R v WEAVER

Facts

1. The facts are before the court by way of what appears to be a quite comprehensive set of Agreed Facts. In addition the Crown tendered a number of photographs of some of the firearms to which the charge contrary to s 51D(2) of the Firearms Act relates.
2. Mr Glissan QC, for the offender, invited the Crown to tender a transcript of the electronically recorded interview between Detective Senior Constable Parker and the offender taken on 2 August 2019. The Crown acceded to this request and that transcript was marked exhibit C on sentence.
3. In Taitoko v R [2020] NSWCCA 43 Leeming JA in dealing with a different issue relating to agreed facts (Hoeben CJ at CL agreeing with brief additional comments, Lonergan J agreeing) said at [38]: "The point of signing the Agreed Facts was for that agreement to bind the applicant and to form the foundation of the sentencing discretion. It is ordinarily quite wrong for submissions to be made contrary to facts to which an offender has agreed. There can be no proper basis for criticism if evidence is adduced contrary to what the offender has agreed (and in the present case, had signed with legal assistance earlier that morning) for that evidence to be tested against the document to which the offender had adhered."
4. What has occurred in this matter is a good example of the peril that can arise out of counsel going outside and beyond the agreed facts. I am firmly of the opinion, despite the attitude of those who appear for the offender, that some of the contents of that interview are contrary to the interests of the offender and indeed impact on the finding of objective seriousness in a meaningful way in both counts. I must admit to being troubled about the manner in which this matter proceeded.
5. Going to the facts, the offender at the time of the offences had a current Firearms Licence and owned twelve registered firearms which he stored at his property. On Friday 2 August 2019 police went to the offender's property at Reka Road, Adelong with a search warrant. There was no one home and police contacted the offender by phone and he later attended the property. With consent of the offender, police searched the vehicle in which the offender arrived at the property and located a full box of ammunition in the pocket behind the driver's seat. The offender told police that he did not know that it was there.
6. The offender told police that he had been hunting the previous night and that he had a rifle that contained ammunition in his bedroom. Police located in the master bedroom a 308 Winchester Tikka rifle with a clip of ammunition attached but no ammunition in the chamber. There was a second clip of ammunition for the rifle on the kitchen bench. This relates to sequence 1 attaching to the s 166 Certificate.
7. Attached to the house is a brick garage and within that garage were located three large firearms safes which contained all but one of the offender's firearms. The offender told police that one of his firearms was currently stored at a friend's house as he had recently returned from a trip where he had his registered firearms stored with a local gun dealer.
8. During a search of the adjacent machinery shed police located a large amount of ammunition for both category A and B firearms. An amount of that ammunition was located in an unlocked cupboard and accordingly was not stored in accordance with the requirements for the safe storage of ammunition. This relates to a matter on the Form 1 document. Police also located in that shed two "banana" clip style magazines designed to fit self-loading SKS or SKK rifles.
9. Further, in the shed police located a plastic ammunition box containing explosives, being fourteen detonators, two coils of detonator cord and a length of safety fuse. This relates to sequence 4 which is one of the matters attaching to the s 166 Certificate. The offender told police he had a licence when he purchased the explosives but that licence had expired a number of years ago.
10. The offender informed police he had upwards of twenty unregistered firearms stored in one of the sheds. The offender then took police to a locked shed about 250 metres from the main residence. He used a key in his possession to unlock the shed. The offender then indicated a large locked metal box and stated the unregistered firearms and ammunition were stored in the box. The offender also showed police another container with an amount of ammunition stored within the container which was not enclosed. One of the matters on the Form 1 relates to this ammunition. The ammunition appeared to be in poor condition.
11. The offender used the key in his possession and opened the locked, large metal box. Police opened the lid and found a number of rifles, shotguns and ammunition. The offender stated there were about three layers of firearms in the box and that none of them were registered.
12. In the large metal box police located 31 unregistered firearms including a fully loaded six shot .44-40 revolver, a loaded .140 shotgun, a loaded sawn off shot gun (to which count 2 on the indictment relates) and a loaded Brno .22 calibre rifle fitted with a silencer. In total police located one pistol, seven prohibited firearms (being silenced or self-loading or shortened) and twenty five other unregistered firearms - to which count 1 on the indictment relates. Police also located a further two silencers and a can of oleoresin capsicum spray along with a large quantity of both class A and B category ammunition.
13. Also located in the large metal box was 16.1 kilograms of commercially packaged smokeless gunpowder, to which one of the matters on the Form 1 document relates. The offender told police that he had the gunpowder to do his own ammunition reloading. A person is exempt from the requirements of the Explosives Act to have an explosives licence for the possession of gunpowder if in possession of less than 12 kilograms of gunpowder.
14. Police seized all firearms, ammunition and explosives located on the property including the offender's registered firearms.
15. The offender was taken to the Tumut police station where he consented to be electronically interviewed. In the course of the interview he made full and frank admissions including that he was responsible for shortening the shotgun to which count 2 relates - see Q/A 288 - 290 and 297-303. Mr Glissan QC on behalf of the offender initially submitted at the sentence hearing (p 16:06), "…But there's no suggestion in the facts that he shortened it…" The weapon had been sawn off for 10 to 15 years (Q/A 289).
16. After all the written material had been received Mr Glissan QC for the offender invited me to retire to chambers and read all the material, which I did including the record of interview. On returning to court I put to counsel (p 17:38) "…I recall you submitting Mr Glissan that there's no evidence your client shortened the shotgun. Questions 288, 297 and continuing in the record of interview he admits to doing it because it had a bent barrel". I said further things to counsel for the offender and as part of the exchange Mr Glissan QC said at p 18:30. "…The issue of the shortening of the firearm, I must say, I wasn't alert to…"
17. The facts also recite that "the offender stated he believed in the right and necessity to possess firearm(s) for the protection of the nation but also he was a collector and a number of the firearms held sentimental value to him, some having belonged to his father or friends since passed away or having been purchased by himself when young. The offender stated that he knew his actions were unlawful".
18. The facts also recite that the search warrant was obtained as a result of information received from a person known to the offender and not as a result of any other illegal activity by the offender. Further, the offender was very co-operative during the execution of the search warrant.
19. The following appears at q 571ff of the ERISP: Q: Um, can you tell me why you had all those firearms? A: A couple of reasons, 1, um and, and we did talk about it, it's not a conspiracy theory, so, um, I believe in external threats to, to me, to us, to our country. It's probably a silly extreme way of lookin' at it, but um, it's happened around the world where countries get taken over, communities get taken over, and then, the, the civilians have to help the police and the Army. I'm not a, a rebel, I'm not a terrorist, I'm not an activist, it just seemed like a good idea to, to collected them. Q: Yep A: And not have them destroyed. Q: So there's a, well, you're basically saying if I'm correct, part of it is, um, keeping firearms in case of a possible threat? A: Yes Q: And part of it is, a, a, a you know--- A: ---a--- Q: ---a--- A: … Q: ---collection--- A: Collection Q: …and--- A: ---and nostalgia. Q: Yep. A: If those firearms would be destroyed, and they're gone, they're gone--- Q: Yep A: ---forever. Ah, they don't get resold they just get collected. They get looked, oh, semi looked after as, as much--- Q: Yep A: ---as you can in a box in a shed. Q: Yep. A: Um, didn't want them destroyed.

