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[2025] NSWDC 169
General information, not legal advice.
District Court of NSW
2025-03-19
Haesler SC DCJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v Van Huisstede [2025] NSWDC 169
Hearing dates: 19 March 2025
Date of orders: 19 March 2025
Decision date: 19 March 2025
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision: Sentence –
Aggregate sentence of imprisonment of 5 years with a non-parole period of 2 years 10 months
Severity appeal –
Appeal is dismissed – Confirm all orders of the court below
Catchwords: CRIME — Appeals — Firearms offences — Appeal against sentence — Sentence appeal dismissed
CRIME — Domestic violence — Stalking or intimidation
CRIME — Property offences — Break, enter and steal — Take and drive a conveyance
CRIME — Firearms offences — Possess unregistered / unauthorised firearm in a public place — Possess loaded firearm in a public place
SENTENCING — Aggravating factors — Record of previous convictions
SENTENCING — Guidelines for sentencing — Role of guidelines
SENTENCING — Mitigating factors — Plea of guilty
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — Moral culpability — Multiple offences — Totality — Objective seriousness
SENTENCING — Subjective considerations on sentence — Identifies as Indigenous — Drug addiction — Mental health — Childhood trauma — Childhood sexual assault
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Firearms Act 1996 (NSW)
Cases Cited: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41
Mack v R [2009] NSWCCA 216
Mapp v R [2010] NSWCCA 269
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Ponfield v R (1999) 48 NSWLR 327; [1999] NSWCCA 435
R v AZ (2011) 205 A Crim R 222
R v Geddes (1936) 36 SR (NSW) 554
R v Herring (1956) 73 WN (NSW) 203
R v Krstic [2005] NSWCCA 391
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Windle [2012] NSWCCA 222
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
Texts Cited: W Wan, S Poynton and D Weatherburn, “Does Parole Supervision Reduce the Risk of Re-offending?” (2016) 49 Australian & New Zealand Journal of Criminology 497
Category: Sentence
Parties: Adam Lawrence Van Huisstede (the offender)
Public Prosecutions (NSW) (Crown)
Representation: Solicitors:
H Dreher solicitor for Aboriginal Legal Service (NSW/ACT) (for the offender)
K Mackinnon solicitor for Public Prosecutions (NSW) (Crown)
File Number(s): 2023/434968; 2024/122264; 2024/125294
When sentencing, a judge is required to identify all of the factors that are relevant to the sentence. A judge should discuss their significance and ultimately make a value judgment about the appropriate individual sentences and the appropriate aggregate sentence, given all of the factors before the Court: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51] (McHugh J).
Today I am asked to deal with sentencing for a number of serious offences and a severity appeal against the penalty imposed by a magistrate for serious offences. Ultimately, the penalty to be imposed must appropriately reflect what was done in relation to all the matters presently before the Court.
Dealing first with the severity appeal, Exhibit A. On 1 December 2023, police investigating a totally unrelated matter had cause to speak to a number of men who were in a vehicle in the Cooranbong area, which I understand is west of Lake Macquarie. Their suspicions were raised. They returned to the vehicle to speak to the occupants.
They noticed a homemade “bong.” They may have let it pass, but they also saw a shotgun shell. They asked the occupants to leave the vehicle. At that point Adam Van Huisstede reached into the vehicle’s tray, took something and ran. The police chased after him, but he was able to get away. They called for a police dog unit to come to the location. While waiting they searched the vehicle and found; a blue handled fillet knife, a red handled fillet knife, a black handled steak knife, a brown handed folding pocketknife, a black handled folding pocketknife, a black slingshot, two shot gun shells, other ammunition and a magazine for a .223 rifle.
When the police dog and handler arrived on the scene it did not take long to locate Van Huisstede hiding in a property nearby. When he was arrested, he told the police the dog bit him. He was searched. Police found a spent 12 gauge shotgun shell, a black handled flick knife, an ice pipe, and, near where he had been hiding, they found a 12 gauge shotgun. It had a shortened barrel and stock. It had a round in the breach and another three in the pump action magazine. When asked about these matters the appellant told police, “Mate I go hunting a lot”. When asked if he held a licence he said, “No I don’t”.
