Director of Public Prosecutions v Kay
[2024] ACTSC 284
•13 September 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Kay |
Citation: | [2024] ACTSC 284 |
Hearing Date: | 9 September 2024 |
Decision Date: | 13 September 2024 |
Before: | Christensen AJ |
Decision: | See [67] |
Catchwords: | CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – unauthorised manufacture of firearms – disposal of unregistered firearm – unauthorised possession or use of firearm – grave seriousness of 3D printed functional firearms – assessment of objective seriousness of firearm offending – risk to individuals and community – non-prohibited form does not significantly reduce seriousness – sophistication and planning – general deterrence – protection of community – whether drug and alcohol treatment order appropriate and suitable – minimal criminal history – |
Legislation Cited: | Firearms Act (1996) (ACT) ss 5, 228 |
Cases Cited: | DPP v Nurzynski [2024] ACTSC 176 |
Parties: | Director of Public Prosecutions ( Crown) Andrew Kay ( Offender) |
Representation: | Counsel E Bayliss ( Crown) J Moffett ( Offender) |
| Solicitors ACT Director of Public Prosecutions Tim Sharman Solicitors ( Offender) | |
File Numbers: | SCC 14, 15 of 2024 |
CHRISTENSEN AJ:
Introduction
1․Andrew Kay is to be sentenced in relation to three firearm related offences as follows:
(a)Unauthorised taking part in the manufacture of firearms, contrary to s 228(1)(b) of the Firearms Act (1996) (ACT) (Firearms Act) (Count 1), carrying a maximum penalty of 10 years imprisonment, a fine of 1000 penalty units, or both;
(b)Disposal of unregistered firearm, contrary to s 177(1)(b) of the Firearms Act (Count 2), carrying a maximum penalty of 5 years imprisonment, a fine of 500 penalty units, or both; and
(c)Unauthorised possession or use of firearm (1 or 2), contrary to s 43(1)(a)(iii) of the Firearms Act (Count 3), carrying a maximum penalty of 5 years imprisonment.
2․In addition, a summary charge of possession of ammunition, contrary to s 249 of the Firearms Act and carrying a maximum penalty of 10 penalty units was transferred and is also the subject of sentence.
3․Mr Kay has long-standing substance abuse challenges and seeks a drug and alcohol treatment order (treatment order): s 12A Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
The offending
4․Mr Kay took part in the unauthorised manufacture of the following firearms (Count 1):
-A white and black non-commercially manufactured .22 Rimfire Calibre, 3D printed, break action, single shot pistol (Firearm 1);
-A white non-commercially manufactured, 3D printed, .22 Rimfire Calibre, GREMLIN model, double barrel variant, slam fire pistol (Firearm 3);
-A black non-commercially manufactured, 3D printed, .22 Rimfire Calibre, SCARLOT model, break action, single shot, pistol 9 (Firearm 4);
-A white non-commercially manufactured, 3D printed, GREMLIN model, double barrel variant, slam fire pistol (Firearm 5);
-A black non-commercially manufactured, 3D printed, GREMLIN model, double barrel variant, slam fire pistol (Firearm 6); and
-A black non-commercially manufactured, 3D printed, GREMLIN model, double barrel variant, slam fire pistol (Firearm 7).
5․On 13 February 2023, Mr Kay arranged for the sale of Firearm 1 to an associate for the purposes of drugs and money (Count 2). In the process of arranging the sale, the associate sent a message via the messaging platform ‘Signal’ stating, “can you bring some rounds to bro”. Mr Kay responded, “yeah brother for sure …”.
6․On 2 March 2023, the associate left Firearm 1 under the seat of his car whilst booking it in for a service at Bridgestone Tyres Service Centre in Belconnen. The firearm was located by a staff member of the service centre and a report was made to the police.
7․Mr Kay’s DNA could not be excluded as a contributor from a mixed profile on the internal barrel face and firing pin area of the firearm. The firearm was a functioning 3D printed firearm that was also a pistol.
