P v KPB
[2009] NSWLC 6
•28/04/2009
Local Court of New South Wales
CITATION: P v KPB [2009] NSWLC 6 JURISDICTION: Criminal PARTIES: Police
KPBFILE NUMBER: PLACE OF HEARING: Camden Local Court DATE OF DECISION: 04/28/2009 MAGISTRATE: Magistrate O'Brien CATCHWORDS: Non publication order- firearms offences- death of 14 year old boy- general deterrence- approach to be taken to firearms offences - plea of guilty - strong subjective case - psychological difficulties of the offender - extra curial punishment - hardship to others - the statutory scheme for sentencing - victims impact statements - sentencing statistics-accumulation and totality - periodic detention. LEGISLATION CITED: Crimes Act 1900 - Firearms Act 1996 - Children (Criminal Proceedings) Act 1997 - Crimes (Sentencing Procedure) Act 1999 - Criminal Procedure Act 1986 CASES CITED: Aslett v R [2006] NSWCCA 360
Gilson v The Queen (1991) 172 CLR 353
Pearce v The Queen (1998) 194 CLR 610
Police v Power [2007] NSWLC 1
R v Berg [2004] NSWCCA 300
R v Bloomfield (1998) 44 NSWLR 734
R v Boyle (1987) 34 A Crim R 202
R v Burnett (1996) 85 A Crim R 76
R v Cahill [2004] NSWCCA 451
R v Carberry (2002) 136 A Crim R 55
R v Cooper [2005] NSWCCA 428
R v Cromarty [2004] NSWCCA 54; (2004) 144 A Crim R 515
R v Day (1998) 100 A Crim R 275
R v De Simoni (1981) 147 CLR 383
R v Doan (2000) 50 NSWLR 115
R v Dodd (1991) 57 A Crim R 349
R v Douar (2005) 159 A Crim R 154
R v Edwards (1996) 90 A Crim R 510
R v Einfeld [2009] NSWSC 119
R v Girard [2004] NSWCCA 170
R v H (1980) 3 A Crim R 53
R v Hallocoglu (1992) 29 NSWLR 67
R v Hamze [2005] NSWSC 136
R v M [2004] NSWCCA 92
R v Mitchell [2002] NSWCCA 270
R v Nguyen [2006] NSWCCA 369
R v Oliver (1980) 7 A Crim R 174
R v Palu (2002) 134 A Crim R 174
R v Perrett [1999] NSWCCA 115
R v Porter [2008] NSWCCA 145
R v Scott [2005] NSWCCA 152
R v Jill Margaret Scott, NSWCCA, 27 November 1996
R v Slack [2004] NSWCCA 128
R v Thomson and Houlten (2000) NSWLR 383
R v Thurgar (1980) 51 A Crim R 109
R v Tolley [2004] NSWCCA 165
R v Veen (No 2) (1998) 164 CLR 465
R v Way (2004) 60 NSWLR 168
R v Weldon;
R v Wirth (1976) 14 SASR 291
R v X [2004] NSWCCA 93TEXTS CITED: REPRESENTATION: Sgt C Parnell for the Prosecution
Mr J Tunks, Solicitor for the OffenderORDERS:
REMARKS ON SENTENCE
INTRODUCTION
1. On the 9 December 2008 the offender was arrested and charged with possessing a loaded firearm in a non public place so as to endanger the life of another person, contrary to section 93G(1)(a)(ii) of the Crimes Act 1900. He was also charged contrary to the Firearms Act 1996 with possessing an unregistered firearm, possessing an unauthorised firearm and not keeping a firearm safely. His arrest followed the tragic death of a 14-year-old boy at the offenders Orangeville home in circumstances to which I will shortly refer. All matters were listed before me for sentence on 13 March 2009; the offender having entered pleas of guilty to all charges when they were first listed before the court. On 13 March 2009 Sgt Parnell appeared for the Prosecution and Mr Tunks for the offender. I heard evidence and submissions at that time and my decision was reserved until today. Each of the representatives provided me with a written document in support of their oral submissions. On 13 March 2009 I made an order pursuant to section 11 of the Children (Criminal Proceedings) Act 1997, prohibiting the publication of any name or material that would be likely to lead to the identification of any young person. For abundant caution I make that same order today. This sentencing task has not been an easy one; I repeat however the comments I made at the close of the proceedings on 13 March expressing my gratitude to both Mr Tunks and Sgt Parnell for the detailed, careful and sensitive submissions put to me, they were each of great assistance.
