SENTENCING - firearm supply - shotgun and bolt action rifle - intermediary - breach of firearms prohibition order - Form1 matters taken into account.
Source
Original judgment source is linked above.
Catchwords
SENTENCING - firearm supply - shotgun and bolt action rifle - intermediary - breach of firearms prohibition order - Form1 matters taken into account.
Judgment (4 paragraphs)
[1]
Solicitors:
Legal Aid NSW (for the offender)
Ms T Lasschuit (for Director of Public Prosecutions)
File Number(s): 2019/00079464
[2]
SENTENCE - EX TEMPORE REVISED
Scott Ponfield was born in 1988. Since 2011 he has been imprisoned on a regular basis. The amount of time he has spent in the community can be measured in months, sometimes days. He was released from custody on the expiry of a sentence on 9 September 2018. By January 2019, he was engaged in the commission of the serious crimes, which now put him before the Court.
Ponfield has a background that few in the community could understand or comprehend. From a very early age he has suffered trauma. He was exposed to crime and chronic drug abuse. With all due respect to his family, some of whom are here today, many members of his immediate family are well known to the Courts. It is sad but tragic that evidence of childhood deprivation is be provided not just by the report that is before the Court but also by reference to an leading Court of Criminal Appeal authority: In the matter of the Attorney General's application (No1); R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435; (1999) 48 NSWLR 327. R v Ponfield involved his uncle with whom he shared a house for a period when he was young.
In October 2017 because of his background and record he was subject to a firearms prohibition order. The effect of that order was reinforced in November 2017. In October 2018, less than a month after he was released from custody, a police controlled operation was put in place. One of the targets of that operation was Ponfield.
On 10 January 2019, an undercover operative (UCO) made contact with Ponfield and a discussion was had about whether a shotgun could be provided. Ponfield said that he had firearms available and that one mate had numerous Glock pistols while another had access to revolvers. He told UCO he was subject to the firearms prohibition order but he would do what he could to assist.
Some arrangements were made by the offender. They involved other person, who was given the initials "D" in the agreed facts. I do not know whether he is a co‑offender or not - I do not know anything about him. As a result of Ponfield's arrangements "D" met with the UCO. "D" told the UCO that the firearm was in the back seat wrapped in bubble wrap. The undercover operative obtained that firearm and handed "D" $3,000.
The firearm was seized by police. It was a Winchester 1200, 12 gauge pump action shot gun. It was test fired. It was in working order. It had a magazine with a capacity to hold four 12 gauge shotgun cartridges. The firearm was a prohibited weapon under cl 4 of schedule 1 of the Firearms Act 1996.
On 22 January 2019 the UCO spoke to the offender again. A meeting was arranged. Arrangements were made for the UCO to reverse his vehicle into a driveway at an address in Fairy Meadow. During the course of the transaction that morning the offender handed the UCO a firearm in exchange for $1,000 in cash. There was also a discussion about the availability of 9 millimetre pistols at $1,000 each. The UCO was told the supplier was only willing to sell them in bulk.
The firearm provided was identified as .303 British calibre Lithgow SMLE Mark iii repeating bolt action rifle. The bolt was missing, but the rifle itself was capable of propelling a charge of shot by means of an explosive, a term which generally most in the community would mean to be a bullet.
There was a further arrangement between the UCO and the offender with regard to the potential sale of three Glock style pistols and two rifles for a total sum of $12,000. The agreed facts set out the arrangements that were made and how another person together with the offender met the UCO. By a subterfuge that person was able to obtain the $12,000, but in return gave the UCO a bag in which was later found not the promised firearms, but a grey baseball bat.
The offender was approached by police on 12 March 2019 for riding a bicycle without a helmet. He failed to stop and had to be chased and was apprehended. It required four police officers to actually restrain him given his thrashing his arms and body about. He has been in custody since his arrest.
There are a number of offences before the Court. Two are for sentence. The first relates to the Winchester 12 gauge pump action shot gun, supply prohibited firearm to unauthorised person: s 51(1A)(a) Firearms Act 1996. It carries a maximum penalty of 20 years imprisonment and for an offence which, taking into account only objective factors falls in the middle of the range, Parliament has said that there should be a standard non‑parole period of 10 years.
The other offence relates to the Lithgow repeating bolt action rifle. It carries a maximum penalty of five years imprisonment: s 51(1A) Firearms Act 1996.