8․On the morning of 3 May 2023, police executed a search warrant at an address in Turner. Mr Kay and another male were located in a makeshift loft in an above garage area of the residence. Mr Kay indicated he had been living in the “loft” for about a month. The living conditions of the loft were described during the sentence hearing as involving squalor. It included that there were numerous “sharps” in the area associated with his use of drugs.
9․Police began a search of Mr Kay, and he volunteered that “there is a BB gun in there” and pointed to his pocket. An item that resembled a pistol was located in his pocket (Firearm 2). Mr Kay was arrested. The possession of this item relates to Count 3, the unauthorised possession, without a license or permit, of an Airgun pistol.
10․During the search, police located a ‘Witbox 2’ 3D printer in the garage space of Mr Kay’s residence. In the loft area, Firearms 3, 4, 5 and 6 were found on the bed and Firearm 7 was found in a bag hanging from the roof.
11․Police also located ammunition rounds in the loft. This relates to the summary charge, being the possession of 49 pieces of ammunition, comprising of:
-11 x .22 calibre long rounds;
-3 x .22 hollow points;
-13 x 9mm rounds; and
-22 x shotgun rounds.
12․A green SSD card was also located, and subsequent examination found the following archived files on the card:
-A file downloaded on 28 January 2023, containing videos of a firearm being built which is visually consistent with Firearms 3, 5, 6 and 7;
-Files downloaded on 3 and 4 February which included images which are visually consistent with Firearm 1; and
-A file downloaded on 8 February 2023 which included images which are visually consistent with Firearm 6.
13․A particular type of operating system that is primarily intended to assist a user in printing a 3D object file with a 3D printer was found to be installed on the SSD. When used with a compatible 3D object file, the operating system can create an instruction file for a specified 3D printer. The most common format for such instruction files is a particular format, with seven of these file types located on the SSD card.
14․Mr Kay could not be excluded as a contributor to DNA from mixed DNA profiles recovered from the SSD card and a number of other items seized during the execution of the search warrant. His fingerprints were located on the underside and on the inside of the Perspex door of the 3D printer.
15․The seized firearms were later assessed by an officer of the AFP’s Firearms and Toolmark Identification Team, with findings that:
(a)Firearms 1, 3, 4 and 7 were functional and capable of being raised and fired by one hand;
(b)Firearm 2 was a functional ‘airgun’, capable of being raised and fired by one hand;
(c)Firearm 5 was incomplete and may be capable of forming a functioning firearm; and
(d)Firearm 6 was comprised of two parts which together meet the definition of a ‘modified’ item in the Firearms Act.
Nature and circumstances
16․The prosecution helpfully provided a number of authorities to assist in considering the appropriate sentence for the offences: Truong v The Queen [2013] NSWCCA 36; DPP v Williams [2022] ACTSC 301; R v Mitchell [2016] ACTSC 85; Kajevic v Noble [2021] ACTSC 67. I draw from these authorities the following observations as to the assessment of the objective seriousness for firearm offending:
(a)the criminality involved in the unauthorised manufacture of firearms can extend from a very sophisticated operation at one end of the spectrum to a relatively minor adjustment to a pre-existing firearm at the other;
(b)it is relevant to a manufacture, possession and/or disposal offence to consider:
(i)the objective features of the firearm – such as the nature of it, including its functionality and sophistication and whether it is in working order;
(ii)the purpose of the manufacture, possession/use or disposal;
(iii)whether the manufactured firearm is sold or distributed;
(iv)the location and security under which the firearms are manufactured and/or kept; and
(c)as to possessing a firearm, it is relevant to consider:
(i) how the firearm came to be in the possession of the offender;
(ii)the length of time that it was in possession; and
(iii)whether the firearm was loaded or not.
17․Implicit in these considerations is that the risk to individuals and the community from the manufacture and/or possession and/or disposal of a firearm is relevant.
18․In respect of Count 1, the offence of manufacture, it is relevant to emphasise that in assessing the objective seriousness here, it involves the taking part in the manufacture of a firearm. Section 228 of the Firearms Act creates an offence for a person either manufacturing, or taking part in the manufacture, of a firearm. The distinction here is relevant given it reflects Mr Kay having had a role that does not involve sole responsibility for the manufacture of the firearms.