THE FACTS
2. As at 6 December 2008 the offender had held a shooters licence for about 22 years. His licence was a category A and B licence. He held this licence for vermin control as well as sporting shooting, target shooting and hunting. Approximately 20 years ago the offender had purchased a Winchester 1300 12-gauge pump action shotgun (‘the Winchester 1300’). At the time of purchase the firearm was not prohibited and did not require registration. He last used this firearm 13 or 14 years ago. The offender subsequently purchased other firearms including rifles and a single barrel shotgun, the possession of which complied with his licence conditions. These firearms were locked and secured in a gun locker within his home in accordance with the relevant legislation. The offender was the only person with a key to this locker.
3. At about 10pm on Saturday 6 December 2008 the 14-year-old son of the offender was present at the family home along with his friend Josef Cruickshank who was also aged 14 years. The offender and his wife had left the 2 boys unsupervised. At this time the offender’s son has gained access to the Winchester 1300 that was unsecured within a walk in wardrobe in the main bedroom of the home, that room being generally occupied by the offender and his wife. Following his obtaining access to the firearm the offenders son is said to have discharged one round causing a fatal injury to his friend Josef Cruickshank. No further detail of the shooting was provided to me. The offender’s son has been charged with murder.
4. A police investigation commenced and it was confirmed that the subject firearm was both prohibited and unregistered. On the 9 December 2008 the offender attended Camden Police Station in company with his solicitor. He was arrested and cautioned. He then participated in an electronically recorded interview. He made admissions to purchasing the Winchester 1300 about 20 years earlier. He stated that he had intended to surrender the firearm in an amnesty 5 or 6 years ago, but that on the day he proposed to do so, one of his children had been injured and he had not. He had, on that day, and before police and ambulance officers arrived at his home in relation to his son, placed the firearm into the rear of the walk in wardrobe in the main bedroom. Clothes and other items had then hidden it and the offender forgot it was there. There was evidence before me that indicated that the offender had previously surrendered firearms during an amnesty. During the interview the offender conceded that anyone within the house could access the main bedroom, that there was a lock on the main bedroom but that it was rarely used and that there was no lock at all on the walk in wardrobe.
5. The offender admitted that the Winchester 1300 was a difficult firearm to load and would take someone without knowledge some time to master. He conceded that the firearm could have been loaded at the time that he placed it in the wardrobe. The circumstances of the fatal shooting indicate that the firearm was in fact loaded at the time that the offender’s 14-year-old son came into possession of it. Mr Tunks took no issue with this assertion.
6. The interview revealed that the offender was aware of the requirements for firearms to be stored safely, and conceded not surprisingly, that his storage of the subject firearm was not safe. He was also aware that the firearm was not registered and that he was not authorised to possess it. Clearly the consequences that flowed from the events of 6 December 2008 were horrendous. At least two families have been shattered in a way that is difficult to comprehend. The entire incident is aptly described, if any description could ever be appropriate, as a tragedy of significant proportions, the consequences of which will be acutely felt by many people, including the offender, for the rest of their lives.
THE GENERAL APPROACH TO BE TAKEN
7. Offences relating to firearms are some of the most serious offences prosecuted in the Local Court. This is clear from a consideration of the maximum penalties prescribed by the legislature and of the comments made in various reported cases.
- It is incumbent upon Courts to impose sentences that act as a significant general deterrent in these types of matters. It is the inherent danger to public safety that firearms represent which grounds this duty. Further the Firearms Act stipulates its principles and objects in section 3. Its principles include confirming firearm possession as a privilege conditional on the overriding need for public safety, the improvement of public safety by the imposition of strict controls on firearms, the promotion of safe and responsible storage and use of firearms and the facilitation of a national approach to their control. It is clear that courts “must seek to implement the policy of the existing legislation”- see R v Tolley [2004] NSWCCA 165 per Howie J. As Smart AJ remarked in R v Cahill [2004] NSWCCA 451;
- “ Firearms offences are dangerous………even keeping an unlicensed firearm, particularly in a way where it is not secured, endangers the public. Even if the person who has the firearm does not use it, there is always a danger that someone else will.”
8. The fact of there being no “criminal purpose” for the possession of firearms is not a decisive consideration. In R v Hamze [2005] NSWSC 136, Howie J dealt with, amongst other things, an offence under section 7 of the Firearms Act. While that is not the section under which the offender has been charged, His Honours remarks are relevant and of assistance;
“They were serious offences because of the nature of the weapons, because there was ammunition found in the offenders possession that fitted one of the weapons and because they were found in unsecured places in a suburban dwelling. It is not a matter of mitigation that there is no evidence that the offender was going to use them for any unlawful purpose. The policy behind firearms offences is to control the use of weapons in the community generally and not simply to disarm the criminally minded. The Court of Criminal Appeal has emphasised the seriousness with which these types of offences must be treated: R v Cromarty [2004] NSWCCA 54: (2004) 144 A Crim R 515.”
