Middlemiss v Paget (a pseudonym)
[2023] ACTMC 18
•18 May 2023
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Middlemiss v Paget (a pseudonym) |
| Citation: | [2023] ACTMC 18 |
| Hearing Date(s): | 18 May 2023 |
| Decision Date: | 18 May 2023 |
| Before: | Special Magistrate Richter |
| Decision: | CC 119523/2021 the defendant is convicted |
| CC 6574/2022 the defendant is convicted | |
| CC 1593/2022 the defendant is convicted | |
| Catchwords: | CRIMINAL LAW – Judgment and Punishment – Sentence |
| – unauthorised possession of prohibited firearms – | |
| possessing ammunition – possession of firearm – possess | |
| drug of dependence. | |
| Legislation Cited: | Firearms Act 1996 (ACT) Crimes Act 1900 (ACT) |
| Crimes (Sentencing) Act 2005 (ACT) | |
| Cases Cited: | R v Salcedo; R v Stretton (No 3) [2018] ACTSC 305 Kristiansen v Yeats [2022] ACTSC 351 Kajevic v Noble [2021] ACTSC 67 |
| R v Doan [2000] NSWCCA 317 | |
| Parties: | Jude Middlemiss (Informant) Garey Paget (a pseudonym) (defendant) |
| Representation: | Counsel |
| M Dyason (Informant) P Johannessen (Defendant) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Informant) Johannessen Legal | |
| File Number(s): | CC 11950 of 2021 CC 119523 of 2021 CC 6574 of 2022 CC 1593 of 2022 |
SPECIAL MAGISTRATE RICHTER:
1. The defendant is before the court having pleaded guilty to the following charges:
CC 11950/2021 Possess un-registered/prohibited firearm.
Firearms Act 1996 (ACT) section 177(2)(a):That he in the Australian Capital Territory, on 22 October 2021 did possess an unregistered prohibited firearm, namely a sawn off .410 shotgun.
Maximum penalty $150,000 and/or 10 years imprisonment.
CC 119523/2021 Possess ammunition. Firearms Act 1996 (ACT) section 249(1)
That he in the Australian Capital Territory, on 22 October 2021 possessed ammunition for a firearm, namely twenty-seven .410 shotgun shells and was not authorised by a licence, permit or otherwise under the Firearms Act to possess or acquire the ammunition.
Maximum penalty $1600.
CC 6574/2022 Possess firearm.
Firearms Act 1996 (ACT) Section 43(1)(a)(ii)That he in the Australian Capital Territory, on 22 October 2021 possessed a firearm, namely, an air pistol whilst not authorised by a licence, permit or otherwise under the Firearms Act 1996.
Maximum penalty 5 years imprisonment.
CC 1593/2022 Possess drug of dependence.
Drugs of Dependence Act 19899 (ACT) Section 169(1)That he, in the Australian Capital Territory, on 22 October 2021, possessed a dug of dependence namely 3.562 grams of methylamphetamine.
Maximum penalty $75,000 and/or 2 years imprisonment.
2. The defendant consented to the jurisdiction of the Magistrates Court on 21 October 2022. I note the jurisdictional maximum penalty is $15,000 and/or 5 years imprisonment by operation of the Crimes Act (ACT) section 375.
3. The defendant entered his pleas of guilty after a significant number of appearances before this court (on the 21st mention for CC 11950/2021) and after the matters had been listed for hearing and vacated on 2 occasions.
4. I accept that the defendant had difficulty in accepting the advice given to him by his previous lawyers and it was only upon the engagement of his current counsel that the matters ultimately resolved by way of guilty pleas. In any event, I accept that his pleas still provide the court and the community with a utilitarian benefit. In taking that into account I will reduce the sentences by 15% of what would have otherwise been imposed by me.
Circumstances of offence
At about 10:30 AM on 22 October 2021, police attended the defendant’s home
address in possession of warrants issued under section 3 the Crimes Act 1914
(Cth).6. During the search of the premises the police located items in an area of the
house which has been referred to as the “study”. These items included:
1. a loaded sawn-off smoothbore .410 shot gun, 2. Shot gun shells, some of which were capable of being fired by the shot gun (in excess of a dozen), 3. a bandolier, 4. an imitation gel-blaster pistol, 5. a set of digital scales with residue, and 6. 3.652 g of methamphetamine. 7. A series of 14 photographs taken at the search was tendered (Exhibit 4). From those photographs I can see that the shot gun was loaded and had been sawn off at both the butt and the barrel and then enclosed with black tape. It has the appearance of a weapon which could be easily wielded using one hand. In the photographs there is a shell in the chamber of the shot gun.
8. Embedded in the wall of the room is a storage facility which appears to be disguised as a vent or an air conditioning controller and in which can be seen 15 shotgun shells and 14 smaller calibre bullets. I note that the bullets are not specified in the charge of ammunition.