19․It is further relevant to observe that Mr Kay has pleaded guilty to an offence contrary to s 228(1)(b) of the Firearms Act. That is, having taken part in the manufacturing of firearms that are not prohibited firearms. This provides for a lesser penalty than what would apply if the firearms were prohibited: s 228(1)(a) Firearms Act. The extent to which the offender ‘took part’ in the manufacture here is not entirely clear, but his role was not insignificant having regard to where the manufacturing, and manufactured items, were located, and the forensic evidence that associates Mr Kay to them.
20․The relevant firearms being of a form that is not otherwise prohibited does not significantly reduce the seriousness of the offending in the circumstances. Even if not otherwise prohibited, the firearms ultimately manufactured were still capable of causing significant alarm and harm, capable of easy concealment, and capable of use in serious criminal offending. This is best understood by reproducing the images tendered in evidence that show how the firearms appear. The firearms that were functional appear as follows:
21․The seriousness of the firearms not being of an otherwise prohibited form is also not reduced by the form of manufacture that Mr Kay engaged in. To have a role in the manufacture of firearms with the use of a 3D printer is gravely serious. It is plainly a form of manufacture that is, nowadays, readily able to be done, but not readily detectable. There is a risk of such offending becoming concerningly prevalent.
22․The ability to efficiently manufacture firearms in this way is reflected in the period of offending in Count 1, being a period of some 12 days during which Mr Kay had a role in manufacturing six firearms. The criminality involved has characteristics of sophistication, with planning and premeditation. In addition to the complexity involved in 3D printing, there were videos and software to assist in the use of the printer and process of manufacture of the firearms.
23․Manufacturing of firearms in this manner, even where the offender’s role is one of taking part, warrants a strongly deterrent sentence, both specifically and generally. It is also appropriate that denunciation of such conduct be reflected in the sentence. Mr Kay’s purpose in engaging in the conduct, to assist in funding his drug dependency, does little to reduce his moral culpability. I accept though it provides a level of explanation for his apparent disregard for the risk that he was putting community members in by involving himself in the manufacture of items with the potential to cause serious harm.
24․The offence here of taking part in the manufacture is one involving six firearms, four of which were functional, one which was incomplete and may have been capable of forming a functioning firearm, and one in two parts which is classed as ‘modified’. The number of firearms involved increases the seriousness of the offence, being a ‘rolled up’ charge, with it being an offence that could be established by the taking part in the manufacture of only one firearm. Within the six firearms, four of them were functional and readily capable of causing the alarm and harm already mentioned. The only available inference to be drawn is that Mr Kay took part in the manufacture of the firearms aware that they were intended to be available for nefarious purposes. None of the five firearms located at Mr Kay’s residence were stored securely or safely, and they were kept in a premises where ammunition was available.
25․The prosecution appropriately submitted that in assessing the manufacture offence here, care is to be taken to not find as aggravating the distribution in the community of Firearm 1, given this is separately charged.
26․As to the disposal of the unregistered firearm, and the unauthorised possession of a firearm, these offences also warrant strongly deterrent sentences, and ones that denounce such conduct. There is an aspect of sophistication with respect to the disposal offending with the use of a secure communication application. Both firearms, in their disposal and possession, were handled in an unsafe manner, although there is no evidence they were loaded. Mr Kay did inform the police of the location of Firearm 2, reducing to an extent the risk to the police officers, and this was not otherwise a firearm categorised as prohibited. The length of time that this firearm was possessed is not known.
27․In addition to having regard to the significant maximum penalties provided, in assessing these offences it is relevant to reflect on the underlying principles of the Firearms Act. Section 5 provides in part that:
(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
…
28․As to the summary charge, being that of possession of ammunition, the maximum penalty is one of a fine only. It is not clear whether any of the ammunition possessed was capable of being used in the firearms that were located. It is clear that the ammunition was possessed in an insecure way. Further, the number of rounds of ammunition possessed is not insignificant when it is considered that the offence would be established from the unauthorised possession of a single round. Mr Kay has, if rehabilitation is achieved, a capacity to be employed and to pay a fine of an appropriate level if given time in which to pay.