9. These comments have real resonance in the context of this matter where a powerful loaded weapon was at the relevant time unsecured in the offender’s home in circumstances where easy access to it was available.
RELEVANT PRINCIPLES
10. Section 3A of the Crimes (Sentencing Procedure) Act 1999 provides;
The purposes for which a court may impose a sentence on an offender are as follows;
(a) to ensure that the offender is adequately punished for the offence,
- (b) to prevent crime by deterring the offender and other persons from committing similar offences,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
- (g) to recognise the harm done to the victim of the crime and the community.
11. In R v M [2004] NSWCCA 92, the Court of Criminal Appeal observed that section 3A is in substance, a codification and elaboration of the purposes of criminal punishment set out in R v Veen (No 2) (1988) 164 CLR 465 at 476 where Mason CJ, Brennan, Dawson and Toohey JJ said;
“The purposes of criminal punishment are various; protection of society, deterrence of the offender and others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions”.
12. As His Honour the Chief Magistrate noted in Police v Power [2007] NSWLC 1 at paragraph 31;
” the sentence to be passed on the accused must ultimately reflect the objective seriousness of the offence committed and must be reasonably proportionate to the crime committed R –v- Scott [2005] NSWCCA 152. The maximum penalty is not an outcome that occurs as a matter of course. It is only in the gravest of cases that the maximum penalty will fall to be considered. Where an indictable offence is to be dealt with within the jurisdiction of the Local Court however the Court is required to assess where the objective seriousness of the offence lies by having regard to the maximum penalty for the offence not the maximum penalty which may be imposed by a Local Court [ R –v- Doan (2000) 50NSWLR 115] . Although the sentencing court is not bound to accept the correctness of an election by the prosecution to bring the matter to finality within this jurisdiction such a decision invariably brings with it, whether properly based or not, a concession that the objective seriousness of the conduct within the offence does not approach that of the gravest of cases.”
13. These remarks by the Chief Magistrate have particular relevance when one considers the offence sequences 1,2 and 3; those being indictable offences listed within Table 2 of the Criminal Procedure Act 1986 where the prosecution could have elected to have them dealt with in the District Court and did not do so.
14. The maximum penalty in respect of the offence pursuant to the Crimes Act is one of 10 years imprisonment. The offences pursuant to sections 36(1) and 7A(1) of the Firearms Act carry maximum penalties of 10 years (as the firearm was also prohibited) and 5 years imprisonment respectively. Plainly these exceed the jurisdictional limit of this court. In R v Way (2004) 60 NSWLR 168 the Court said at paragraph 51 that;
“The statutory maximum penalty has been regarded as an expression of the policy of the legislature in providing for the offence, ( R v Oliver (1980) 7 A Crim R 174) at 177; Gilson v The Queen (1991) 172 CLR 353 at 364), or as a reflection of the seriousness of that offence as perceived by the public ( R v H (1980) 3 A Crim R 53 at 65)”.
15. The offence of not keeping the firearm safely carries a maximum penalty of 2 years imprisonment or a fine of 50 penalty units (being $5,500) or both, these being penalties within the jurisdictional limit of this court. Mr Tunks has stressed in his submissions that I must be careful to ensure that I punish this offender only for the offences with which he has been charged, and that I must keep in mind that he has not been charged with causing the death of Josef Cruickshank. I accept this submission- to do otherwise would breach the principles set out in R v De Simoni (1981) 147 CLR 383.
OBJECTIVE CRIMINALITY
16. As I have already indicated the offender is to be dealt with for very serious offences indeed. That this is so is reflected by the penalties prescribed. I note that Mr Tunks submissions, both orally and in writing, proceeded upon the basis that the offender was charged and had pleaded guilty to an offence under section 7(1) of the Firearms Act relating to the possession of a prohibited firearm, which offence carries a maximum penalty of 14 years imprisonment. Notwithstanding these submissions my examination of the Court Attendance Notice indicates that, amongst others, the offence to which the offender has in fact entered a plea of guilty and in respect of which he is to be sentenced is one pursuant to section 7A(1) of the Firearms Act, being the possession of a firearm without being authorised by a licence or permit, which offence carries a maximum penalty of 5 years imprisonment.