On a Form 1 are four matters. Two are possession of the two firearms contrary to the firearm prohibition order placed on the offender. Another resist police and the third relates to the proposed supply of the rifles and Glock pistols. With the exception of the proposed offer to supply, the possess prohibited firearm contrary to a prohibition order offence is a matter that I have already taken into account as aggravating the circumstance of the offence for sentence. Where such an order is made it is expected to be respected and it makes what are serious offences even more serious. It would be double counting to further take those matters into account just because they are separate crimes on a Form 1.
There is also the resist matter. Police are entitled to be respected and have their orders respected. I can well understand that Ponfield knew that on the day of arrest he was going back into custody and did not want to do so. His resistance was useless but it put the police at risk of being injured, a matter I must and do take into account. The police are entitled to be respected doing their job, even by people who, to date at least, have all the appearance of being a career criminal.
The offer to supply is an appropriately one to put on a Form 1 in that, there is no evidence before me other than the statement by the offender to the undercover operative if he ever really was in a position to supply Glock style pistols and the two rifles.
The agreed facts in relation to the sham transaction have all the hallmarks of what is commonly known as a "rip off," which was ultimately successful. He is not to be punished for his role helping himself to the State's $12,000.
Returning to the principal matters for sentence. Anyone who chooses to involve themselves in the supply of firearms, let alone prohibited firearms, must understand and expect that a significant penalty will be imposed upon them. Ponfield facilitated each of the supplies. It is clear from the presence of the person known as "D" that Ponfield was assisting or facilitating that supply as some sort of broker. That to a very modest degree may mitigate the objective seriousness of the offence. Actions by an intermediary may make someone somewhat less culpable, but not markedly so: R v Mohammad [2005] NSWCCA 204 at [17].
Similar principles apply to those who engage in the distribution chain for illicit drugs. It is well recognised in drug and firearms supply matters that anyone who engages as part of the criminal process in the distribution of firearms in the community can be expected to be punished. They cannot avoid retribution by saying, "well I only played a minor role." Without people such as Ponfield who are prepared to take a risk in order to obtain a reward this firearms distribution will not and could not have occurred.
It is of very limited relevance that the firearms were not actually sold into the community but seized immediately by police. Ponfield, as far as he was concerned, was supplying firearms obtained from criminals to criminals, with the expectation that they would be used in the community for criminal purposes. The authorities by seizing the firearms prevented the harm that could be inflicted by them. Those firearms were able to be removed from the community. Ponfield can take no credit for that. Morally, he was not to know this fact and he was just as culpable as if they had of been distributed to other criminals.
The Courts however must, when sentencing, take into account the potential harm of the crime committed. That the police were able to stop that harm is a matter that can be taken into account in a modest way: "It is illogical not to afford that fact appropriate weight. Just as in the converse situation one would take into account any damage that was the consequence of the offending:" R v DW [2012] NSWCCA 66 at [117].
There are two matters for sentencing today. There is no general rule that determines whether the sentences ought to be imposed concurrently or consecutively. Here one sentence could not comprehend or reflect the criminality of the other, but they each formed part of a series of transactions with common factors. There should be some partial concurrence to reflect that fact and the notion that the sentence should be an appropriate reflection of the total criminality of what was done.
The report of Ms Sears reflects the tragic background of the offender, to which I have already referred. When still a very young child, he was exposed to assaults, exposed to violence in a number of forms, exposed to drug use, exposed to those in his family who were engaged in serious crime. Ponfield was exposed to people who sold drugs.
He has in recent times reconnected with his mother, who is here to support him. He currently has a positive relationship with her. He has been in a relationship for a short period of time which seems to coincide with him not being in gaol as a young adult. He has two children. One of them is here today.
Mention is made in Ms Sear's report of Ponfield hanging out with the "wrong crowd." Well, he has never had the opportunity to hang out with the right crowd, except perhaps for his partner and then for only a very short period of time. He has been subject to juvenile detention. He had regular contact as a child with community services but has received little formal education and training. Has took up the use and abuse of illicit drugs when very young, He has rarely been unaffected by drugs since his teenage years.
Ponfield's brief attempts at drug rehabilitation have not been successful. He has had a number of self‑harm experiences. His drug use has meant that unsurprisingly he has found himself in debt to criminals. He says that he committed these offences in an attempt to wipe out some of his debt. That can and never could have provide an excuse for involvement in the trade in firearms in the community.
The material in Ms Sears Report is not controversial but it is tragic. It reveals Ponfield had as child little experience of warmth or nurturing by adults. He has learnt as a child, and more lately in gaol, to be hypervigilant to threats. His internal moral working model or moral compass has been blueprinted from a very young age to experience the world as a violent and unsafe place where adults, and even friends, will prove to be untrustworthy. He has a diagnosis of characteristics similar to individuals who have suffered complex trauma. He has little ability to function in the normal community.