Current sentencing practice
29․As to current sentencing practice, in addition to the comparative analysis that can be undertaken from the authorities referred to above at [16], the prosecution also referred the Court to R v Peter [2019] ACTSC 22 and DPP v Nurzynski [2024] ACTSC 176. Examples of manufacturing offending that are less serious than the offence here have resulted in sentences involving good behaviour orders, intensive correction orders, a treatment order, and fulltime imprisonment. Offences of possessing prohibited firearms have resulted in terms of fulltime imprisonment and intensive correction orders. There is of course caution to be applied in drawing significance from such observations.
30․Furthermore, in DPP v Tuiono [2023] ACTSC 251, a sentence of fulltime imprisonment was imposed for possession of a 3D printed firearm. The offender there happens to be the associate that Mr Kay provided with the unregistered firearm that establishes the offending in Count 2. Mr Tuiono was sentenced with respect to a different charge than Mr Kay with respect to that firearm. The facts that arise there are not relevant to the facts that were agreed here and certainly no parity arises. I note that there is also no suggestion that an issue of parity arises with respect to the other male that was present in the loft when the search warrant was executed. There was no information provided to suggest that this person is also the subject of criminal charges.
Subjective circumstances
31․Mr Kay is now 40 years of age and was aged 38 and 39 years at the time of the offending. He was born and raised mostly in Western Australia with one sibling. He describes a mostly positive upbringing. He relocated to Queanbeyan, a place he had spent some of his childhood, and then the Australian Capital Territory (ACT) when aged approximately 30 years.
32․His parents did both drink alcohol to intoxication in the family home, but Mr Kay denies any negative effects during his childhood due to this use. His father passed away in tragic circumstances in 2013. His relationship with his mother, and other family members, has been impacted by his history of drug use and offending behaviour, but his mother confirmed that these relationships have improved since Mr Kay’s recent abstinence from illicit substances. He has the support of his immediate and extended family, some of whom reside in the ACT area.
33․Mr Kay was previously in a long-term relationship, but he has been single for some years now and he has no children. He has limited pro-social connections in the community beyond his family, and a former partner and her young son who he currently resides with.
34․Mr Kay completed school to year 12, despite often ‘wagging’ and receiving suspensions for truancy. He had other behavioural difficulties at school, and was often under the influence of substances. He has since completed Certificates in Information Technology and in Civil Construction, and he was a qualified real estate agent for 12 years. Mr Kay has engaged with other employment including factory work, carpentry projects, and work in the civil construction industry.
35․He describes his mental health as currently stable, although he has been previously diagnosed with anxiety and depression. He sustained a head trauma from an assault approximately two years ago, and a number of injuries sustained through skateboarding falls, but currently has no physical health conditions of concern.
Substance use
36․At the time of his father’s passing, Mr Kay was in his twenties, and he found the sudden passing difficult to come to terms with. He significantly increased his alcohol and illicit drug use. This was in a circumstance where he commenced alcohol use at approximately 15 years of age and use of substances from approximately 16 years of age. His use of illicit substances since that time has included the use of alcohol, methamphetamine, heroin, cocaine, GHB, MDMA, hallucinogens, and steroids.
37․By his twenties, Mr Kay had commenced smoking heroin socially and by 2020 his use had steadily increased to daily injection of substances, along with consistent use of alcohol.
38․More recently, with the COVID-19 pandemic and being the victim of an assault, Mr Kay believed he could not function without daily drug use. He describes his drug dependency as a means of “running away from problems” and has a pattern of using alcohol and polysubstances as a maladaptive coping strategy.
39․Mr Kay disclosed using methamphetamine once and a non-prescribed antipsychotic approximately five times while in custody in 2023. He reports that he has otherwise been abstinent from drugs since May 2023, but does also acknowledge that there was an occasion of illicit buprenorphine use in this time (see below at [42]).
40․Urinalysis testing conducted in May, June, and August 2024 returned a negative result for all tested substances except buprenorphine, reflective of his prescribed opioid maintenance treatment. Before this period of abstinence, he had ceased use for a period of approximately two weeks but would “slip off” due to the “strong grip” that methamphetamine had on him and return to use.