17. The use or purpose of the possession of unregistered and prohibited firearms, especially if such possession relates to ongoing criminal conduct has been regarded as fundamental to an assessment of the criminality or seriousness of the offending- See R v Thurgar (1990) 51 A Crim R 109, per Gleeson CJ. Of course this authority predates the Firearms Act 1996, which was introduced following the nations horror at the Port Arthur Massacre, and must now be considered in conjunction with that Act and in light of the comments in R v Tolley (supra) to which I have previously made reference. There is no suggestion here that the possession of the firearm by the offender was for any criminal purpose.
18. The objective seriousness of the matter may also be affected by the length of time during which an offender has had possession of the firearm and the circumstances of that possession. Relevantly, the offender had possession of an unregistered and prohibited weapon for a lengthy period. He was aware of the status of the firearm and had been so aware for some time. This is against the background of his having turned his mind to the renewal of his firearms licences in October 2008, 2 months before the dreadful incident that brings him before the court. Clearly the firearm was stored unsafely. The fact that it was also loaded with at least one round of ammunition aggravates the seriousness of the possession- See R v Mitchell [2002] NSWCCA 270. I accept the Prosecutors submission that the fact of young children having lived in the offender’s house throughout the period of his possession of the loaded firearm is a further matter elevating the objective seriousness. It has been held to be a matter of aggravation where the unauthorised possession enables others to make use of the firearm, even though that result was unintended- See R v Cooper [2005] NSWCCA 428. This of course is what occurred here, with the offender’s son being the person who made use of the firearm without the offender’s knowledge or consent.
19. The offence under section 93G (1)(a)(ii) of the Crimes Act falls also to be considered. Section 93G creates a range of offences that vary markedly in their severity. As a rule the “firing” or “using” of a firearm, particularly if that involves a disregard for public safety, will be more serious than “mere possession”. Having said that, I note that the Parliament has regarded all of the offences under this section as very serious, given their 10-year maximum penalty.
20. I have concluded after careful consideration that the 3 charges that the offender faces that relate to, or have as an element of them, the possession of the subject firearm (being sequences 1, 2 and 3) fall at or just below the middle range of objective seriousness for such offences. In reaching this conclusion I have sought to balance the competing considerations to which I have referred in these Remarks.
21. I have however come to a different view in respect of sequence 4, that being the charge of not keeping the firearm safely. In my view this offence can be distinguished from the others because it relates to further and ongoing criminal conduct by the offender following and conditional upon his possession of the firearm. This distinction is also important in considering issues of accumulation and totality in sentencing, and I will return to it later. The consequences of this offence were truly horrendous. The offender’s criminality created an environment where a young boy lost his life. His criminal behaviour is an essential precursor to the tragedy that followed. It is difficult to imagine a more serious scenario than that presented to the court. The fact that the unsafely kept firearm was also loaded adds significantly to the objective seriousness. In my opinion the facts supporting this charge place it, if not in the “worst case category”, then certainly very close to that category. This is the very type of tragic circumstance that the Parliament must have had in mind when setting the maximum penalty for this offence. No other conclusion is warranted.
THE OFFENDERS PLEA
22. I accept that there is significant utilitarian value in the plea of guilty entered by the offender. In R v Thomson and Houlten (2000) 49 NSWLR 383 at 419 ff Spigelman CJ (with whom Wood CJ at CL, Foster AJA, Groves and James JJ agreed) said that the utilitarian value of a plea to the criminal justice system should generally be assessed in the range of a 10-25% discount on sentence. The primary consideration determining where in the range a particular case should be positioned is the timing of the plea. This plea was entered at the first available opportunity and in my opinion the full 25% discount should be applied.
THE SUBJECTIVE CIRCUMSTANCES OF THE OFFENDER
23. A powerful subjective case was presented on behalf of the offender. In that regard I must be careful to ensure that those strong subjective factors do not cause me to give inadequate weight to the objective seriousness of the offending; there must be reasonable proportionality between these considerations- see R v Dodd (1991) 57 A Crim R 349. The offender is aged 41 years. He is married with 5 children aged between 14 and 8 years. His eldest child presently stands charged with the most serious offence known to the criminal law. I am told that his marriage is problematic. He is a self-employed tradesman in the building industry. He has no prior criminal history and had until these offences led a completely law abiding and responsible life. He is a man who is well regarded by those who know him. During the course of the sentencing proceedings I was provided with in excess of 80 character testimonials, recurring themes of which were the offenders devotion to his family, his strong work ethic, his reliability and responsibility, his honesty and his exceptional contribution to his local community through his involvement in junior rugby league both as a coach and as an administrator. He had been the coach of the rugby league team that Josef and his son had played in, and it seems clear that Josef spent a considerable amount of time at the offenders home. It is against this background that the major lapse of judgment which brings him before the court, occurs.