The appellant was given Local Court bail that day. He failed to appear on the first return date, 19 December 2023. A magistrate convicted him in his absence and issued a warrant for his arrest.
There are convictions for seven matters relating to; possessing ammunition (a fine only matter for which a fine was imposed), possessing a loaded firearm, not keep firearms safely, custody of knife, possession of the slingshot, possession of the flick knife and possession of the unauthorised firearm being the same firearm the subject of the loaded firearm charge.
The magistrate obviously took into account the offender’s criminal antecedents and the fact there had been a significant gap in those antecedents. He made a finding of special circumstances and having indicated sentences for each matter, taking into account a plea of guilty, imposed an aggregate sentence of 2 years with a non-parole period of 12 months.
Having reviewed the matter and reviewed it in the light of the subjective material and evidence given today, I would not, exercising my own independent discretion have imposed any lesser sentence for reasons fundamental to breaches of the Firearms Act 1996 (NSW).
The Firearms Act makes clear any possession of a firearm is a privilege. The nature of the weapon is important. It was modified and while I am aware such weapons can sometimes be used for hunting, it should not be possessed in any circumstances. It was loaded. The other matters were also serious. It is no excuse to say, “I go hunting”.
Turning now to the matters for sentence. Van Huisstede adhered today to guilty pleas entered in the Local Court to a number of matters. They are:
Possess a loaded firearm in a public place; s 93G(1) Crimes Act 1900 (NSW), maximum penalty 10 years imprisonment.
Use or possess a defaced firearm: Firearms Act, s 66(1)(b). The defacing involved the removal of its registration number.
Possess unregistered unauthorised prohibited firearm; s 93(1)(ii) Crimes Act, maximum penalty 14 years imprisonment.
Break and enter a house and steal; s 112(1)(a) Crimes Act, maximum penalty 14 years imprisonment.
Take and drive a conveyance without the consent of the owner; s 154A(1)(a) Crimes Act, maximum penalty 5 years imprisonment.
Intimidate a person intending them to fear physical or emotional harm; s 13(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW). Its maximum penalty if dealt with in this Court is 5 years imprisonment. Such matters are mostly dealt with in the Local Court. This matter would have only come to this Court because it is connected with the other matters. In the Local Court the penalty is 2 years imprisonment.
That he admitted his guilt and accepted responsibility in the Local Court requires that I reduce the otherwise appropriate sentence to be indicated for each matter by 25% and I will do so. I also have to take care, because I have to accumulate various sentences, that the benefits of those reductions are not eroded by the process of accumulation. The plea has other values including support for evidence he gave on oath today about his remorse and determination not to reoffend as he has done on these occasions.
There are four matters on Form 1s that must be taken into account in relation to the two firearms possessed. While I do not sentence for those matters, they can lead to an increase in sentence.
However, as the ammunition matters were fine only matters – no custodial sentence should be increased because of it. Further, the not keep firearm safely offence would not lead to an increase in the penalty for the matter to which it relates; because it was intrinsic to the matter in which the firearms were possessed that they were not being kept safely. And that fact formed part of my assessment of the seriousness of the matters for sentence. I will be very careful not to double count such matters.
There are Agreed Facts before the Court. I will try and give a short summary.
After his arrest and bail on 1 December 2023 the offender, as best I can gather on the evidence before me, tried to keep a low profile. He would have been acutely aware police were looking for him. It would appear from his evidence, which I accept because it goes against his interest, that in December 2023 and while he was on the run, he was suffering from a number of mental conditions which were interrelated with his use and abuse of the drug methylamphetamine. I note he was found with an ice pipe on 1 December 2023. He also had a magazine and ammunition for a 0.223 rifle, but that rifle was not recovered.