Assessment

1. I have already made comment to the effect that the admissions contained in the ERISP operate adversely to the offender on the finding of objective seriousness on both counts. When I raised these issues with Mr Glissan QC (transcript of sentence proceedings pp 17-18) there was no application for the matter to be stood down for him to consider his position or obtain further instructions, no application for an adjournment nor was there an application that the tender of the ERISP might be withdrawn. It is highly likely that I would have acceded to any of those applications. Given the experience and standing of Queen's Counsel for the offender I proceeded on the basis that he was content for the matter to proceed with the contents of the ERISP as part of the material on which I was to determine the appropriate sentence in this matter.
2. Mr Glissan QC invited the Crown to tender the transcript of the ERISP. Between taking submissions and delivering sentence, the Court of Criminal Appeal handed down the decision of Moodie v R [2020] NSWCCA 160 in which the Court was critical of a sentencing judge for taking into account material not before him. For more abundant caution, I had my associate draw the attention of the parties to that decision. By way of email communication (marked MFI 1 on sentence) those who appear for the offender indicated that they are aware the ERISP is part of the material that falls for consideration and further that the contents of the ERISP do not impact on any finding as to the seriousness of either of the offences.
3. Davies J (McClellan CJ at CL, RA Hulme J agreeing) in Mack & Mack v R [2009] NSWCCA 216 at [40] set out the matters that inform the objective seriousness of matters contrary to s 51D(2) of the Firearms Act, namely: 1. The number of firearms; 2. The number of firearms that were prohibited or were pistols; 3. The nature and type of the firearms; 4. The purpose for the possession of the firearms; 5. Evidence which would show any relationship between the possession of the firearms and the drug industry being carried on at the premises; and 6. The location of the property and the security under which the firearms were kept.
4. In the matter presently under consideration there were thirty-one firearms, seven of which were prohibited and there was one pistol. Some of the prohibited firearms were self-loading. A number of the firearms were loaded including a revolver that was "fully loaded" and the sawn off shot gun. The firearms were not otherwise described. However, exhibit B on sentence is a selection of photographs of some of the firearms. So far as can be determined from those photographs they appear to be in good order and condition. The court is not informed as to whether any or all of the firearms were able to function, i.e. to propel a projectile by means of explosive charge. However in respect of at least those firearms that were loaded there is an overwhelming inference that they were operational. The fact that those weapons were loaded entitles me to find beyond reasonable doubt that at least the weapons that were loaded were operational. It is clear that the offender had possession of the firearms for a considerable period of time.
5. The offender in the ERISP was asked about the Brno model firearm that was fitted with a silencer (see Q/A 368 ff). He said that that was "probably one of my original pre-registration ones". He went on to say (Q/A 377) that he would have bought the silencer separately. In answer to Q 606 the offender said that silencers, or suppressors as he preferred to call them were used with game management. In my considerable experience in working in rural and regional areas as counsel, magistrate and judge I do not recall having previously heard that reason for possession of a silencer. At Q/A 459-450 the offender admitted to making one of the silencers found.
6. During the ERISP the offender essentially was saying that he was a collector, that a good number of the firearms were acquired many years ago before the requirement for registration (see for e.g. Q/A 260, 320 and Q/A 502), that some of the firearms belonged to his father (see for e.g. Q/A 252, 278) and that he for e.g. bought one of the firearms from someone with cancer (Q/A 384).
7. Learned Queen's Counsel for the offender at the sentence hearing (p 11:20ff) put the following: "No, no, no, but over that lengthy period, there were a couple of occasions during the course of this century where there were ‑ after the firearms laws ‑ the restrictive firearms laws relating to licensing and registration were brought in, where there were amnesties. He did not take advantage of those, and that is really the essence of the offence, because thereafter ‑ and that's at all times after 2009, he was left in possession of this large number of firearms, which he could neither dispose of, nor sell, nor register, and as is recorded both in the ERISP and confirmed in the psychologist's report, he made a number of inquiries as to whether or not he could register them, or dispose of them, and on each occasion, was told he could not, so he was placed in that dilemma of which I earlier spoke. He was left in a situation that he couldn't just bury them or throw them away, because that would have exposed the community to risk and danger, so he did the one responsible thing that one would expect of a man with such a powerful community orientation as Mr Weaver, which is to say, he placed them in a secure container, which was securely locked, placed, itself, in a shed, which was securely locked, and then, regrettably, forgot about them."
8. Further, the author of the sentence assessment report (SAR) (p 2, under the heading "Attitudes") sets out that the offender stated that he had locked and secured the items away from his house and had simply forgot about them stating he put them in the "too hard basket" indicating that he had missed or was unaware of any previous or recent gun amnesty being offered.
9. But for the tender of the ERISP I would have been obliged to accept what was advanced by counsel as the reason for the offender having stockpiled the firearms. However to my mind the answer to question 571 of the ERISP (extracted in dealing with the facts) is very telling indeed as to the reason why the offender stockpiled the weapons. By his admissions it was not a case of circumstances or procrastination but rather the purpose of possession of those firearms was a deliberate stockpiling of those firearms because he "believed in external threats". I am fortified in this by what also appears in the SAR immediately above what I have set out in the paragraph immediately above, namely: "Mr Weaver accepted that he was aware the firearms located by police were illegal advising that when laws initially changed in Australia he held the belief a change of Government would repeal the new laws therefore he remained in possession of the firearms".
10. From the answer to question 571 in the ERISP, the extract from the SAR set out immediately above and the general circumstances of the offending - meaning the number of firearms stockpiled and secured in the manner that they were - I reject any suggestion that the offender ever had any intention of surrendering any of those firearms. I am fortified in this conclusion by the fact that a number of the firearms were loaded. The offender was deliberately stockpiling those weapons.
11. There is not the slightest suggestion that the firearms are connected with the trade in illicit substances or for that matter any other sort of illegal activity.
12. It is tolerably plain from the facts that the offender lived and that the firearms were located on a rural property. Adelong is a village between the Snowy Mountains Highway turn off on Hume Freeway and Tumut. The offender's property can properly be described as a "semi-remote rural area". The firearms were in a substantial locked metal trunk which in turn was in a locked shed. The shed and the metal trunk are clearly shown in photographs at tab 6 of the Defence tender bundle, exhibit 1 on sentence. Photograph 5 shows the padlock used to secure the door to the shed and photograph 7 shows the lock used to secure the trunk in which the firearms were located. Mr Glissan QC put at the sentence hearing that the weight of the trunk and contents would have been 300 kg. There is no reason to doubt this. However the trunk was secured by a padlock. The trunk could have been forced opened and firearms taken without the whole trunk and contents being taken.
13. Further as I observed at the sentence hearing (p 18:04) I have dealt with many matters (both in the Local and District Courts) where buildings including sheds on rural properties have been broken into and property including firearms has been stolen. In the matter presently under consideration given the means by which the police came upon the information about the existence of the firearms the existence of those firearms was most certainly not a secret. There was potentially a real danger of at least some of those firearms getting into the community with a resultant threat to community safety. That threat to community safety is heightened or increased by some of the weapons being loaded.
14. Mr Glissan QC in his written submissions (pp 17 and 18) puts that despite the number of firearms the offence is relatively less serious because there was no other illegal activity. This was amplified in oral submissions - see for e.g. pp 13-14 in that the offender had not been involved in some "ancillary or collateral crime". However as I indicated at the sentence hearing the absence of an aggravating factor does not make the matter less serious. If there was such "ancillary or collateral crime" the matter would be more serious.
15. Further Mr Glissan QC on behalf of the offender put that the matter was well below mid-range. The Crown put that the matter was only marginally below mid-range. Noting the location i.e. a rural property, the number of firearms, the fact that a number of the firearms were loaded, the number of prohibited firearms, the fact that the offender had clearly had the weapons for a considerable time and what I have found to be the reason why the offender stockpiled those firearms I am of the opinion that the matter to which count 1 on the indictment relates is within the mid-range of objective seriousness.
16. Count 2 relates to the possession of the shortened shot gun. The offender told police in the ERISP that he had had that firearm for 10 to 15 years. He himself had shortened the firearm. I presume there is no specific charge relating to this given the uncertainty as to when the shortening occurred. The fact that the offender shortened the shotgun in my opinion makes the matter more serious. That shortened shotgun was also loaded. There is a photograph of the shortened shot gun within exhibit B. The barrel has been substantially shortened. The stock has been shortened to a significant extent. The offender told police in the ERISP that he shortened the shotgun because it had a bent barrel. Count 2 is also within the mid-range of seriousness.

General Deterrence

1. Mr Glissan QC appropriately conceded at the sentence hearing (see for e.g. p 12:07) that general deterrence is an issue in this matter. The Crown also submitted on the need for general deterrence.
2. In R v Lachlan (2015) 252 A Crim R 277; [2015] NSWCCA 178 Gleeson JA (Johnson & Garling JJ agreeing) said at [68]: "Subsequent cases have emphasised that the possession of firearms, except where necessary and by persons authorised to have them, is calculated to lead to substantial damage. Accordingly sentences imposed for such offences must "operate as real disincentives to those otherwise attracted to the illegal position of firearms": R v Mahmud [2010] NSWCCA 219 at [71] (R S Hulme J; Giles JA and Latham J agreeing). See also R v Howard [2004] NSWCCA 348 at [66] (Spigelman CJ; Grove J and Smart AJ agreeing); Dionys v The Queen at [47]-[48] (Hoeben J; McClellan CJ at CL and Adams J agreeing)."
3. Rothman J although dealing with different offending although still relating to firearms in Laspina v R [2016] NSWCCA 181 said at [6] by way of additional comment: "Nevertheless, for far too long courts have dealt with firearm offences in a way which has had regard to whether the firearms were intended to be used in a criminal offence of another kind. In so doing, in my view, we are underplaying the seriousness of firearm offences generally, including mere possession, but particularly when those firearms are possessed for the purpose of sale to other persons who, for obvious reasons, will not be in possession of them legally."
4. Again by way of additional comment Rothman J said in R v Smith & Campbell [2019] NSWCCA 1 at [9]: "The possession and use of firearms in society is an extremely troubling aspect, for which general deterrence and specific deterrence loom large. The possession of weapons generally, by which I include knives, has become far too common in society. The possession of such weapons undermines the fabric of society and, when possessed for the purpose of other criminal activity, puts at risk the rule of law and the appropriate relationship between members of society."
5. Although dealing with offences of armed robbery I also note the comments of Beech-Jones J in connection with shortened firearms in Nabalarua v R [2020] NSWCCA 68 at [42], namely: "...The shortening of the barrel of shot guns allows them to be carried more easily for their use in a robbery. Arguably, the shortening of the barrel has the potential to cause damage over a wider arc than a rifle with a longer barrel..."
6. In respect of count 2 I also note what Gleeson JA said at [72] in Lachlan, namely: "Secondly, and related to the first matter, shortened firearms could have no legitimate purpose. Compact firearms are particularly dangerous because of their capacity for concealment: R v Brown at [23]. This makes them suited for serious criminal activity."
7. At the sentence hearing (transcript p 18:37) the following exchange occurred between Mr Glissan QC and me: "HIS HONOUR: Hasn't it been recognised by the Court of Criminal Appeal going back at least as far as Lachlan in 2015 there is no legitimate purpose for a shortened firearm? GLISSAN: There's no legitimate purpose for a shortened firearm is not quite the same as not having a reason for cutting off a bent barrel. It probably wasn't open to him to replace the barrels and the firearm was otherwise - again, it was one of the firearms that was not used and was locked up…"
8. With respect this does not really address the issue of there being no legitimate purpose for the possession of a shortened shotgun.
9. More recently although dealing with different offending, but nevertheless offending contrary to the Firearms Act there is the decision of Kember v R [2020] NSWCCA 152 in which Bellew J (Simpson AJA & Wilson J agreeing) said at [18]: "In determining the objective seriousness of the offending in Count 1, the sentencing judge observed that the supply of any firearm involves a significant breach of the Firearms Act 1996 (NSW), which makes it clear that the use, possession and sale of firearms is both strictly regulated, and a privilege which is conditional on the overriding need to ensure public safety."
10. There is also the decision of Taylor v R [2018] NSWCCA 50. The offending in that matter had some similarities to the matter presently under consideration. The appellant in Taylor had significantly fewer firearms than the thirty one of this offender. However, the appellant in Taylor had a criminal history and did not have the strong subjective case that this offender has.
11. I make it clear that I am not finding the factor of statutory aggravation of the offence being committed without regard to public safety pursuant to s 21A(2)(i) of the Crimes (Sentencing Procedure) Act, 1999. I am of the opinion that there is no statutory factor of aggravation pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act made out in this matter.
12. However, at [46] in Taylor Johnson J (Hoeben CJ at CL, Price J agreeing) said: "The question of public safety lies at the heart of the Firearms Act 1996. Section 3 of that Act provides: '3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms. (2) The objects of this Act are as follows: (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.'"
13. All of this goes to the need for general deterrence to be factored into the sentence imposed in this matter.
14. At paragraph 16 of his written submissions Mr Glissan QC puts that because of the factual nature of the offence, i.e. weapons not used, contained, effectively safely stored over a long period without issue, no criminal connections or antecedents, no issue of community safety has arisen that general deterrence has a lesser role to play in this sentencing exercise. Accepting the submissions as to the nature of the offending in this matter given the relevant legislation extracted above and the various authorities to which I have referred and from which I have extracted general deterrence still has a meaningful role to play in this matter.

Criminal History

1. The offender was born on 3 January 1962 and is therefore 58 years of age. He has no criminal history and entitled to be sentenced on the basis that he is of prior good character.
2. Mr Glissan QC submitted (p 15:37): "…I want to pay particular attention and ask your Honour to give particular weight to character in this case…..(to p 15:44)and I mean the kind that your Honour has before you in Mr Weaver, goes beyond merely avoiding some negative connotation. In other words, good character offsetting something. But where somebody has over a period of 40 years a long time, a whole life, worked hard for the community, resolutely with integrity for the whole time. They build up more than just notional good character but what he [a reference to the late LRH Lord QC] used to describe as a significant positive balance in a bank of leniency that can be used to offset a single error or breach…"
3. Further at paragraph 14 of his written submissions Mr Glissan QC reminds the court of the decision in Athos v R (2013) 83 NSWLR 224; [2013] NSWCCA 205. Price J said (Beazley P and Johnson J agreeing) said at [44]: "In my opinion, there is not a sufficient basis for concluding that offences of possession of prohibited firearms are committed frequently by persons of otherwise good character. I am not persuaded that such a crime falls within the category of offence where less weight is afforded to prior good character."
4. I note that a very substantial volume of references (32 on my count) was tendered (part of exhibit 1 at tab 5) leading me to inquire of Mr Glissan QC whether there was anyone in Adelong who had not provided a reference. Clearly the offender enjoys an exceptionally good reputation in Adelong and the surrounding district. Further, he has over many years made a significant contribution to the community in a number of ways.
5. The offender is entitled to the full weight to be given to his prior good character. The other matters raised by Mr Glissan QC all go to the subjective mix in the instinctive synthesis process of determining the appropriate sentence. The matters raised by Mr Glissan QC on the issue of the offender's character do not attract some additional specified numerical discount.

Subjective case for the offender

1. No oral evidence was called from or on behalf of the offender however a volume of written material was tendered.
2. Part of that written material is a report from Dr Roger Blake, Psychologist, which includes background material on the offender. The offender developed a strong work ethic early in life and since his late teens he has been a keen shooter, hunter and bushman. In 1985 he was part of forming the Tumut branch of the Sporting Shooters Association of Australia (SSAA). He became very active in advancing and progressing the club which is still apparently well-credentialed in the Riverina. The offender has been active in the community and has been a Justice of the Peace for around 30 plus years. He has also been a member of the Rural Fire Service (RFS) and has completed a number of courses useful for the duties associated with the RFS.
3. The offender married in 1986 and has adult children and grandchildren. He has always been in employment. In 1990 he commenced 'self-employment' and worked as a mechanical contractor in timber mills, abattoirs, wineries and farms. In 2009 the offender and his wife formed a company to allow them to expand and tender for government work. They also purchased the run down local crane company and built it up to a viable business in the local area. Over the years they employed a number of local people. The crane company was sold in 2014 to allow them to concentrate on family and the farm that they had purchased.
4. Mrs Weaver, the offender's wife, developed breast cancer in 2008 and has undergone a number of surgical interventions. The offender and his wife still manage the farm and engineering business from the home on the farm. Their daughter was the victim of ongoing domestic violence from her partner, who it would seem, was the person responsible for informing the police of the presence of the firearms on the offender's property.
5. Dr Blake describes the offender as presenting as a "rather rigid and obsessive individual" who "can be somewhat long winded and pedantic when discussing the circumstances that have brought him before the Court." Dr Blake goes on to opine that the offender did not set about on a venture to blatantly disregard or flout the law and that he is not an anti-social individual. He goes on to say (p 3) that "Mr Weaver was initially concerned about gun registration hoping for a reversal of the laws".
6. Curiously, Dr Blake then goes on to reveal that he himself is a firearms owner. Dr Blake recounts the history given by the offender as to how he acquired the firearms e.g. by purchasing them new from when he was 18 years of age, cleaning up after a deceased estate, acquiring them from persons who did not want them and from a past business venture. He sold six to eight to a registered firearms dealer.
7. At p 4 of the report the following appears: "Mr Weaver reported that for 'years I was wanting to bring the unregistered guns out, register and keep the ones I wanted, sell the ones with no sentimental value, and surrender the ones with no meaning to me. The later law changes didn't allow for this. They had to be surrendered during an amnesty and subsequently destroyed. The alternative to this was to leave the guns locked in the box until the laws maybe reverse, or I passed leaving the problem of disposal to my children'."
8. This is somewhat at odds with what appears in answer to question 571 in the ERISP, which is extracted earlier in these reasons. What appears in the report of Dr Blake fortifies me in the conclusion that the offender had no intention of disposing of the firearms.
9. Dr Blake goes on to report (p 4) that the arrest and charging process and subsequently spending a night in custody was a frightening experience for the offender. I do not doubt that was the case. The offender remains very anxious and distressed about who will provide for his wife if he goes to custody. The "gravity" of the legal matters is constantly weighing on the offender's mind. He employs six people on a casual basis. He has been active in assisting the clean-up following the Dunn's Road bushfire in January 2020.
10. Further, Dr Blake opines (p 5) that the offender's clinical profile reveals no marked elevations that should be considered to indicate the presence of clinical psychopathology. The offender reported some difficulties consistent with transient depressive symptomatology. Dr Blake goes on to observe that certain elements of the offender's self-description suggest that others are likely to see him as being withdrawn, aloof and somewhat unconventional. According to the offender's self-report there are no significant problems with many areas including anti-social behaviour, empathy, impulsivity, marked anxiety, health or physical functioning. Dr Blake diagnoses Dysthymic Disorder or episodes of low mood.
11. At p 6 of the report Dr Blake concludes that the offender is the type of person who would have cognitively compartmentalised his firearms problem simply by focusing on other priorities in his life. The offender expressed regret to Dr Blake that he could have registered and kept the heirloom firearms and handed in the other unwanted firearms. Again, there is the issue of what the offender said in answer to question 571 of the ERISP.
12. Dr Blake however became an advocate for the offender in that he says at p 6: "It is my sincerest hope that his lack of prior criminality, service to the community, strong work ethic and basically good intentions in life to others including his own family can be taken into account in this matter. … A custodial sentence removes a person from society who is an employer and a pro social citizen. Mr Weaver has made a serious error in judgment. However he is not a blatant criminal or a dangerous person. He can continue to be assisted by myself and supervised in the community".
13. It is the opinion of Dr Blake and I accept that the offender is unlikely to re‑offend. I also find on balance that the offender has good prospects of rehabilitation given his lack of record, work record and contribution to the community.
14. However, it is obvious that Dr Blake became an advocate for the offender. Since submissions were taken in this matter Lonergan J gave judgment in Atkinson v Coles supermarkets Pty Ltd [2020] NSWSC 1063 in which her Honour said at [23]: "Schedule 7 of the UCPR provides the expert Code of Conduct. This is not a meaningless incantation. As made clear in paragraph [2] of the Schedule titled "General duties to the Court": 'An expert witness is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the court impartially on matters relevant to the area of expertise of the witness.'"
15. Mr Glissan QC emphasised a number of times the co-operation by the offender with the authorities. It was not suggested that this amounted to assistance within the meaning of s 23 of the Crimes (Sentencing Procedure) Act - see for e.g. transcript sentence proceedings p 8:13. The co-operation and plea of guilty in combination entitles the offender to a finding on balance that he remorseful.

Hardship to third parties

1. It was put on behalf of the offender that the medical condition of his wife and the fact that he employs a number of people raises the issue of hardship to third parties - see for e.g. pp 12-13 of the transcript of the sentence proceedings.
2. There is one medical report in respect of the offenders wife, namely under the hand of Dr Gamal Mark of the Fitzroy Medical Centre of Tumut, (tab 4, exhibit 1) which relevantly sets out: "Our records show that she (Mrs Katherine Weaver) has been diagnosed with anxiety for a long time and L(eft) breast cancer on 01/08/2008. She has been referred to breast surgeon Dr Littlejohn in the same day and to oncologist Dr Hill on 31/12/2008. She has been treated by surgical removal of the L breast followed by chemotherapy for 6 months and radiotherapy for 5 weeks. She also has been on prolonged hormonal chemotherapy for 6 years after that. Prognosis is favourable as there is no sign of recurrence over the last 12 years however she developed osteoporosis as a side effect of hormonal treatment. In my opinion due to her mental health and medical conditions it is advisable not to live alone".
3. No further medical opinion or material is before the court as to the requirements of the offender's wife for assistance in daily living and the like. On the material before the court the mental health issue is limited to anxiety.
4. The submission made by Mr Glissan QC was (p. 13:26): "What I was going to say was this, your Honour, at present Mr Weaver run(s) and operates a farm with significant stock, which is done with he and his wife. Your Honour has the medical certificate relating to his wife's fragile position and she left alone will suffer hardship if he has to undergo fulltime custody… …[to p 13:35] The second is that at present he also operates a small but very important business working with heavy machinery at present doing reparation work in relation to the bushfires of last summer, and in that regard that is entirely dependent on his presence and supervision and there are five men employed by him whose livelihood depends on his ability to maintain and continue that undertaking."
5. In the submission of learned Queen's Counsel for the offender these factors in combination amounted to exceptional circumstances. The evidence as to the employment of the five men is limited to something said by the offender to Dr Blake, psychologist.
6. The authorities on this issue go back to at least the decisions of Edwards v R (1996) 90 A Crim R 510 at 516 per Gleeson CJ and R v Byrne (1998) 104 A Crim R 456 per Dunford J at 463. I raised the decision of Hopley v R [2008] NSWCCA 105 with Mr Glisson QC. In that last mentioned decision Johnson J (Beazley JA, McCallum J (as their Honours then were) agreeing) said at [39]: " The fact of imprisonment almost inevitably leads to hardship, sometimes very serious hardship to third parties. Justice will not have been seen to be administered even-handedly if exceptions are made (on this account) in cases which are not truly, wholly or highly exceptional: R v Edwards at 516; R v Day at 277; R v Gip; R v Ly at 179 [29]."
7. At the sentence hearing I did make reference to the decisions of Hinton (2002) 134 A Crim R 286 and Zerafa [2013] NSWCCA 222. Those decisions relate particularly to Commonwealth offending and s 16A(2)(p) of the Crimes Act 1914 (Cth) and do not take the matter any further. I also referred to the decision of Kabir v R [2020] NSWCCA 139 which had been handed down the day before the sentence hearing. Likewise that decision does not seem to take the matter any further.
8. Mr Glissan QC put (p 13:12) that the matters raised were truly wholly and highly exceptional. With respect to senior counsel for the offender I disagree. I am not of the opinion that the matters raised at least on the material before the court amount to hardship to third parties.