24. I have read a report in respect of the offender prepared by Mr Tim Watson-Munro a highly regarded and well-qualified forensic psychologist. His report is dated 8 March 2009. I also had the benefit of receiving oral evidence from Mr Watson-Munro. I found him to be a most impressive witness. His report described the offender as having a complex clinical history in recent years arising from a fall sustained by his now 11-year-old son some years ago, a serious work related injury that he suffered and the more recent death of his mother in law. He was described as “not psychologically robust” prior to the 6 December 2008 and it is contended that the events of that night have seriously aggravated his pre existing condition. Mr Watson-Munro had spent a total of 5 sessions with the offender prior to giving his evidence.
25. The incident involving his younger sons fall has some relevance to the matters before the court. On the very day that his son was injured by falling 6 meters from the 2nd storey of the family home the offender had intended to surrender the subject firearm to police. In the confusion following his sons fall the firearm was placed into the walk in wardrobe in the main bedroom where it apparently remained until 6 December 2008. As well as providing some explanation, albeit a completely unsatisfactory one, as to how the firearm came to be unsecured in the home, this incident also provides some explanation for what is described as the development of symptoms suggestive of a Post Traumatic Stress Disorder prior to the 6 December 2008. He has had no treatment for this condition and there is no doubt in my mind that these symptoms have significantly worsened since the death of Josef. In assessing this aspect I have borne in mind the comments of James J in R v Einfeld [2009] NSWSC 119 at paragraph 156 that “ It is common for offenders who are the subject of criminal proceedings to become depressed and even severely depressed”. The offender was described by Mr Watson-Munro in his oral evidence as being “overburdened by remorse”, “tearful with a strong sense of guilt” and “depressed and anxious”. According to Mr Watson-Munro he accepts his culpability 100%. He is managing to function in the community, but barely. He was further described as “hanging on by a thread” and in urgent need of supportive treatment. Mr Watson- Munro opined that he might well require psychiatric treatment no matter what the outcome of these proceedings. He is said to empathise with Josef’s family in their loss, and having observed him in court I accept that this is true. I posed to Mr Watson-Munro the question of how it is, if the offender has been suffering from difficulties for some years, he has been able to present as the reliable community minded enthusiast described in the testimonials. He answered that it is not uncommon for persons such as the offender to bury themselves in other activities so as to mask their symptoms, but that presently he is finding it “difficult to cope with anything”.
26. On balance I have concluded that the offenders psychological difficulties are genuine, long standing and relate more to the tragic death of Josef than to the predicament in which he now finds himself. Mr Tunks submitted that I ought take into account the guilt and shame that the offender feels as extra curial punishment suffered by him. I have given this submission considerable thought and do not accept it. Generally speaking the authorities dealing with the issue of extra curial punishment talk of physical or financial penalties suffered by an offender. This is not the case here. While I acknowledge that in R v Einfeld (supra) James J referred to public humiliation and vilification as matter’s that could be considered as extra curial punishment, it does not appear to me on the available evidence that the offender has suffered in this way; indeed he has been provided with considerable community support as evidenced by the volume of testimonials of which mention has been made. This is not to say that I will not have significant regard in the sentencing task to his present psychological circumstances.
THE OFFENDERS FAMILY AND THE ISSUE OF HARDSHIP
27. The offender’s wife has also seen Mr Watson-Munro. She is 37 years old and has been married to the offender for 17 years. Their children are aged 14, 13, 11, 10 and 8 years. Mrs B is said by Mr Watson-Munro to be suffering from similar problems to the offender. In his oral evidence he said that she was “scarcely functioning”. She is additionally anxious over the outcome of these proceedings and the prospect of the offender being imprisoned on a full time basis. She has concerns about the financial circumstances of the family in that event and her capacity to care for and maintain their children. Not surprisingly all of the offenders children have been adversely affected. The issue of the offenders family is of significance in the resolution of this sentencing task and gives rise to a question of importance, that is, how am I to treat what is contended will be the hardship caused to his family in the event that the offender is sentenced to a term of full time custody.