41․This pattern, typical of the non-linear nature of rehabilitation from drug dependency, is reflected in Mr Kay’s efforts with rehabilitation programs. While in custody he successfully completed two months of the Karralika Solaris Therapeutic Community Program. Since being granted bail in November 2023, he has made two attempts at community based rehabilitation.
42․He was granted bail to attend the Karralika residential rehabilitation program and completed six weeks of it. He was discharged due to an occasion of illicit buprenorphine use. He then attended the Karralika Matrix Day Program for approximately four months, however identified a need to participate in a more intensive treatment program and transitioned to the residential rehabilitation program facilitated at Arcadia House. He attended between February to May or June 2024, but is described as forfeiting his place “due to breaching a condition of the program”. This involved a failure by Mr Kay to report negative behaviour by another participant. Mr Kay subsequently re-applied for admission to the Karralika Matrix Program and has been engaged with this program while in the community.
Criminal history
43․Mr Kay has a minimal criminal history, comprised of, in the ACT, a conviction for drink driving in 2020 and a conviction for drug driving in 2023. In Western Australia, he has four convictions for this same form of offending from 2002, 2014, and 2017.
44․This is somewhat unusual for someone with the substance misuse challenges he has experienced. It is suggestive that even with such challenges, Mr Kay is ordinarily a person who avoids serious criminal offending and is capable of being pro-social when in the community.
45․This is also apparent from the lack of re-offending since his release on bail in November 2023, a period of almost one year. All of this suggests that Mr Kay is someone who typically does not engage in serious offending behaviour, and he demonstrates a capability of not doing so while in the community.
Plea of guilty and remorse
46․The pleas of guilty were entered in the Supreme Court at a pre-trial conference, prior to the matter being listed for case conference and for trial. A reduction in the order of 20 per cent is appropriate.
47․Mr Kay is described as being someone who appears to accept responsibility for his actions, appears regretful, and who demonstrates a level of insight in terms of how his actions have impacted others.
Time in custody
48․Mr Kay was remanded in custody solely with respect to these charges from the time of arrest on 3 May 2023. He was granted bail on 6 November 2023. A total of 188 days is attributable as time served on the sentence: s 63 Sentencing Act.
Consideration
49․Having regard to the sentencing purposes of deterrence, denunciation, and community protection, which are of significance in this sentencing exercise, I am satisfied that, having considered possible alternatives, no penalty other than imprisonment is appropriate where the maximum penalty provides for this.
50․The prosecution submitted that the Court would be so satisfied. On behalf of Mr Kay, it was submitted that the Court may not be so satisfied with respect to Count 3. While I accept that Mr Kay did inform police of the possession, any such offending where there is a seemingly brazen willingness to have on his person a firearm without authorisation, warrants condign punishment. Similarly, condign punishment is warranted for the other offences to fulfill the purposes of sentencing. In this matter, the relevant purposes include the promotion of rehabilitation, which will be considered further below.
51․In considering the appropriate sentence, the totality principle is applicable. The prosecution submitted that notwithstanding that there is some overlap between the manufacture and disposal offences, each offence is distinct and that ought be properly reflected in the overall sentence. I agree. That is of course not to say that the Court should not consider the totality of the overall sentence and that a level of moderation is appropriate for the individual sentences to avoid a crushing term.
Drug and alcohol treatment order
52․Mr Kay has sought that any term of imprisonment be served by way of a treatment order. He expresses goals that include to be “clean and sober” and to be “able to support my family”. He wants to learn the tools to maintain sobriety and practice what he learns in rehabilitation programs in the community.
53․The sentences of imprisonment that are appropriate to impose are such that Mr Kay will be sentenced to a total period of imprisonment of at least one year but not more than four years: s 12A(1)(b)(ii) Sentencing Act. He has pleaded guilty to eligible offences: s 12A(1)(a) Sentencing Act.
