution relied on the cases of R v Hill (unreported, Nield AJ, 4 September 2012, SCC 97 of 2010); R v Hughes (unreported, Nield AJ, 8 August 2013, SCC 174 of 2012; SCC 176 of 2012); R v Okwechime [2015] ACTSC 129 and R v Thompson [2017] ACTSC 141 in relation to comparable cases and range. Counsel for the offender referred me to the decisions of Massey and R v Mitchell [2016] ACTSC 85 (Mitchell).

23. I should also indicate that the Crown submitted in relation to a number of the comparable cases that they involved outlaw motorcycle gangs, which is not a relevant factor in the sentencing of the offender. In that regard it was submitted by the prosecution that the available range was lower than that for those cases that were referred to before me (T 33.25).

Statutory and Other Sentencing Considerations

24. In sentencing the offender, I am required to take into account those matters under s 33 of the Sentencing Act that are known and relevant, and I have referred to the relevant matters above. The Court, of course, sentences in the context of the objects of the Sentencing Act, and s 6 in the sentencing purposes and s 7 of the Sentencing Act, and the sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability and denunciation are important sentencing considerations. Rehabilitation is, of course, also an important consideration having regard to the offender's youth, his prior good character and remorse.

25. The sentencing process requires an examination of s 10 of the Sentencing Act and alternatives to prison, and as has been submitted by the prosecution, careful attention must be paid to the maximum penalty which provides a yardstick (Markarian v The Queen [2005] HCA 25; 228 CLR 357).

26. When sentencing for multiple offences I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence as well as totality: Zdravkovic v The Queen [2016] ACTCA 53. The real question is, of course, whether the total sentence is just and appropriate to reflect the total criminality: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59.

27. I also should refer in this context to what was stated by Murrell CJ in R v Hill [2016] ACTSC 310 at [48]:

Where a person has very good prospects of rehabilitation, by supporting those prospects in the sentence the Court also addresses likely future harm to the community and protection of the community.

28. It was also emphasised in R v Hill [2016] ACTSC 310 that sentencing must always deliver individualised justice. There will be exceptions to the necessity for ongoing full-time custody.

29. In coming to a conclusion, by way of instinctive synthesis, I have taken into account all the matters discussed above including the objective seriousness of the offence, the offender's plea of guilty, his remorse and the very good prospects of rehabilitation for the offender.

30. Finally, I should underline in relation to sentencing considerations, the matters referred to by Refshauge J in the decision of Mitchell. As a result of the Port Arthur Massacre in Tasmania, there was a national reform of gun laws in the Territory and the rest of Australia and his Honour in Mitchell set out underlying principles in relation to firearm possession, and stated at [2]:

It is clear that a most important consideration in the regulation of firearms is safety and their proper storage.

While this context is important for an understanding of the offences created by the Act, and is relevant to sentencing, it is important to recognise that sentencing for offences, even under the Firearms Act, should be conducted with regard to standard sentencing principles.

31. It must be recognised by the Court that firearm offences pose a significant threat to the community and call for general deterrence. As I have indicated, in coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offence and subjective matters.

32. I record convictions in relation to the offences. The sentence for the offences of manufacturing a firearm is a good behaviour order for a period of two years. The sentence for the offences of possessing a prohibited weapon is a good behaviour order for a period of two years. The sentence for the offence of possessing more than 3 but less than 10 prohibited firearms is 217 days of imprisonment, reduced to 163 days on account of the discount for the plea of guilty and assistance the administration of justice under s 35A of the Sentencing Act. The appropriate sentence for the offence of possessing a firearm is a good behaviour order for a period of two years.

33. Overall, therefore, there will be a sentence of 163 days of imprisonment. I will backdate that to 29 August 2018.

34. I make the following orders in relation to the offender Mr Jack Bernard Peter:

(a) I record convictions for all counts;

(b) In respect of the offence of manufacturing a firearm (CC2018/1531), the offender is sentenced to a good behaviour order for two years, commencing 8 February 2019 and concluding 7 February 2021;

(c) In respect of the offence of manufacturing a firearm (XO2018/31398), the offender is sentenced to a good behaviour order for two years, commencing 8 February 2019 and concluding 7 February 2021;

(d) In respect of the offence of possessing a prohibited weapon (CC2018/7214), the offender is sentenced to a good behaviour order for two years, commencing 8 February 2019 and concluding 7 February 2021;

(e) In respect of the offence of possessing a prohibited weapon (XO2018/31400), the offender is sentenced to a good behaviour order for two years, commencing 8 February 2019 and concluding 7 February 2021;

(f) In respect of the offence of possessing 3 or more prohibited firearms, but less than 10 prohibited firearms (CC2018/1530) the offender is sentenced to a term of 163 days of imprisonment, commencing on 29 August 2018 and ending on 8 February 2019;

(g) In respect of the offence of possessing a firearm (XO2018/31408), the offender is sentenced to a good behaviour order for two years, commencing 8 February 2019 and concluding 7 February 2021.

I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson.