Director of Public Prosecutions v Da Silva-Wilson
[2025] ACTSC 361
•14 August 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Da Silva-Wilson |
Citation: | [2025] ACTSC 361 |
Hearing Date: | 13 August 2025 |
Decision Date: | 14 August 2025 |
Before: | Mossop J |
Decision: | See [48] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – possession of prohibited weapons, prohibited firearms and other firearms – where items included a flick knife, a dagger, knuckle-dusters, an extendable baton, nunchaku, slingshots, a gel blaster and airguns – all offences at the low end of objective seriousness – pleas of guilty – reason for accumulation of weapons and firearms unclear – risk that certain firearms could be mistaken for real weapons and come into the hands of someone who intended to use them as such – sentences of imprisonment suspended subject to a good behaviour order CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – mid range offences for possessing stolen e-bikes – pleas of guilty – strong need for general deterrence in relation to stolen bicycles and e-bikes – sentences of full-time imprisonment imposed |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), s 10 Criminal Code 2002 (ACT), s 324 Firearms Act 1996 (ACT), ss 42(1)(a)(ii), 43(1)(a)(iii) Magistrates Court Act 1930 (ACT), ss 90A, 90B Prohibited Weapons Act 1996 (ACT), ss 4A, 5, Sch 1 Pt 1.1 item 1, Pt 1.2 items 1, 8, 10, Pt 1.3 item 2 |
Parties: | Director of Public Prosecutions Stephen Nicholas Da Silva-Wilson ( Offender) |
Representation: | Counsel B Chifuntwe ( DPP) S Robinson ( Offender) |
| Solicitors ACT Director of Public Prosecutions Fortify Legal ( Offender) | |
File Numbers: | SCC 102 of 2025 SCC 103 of 2025 |
MOSSOP J:
Introduction
On 30 April 2025, the offender, Stephen Nicholas Da Silva-Wilson, pleaded guilty in the Magistrates Court to the following charges:
(a)four counts of unauthorised possession of prohibited weapons, contrary to s 5 of the Prohibited Weapons Act 1996 (ACT) (CAN 6660/2024; CAN 6662/2024; CAN 9013/2024; CAN 9020/2024);
(b)one count of unauthorised possession of three or more, but less than 10, prohibited firearms, contrary to s 42(1)(a)(ii) of the Firearms Act 1996 (ACT) (CAN 9001/2024); and
(c)one count of unauthorised possession of 1-2 firearms other than prohibited firearms, contrary to s 43(1)(a)(iii) of the Firearms Act (CAN 4522/2025).
He was subsequently committed to the Supreme Court to be sentenced under s 90A of the Magistrates Court Act 1930 (ACT).
Also on 30 April 2025, the offender pleaded guilty to two summary charges of unlawful possession of stolen property, contrary to s 324(1) of the Criminal Code 2002 (ACT) (CAN 6671/2024; CAN 6672/2024). These charges were transferred to the Supreme Court for sentence under s 90B of the Magistrates Court Act.
The offending occurred on 28 June 2024. At that time, the maximum penalties for the offences were as follows:
(a)possessing a prohibited weapon: five years’ imprisonment, 500 penalty units, or both;
(b)possessing three or more, but less than 10, prohibited firearms: 14 years’ imprisonment;
(c)possessing 1-2 firearms other than prohibited firearms: five years’ imprisonment; and
(d)possessing stolen property: six months’ imprisonment, 50 penalty units, or both.
Facts
The facts were agreed and contained within a Statement of Facts, which was tendered as part of the prosecution tender bundle. In summary, the facts were as follows.
On 28 June 2024, police executed a search warrant at premises in Hawker, where the offender lived. About an hour and a half after the commencement of the search, the offender attended the premises.
During the execution of the search warrant, police located a number of items, including the following items which are the subject of the various charges:
(a)CAN 6660/2024 — possess prohibited weapon:
(i)one flick knife; and
(ii)one Tomahawk branded dagger.
(b)CAN 6662/2024 — possess prohibited weapon:
(i)seven knuckle-dusters; and
(ii)one extendable baton.
(c)CAN 9001/2024 — possess three or more, but less than 10, prohibited firearms:
(i)one 6-8 mm gel ball calibre jet blaster rifle of unknown manufacture;
(ii)one Valken manufacture, Gotcha model, .50 calibre paintball marker;
(iii)one airgun pistol of unknown manufacture;
(iv)another airgun pistol of unknown manufacture; and
(v)a third airgun pistol of unknown manufacture.
(d)CAN 9013/2024 — possess prohibited weapon: one nunchaku of unknown manufacture.
(e)CAN 9020/2024 — possess prohibited weapon: three slingshots of unknown manufacture.
(f)CAN 4522/2025 — possess 1-2 firearms: two airguns.
(g)CAN 6671/2024 — possess stolen property: one Talaria Sting e-bike.
(h)CAN 6672/2024 — possess stolen property: one Cube Stereo Pro e-bike.
Police conducted an examination of the offender’s mobile phone. During the examination, police located receipts for firearms and weapons, with the postal address recorded as the offender’s address in Hawker.
During a record of interview in relation to the prohibited items, the offender stated that he had bought them online and he thought they were legal. The offender stated that he had thought that the gel blasters were just toys and not illegal. In relation to the stolen e‑bikes, the offender stated that he could not recall if he had bought them online or had bought them from a friend. He was unable to provide details as to how much he paid for the e-bikes.
The items and weapons were submitted to the relevant specialists within the Australian Federal Police for examination and an assessment report was prepared in relation to them.
Flick knives are prohibited bladed weapons under Sch 1 Pt 1.1 item 1 of the Prohibited Weapons Act.
Knuckle-dusters are prohibited hand weapons under Sch 1 Pt 1.2 item 1 of the Prohibited Weapons Act.
Nunchakus, kung-fu sticks or other similar devices are prohibited hand weapons under Sch 1 Pt 1.2 item 8 of the Prohibited Weapons Act.
Extendable batons are prohibited hand weapons under Sch 1 Pt 1.2 item 10 of the Prohibited Weapons Act.
Slingshots are prohibited missile weapons under Sch 1 Pt 1.3 item 2 of the Prohibited Weapons Act.
Gel blasters are classified as prohibited firearms in the ACT.
It is unknown how much force the firearms or prohibited firearms can produce upon discharge. The firearms and prohibited firearms were not tested to determine range and force upon discharge.
The Cube brand e-bike had been stolen from a bicycle business in Mitchell on 18 March 2024. It was valued at $4,747. An identified person other than the offender was the person who stole it.
The Talaria brand e-bike was stolen from a bike store in Fyshwick on 25 March 2024 by an unknown person. It was valued at $6,000. At the time that it was stolen, a number of other e-bikes were stolen from the store by the same person.
Objective seriousness
Possession of prohibited weapons
The prohibited weapons were found at the offender’s house. He had purchased them over the internet. There is only limited evidence in relation to their intended use.
Each of the items had the capacity to be harmful. The bladed weapons are obviously dangerous. It is not clear why anyone would need seven knuckle-dusters. One of the knuckle-dusters had a blade attached. It is not clear how or in what context the nunchaku would be used in the real world.
The offence under s 5 of the Prohibited Weapons Act covers both possession and use. Possession will generally be less serious than use. Further, s 5 covers all prohibited weapons, which, under s 4A of the Act, are defined by reference to the contents of Sch 1 of the Act to include anything from a knuckle-duster to a bomb, rocket or mine. Inevitably, having regard to the range of offending that this offence can cover, the possession of the items the subject of the charges in the present case must fall at the low end of objective seriousness.
Possession of firearms
The agreed facts indicate that there is no evidence of the range and force upon discharge of any of the firearms.
There is no evidence that the offender intended to use the firearms to commit other offences. The seriousness of these charges in those circumstances is proportional to the risk that they could, because of their appearance, be mistaken for firearms that could do serious harm. The prosecution tender bundle contains photographs of the firearms. A number of the firearms are coloured in a way which strongly suggests that they are not real weapons. However, at least two of them could readily be mistaken for real weapons and, hence, their possession is more serious.
My assessment of the firearms the subject of the various charges is as follows:
(a)CAN 9001/2024:
(i)the gel blaster is multicoloured and looks like a toy;
(ii)the Valken paintball gun is coloured red, blue and black and, although shaped like a pump action shotgun, does not look like a real weapon;
(iii)the first airgun pistol is shaped like a real weapon, but coloured red on the top half in a manner that does not look like a real weapon;
(iv)the second airgun pistol is shaped like a real weapon and coloured black, so that it looks like a real weapon; and
(v)the third airgun pistol, like the first, is shaped like a real weapon, but the top part is coloured red so that it does not look like a real weapon.
(b)CAN 4522/2025:
(i)the first airgun pistol is shaped like a real weapon, but part of the handle and the top of the barrel are coloured red, so that it does not look like a real weapon; and
(ii)the second airgun pistol is coloured all black and does have the appearance of a real weapon.
Once again, the offence provisions cover both possession and use. In this case, only possession is relevant. Further, the offence provision in relation to CAN 4522/2025 covers all firearms (other than prohibited firearms), which obviously includes firearms which, if used, could be lethal, as well as blank fire firearms, airguns, paintball markers and modified firearms which do not work as such.
Those items which look like real weapons have a greater capacity to cause fear, even in circumstances where there is no evidence as to their actual effectiveness. As a consequence, their possession is somewhat more objectively serious than the other firearms. However, all are at the low end of objective seriousness for these offences.
Unlawful possession of stolen property
The offender was in possession of two e-bikes. There was no evidence as to what he paid for them or how he came into possession of them. Each was of significant value. His guilty plea accepts that the property is reasonably suspected of being stolen property or otherwise unlawfully obtained property. Although the value of the stolen property under s 324 is not limited, each of the offences is a mid range offence.
Subjective circumstances
The subjective circumstances of the offender are described in a pre-sentence report dated 29 July 2025, a psychological assessment prepared by a psychologist, Dr Aaron Cunningham, a letter from the offender, and certain certificates relating to courses completed in custody.
The offender is 33 years old. He was born in Canberra and is the younger of two siblings. His parents separated prior to his birth. His father died of a drug overdose when he was five years old. His stepfather perpetrated physical abuse against him, and his mother subsequently ended the relationship with his stepfather.
He was first exposed to an outlaw motorcycle gang at the age of 15, and by the age of 21, he was a member of the Rebels outlaw motorcycle gang. He left at age 26.
He has a child and a stepchild from a former relationship. He has shared custody of his child with his former partner. He also had another long-term relationship which ended soon after the current offending.
He has worked in the construction industry. Following a period in custody between 2017 and 2019, he got a job in the public service pursuant to a program targeting former detainees. Prior to the current offending, he had been employed in a construction business. Shortly prior to being remanded in custody in relation to other allegations, he obtained a job with a furniture delivery business to which he hopes to return.
He expressed some interest in assisting other former outlaw motorcycle gang members to reintegrate into society. He started a charity collecting recyclable bottles and donating the proceeds to charities.
He has a history of illicit drug use. Prior to the current offending, he had maintained abstinence from illicit substances since he was released from jail in 2019, but in 2024, following the breakdown of his relationship and the death of two family members and a close friend, he returned to the use of methamphetamine and started using heroin quite heavily. He is participating in the Solaris Therapeutic Community program while in custody.
In relation to the items the subject of the firearms offences, he described them as “toy guns … purchased for his son”. So far as the weapons were concerned, he said he bought them due to a fascination with weapons and an interest in handmaking these items.
He has a back injury which is treated using anti-inflammatory medications. He described his current mental health as “positive”.
He is assessed by the author of the pre-sentence report as being at a medium to high risk of general reoffending. He is assessed as suitable for a community service work condition.
Dr Cunningham gave him a diagnosis of post-traumatic stress disorder, based on abuse and trauma in childhood, the deaths of family members and a friend, a suicide attempt as a child following bullying, being shot at and stabbed whilst a member of the Rebels, and being sexually abused at the age of 12.
His mother told Dr Cunningham that, prior to his relapse into drug use, following losing his job and the deaths of several people close to him, he was doing really well in the community. She described him as being “so much better” following a period in custody on remand. Dr Cunningham said that, from a psychological perspective, the offender would benefit from a disposition that facilitated his rehabilitation, and that ongoing incarceration would further entrench antisocial attitudes and peer associations.