Extra curial punishment

1. At p 12:29 Mr Glissan QC put the following on behalf of the offender: "Yes, there are, and it's a matter of discretion in my submission and it's something your Honour could probably take into account, but let me adumbrate that slightly by saying this, that one of the things that would be seen as extra-curial punishment is he has lost his positon, which he has enjoyed over many years in the Rural Fire Service because he has acted in breach of their code of conduct and has been stood down or suspected [this should read suspended] with a view to his membership of that organisation being terminated. That works a double penalty of course, not only for him but for the community which he has been previously very active in supporting…"
2. Also included in the submission relating to extra-curial punishment was loss of reputation. I was not taken to any particular authority.
3. In Einfield v R (2010) 200 A Crim R 1, Basten JA (RS Hulme & Latham JJ agreeing (with additional comments), save for the disposition of the appeal on the issue of the condition of the appellant said at [86]: "The phrase 'extra-curial punishment' appears to have two limbs, neither of which can be described with precision. That the punishment is 'extra-curial' means that it is imposed otherwise than by the sentencing court. It would appear not, for example, to include consideration of the conditions of imprisonment and the impact of imprisonment on the particular offender. It is less clear whether it includes legal consequences of a kind which flow directly from the conviction or the sentence, such as disqualification from holding an office, remaining in an occupation or holding a licence. The concept of "punishment" has been treated with less rigour, suggesting that the phrase has been used on occasion in a manner which extends beyond its proper reach."
4. His Honour went on to say at [88]-[89]: "The phrase has, however, been used in an expanded sense as appears from the judgment of Whealy J in R v Rivkin [2003] NSWSC 447; 198 ALR 400; 45 ACSR 366 at [54], albeit expressed in cautious terms as to the use of the phrase. 'I turn then to consider a number of circumstances which have been discussed in the submissions under the heading of extra-curial punishments. First, there is the undoubted disgrace and humiliation which must accompany the jury's verdict .... Secondly, there is the impact on his wife and family .... Thirdly, there is the loss of his previous good standing in the community and in his profession as a stockbroker. ... Fourthly, there is the unquantifiable but real economic impact the conviction may have upon his livelihood and business calling. Fifthly, there is the disqualification from managing a corporation which flows from the provisions of s 206B(1)(b)(i) of the Corporations Act 2001. Finally, there is the possibility that ASIC may take action in relation to the Security Dealer's Licence held by Mr Rivkin. Such action has the potential to result in the revocation of the offender's securities licence or the imposition of a banning order. While it is true that any action in relation to the Security Dealer's Licence might properly be regarded as protective in character, it is clear that an adverse outcome in any such proceedings would be a matter of real practical punishment so far as the offender is concerned. In my view, such matters may properly be taken into account in the sentencing process, notwithstanding that they derive from proceedings essentially protective in nature rather than penal.' [89] These statements were not the subject of adverse comment on appeal: see Regina v Rivkin [2004] NSWCCA 7; 59 NSWLR 284 at [411]-[412] (Mason P, Wood CJ at CL and Sully J). Nevertheless, the label "extra-curial punishment" seems inapposite in relation to all of these considerations, except the last. Nor is it desirable to address them all under the same heading. Some consideration must be given to the consequences of how particular matters are taken into account. Thus, loss of good standing in the community may readily give rise to an element of double counting, if the offender is also given favourable consideration for his or her prior good character. Taking account of the economic consequences (including loss of employment) which inevitably follow from imprisonment, may mean that those previously in employment will receive shorter sentences than those who were unemployed."
5. There are also the authorities of Whybrow v R [2008] NSWCCA 270, especially at [21]-[25] per Hislop J where his Honour comprehensively reviews a number of authorities and Alameddine v R [2006] NSWCCA 317. In Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 the Court (Macfarlan JA, Hoeben CJ at CL, Leeming JA, Johnson & RA Hulme JJ) said at [32]: "There is no doubt that the applicant's likely loss of the privilege of pursuing a promising career in the legal profession was a relevant matter to be taken into account in the assessment of sentence: see, for example, Oudomvilay v R [2006] NSWCCA 275 at [19]-[20]; Kenny v R [2010] NSWCCA 6 at [47]-[49]; Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1 at [95]-[97]; Michael v R [2014] NSWCCA 2 at [149]-[154]; Kearsley v R [2017] NSWCCA 28 at [13] (Macfarlan JA) and [76]-[80] (Harrison J)."
6. In the matter presently under consideration the offender would have well known in stockpiling those firearms as he did he was in breach of the Code of Conduct of the Rural Fire Service. There appears to be conflicting authority as to public shame and humiliation can amount to extra-curial punishment. As much appeared to be accepted by senior counsel for the offender at the sentence hearing - see for e.g. p 12:25-29.
7. On this issue Howie J in Kenny v R [2010] NSWCCA 6 said at [49]: "Clearly that was a matter that could be taken into account as extra-curial punishment. My initial reaction was that public humiliation that arises from the commission of the offence should not alone give rise to a mitigation of sentence without more. However having regard to what Basten JA has written about this matter, the issue appears to be unresolved in the High Court and need not be determined for the purpose of disposing of this ground of appeal. Clearly there may be an exceptional case where it reaches such proportion that it has had some physical or psychological effect on the person so that it could be taken into account as additional punishment. That was in effect the position in Allpass. It was also the position in R v King [2009] NSWCCA 117 where media coverage of the respondent's sentence resulted in threats to him and made him a virtual prisoner in his own home."
8. Again, the offender well knew that stockpiling the firearms was contrary to the law. He had had possession of those firearms it would seem for a considerable period of time.
9. In all of these circumstances I am not persuaded that any allowance should be made for extra-curial punishment.

References

1. At tab 5 of Exhibit 1 is the volume of 32 character testimonial references to which mention has already been made. Those references are from a broad cross-section of the community both in Adelong and the wider community from people who have known the offender for many years. A good number of the referees are persons who have personal experience with the offender and the use of firearms. The references speak of the offender having a very responsible attitude to firearms. Many of the referees are of the opinion that the offending is out of character and speak of the offender's good or fine reputation in the community.
2. Further, the references speak eloquently of the many years of voluntary and other service that the offender has rendered to the community for example in the Rural Fire Service. Many speak very well of their experience in dealing with the offender in a business setting. He is described in many of the references as being honest and trustworthy.
3. A number of the references are more personal and again speak very well of the offender as a family man, husband and father.
4. I have read each and every one of those references. It speaks well of the offender that he can assemble such impressive references from such a broad cross section of the community. I have taken the content of the various references into account in the course of the instinctive synthesis approach in determining the appropriate sentence in this matter.
5. The body of testimonial references is a significant aspect of the offender's exceptionally strong subjective case.

Crown's submissions

1. I have already set out that the Crown submitted that the matter was marginally below mid-range (p. 24:34). The Court of Criminal Appeal has said a number of times that the assessment of the objective seriousness of an offence "is quintessentially for the sentencing judge". See for e.g. Mulato v R [2006] NSWCCA 282 and more recently in Branagan v R [2020] NSWCCA 158. I have given reasons above for the finding that both offences are within the mid-range.
2. The Crown provided the Public Defender's Table of cases. The Crown conceded that the material was of limited use. I noted the caution expressed by appellate courts in decisions Hili & Jones v The Queen [2010] HCA 45, Brown v R [2014] NSWCC 215 at [81] per Garling J and the comments by the Chief Justice in SS v R [2016] NSWCCA 197.
3. The Crown further submitted, at least as I understood the submission, that the matters raised as hardship to third parties did not reach the exceptional nature required to invoke the relevant line of authority. Likewise the Crown opposed a finding of extra-curial punishment. The Crown conceded that the matters on the Form 1 would not substantially increase any sentence. Mr Glissan QC adopted that last submission.
4. I accept the matters on the form 1 document will not substantially impact on the sentence. However given the number and nature of the matters on the document there must be some impact on the sentence that is ultimately imposed.

