Director of Public Prosecutions v Williams
[2022] ACTSC 301
•3 November 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Williams |
Citation: | [2022] ACTSC 301 |
Hearing Date: | 3 November 2022 |
DecisionDate: | 3 November 2022 |
Before: | Elkaim J |
Decision: | (a) For the offence of unauthorised manufacture of a prohibited firearm, the offender is sentenced to a period of imprisonment of 18 months (reduced from 24 months) to commence today and end on 2 May 2024. (b) For the offence of unauthorised possession of firearms, the offender is sentenced to 6 months and 21 days’ (reduced from nine months’) imprisonment to commence today and end on 23 May 2023. (c) For the transfer charge of possessing a prohibited article, the offender is sentenced to 4 months and 14 days’ (reduced from six months’) imprisonment to commence today and end on 16 March 2023. (d) The above terms of imprisonment are to be served by way of an intensive corrections order which is to contain the additional condition that the offender attend such drug relapse prevention treatment and counselling as directed by Corrective Services. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – unauthorised manufacture of firearms – unauthorised possession or use of firearms other than prohibited firearms – where prosecution conceded intensive corrections order was appropriate |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33 Firearms Act 1996 (ACT) ss 43, 228 Prohibited Weapons Act 1996 (ACT) s 6 |
Parties: | ACT Director of Public Prosecutions Toby Lee Williams (Offender) |
Representation: | Counsel N Deakes (ACT Director of Public Prosecutions) K Musgrove (Offender) |
| Solicitors ACT Director of Public Prosecutions Boxall Legal (Offender) | |
File Number: | SCC 193 of 2022 SCC 194 of 2022 |
Elkaim J:
1․On 4 August 2022 the offender pleaded guilty to the following two offences:
(i)Unauthorised manufacture of a prohibited firearm in contravention of s 228(1) of the Firearms Act 1996 (ACT). The offence was committed between 19 August and 29 October 2021. The maximum penalty is 20 years imprisonment and/or a fine of $240,000.
(ii)Unauthorised possession of firearms in contravention of s 43(1)(a)(iii) of the same Act. The date of the offence is 29 October 2021. The maximum penalty is five years’ imprisonment.
2․The offender has also pleaded guilty to a charge of possessing a prohibited article on 29 October 2021, contrary to s 6 of the Prohibited Weapons Act 1996 (ACT). This charge has been transferred from the Magistrates Court. The maximum penalty is two years’ imprisonment and/or a fine of $32,000.
3․The offender had initially pleaded not guilty to the offences but after discussions with the prosecution, he pleaded guilty on the ninth mention of the matter. The offender is entitled to a discount for his pleas of guilty. Although the ninth mention is a long time into the process it appears that there were a number of adjournments to facilitate the discussions about resolution of the charges. I think the appropriate discount is 25 per cent.
4․The facts are set out in the Agreed Statement of Facts (contained in Exhibit A). The following is a summary: on 19 August 2021 the police, with the benefit of a listening device, heard the offender boasting about his manufacture of firearms. Early the next day a Subaru Forester was seen speeding in the ACT suburb of McKellar. The driver refused a police request to stop. It is not suggested the offender was in the vehicle or associated with any person having anything to do with the vehicle.
5․A little later on the same day the police located the same vehicle parked on a nature strip. A dismantled shotgun was found in the footwell. The offender had manufactured the shotgun. This gun is the subject of the manufacturing charge and can be seen on pages 1 and 2 of the photographs making up Exhibit C.
6․On 29 October 2021 police executed a search warrant at the offender’s residence. They found material possibly associated with other firearm manufacturing. However no charge has been brought in this respect.
7․In addition the gun seen in the photograph on page 5 of Exhibit C was located. This gun together with a replica Luger pistol, also found during the search, are the basis for the possession charge. The latter can be seen, in dismantled form, on pages 16 and 17 of Exhibit C.
8․Two ammunition magazines were also found. They are the subject of the transfer charge. They are also on pages 16 and 17.
9․In the course of discussion during the sentencing hearing earlier today a number of important concessions were fairly and properly made by the prosecution. These included the following:
(i)There was no evidence that the vehicle in which the manufacturing charge gun was found was in any way associated with the offender.
(ii)There was no evidence that this gun was operational.
(iii)There was no evidence that this gun was to be used in any criminal activity.
(iv)The semi-automatic rifle seen in the photograph on page 9 of Exhibit C is not the subject of any charge and is to be ignored for sentencing purposes.
(v)The material held in a blue glove, on page 15 of the photographs is also irrelevant to sentencing.
(vi)The ammunition magazines contained no ammunition.
10․As will be seen below, the above concessions will play an important part in the sentences to be imposed.
11․The offender was born in 1990. This makes him currently 32 years of age. He has a long criminal record containing a number of driving offences but also other offences such as assault, damaging property and breaches of undertakings. When the offences were committed he was subject to a suspended sentence order which had been imposed on 1 July 2021. He had been sentenced in the Magistrates Court for driving with a prescribed drug in his oral fluid or blood. He clearly had little respect for the terms of his suspension.
12․The offender grew up in Canberra, mostly raised by his father. He maintains a good relationship with his father and also with his siblings in particular a brother who also lives in Canberra. A good deal of his family attended Court to support him. There is also a letter from a Ms Turner (Exhibit 1) expressing support and emphasising the offender’s remorse.
13․The offender left home at an early age which led to his education being curtailed. To his credit he returned to the Canberra Institute for Technology to finish his Year 10 certificate. He has also obtained certificates in transport, construction and asbestos awareness. He runs his own handyman business and has some regular clients. He earns about $600 a week.
14․The offender currently lives with his grandmother. He has a partner and they have a child. He is planning to live with his partner in the future. At the moment there are issues with his partner’s parents.
15․The offender had a drinking problem as a young man which led to him to committing a number of offences. He has significantly lessened his alcohol consumption. Another problem is related to cannabis. He says he has stopped using this drug. He has also stopped using methylamphetamine, although he did so during the COVID-19 lockdown.
16․He says that he has also stopped using this drug which got him back into trouble. He says that he is committed to no longer using drugs.
17․According to the pre-sentence report the offender has recognised the risks associated with the weapon he produced. The report also says he has a low to medium risk of general re-offending. It lists protective factors such as “a supportive family and partner, secure accommodation, ongoing employment and continued abstinence from illicit substances”.
18․The pre-sentence report says that the offender is suitable for an Intensive Corrections Order (ICO). It is recommended that the terms of any such order would target “drug relapse prevention treatment/counselling”.
19․The overall picture that emerges is of a man who is more than capable of living a responsible life, caring for a family, holding down a job and staying away from crime. This is to be contrasted to his criminal record which shows a consistent involvement in crime and a disregard for court orders.
20․Ms Musgrove, on behalf of the offender, has put objective seriousness at a low level. She has emphasised that there is no suggestion that the weapons were operational or that they were to be used in any criminal enterprise.
21․I think the offences are towards the lower end of the scale but not to the extent suggested by counsel. The offences are serious. Guns hurt and kill people. Manufacturing them is attendant with risks both to the manufacturer and to the public. The absence of a licensing regime controlling the guns enables them to, as in this case, fall into the hands of other persons and to be unsecured in a home. As I have already noted a gun was found in a vehicle not belonging to the offender and therefore presumably in the possession of another person. The flight of whoever was driving the vehicle could suggest that person was anxious not to be apprehended by the police and perhaps engaged, or intending to be engaged, in some criminal activity assisted by the weapon.
22․There is a significant element of public deterrence in this case. The manufacture of dangerous guns must be controlled and persons contemplating entering this industry should know that penalties will be severe.
23․Although the offences are separate, they generally cover the same period and might be seen as part of the same pattern of offending. Accordingly, they will be dealt with concurrently. It is also significant that the manufacturing charge carries by far the greatest penalty, the extent of which must be reflected in the sentence imposed.
24․The charge involving the Luger pistol must take into account that the item was a replica and not capable of discharging ammunition. On the other hand, when used against a person, the victim’s terror will be no less in the absence of knowledge that the gun is not capable of being fired.
25․There are other factors to be taken into account, all of them contemplated by ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT), as well as by s 33. Section 10 says imprisonment is a last resort.
26․I am particularly cognisant of the need for rehabilitation and, as set out in the pre-sentence report, the positive factors in favour of successful rehabilitation. In addition, the offender has a young child who will no doubt benefit from the supportive elements the offender is apparently capable of bringing into the relationship.
27․In relation to ‘comparable’ cases, the prosecution referred me to three matters but with the correctly added rider that their individual facts rendered them of little assistance to the present case. I agree.
28․The prosecution initially, in written submissions, suggested that full-time imprisonment was required. This submission, again in an indication of a proper reaction to conceded facts, was withdrawn by the prosecutor who said that while a prison sentence was necessary there was no reason why it should not be served by way of an ICO.
29․Counsel for the offender emphasised the rehabilitation prospects and submitted that the offender has finally turned his life around, now having secure employment, a stable relationship and a young child. She submitted that an ICO is the appropriate path to take.
30․Prior to the concessions made by the prosecution I was of the view that full-time imprisonment was appropriate. However, the effect of the concessions is to lessen the severity of the offences and to render the ICO as the correct option. The offender will know that his ignoring of orders while on conditional liberty will not assist him. If he offends again, he will almost certainly go directly to prison and remain there for some time. I will adopt the suggested condition stated in the pre-sentence report.
31․Although the offender has spent 54 days in custody, the sentences will commence today in order to comply with the technical requirements of an ICO.
32․The offender is sentenced as follows:
(a)For the offence of unauthorised manufacture of a prohibited firearm, the offender is sentenced to a period of imprisonment of 18 months (reduced from 24 months) to commence today and end on 2 May 2024.
(b)For the offence of unauthorised possession of firearms, the offender is sentenced to 6 months and 21 days’ (reduced from nine months’) imprisonment to commence today and end on 23 May 2023.
(c)For the transfer charge of possessing a prohibited article, the offender is sentenced to 4 months and 14 days’ (reduced from six months’) imprisonment to commence today and end on 16 March 2023.
(d)The above terms of imprisonment are to be served by way of an intensive corrections order which is to contain the additional condition that the offender attend such drug relapse prevention treatment and counselling as directed by Corrective Services.
| I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: |
2
0
3