28. The general principle is that hardship to family and dependants is an unavoidable consequence of a custodial sentence and is not to be regarded as a mitigating factor unless such hardship is “wholly”, “highly” or “truly” exceptional. In R v Edwards (1996) 90 A Crim R 510 at 516 the New South Wales Court of Criminal Appeal held that it was only when circumstances were “highly exceptional” and where it would be inhumane to refuse to do so that hardship to others can be taken into account. It is unfortunately part of the duty of judicial officers to regularly sentence offenders to terms of imprisonment notwithstanding that doing so will cause hardship to innocent parties.
29. The most frequently cited Australian judgment on the subject is that of Wells J in R v Wirth (1976) 14 SASR 291, His Honour said this at 295-296;
“The argument thus presented to us raises the following question: When (if ever), and to what extent (if at all), should the hardship caused, directly or indirectly, by a proposed sentence of imprisonment, to the family of, or to others closely associated with, the offender be taken into account by the Court in mitigation of that sentence?
But it has often been remarked that the strength of our law lies in the willingness of judges, when applying a principle, not to carry it past the point where a sense of mercy or of an affronted common sense imperatively demands that they should draw back. So it is proper that I should here add that, in my opinion, hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhumane to refuse to do so………For example, if it were demonstrated to the satisfaction of the court that to send a man to prison would, without much doubt, drive his wife to suicide, it would be steely-hearted judge who did not, however illogically, at least try to meet the situation by suitably framed orders as to penalty. But further than that, in my judgment, courts should not go.”Hardship to spouse, family and friends, is a tragic, but inevitable, consequence of almost every conviction and penalty recorded in a Criminal Court…….It seems to me that courts would often do less than their clear duty- especially where the element of retribution, deterrence, or protection of society is the predominant consideration- if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners.
30. The judgment of Wells J in Wirth (supra) has been followed with approval both in New South Wales and other Australian states. Often the authorities have dealt with the issue of hardship to the children of offenders as a consequence of a custodial penalty, sometimes with very different results. In R v Boyle (1987) 34 A Crim R 202, the Western Australian Court of Criminal Appeal emphasised that that the general principle that hardship to others should not be taken into account should only be departed from in “extreme cases”. In Boyle the court found that the extreme consequences suffered by the teenage children of the offender, one of who was mentally retarded, justified the imposition of a non custodial penalty in relation to a drug supply charge in circumstances where a custodial penalty was otherwise appropriate.
31. By contrast in R v Day (1998) 100 A Crim R 275 the New South Wales Court of Criminal Appeal held that the hardship suffered by the teenage children of a person pleading guilty to a charge of supplying heroin was not so extreme as to warrant interference with the general rule. In that case the Court noted that the children were not young, suffered from no illnesses or disabilities requiring special care and had relatives available to provide care although those arrangements were not optimal.
32. As Gleeson CJ remarked in R v Jill Margaret Scott NSWCCA, unreported, 27 November 1996 in respect of hardship caused to an infant child by his mothers incarceration;
- “Without question this is a very sad circumstance. It needs to be remembered, however, that it is by no means uncommon for hardship, and sometimes grave hardship, to be caused to third paries by sentencing a person to prison. Judges and magistrates are routinely required in the course of their duty to sentence to prison parents of children, people who are carers of others who are weak or vulnerable, employers upon whom workers depend for their livelihood, and others, in a variety of circumstances, whose incarceration will cause hardship to third parties.”
33. In Edwards (supra) the Court of Criminal Appeal dealt with a Crown appeal from a decision of Simpson J where Her Honour had declined to impose a sentence of full time imprisonment where such a penalty was otherwise appropriate, as a result of the offenders close and caring relationship with a disabled person who was resident in a facility where the offender was employed, and who the evidence revealed would suffer from her absence. In that case the offender had been convicted of manslaughter and Simpson J had imposed a sentence of 3 years periodic detention. The Court of Criminal Appeal held that Her Honour had fallen into error in taking into account to the extent that she did, the hardship caused to the disabled man for whom the offender had cared. As Gleeson CJ observed in Edwards;
- “Justice will not be seen to be administered even-handedly if exceptions are made in cases which are not truly exceptional”
34. Clearly and in accordance with principle, this matter like all others must be determined, and the offender sentenced, having regard to the particular circumstances pertaining to him and to the offence with which he has been charged.