He was on the run, he was desperate and had been using drugs. Drug use does not and cannot mitigate and offence. He said in the letter to me that in February 2024, “I was scared, paranoid, desperate, delusional, and abusing drugs and alcohol”: Exhibit 2. Those facts made him objectively a more dangerous person than someone who was sober and not so affected or scared.
In that state he broke into a home in the Blue Mountains. The premises were unoccupied at the time and in his state he, I am sure, did not appreciate the risk that he was taking. But he did take a risk.
The premises were only unoccupied temporarily. A man in his 70s had left that morning to go to church. He returned about 12.30pm, unlocked his gate and drove down his driveway. He saw the offender looking into the engine compartment of another vehicle he owned.
He got out of his car, a Honda, and said, “What are you doing?”. The offender was blunt with him, “I’m in trouble with the police and I need to get away. This car … I can’t start”. He then told the owner he would shoot him, threatening him with what appeared to be a piece of pipe. He asked him to throw his mobile phone away. The owner refused.
Concerned for his safety, the owner offered to help the offender get away. This calmed the offender down. The offender told him he thought the place was vacant. He then placed some of the victim’s tools in the backseat of the car. The victim said, “I need these for work”. He also noticed some bags that had been inside his home.
At this point the offender became agitated. He ran across to the Honda with one of the bags and drove that car, that is the car that had been used to go to church, off the property. The victim still had the Honda’s electronic key on him. As soon as the car drove off, he called Triple 0.
Inspection of the home showed it had been entered. The offender had left his backpack and a cap inside. Shipping containers on the property had also been opened and entered. A walk through of the property indicated that tools, knives, a bottle of milk and some bags had been taken. Of considerably more importance than those easily replaceable items medallions and military memorabilia and coins from a valuable coin collection had also been taken.
These matters involve significant breaches of the Firearms Act. That Act makes it clear that firearm possession is a privilege; a privilege conditional on the overriding need to ensure public safety. There was no justification here for the possession of the firearms. None were licensed or registered. Their possession posed a potential risk to the safety of the community. One was a well-known type of hunting rifle, the other an unauthorised prohibited firearm in parts, which, while it could not when reassembled, be fired, was a weapon that no one could have any justification for possessing.
The Firearms Act is meant to deter the possession of firearms per se: R v Krstic [2005] NSWCCA 391 at [14]; R v AZ (2011) 205 A Crim R 222 at [73]. None of them were kept securely: Mack v R [2009] NSWCCA 216 at [40].
The rifle was loaded, it had obviously been in his possession for some time. I deduce that fact from the items seized in December that match a 0.223.
The objective seriousness of each of the matters was very high. It is obvious that these offences were committed without regard for public safety. But as Ms Dreher, the offender’s solicitor, reminds me, I should focus on the facts and what can be deduced from the facts when assessing objective serious, not then go and add an extra factor that is also set out in 21A(2) C**rimes (Sentencing Procedure) Act 1999 (NSW). Recourse to those circumstances of aggravation is a trap that I will seek to avoid by not double counting such matters.
While each matter requires an appropriate sentence, I note that the “loaded firearm”, and “the defaced firearm,” were in fact the same firearm. Although different aspects of the possession of that item are punished by s 93G(1) and s 66(1)(b), elements in common should not be double counted
It requires no imagination to appreciate that someone coming home from church to a relatively isolated property, which has been their home and place of safety for many years, would be alarmed and distressed at finding someone at your home, who had entered it and your sheds. It would have been confronting for the victim, both literally and figuratively.
In Ponfield v R (1999) 48 NSWLR 327; [1999] NSWCCA 435 the Court of Criminal Appeal, while declining to specify a sentencing range for matters such as this, did provide some guidance which must be considered: Crimes (Sentencing Procedure) Act, s42A; Mapp v R [2010] NSWCCA 269. I must also consider the purposes of sentencing in s 3A and what is set out in s 21A Crimes (Sentencing Procedure) Act.
I have to consider the particular facts of this case. It involved a high degree of criminality. The loss is important, so too is the interference with the property. They would cause not only distress to the individual, but leave that person, the owner of the property, with a sense of violation and unease.