54․The drug and alcohol treatment assessment reports both find Mr Kay suitable for a treatment order:
(a)The Corrective Services report describes Mr Kay as expressing a willingness to sufficiently address his long-standing drug dependency and recreate a drug and crime free life for himself. Having had the stringent requirements explained to him, he stated he felt he would benefit from the structured and intensive support offered under a treatment order; and
(b)Canberra Health Services describe that Mr Kay “presented as highly motivated to implement positive lifestyle changes, and clearly articulated treatment options that would provide him with the greatest opportunity to address his substance use”.
55․As to the role of substances in the offending, Mr Kay described to Corrective Services that his mental state was poor at the time of the offences and that he had not processed the emotional trauma of the loss of his father. His substance use and alcoholism were at an all-time high. He was participating in activities to support his habit and claimed to be unable to cope without regular drug use.
56․Canberra Health Services find Mr Kay as having presented with the likelihood of severe substance use disorder at the time of his offending. Mr Kay described that at the time of the offending he had injected approximately a quarter of a point of heroin, approximately a half a gram of methamphetamine, and ingested approximately ten standard drinks either the day prior or on the day of his arrest. He had been living in the attic of a shared house and had been “hanging around another person, taking a lot of drugs” for a period. He reported that he had been involved in loading information onto an SD card linked to a 3D printer to “support my drug habit”.
57․Mr Kay now has available to him secure housing. He proposes to reside at the home of a former partner, with whom he has resided since he has been released from custody and residential rehabilitation. There are some administrative matters to be addressed to formalise the suitability of this accommodation, but this is not anticipated to be an impediment to the availability of stable accommodation for the purposes of engagement with a treatment order.
58․Applying this information to the considerations arising in s 12A(2)(a) of the Sentencing Act, I am satisfied on the balance of probabilities that:
(a)Mr Kay is dependent on alcohol or a controlled drug; and
(b)His dependency substantially contributed to the commission of the offences; and
(c)He will live in the ACT for the term of the sentence except as directed by the Court.
59․While living in the ACT, Mr Kay will be continuing to engage with the Karralika Matrix Day Program, a program that he proactively sought to be admitted to. Mr Kay commenced this on 5 August 2023, and Canberra Health Services support this as an appropriate program for Mr Kay at the current time. He is described as being highly motivated and compliant with his treatment plan. He participates and engages well and in a “genuine manner befitting someone seeking recovery”. As at the time of sentence, Mr Kay will have completed six weeks of the 16 week program, and Karralika have advised that they are able to modify the treatment plan to respond to the requirements of a treatment order.
60․I recognise that Mr Kay has previously had opportunities to engage with rehabilitation programs and these have not been completed. This has also been acknowledged by both Corrective Services and Canberra Health Services. The assessments maintain that Mr Kay is suitable for a treatment order, recognising the non-linear nature of recovery from drug dependency.
61․It is also acknowledged that he has maintained abstinence for a not insignificant period, which might suggest a treatment order is unnecessary. However, the assessments provide that some risk factors remain for Mr Kay and that he would benefit from the intensive support available under a treatment order if he is to maintain long-term recovery.
62․As to the other considerations that inform a decision whether to impose a treatment order, on behalf of Mr Kay it was submitted that his period of abstinence, and efforts at rehabilitation, is a testament to Mr Kay’s insight into the significant impact drugs and alcohol have had on his life, his willingness and commitment to better himself and various treatment interventions. I accept this submission.
63․The prosecution fairly recognises that Mr Kay’s “demonstrated commitment to his own rehabilitation displays real motivation and insight, which is to his credit” and further that “the offender also displays insight into his addiction, and treatment needs which suggest a maturity and commitment to his rehabilitation”. The prosecution submitted that if the sentence and sentences imposed are within the legislated range for a treatment order, that such an order is not opposed.
64․I am satisfied that a treatment order is appropriate, having taken into account:
(a)the relevant sentencing considerations that apply;
(b)that there is no information relating to the concerns of a victim about safety or welfare;
(c)the objects of a treatment orders: 80O Sentencing Act; and
(d)that Mr Kay has given the requisite informed consent for the
order: s 12A(2)(b), (c) Sentencing Act.