35. After much consideration I am satisfied that the hardship that will be caused to the offenders family is not of such an exceptional, unusual or extraordinary nature as to warrant it being given significant weight. I have come to this conclusion bearing in mind the remarks of Wells J in Wirth (supra) as to how this issue is to be treated where general deterrence is a significant factor in sentencing for a particular offence, as it is in this matter. Whilst the offenders family situation cannot be used to justify any substantial reduction in sentence via a discrete and clearly identified measure of leniency it is a matter that I am entitled to, and do take into account as part of the offenders general subjective factors- See R v X [2004] NSWCCA 93 per Sully J, R v Girard [2004] NSWCCA 170 per Hodgson JA and R v Nguyen [2006] NSWCCA 369 per James J.
THE STATUTORY SCHEME- Section 21A - Crimes (Sentencing Procedure) Act, 1999
36. In determining the penalty to be imposed I must have regard to the mitigating and aggravating factors set out in sections 21A(2) and (3) of the Crimes (Sentencing) Procedure Act. These are in addition to any factors that I may take into account pursuant to the common law.
37. Aggravating factors- Section 21A (2)
It appears to me that the relevant sub sections of section 21A(2) to be taken into account are;
(g) the injury, emotional harm, loss or damage caused by the offence is substantial-
Mr Tunks submitted that to find this factor established would result in a breach of the De Simoni principle as there is no causal connection between the offences before the court and the death of Josef. I do not accept this submission. There is nothing in the subsection itself that limits its operation in the way contended by Mr Tunks. Further, in Aslett v R [2006] NSWCCA 360, McClellan CJ at CL made it clear that the section was not limited to injury, harm, loss or damage to a victim, but extended to that suffered by other family members. There is ample evidence of such substantial harm in this case. I was provided with victim’s impact statements from both of Josef’s parents, Mr Cruickshank’s being read onto the record by him, and I will return to the treatment of these shortly.
(i) the offence was committed without regard to public safety-
- I accept the submission of Mr Tunks that this factor cannot be taken into account in respect of the charge pursuant to section 93G of the Crimes Act, as the endangering of the life of another is an element of the charge. This is despite the matters raised by Sgt Parnell that the terms of the subsection are wider than those within section 93G. If I were to regard it as aggravating then I may be at risk of falling into error by effectively “double counting” against the offender. In respect of the 3 charges pursuant to the Firearms Act however I am of the view that this factor is made out.
34. Mitigating Factors – Section 21A (3)
It appears to me that the following mitigating factors have application;
(e) the offender does not have any record (or any significant record) of previous convictions.
(f) the offender was a person of good character.
(g) the offender is unlikely to re-offend.
(h) the offender has good prospects or rehabilitation.
(i) the remorse shown by the offender for the offence.I accept that the report of Mr Watson-Munro, his oral evidence and various of the many testimonials tendered allow me to conclude that the offender is genuinely remorseful, has accepted responsibility for his actions and has acknowledged the damage caused by his offending conduct.
(k) a plea of guilty by the offender (as provided in section 22).I have dealt with this aspect earlier in these Remarks.
VICTIMS IMPACT STATEMENTS
35. The prosecution provided me with victim impact statements prepared by both of Josef’s parents, Mr Cruickshank and Ms Ferraro. Mr Cruickshank’s statement was read by him to the court. His doing so was both powerful and emotional for all those present. His grief was palpable, as was his anger at the offender. Ms Ferraro provided 2 documents, one being described as a victim impact statement and the other being addressed “To Whom It May Concern” and being more in the nature of a plea for leniency on behalf of the offender. Her document described as a victim impact statement detailed her shock at Josef’s death, her anger at not being able to experience his moving into adulthood and the difficulties that she has experienced in a variety of ways since his death. Unlike Josef’s father she described the incident as an “unfortunate accident”. She expressed the wish that the offender be allowed to remain in the family home with his wife and children.
36. Division 2 Part 3 of the Crimes (Sentencing Procedure) Act 1999 contains provisions dealing with the victim impact statements. The statements in this matter were purportedly prepared by family victims. Mr Tunks took no objection to the admission of the documents, although he did submit on the way in which they could be used. Section 26 of the Act provides a definition of “ family victim” as follows;
- “in relation to an offence as a direct result of which a primary victim has died, means a person who was, at the time the offence was committed, a member of the primary victim’s immediate family, and includes such a person whether or not the person has suffered personal harm as a result of the offence.”