His loss does not just involve the monetary value of the items taken. That loss, had it been restricted to the milk and the screwdrivers, would not have been significant. But here items of considerable historic, but more importantly family and personal sentimental value, were taken. They were irreplaceable and it is unlikely they will ever be recovered.
The community has a rightful expectation that judges will act responsibly and impose meaningful penalties when someone who breaks into a home is apprehended. Those penalties are meant to deter others from doing what was done.
Here there were two offences related to the entry into the home and other aspects of the property. There was also the intimidation of the owner. That intimidation had its intended effect. That he responded maturely and sought to placate the offender is to his credit. He acted responsibly and did what he could to allow the offender, without confrontation, to leave his property but he did so while under threat.
His vehicle was used. That vehicle was used to take the property stolen from the house. It was damaged and ultimately when recovered was valueless. A car is, if you are not lucky enough to own a home, one of the most valuable things anyone can possess. Loss of a car causes considerable cost and inconvenience. No one should presume cars are insured. In this case it was not.
I have received and had read to me a Victim Impact Statement from the owner of the car and the property. It sets out what one would expect from a person who was confronted as he was.
He was over 70. He was home alone. He was faced with a person, by his own admission, was abusing, scared, paranoid and desperate. He handled himself with maturity and aplomb. That does not mean it did not have an impact on him, and that impact is set out in the report attached to the Victim Impact Statement.
He says when he leaves home, he is fearful of what he will find when he returns. He has lost the quiet enjoyment of a property he had loved for many years. He was understandably emotional when he spoke of the loss of his mother’s World War 2 medals. While he accepts, he received no physical injury it does not mean, as the reports and the attached medical report makes clear, that he does not have, and continues to have, symptoms persisting. They now appear to be escalating. They involve intrusive thoughts about the incident, irritability, difficulty in concentration and sleeping. Those matters will, and should, be taken into account.
The offender has a criminal record. He is not entitled to the leniency often shown first offenders. But importantly there is a significant gap in that record. The earliest entry is from 2005, when he says he was young and foolish; he was given the benefit of a suspended sentence. He responded positively and was able to work and be a productive member of the community for some time.
It would appear however, that his life took a downturn a couple of years before the commission of these offences. I can however take into account, that in 2005 he demonstrated a capacity to learn from experience.
Van Huisstede gave evidence today. He also wrote a letter which he read to the Court and to his victim. He accepted responsibility for what he had done, noting that the offence (and I am presuming he is referring to the break and enter, intimidation and take and drive vehicle) were completely “out of character”. He told me he had worked hard all his life and supports his children. They have moved further and further away from him. He told me he turned to drugs to numb the pain of childhood trauma and mental health issues.
He says that since being in custody he has engaged with Narcotics Anonymous and is now being treated with appropriate medication. That treatment has helped. He looks forward to a future and getting his life back on track. He says, “I accept all responsibility for my actions and any punishment handed down”.
He asks for such leniency as I could provide to him.
I accept that Van Huisstede is now remorseful and now has some insight into his own behaviour and the impact of his behaviour on his victim. He acknowledges that this comes too late and that he should have had those thoughts well before the commission of these offences.
I also have the assistance of a comprehensive report from a psychologist, Ms Edwige, dated 16 February 2025. It is a detailed report. She sets out his background and his personal history which I will have carefully considered.
He presently seeks to identify as Aboriginal. Although he was only aware of that heritage in his 30s, and it appears to be at least contested so far as his mother is concerned. From the tattoos I was able to see, he identifies with that heritage. It may, if he follows up, as Ms Edwige says, give him some support. But there is also a degree of, she notes, confusion in his own mind and feeling of grief and loss over a culture that he could have been part of. But he looks forward to being part of his culture in his future.
She notes his mother appeared to be distant and focused on her career, although both she and his father were able to provide for him. He says they did a pretty good job despite the fact his dad was a heavy drinker.
He notes an incident of abuse in primary school, and another disturbing matter where his siblings were subject to abuse; a matter for which he was blamed and bullied. He fell into some poor relationships and, in his early 20s, drug use.