Criminal history
The offender has a criminal history in both the ACT and NSW. The offender’s history includes similar offences. It includes:
(a)four convictions for contravening a protection order;
(b)two convictions for possessing or using a prohibited firearm;
(c)one conviction for possessing or using a prohibited weapon;
(d)one conviction for possessing or using a prohibited article;
(e)two convictions for possession of ammunition (one in the ACT and one in NSW);
(f)two convictions for failing to comply with storage requirements;
(g)two convictions for drug trafficking; and
(h)a range of other convictions.
A significant feature of the criminal history is that, prior to the present offending, his most recent offending was in 2016, for which he was sentenced in 2017. However, it is notable that the 2016 offending involved a significant custodial sentence.
Pleas of guilty
The offender pleaded guilty to each of the charges in the Magistrates Court on 30 April 2025. This was the 11th mention in the Magistrates Court, after a brief of evidence had been prepared. That is to be taken into account and would warrant a reduction of between 20 and 25 percent on account of the pleas of guilty.
Time in custody
The offender has spent 165 days in custody. He spent one day in custody upon his arrest on 29 June 2024, before being released on bail. On 3 March 2025, his bail was revoked in relation to the offences and fresh, unrelated charges, and he has been in custody since that date. Time in custody has not yet been taken into account with respect to any sentence proceedings.
Consideration
The reason for the accumulation of firearms and weapons was not clear. The offender admitted to the author of the pre-sentence report that he had a fascination with them. Notwithstanding the offender’s significant criminal history, I consider that the threshold in s 10 of the Crimes (Sentencing) Act 2005 (ACT) has not been passed in relation to the weapons offences. Each of those may be dealt with by a good behaviour order.
So far as the firearms offences are concerned, even though one of the firearms the subject of each of the charges could readily be mistaken for a real weapon, the circumstances in which they were possessed do not indicate any intention to use them as such. There was, however, a risk that they could come into the hands of someone who intended to use them in that way. In each case, I consider that the s 10 threshold has been passed. I will deal with each charge by way of a sentence of imprisonment, which is wholly suspended. On the charge relating to the two airguns (CAN 4522/2025), the offender will be sentenced to imprisonment for 24 days, reduced from 30 days on account of the plea of guilty. In relation to the more serious charge (CAN 9001/2024), the offender will be sentenced to imprisonment for 46 days. Both sentences will be wholly suspended and subject to a nine-month good behaviour order.
In relation to the possession of the stolen property, that is mid range offending for an offence which has a much lower maximum penalty. However, bicycle and e-bike theft is common. Stolen bicycles are a form of currency, particularly amongst those involved in using or dealing drugs, and there is a strong need for general deterrence in relation to possession of bicycles and e-bikes reasonably suspected of being stolen or unlawfully obtained. In relation to each of those charges, in my view, the starting point is three months’ imprisonment, reduced to two months and 15 days on account of the plea of guilty. Totality requires only a limited amount of concurrency between the sentences. They will be concurrent so that the aggregate sentence is four months’ imprisonment. They will be backdated to take into account the fact that the offender has been in custody on remand, attributable in part to these charges.
Orders
The orders of the Court are:
(1)On the charges of unauthorised possession of prohibited weapons (CAN 6660/2024, CAN 6662/2024, CAN 9013/2024, CAN 9020/2024), on each charge the offender is convicted and required to enter into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act2005 for a period of 12 months, commencing on 14 August 2025 and ending on 13 August 2026.
(2)On the charge of unauthorised possession or use of three or more, but less than 10, prohibited firearms (CAN 9001/2024), the offender is convicted and sentenced to 46 days’ imprisonment, which sentence is wholly suspended upon entry into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act for a period of nine months, commencing on 14 August 2025 and ending on 13 May 2026.
(3)On the charge of unauthorised possession or use of 1-2 firearms other than prohibited firearms (CAN 4522/2025), the offender is convicted and sentenced to imprisonment for 24 days, which sentence is wholly suspended upon entry into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act for a period of nine months, commencing on 14 August 2025 and ending on 13 May 2026.
(4)On charge CAN 6671/2024 (possession of stolen property), the offender is convicted and sentenced to imprisonment for two months and 15 days, commencing on 2 March 2025 and ending on 16 May 2025.
(5)On charge CAN 6672/2024 (possession of stolen property), the offender is convicted and sentenced to imprisonment for two months and 15 days, commencing on 17 April 2025 and ending on 1 July 2025.
| I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: |
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