[2016] ACTSC 232

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - Particular Offences - offences against the person - demands accompanied by threats - firearms licences - unauthorised possession or use of a firearm - good prospects for rehabilitation - pleas of guilty - sentenced to terms of imprisonment fully suspended - Good Behaviour Orders - community service condition.

Crimes Act 1900 (ACT), s 32

Firearms Act 1996 (ACT), s 43

SCC 151 of 2015; SCC 152 of 2015 (Jarron Walker); SCC 201 of 2015 (Joshua Walker)

1. Mr Jarron Walker and Mr Joshua Walker, each of you have pleaded guilty to one offence of making a demand accompanied by a threat contrary to s 32 of the Crimes Act 1900 (ACT) which is punishable by 10 years imprisonment and one offence of unauthorised possession of a firearm contrary to s 43 of the Firearms Act 1996 (ACT) which is an offence punishable by five years imprisonment.

2. An Agreed Statement of Facts has been tendered in the course of these proceedings. I will not now recite those facts, but. it is sufficient to say that each of you attended at the scene of the offence expecting conflict, bringing with you a loaded rifle. That behaviour is quite outrageous, particularly when you are looking at a public street in the Australian Capital Territory. There was a degree of planning involved, although I think the Crown is right in accepting the proposition that there was no significant planning or premeditation. It was a plan which was put together at the last minute to meet a particular circumstance which arose.

3. I accept that there was some degree of provocation in the circumstances which led up to the commission of these offences, at least in a general sense. I accept that your nephew, Mr Jarron Walker, and your cousin, Mr Joshua Walker, was being harassed and had been physically assaulted by one of the victims of this offence. I accept that it was through a sense of loyalty to family that you became involved. However, if you had thought about it, even for a moment, this was not going to assist. Your conduct in attending the scene in the way in which you did, bringing with you a firearm, and indeed a loaded firearm, was only going to escalate the situation. What may have happened thereafter, who knows. It is possible that the other party may have come back with even more people and with firearms themselves. That was something that could have happened, but thankfully did not.

4. Mr Jarron Walker, you are 34 years old. You are the uncle of your co-offender. You have very meritoriously looked after and brought up your nephew over a period of years. However, on this particular occasion, you failed him because you failed to give him appropriate direction and to provide him with the example which should have been provided in these circumstances. The matter had been reported to police. It should have been left to the police to deal with. If need be, a protection order could have been obtained on behalf of your nephew in order to protect him from these people. Certainly the way to go about it was not to obtain a firearm and to behave in the way in which the two of you did.

5. I take into account, Mr Jarron Walker, that there is a great deal of material which has been put before me which speaks of the fact that this is an uncharacteristic offence. You have a previous criminal history but nothing for anything of this nature, mostly your criminal history relates to traffic offences. Testimonials placed before me speak of this as being uncharacteristic and speak of you as being a person who is dedicated to your family and also who contributes to the wider community. As I have said, you are the older of the two offenders and it really should have been your responsibility to provide an example to your nephew. I accept that in part this offence occurred because of your feeling of responsibility for your family, which had been heightened because of what had occurred to your sister in the years leading up to this offence.

6. Mr Joshua Walker, I take into account the fact that you are 27 years of age and that you had a disrupted early childhood. You should be very thankful that you were taken in and cared for by your uncle. I note that both of you are in steady employment and I have no doubt, Mr Joshua Walker, that you feel great loyalty to your uncle. I take into account also that you have no criminal history.

7. It is difficult to gauge the extent to which each of you are remorseful for the offences. Certainly you have not provided all of the information which is within your knowledge. Both of you know who carried the firearm but apparently neither of you are willing to give that information which does indicate something less than full remorse with respect to these offences. I do accept, however, that your pleas of guilty demonstrate a degree of remorse and also the other material which has been put before me demonstrates some remorse on the part of both of you. Each of you I am satisfied have very good prospects for rehabilitation.

8. I accept the submission made by the Crown Prosecutor that these offences call for terms of imprisonment. The Crown did not press for sentences that had to be served by way of immediate imprisonment. I must say that having given the matter some thought, I have changed my mind from my initial inclination to require you to serve at least part of the sentence by way of full-time imprisonment. I will now proceed by way of fully suspended sentences, although I think that it is appropriate that each of you be required to perform some community service as a part of the sentences which I will impose.

9. Mr Jarron Walker, with respect to the offence of making a demand accompanied by a threat, you will be convicted and sentenced to 27 months imprisonment which I have reduced from 30 months in order to reflect your plea of guilty. That sentence will commence from today, 25 July 2016.

10. With respect to the charge of unauthorised possession of a firearm, you are convicted and sentenced to 10 months imprisonment, which I have reduced from 12 months in order to reflect your plea of guilty, of which three months is to be served consecutively with the sentence that I have imposed for the offence of making a demand accompanied by a threat.

11. Therefore, the aggregate sentence which I have imposed is one of two years and six months imprisonment commencing today. That sentence will be suspended forthwith and there will be Good Behaviour Orders for a period of two years and six months. With respect to the Good Behaviour Order for the offence of making a demand accompanied by a threat, it will be conditions of that order that:

(a) you accept the supervision of ACT Corrective Services for that period of two years and six months or such lesser period as deemed appropriate by your supervising officer; and

(b) you are to complete 200 hours of community service within a period of 12 months as directed by your supervising officer.

12. Mr Joshua Walker, with respect to the offence of making a demand accompanied by a threat, you are convicted and sentenced to 21 months imprisonment which I have reduced from 24 months in order to reflect your plea of guilty. That sentence will commence on 23 July 2016 in order to reflect the time that you have spent in custody prior to being granted bail.

13. With respect to the charge of unauthorised possession of a firearm, you are convicted and sentenced to 8 months imprisonment which I have reduced from 10 months in order to reflect your plea of guilty. Of that period of eight months, three months will be served consecutively upon the sentence which I have imposed for the offence of making a demand accompanied by a threat.

14. Therefore, the aggregate sentence which I have imposed is one of two years imprisonment commencing on 23 July 2016. That sentence will be suspended forthwith and there will be a Good Behaviour Order on each matter for a period of two years from today, 25 July 2016. With respect to the Good Behaviour Order for the offence of making a demand accompanied by a threat, there will be conditions that:

(a) you are to accept the supervision of ACT Corrective Services for a period of two years from today or such lesser period as deemed appropriate by your supervising officer; and

(b) you are to complete 150 hours of community service within the next 12 months as ordered by an officer of ACT Corrective Services.

15. With respect to the Good Behaviour Orders which I have imposed with respect to each of the offences of unauthorised possession of a firearm, there will be no further conditions other than the core conditions, bearing in mind the conditions that I have imposed with respect to the other Good Behaviour Orders.

16. Now, undoubtedly your counsel will explain that to you further but what it means is that I have imposed suspended terms of imprisonment with Good Behaviour Orders and also a requirement that each of you perform community service within the next 12 months. If you comply with the terms of the Good Behaviour Orders, if you do not commit any further offences within the periods of those orders and if you complete the community service as directed, then at the end of the period of the Good Behaviour Orders, these matters will have been concluded and there will be no need for you to serve any of the imprisonment by way of full-time imprisonment. If, however, you commit some further offence during the period of the Good Behaviour Orders or if you do not complete the community service or accept supervision as directed by Corrective Services, you can be brought back before this Court to be dealt with on a breach of these orders at which time the Good Behaviour Orders may be cancelled and you may be required to serve some or all of those sentences of imprisonment by way of full-time imprisonment.

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.