He did however appear to have put that past behind him. He was able to engage in productive work in the mining and other industries. He has a number of TAFE qualifications and professional trade tickets. He is presently on the Buvidal program. He engages with Narcotics Anonymous, and he is taking drugs to deal with depression.
Ms Edwige, at p 11, analyses that history. She says that Van Huisstede, “Is a 43-year-old man who presents with developmental disadvantage and complex developmental trauma”. She notes that “history … has … impacted on his ability to self-regulate”. She says he had and has “significant depressive symptomology” and “presents with a polysubstance use disorder” presently apparently in “remission”. She refers to a number of self-harm attempts when he first went into custody. She postulates that there was a history of emotional neglect as a child, and unreported matters of sexual abuse when he was a young child.
There are multiple matters for sentence. They must be partially accumulated on the appeal sentence. I have to impose an appropriate sentence for each matter and structure the sentences so that the overall time in custody is just an appropriate to his crimes. That sentence also includes an appropriate measure where he can, if he earns his release, be subject to supervision in the community on parole. Studies have shown that people who are subject to monitoring and supervision are less likely to reoffend: W Wan, S Poynton and D Weatherburn, “Does Parole Supervision Reduce the Risk of Re-offending?” (2016) 49 Australian & New Zealand Journal of Criminology 497.
The matters here for sentence were discrete crimes. So far as the incident in the Blue Mountains are concerned, all were part of the same incident and interrelated one with the other. While there must be some punishment for those individual crimes, I have to take care not to simply add one on top of the other. There must be considerable overlap given that it was one single event with different aspects: Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41.
The other offences involving firearms were separate and distinct, but as between them they too involved considerable overlap. For example, two offences related to the same rifle. While there must be independent penalty for each, there should be considerable concurrence between those matters, as the items were possessed at the same time and in the same circumstances.
I referred to the period on parole. It is clear that in the past the offender has demonstrated a capacity to lead a law-abiding life. I will give him the opportunity to prove himself in the community by a finding of special circumstances. As Madam Crown said in her submissions, I have to be guarded given the history of the matter before me and the period of time prior to the commission of these offences when he was not living a moral or proper life, focusing on drugs and not himself or his family.
Van Huisstede has a solid plan for the future. Ms Edwige sets out in her report, a treatment plan both in custody and on release. A copy of her report will go with the warrant.
It is in his, but more importantly the community’s, interest that he; continues with his drug and alcohol programs, that he gets psychological assistance, that he pursue cultural healing and that he get as much help as he can in adjusting to normal community life on release. That, plus the need to in part accumulate this sentence on the appeal matter, justifies a finding of special circumstances. But, as he appreciates, he must be punished and the minimum time in custody must properly reflect those purposes of sentencing which require a person to be removed from the community: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].
These remarks have been assisted by the comprehensive written submissions provided by Ms Dreher and Ms Mackinnon for the Director of Public Prosecutions. I thank them for it.
I have to take into account all material factors, some aggravate, some mitigate. There are no golden rules: R v Geddes (1936) 36 SR (NSW) 554 at [555]-[556]; Markarian at [65]. On the one hand, deterrence of others for matters as serious as this is important, but as I have indicated that principle had to be reduced because of the personal circumstances and history of the offender. Ultimately, sentences are about protection of the community and if having served the minimum time necessary and having got support on parole, the offender is able to turn his life around the community will benefit.
Also important is the vindication of the victim of the break and enter and related crimes and the need to reflect the community’s displeasure at crimes of this nature. Courts also have to send a very clear message to others as they should learn the lesson, I am sure on the material before me and the evidence before me, and Mr Van Huisstede has learned that, if they offend as he did they will be punished and punished severely: R v Herring (1956) 73 WN (NSW) 203 at [205]; Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222.
I have to indicate individual sentences for each matter. Those sentences reflect the 25% utilitarian reduction.
The appeal is dismissed. I confirm all of the orders of the Court below.