65․Further, I am satisfied that a treatment order is suitable for Mr Kay having regard to the matters in s 80T of the Sentencing Act, that it is appropriate for Mr Kay to serve a sentence suspended in accordance with a treatment order, and that appropriate arrangements for the administration of the order are practicable: s 80S Sentencing Act.
66․It is apparent that Mr Kay’s core criminogenic risk is substance dependency. In circumstances where the purposes of sentencing can be met without an additional period of fulltime imprisonment, an intensive community based order that targets rehabilitation from his drug dependency is appropriate.
Orders
67․For those reasons, the following orders are made:
(1)Andrew Allan Kay be convicted of unauthorised possession or use of a firearm (CAN 13/2024) and be sentenced to 2 months’ imprisonment, reduced from 80 days on account of the plea of guilty, to commence on 9 March 2024 and end on 8 May 2024.
(2)Andrew Allan Kay be convicted of unauthorised manufacture of a firearm (CAN 1421/2024) and be sentenced to 2 years, 4 months’ imprisonment, reduced from 3 years on account of the plea of guilty, to commence on 9 May 2024 and end on 8 September 2026.
(3)Andrew Allan Kay be convicted of disposal of an unregistered firearm (CAN 12/2024) and be sentenced to 8 months’ imprisonment, reduced from 10 months on account of the plea of guilty, to commence on 9 September 2026 and end on 8 May 2027.
(4)Andrew Allan Kay be convicted of possessing ammunition generally (CAN 4398/2023) and be fined $1,000 to be paid within 12 months.
Drug and Alcohol Treatment Order
(5)A Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) be made for Andrew Allan Kay in respect of the eligible offences of unauthorised manufacture of firearm (CAN 1421/2024) and unauthorised disposal of unregistered firearm (CAN 12/2024) and for which he has been sentenced to a total term of 3 years’ imprisonment.
(6)The Drug and Alcohol Treatment Order be for 2 years, 7 months, 25 days, from today, 13 September 2024 to 8 May 2027.
(7)The Treatment and Supervision Part of the Drug and Alcohol Treatment Order be for 12 months, from today, 13 September 2024, until 12 September 2025.
(8)The Custodial Part of the Drug and Alcohol Treatment Order for the offences be hereby suspended under s 80W of the Crimes (Sentencing) Act 2005 (ACT) from today, 13 September 2024 to 8 May 2027.
(9)Under s 80ZA of the Crimes (Sentencing) Act 2005 (ACT), Andrew Allan Kay be required to sign an undertaking to comply with the offender’s Good Behaviour obligations under s 85 of the Crimes (Sentence Administration) Act 2005 (ACT) from the day after the end of the Treatment and Supervision Part of the Drug and Alcohol Treatment Order, being 13 September 2025 until the end of the total sentence, being 8 May 2027, with a probation condition that he accept supervision by the Commissioner of ACT Corrective Services or his delegate for the period of the undertaking or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him including as to alcohol and drug testing, counselling and treatment.
(10)For the Treatment and Supervision Part of the Drug and Alcohol Treatment Order:
(a)The core conditions of the Order set out in s 80Y of the Crimes (Sentencing) Act 2005 (ACT) be hereby imposed;
(b)Andrew Allan Kay undertake any program, treatment or counselling, alcohol and drug testing or case management that may be required by any member of the Treatment and Supervision Team and obey all reasonable directions of any member of that Team about where he resides, with whom he associates and his attendance from time to time;
(c)Andrew Allan Kay not return a positive test sample under alcohol and drug testing; and
(d)Andrew Allan Kay comply with any directions of the Court from time to time about attendance at Court in person or by electronic means.
(e)Andrew Allan Kay be directed to comply with a curfew from 8:00pm to 6:00am every day.
(11)Andrew Allan Kay be directed to sign a sealed copy of this Order and an undertaking to comply with the Order and any obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the period that this Order is in force to before he leaves the Court precincts.
(12)Andrew Allan Kay be directed to appear in person or by electronic means in Court on Tuesday, 17 September 2024 at 11.30am.
| I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Acting Justice Christensen. Associate: Date: 5 May 2025 |
2
7
2