General Remarks

1. In passing sentence I will need to ensure that I give proper regard to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
2. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate.
3. Mr Glissan QC put at paragraph 19 of the written submissions, amplified at p 20:40-41 that the matter crosses the section 5 threshold but only barely. With respect to senior counsel for the offender I take issue with the word "barely".
4. Given the maximum penalties provided, the standard non-parole period for the s 51D(2) charge, the offending, the number and nature of the weapons and the need for general deterrence I am firmly of the opinion that a sentence of imprisonment is the only appropriate sentence. Likewise, noting the nature of the weapon, the fact that it was loaded, the maximum penalty provided and the need for general deterrence, the offence of Possess Shortened Firearm also crosses the s5 threshold.
5. Mr Glissan QC argued both in his written and oral submissions that the court would impose a total sentence of three years or less and order that the sentence be served by way of Intensive Correction Order. Indeed the following exchange occurred between Senior Counsel for the offender and me at p 10:24ff: His Honour: No, Mr Glissan, whatever I do is going to go somewhere else in this case. Glissan: I hope not your Honour …(to line 36) Glissan: I hope very much that your Honour's decision in this case won't go anywhere else. His Honour: It's inevitable isn't it? Glissan: I think not, your Honour. If your Honour accedes to the submissions that we put in relation to an ICO…
6. The Crown opposed the imposition of a non-fulltime custodial sentence but nevertheless conceded that if I determined the total sentence was three years or less there would be no opposition from the Crown for that sentence to be served by way of Intensive Correction Order. My understanding of the effect of the Crown's position was that the total sentence would exceed that which could be served by way of intensive correction order.
7. I have given this matter a great deal of thought and consideration. Despite there being only two charges, it is a difficult and complex matter. With respect to learned Senior Counsel for the offender the matter was made more difficult and complex with the tender of the ERISP. I am of the opinion that the total sentence must exceed that which can be served by way of Intensive Correction Order. Even without the material in the ERISP (and the resultant findings) I would still conclude that the total sentence would have to have exceeded (and by more than just slightly) that which could be served by way of Intensive Correction Order.
8. During a mention of this matter to confirm the sentence date the solicitor for the offender requested that I have the offender assessed for home detention. This was in a busy list on a Friday and I acceded to the request. In hindsight I should not have done that. I was caught a little off guard given the number of arraignments and mentions listed that day.
9. To accede to the ultimate submission by Queen's Counsel for the offender would in my opinion be falling into the error cautioned against by the Crown (pp 27-28) of giving excessive weight to the subjective case. In this regard I note that was said by the Court (Gleeson CJ, Lee CJ at CL & Hunt J (as his Honour then was) in R v Dodd (1991) 57 A Crim R 349 at 354, namely: "…Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective seriousness of the case; Rushby [1977] 1 NSWLR 594"
10. However, I am of the opinion that there should be a generous finding of special circumstances, the reasons for which are, in combination, the age of the offender, that this is his first time in custody and the need for assistance in reintegration into the community.
11. Although there are two counts it is a matter where I propose to invoke s 53A of the Crimes (Sentencing Procedure) Act, 1999 and impose an aggregate sentence. It will therefore be necessary for me to indicate what sentences would have been imposed had separate sentences been imposed. Those sentences are: 1. In respect of the charge contrary to s 51D(2) of the Firearms Act, namely Possess more than three firearms, namely 31 firearms that were not registered, seven of which were prohibited, taking into account the Form 1 document a non-parole period of 2 years 4 months with a balance of term of 1 year 8 months making a total sentence of 4 years with a starting point of 5 year 6 months with some minor mathematical rounding down in favour of the offender; and 2. In respect of the charge contrary to s 62(1)(b) of the Firearms Act, namely Possession of the Shortened Firearm, a total sentence of 2 years indicating a starting point of 2 years 9 months.
12. There is also the issue of partial accumulation and totality. The matters arise out of the one set of circumstances. However in my opinion the sentences should be partially cumulative if only to a relatively small extent to note the difference in the offending and the nature of the firearm to which count 2 relates. There will be credit for the one night the offender spent in custody.
13. These remarks have been reduced to writing and a copy of the remarks will be made available to the parties upon pronouncement of sentence.

Orders

1. In respect of the offences to which the offender pleaded guilty he is convicted.
2. The offender is sentenced to an aggregate sentence of 4 years and 4 months with a non parole period of 2 years and 7 months.
3. The non-parole period will commence on 23 September 2020 and expire on 22 April 2023.
4. The balance of term will commence on 23 April 2023 will expire on 22 January 2025.
5. The non-parole period is approximately 60% of the total sentence which indicates a finding of special circumstances the reasons for which have already been set out earlier in these reasons.
6. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
7. All firearms and ammunition seized by police are forfeited to the Crown for the purpose of destruction.
8. In respect of sequences 1 and 48 attaching to the Certificate Pursuant to s 166 of the Criminal Procedure Act 1986 pursuant to s 10A of the Crimes (Sentencing Procedure) Act the offender is convicted and no further punishment is imposed. Any remaining matters attaching to the s 166 Certificate are marked "Withdrawn/Dismissed".

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 September 2020