Indicted sentences:
In relation to the break and enter matter – there will be an indicated sentence of 2 years and 7 months.
In relation the take and drive matter – there will be an indicated sentence of 1 year and 10 months.
In relation to the intimidate matter – there will be an indicated sentence of 9 months imprisonment.
For the possess unregistered firearm, which also has a Form 1, there will be an indicated sentence 1 year and 6 months.
Possess unregistered unauthorised firearm, which also has a Form 1 – there will be an indicted sentence of 1 year and 10 months.
For the possess loaded firearm in public place – there will be an indicated sentence of 2 years and 1 month.
The aggregate sentence will have a non-parole period of 2 years and 10 months. It will commence on 4 October 2024, that is 6 months after he went into custody for the appeal matter. He will be eligible for consideration of release to parole be 3 August 2027. There will be a parole period of 2 years and 2 months, reflecting a finding of special circumstances including accumulation. That will commence on 4 August 2027 and expire on 3 October 2029.
Release to parole is not automatic, Van Huisstede will have to earn parole. The State Parole Authority will not release him unless community’s safety considerations can be met by the conditions of parole. The total effective sentence is 5 years and 6 months taking into account your time in custody, the minimum being 2 years and 4 months.
For abundant caution I will make a firearm destruction order in relation to all of the matters.
**********
R
Van Huisstede [2025] NSWDC 169
(2013) 249 CLR 571
(2005) 228 CLR 357
(1999) 48 NSWLR 327
(2001) 206 CLR 267
As it was being driven away, the Honda collided with a gate. It was ultimately recovered mid-north coast of New South Wales. It was not in a good condition. Police searched it and found some gold coins and other items taken from the premises. They also found an SD card which implicated the offender in the taking of that car.
It was not until 4 April 2024 that police apprehended Van Huisstede. He was stopped driving a car in Brogo, in southern New South Wales. When spoken to he said, “Just take me into custody now”. He confirmed his name was Adam Van Huisstede.
He told the police that there was a rifle stored in a tent packed on the roof of his vehicle. There Police found a 0.223 Lithgow rifle with a defaced serial number. In the firearm was a magazine containing five rounds. A search of the vehicle found; something they describe as a “firearm with interchangeable barrels”, shotgun shells, 40 rounds of 0.223 calibre rifle ammunition, a balaclava and firearm parts which were able to be reassembled. I can only assume that is the firearm with the interchangeable barrels.
There are photographs of those items attached to the Agreed Facts. I am sentencing on the basis that there were two firearms, one was in parts with interchangeable barrels and the other was the Lithgow rifle.
By any measure, each of the matters for sentence today involved serious crimes. And so much was conceded by Ms Dreher, who appears for the offender, and was accepted by Van Huisstede when he gave evidence. It is accepted that a custodial sentence of some length must be indicated for each offence, as an aggregate sentence will be imposed.
I am prepared to accept that there were aspects to his background that illustrate these matters. But it is always difficult when reviewing a self-reported history to assess to how much weight one should give to these matters. He has a criminal history that commonly results from such matters. And I must give weight to the professional opinion of a respected psychologist. There are matters in his background that must be taken into account on sentence, and they do operate to reduce his moral culpability.
His victim spoke of the “morality” of what he did. He is clearly capable, when not drug affected, of making rational and moral decisions. But as the plurality of the High Court acknowledged in B**ugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571, the pervasive effect of matters such as childhood deprivation, childhood trauma and mental health issues can persevere for a person’s life. They may inhibit the development of prosocial values and the acquisition of a moral compass.
They often, too often, result in taking and reliance upon illicit drugs and all together impact on a person’s capacity to make behavioural decisions or consequential thinking. They can compromise a person’s “capacity to mature and learn from experience” (as the Court said at par [43]). But it is also clear that this offender does have the capacity to mature and learn from experience.
His background means that I can moderate the sentences imposed, and I will. It means that while the principle of general deterrence is of considerable importance in relation to each of the matters before me, it can be moderated to some extent but not completely.