9. No further information was provided to the court in relation to the location of the
“air-soft pistol” or the methyl amphetamine at the time of their discovery.
Prohibited firearm
10. In relation to possess prohibited firearm, I note that this was an operational shot gun with a modified but-stock and barrel and that at the relevant time it was loaded.
11. This weapon was not secured in any way but was found on a coffee table in a room within the house, and as such was accessible by any person who came into the house. The danger posed by this weapon was even greater given that it was in a loaded state when it was located by police.
12. Whilst there is no evidence that this weapon has been used in any other crime, its possession comes within the higher end of the range of seriousness for an offence of this type.
Possess ammunition
13. The possession of the ammunition in this case is aggravated in that one of the shotgun shells was loaded into the shot gun which was left on the coffee table. That other items of ammunition were stored in a hidden, but not secure place, which also aggravates the circumstances in which the ammunition was possessed.
Possess firearm
14. The firearm which is the subject of this charge is an “air-soft pistol”. In submissions the defendant’s counsel explained that the defendant had thought
of this as being a toy. Whilst this is a common perception by some segments of
the community, it does not accord with Parliament’s view of air-soft pistols as
they are banned in all jurisdictions in this country, and have been for some time.
Possess methylamphetamine
15. The methylamphetamine found by the police during their search was over 3.5 grams. This was a large amount to be possessed for personal use. I proceed on the basis that this drug is simply charged as a possession offence.
Subjective factors
16. The defendant has been in custody since March 2022 on this and other matters. On 14 March 2023 a sentence of imprisonment of 6 months was imposed in this court which was back-dated to commence on 21 March 2022 and to conclude on 20 September 2022. Since 20 September 2022 he has been on remand in relation to this matter and matters in the Supreme Court.
17. I have had the benefit of a pre-sentence report prepared in relation to the defendant dated 10 May 2023 (Exhibit 3).
18. The defendant acknowledges his Torres Strait Islander descent, having inherited his lineage through his father but has limited knowledge of his heritage and has had an absence of any specific cultural engagement throughout his life.
His mother’s Philippino culture and traditions were prominent in what he has
described as a “good” childhood, and he has an ongoing supportive relationship
with both his parents who reside together.
20. He started using drugs and alcohol at a young age and this seems to be at odds with the childhood and family life he has otherwise described. The pre-sentence
report refers to the defendant’s ongoing illicit substance use with significant
experimentation with various drugs.
21. The report also refers to his having completed an intake application through Wayback Ltd (Drug and Alcohol Rehabilitation Centre) but that he was assessed as unsuitable for participation at that time. He claims to have abstained from illicit drug substance use during his current incarceration.
22. He is married and has two young children who are aged three years and four years of age. The children were removed by CYPS in 2021 and this caused understandable emotional distress to the defendant.
23. The removal of his children appears to have been the cause of a significant
portion of the defendant’s prior criminal offending.
24. His early criminal history commences in the children’s Court in 2007 when he
was bound over to keep the peace. In 2009 he was convicted for an offence of
receiving stolen property and for a drink-driving offence.25. In 2022 he was committed to the Supreme Court in relation to charges of possession of the proceeds of crime and attempt to traffic in a controlled drug. Those matters are yet to be resolved.
26. Earlier this year he was dealt with for a series of stalking offences which I am told relate to the CYPS staff who the defendant considered responsible for the removal of his children. There are 5 sets of charges related to that period which resulted in a sentence of imprisonment for 6 months.
27. I was provided with references (Exhibit 5) from
1. Winter Paget - the defendant’s wife, 2. Father Michael Zamar - Coptic Orthodox Church Canberra, 3. Ikol Russel - a cousin of the defendant, and f 4. Francesco Catanzariti - a friend of the defendant. 28. I was also provided with a letter from the defendant himself. He explains that he has now been incarcerated for over 13 months, mostly on remand. He claims to have reflected on the poor decisions he has made in life and says that he is extremely sorry for the crimes he has committed. He asks for leniency, and for a second chance to prove himself.
29. He says that he has plans to go back to work as a carpenter and that he has been offered work as a carpenter. He knows that his incarceration has left his wife and his children struggling and without support.
30. Whilst the sentiments expressed in the letter are admirable, I have nothing with which to test their veracity. The defendant was imprisoned by this court on 14 March 2023, but, there has been no opportunity for the defendant to show his true colours with any assisted rehabilitation.
31. His prior contact with corrections has been through bail undertakings and through custodial sentences. He is currently the subject of an unsupervised behaviour order from his 2023 conviction for damage/destroy property which
postdates this offending – however that has not been tested as he has remained
in custody.
32. This offending is really the start point of a trajectory of serious offending which commenced in 2021 and has gone through to 2022.
The defendant’s counsel described this as being his “annus horribilis”. In my
view there is some weight to that submission. The defendant is 33 years of age. His previous offending - until these offences and the attempted trafficking offence - had seen a gap in his criminal history of some 12 years.