The only positives that can be gleaned from all the material before me is that as he matures and as he spends time in custody he may realise that he has lost contact with his family and his child. He may eventually realise that if he continues down the way he is going he will spend the rest of his life in custody.
Ponfield has expressed the desire to engage in opioid treatment, perhaps even with depot medication. He accepts that unless he can engage in long-term drug rehabilitation his prospects are grim. And if his prospects are grim it will mean on release he will commit further offences against the community:; and no‑one wants that to happen.
If Ponfield is to mature and lead a normal life, and he has never led a normal community life, an opportunity should be given to him to engage in programs, both in custody and in the community, which might give him some lessons in how to lead a normal community life. I will give him that opportunity, but he will have to earn it. If he does not stop offending in custody he will not get parole, if he does not get parole he will get out without supervision and end up committing further offences and will go back to gaol. That is the future, Mr Ponfield.
As his counsel Mr Fraser, pointed out some rehabilitation programs are not available to residents of the Illawarra. I would urge the State Parole Authority to provide Ponfield with programs directed at changing his attitude to life and his attitude to offending and the underlying and resilient problems that lead to him using drugs as a first not a last resort.
I take guidance from the maximum penalty and the standard non-parole period, but these are not matters where some direct comparison or contrasting of offences is required. There are reasons for moderation of penalty because of the plea of guilty and Ponfield's background. The material before me is evidence of profound deprivation, meaning that despite his continuous offending his moral culpability is less than those who formative years have not been marred as his were. It appears he has little ability to control the impulse to offend. He is still young but if he continues this way, this lack of control will make him more and more dangerous and mean that he has to be removed from the community for longer and longer periods. It would appear that the longer he spends in custody the greater the risk is that he will lose any prospects of leading a law-abiding life in the community.
He committed other offences after his release in September of 2018 and has served or is serving those sentences. I will commence this sentence from 12 May 2019 to reflect that need for independent punishment for them.
The finding of special circumstances I make is to give him an opportunity to participate in programs, hopefully rehabilitation programs, and have a staged release after he serves the minimum time that the purposes of sentencing require.
I also take into account his role.
The evidence does not enable me to find anything other than that he was being used by the UCO to obtain weapons from someone further up the line. There is no evidence in the short time he was out in the community he could have himself amassed the arsenal, which he offered to provide and the weapons that he did provide. He was being used by both the undercover operative and the supplier. By using the word "used" I do not mean exploited, he was more than happy, for his own greed and to pay the debts he owed, to participate in the process. Unfortunately from a very young age he was taught to know no better.
I will take into account his early plea of guilty and reduce each sentence by 25% for the utilitarian value of those guilty pleas.
No mention in these proceedings has been made of remorse. I do not believe Mr Ponfield has it in him at the moment to feel any remorse or regret. At most he is sorry for himself and for the consequences he suffers, mainly his separation from family. He is not to be punished for that. The Court recognises that his background of conflict and the complex trauma associated with it leave him ill-equipped to feel such emotions.
I am not optimistic but the finding of special circumstances is not based on optimism. All effort must be made to assist Ponfield to learn what it is to live a normal community life. Community protection demands that every effort be made to equip Ponfield for life in the community. If he does not learn some important lessons we will all suffer.
[3]
Orders
For the first matter supply prohibited firearm I indicate a sentence, taking into account the matters on the Form 1, of three years and four months imprisonment with a non-parole period of one year and ten months' imprisonment.
For the supply of the Lithgow firearm I indicate a sentence of one year and ten months' imprisonment.
There will be an aggregate sentence in this matter of three years and nine months' imprisonment. There will be a non-parole period of two years and three months. The sentence will commence on 12 May 2019, eligible for parole on 1 August 2021. I say eligible for parole, it will be up to the State Parole Authority whether to release him or not. There will be a balance of term of one year and six months reflecting a finding of special circumstances. The sentence will expire on 11 February 2023.
I make a Firearm destruction orders.
I make a pecuniary penalty order for the $1,000 that was provided by the UCO to the offender. That order is not by consent as Mr Fraser argued that for Ponfield to be released with a debt would mean that he'd find it even harder to cope in the community. I make the order because the agreed material before me is that the debt he was seeking to pay off to his criminal associates has now been, as far as he is concerned, waived and the $1,000 must, indeed, be part of the benefit that he received.
[4]
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Decision last updated: 16 April 2020