Consideration of Sentencing
34. I turn my mind to the purpose of sentencing in the relevant considerations described in the Crimes (sentencing) Act 2005 and in particular sections 7 and 33. There is a requirement for appropriate denunciation and general deterrence. The possession of a loaded sawn off shot gun and methamphetamine are offences that involve potentially serious consequences and as such sentencing is required to deter others who may be contemplating committing similar offences.
35. On the other hand, the defendant is a young man with two small children and a wife who attended court to support him. There remains the possibility that he may still make a positive contribution to society, his community and his family. His letter tells me that he currently desires to reform and is willing to commence rehabilitation and I accept that rehabilitation should feature highly.
36. Despite that, having considered the available sentencing alternatives, I am of the view that in relation to the possession of a prohibited firearm no other penalty other than a period of imprisonment is appropriate.
37. I will however release the defendant part way through his sentence to allow him the opportunity to engage in rehabilitation. If he is to have a meaningful influence
in his children’s lives, this may well be his last opportunity to set up that future.
38. The defendant was sentenced to a period of imprisonment between 21 March 2022 and 20 September 2022. As from 21 September 2022 the defendant has been held on remand in relation to these matters and the matters which are to be heard in the Supreme Court. He has now been on remand for 7 months and 27 days for this matter and the Supreme Court matters. I place no weight on the potential for matters to proceed in the Supreme Court, however I acknowledge his time spent on remand.
39. The appropriate penalty is affected by the nature, condition and capability of the prohibited weapon. A review of decisions in the Supreme Court shows that the range can be quite broad, but is generally higher for a weapon which is able to be fired and/or for which there is ammunition available.[1]
[1] R v Salcedo; R v Stretton (No 3) [2018] ACTSC 305 – sawn of shotgun found under pillow – 2Y 8M;
40. I take into account the guidance that where the maximum penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Magistrates Court, that court should impose a penalty reflecting the seriousness of the offence, tempered, if appropriate, by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit.[2]
[2] R v Doan [2000] NSWCCA 317 at [35]
41. I will sentence the defendant to a period of imprisonment which is to be partly suspended.
Sentence
42. I make the following orders:
1. In respect of CC 11950/2021 - possess un-registered/prohibited firearm - the defendant is convicted.
But for his plea in this matter I would have sentenced the defendant to imprisonment for a period of 18 months.
I reduce that period to 15 months[3] in acknowledgement of the discount to which
I consider he is entitled for his plea, albeit a very late plea.[3] Pursuant to section 65(6) Crimes (Sentencing) Act I disregard the period for which the sentence is
In considering the starting point for this period of imprisonment I take into account the principle of totality. The defendant has now been in custody for over 1 year. I acknowledge that time spent on remand can be more onerous than serving a sentence. The period of imprisonment is backdated to commence on 21 August 2022.
The sentence is to be suspended after the defendant has served 10 months of the sentence (ie 21 June 2023) and the defendant is required to sign an undertaking that he will comply with good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months from the date of the suspension of imprisonment.
During the suspension of his remaining sentence, he will be subject to the supervision of the director-general and obey all reasonable directions of that person for a period of 12 months from the date of suspension or such lesser period as the supervisor deems appropriate.
He will attend such educational, vocational, psychological psychiatric or other programs or counselling as directed, particularly in relation to drug use/dependence and that he undertake such medical assessments, treatment and supervision as directed.
He will supply samples of blood, breath, hair, or saliva for alcohol or drug testing as required by a corrections officer.
2. In respect of CC 119523/2021 - possess ammunition – the defendant is
convicted. But for his plea I would have imposed a fine of $1,000. I reduce that
fine to $800. I allow no time to pay.3. In respect of CC 6574/2022 - possess firearm – the defendant is convicted. But
for his guilty plea I would have imposed a sentence imprisonment of 6 weeks. I reduce that sentence to 1 month imprisonment to commence 21 September 2022 concurrent with the sentence imposed on CC 11950/2021.
4. In respect of CC 1593/2022 - possess drug of dependence, the defendant is convicted. But for his guilty plea I would have imposed a sentence of imprisonment of 6 weeks. I reduce that sentence to 1 month imprisonment. That imprisonment is cumulative to the sentence imposed on CC 11950/2021, and is fully suspended on the same terms as the bond imposed on CC 11950/2021.
43. I order that the two firearms and the ammunition seized by police be forfeited to the Territory pursuant to section 262 Firearms Act 1996.
44. I order that the methylamphetamine seized by police be forfeited to the Territory pursuant to section 367 Crimes Act 1900.
I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Special Magistrate Richter.
Associate: Serrina Kenny
Date: 18 May 2023
Kristiansen v Yeats [2022] ACTSC 351 – air rifle not capable of firing – 7M 15D;
Kajevic v Noble [2021] ACTSC 67 – 2 pistols in brief case in car – 22M.
suspended and accordingly no non-parole period is set.
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