37. Obviously the parents of Josef are members of his immediate family, however I am not satisfied that the necessary nexus between the offences with which I am dealing and his death, a direct connection being required, is made out. Put another way I am not satisfied, in respect of the offences before the court, that either Mr Cruickshank or Ms Ferraro fall within the statutory definition of “family victim”. Further section 27 relevantly provides that the Division applies in the Local Court only if the offence being dealt with is an offence that has resulted in the death of a person. Given the definition of family victim to which I have referred (it being the only possible relevant definition) it follows in my view that the death in respect of which the statement is being given must be the direct result of the subject offence. This is not the case here. While the offenders criminal conduct may have had an indirect impact upon Josef’s death I do not accept that his offences directly resulted in that dreadfully sad event.
38. While the statutory provisions have no application in the circumstances of this matter, the statements by Mr Cruickshank and Ms Ferraro can still be considered in the sentencing process. In R v Porter [2008] NSWCCA 145 Johnson J observed at par 53;
- “ The fact that the statements were entitled ‘victim impact statements’, and were prepared on forms which were not appropriate technically to the offences, does not mean that the content of the statements was inadmissible. This is especially so as no objection was taken to the material tendered.”
39. A consideration of the evidence received by the court in this way has enabled me to conclude that the offending conduct occasioned substantial emotional harm to both of Josef’s parents. In reaching this conclusion I have had regard to the need to treat the reception of the material cautiously (per Wood CJ at CL in R v Berg [2004] NSWCCA 300 at pars 48 and 49) and to bear in mind that it is unsworn, untested by cross examination and neither objective or impartial (per Sperling J in R v Slack [2004] NSWCCA 128 at pars 61 and 62). The differing attitudes of each of them to the offender have not been given any weight by me. This is in accordance with what Howie J, with whom Levine and Hidden JJ agreed, said in R v Palu (2002) 134 A Crim R 174:
- “The attitude of the victim cannot be allowed to interfere with a proper exercise of the sentencing discretion. This is so whether the attitude expressed is one of vengeance or of forgiveness.”
40. While His Honours remarks concern the attitude of the direct victim of offending conduct, in my view they have equal application to the attitude of members of the victim’s family.
SENTENCING STATISTICS
41. I have considered the Local Court sentencing statistics maintained by the Judicial Commission of New South Wales. Those indicate that there were only ten section 93G (1)(a)(ii) offenders sentenced in the Local Court from July 2004 to June 2008. Such a small sample does not provide me with any real guidance. A larger sample for the same period was available in respect of the Firearms Act charges. These indicated that the majority of offenders were dealt with by fines and section 9 bonds. Only 9% of offenders under section 36 (1), 6% of offenders under section 7A (1) and 3% of offenders under section 39 (1) received custodial penalties, including suspended sentences.
42. Sentencing statistics can be used by a Court to provide generalised information about the range of sentences imposed for a particular offence; R v Perrett [1999] NSWCCA 115. While bald statistics have been said to be of limited use, they may provide an indication of general sentencing trends and standards, indicate an appropriate range, assist in ensuring consistency and be useful in determining whether a sentence is manifestly excessive or inadequate (see R v Bloomfield (1998) 44 NSWLR 734 per Spigelman CJ)
CONCLUSION
43. I note that the pre sentence report prepared indicates that the offender is suitable for both community service and periodic detention. The report is a positive one and confirms much of the material put before me in respect both of the offender’s attitude to the offence and his personal circumstances.
44. I have determined as required by section 5 of the Crimes (Sentencing Procedure) Act that no penalty other than imprisonment is appropriate in respect of each offence. Mr Tunks in his comprehensive submissions finally invited me to deal with the matter by way of suspended sentences with supervision or by allowing any sentences to be served by way of periodic detention, my having indicated to him during his submissions that I was of the view that the matter was far to serious to be disposed of by the imposition of community service orders. Sgt Parnell submitted that custodial penalties be imposed and that they be served either by way of periodic detention or full time custody.
45. Given my finding that nothing other than imprisonment is appropriate I must, consistent with authority determine the length of each sentence. In balancing the objective seriousness of the offending, the importance of general deterrence and the various aggravating and mitigating factors to which I have referred and allowing for the 25% discount for the offenders pleas of guilty, I have determined that the proper terms of imprisonment are;
As to sequence 1- a period of 32 months less 25% being 2 years
- As to sequence 3- a period of 20 months less 25% being 15 months
- As to sequence 4- a period of 2 years less 25% being 18 months
46. I am now required to consider whether there is any alternative to full time imprisonment that is appropriate. I must consider if sentences of other than full time imprisonment would reflect the objective seriousness of the offending and fulfil the purpose of punishing the offender, the need for general deterrence, the need to make the offender accountable, the need to denounce his conduct and the need to recognise the harm that has been caused. A clear message must be sent to people in the community who may have firearms (whether they be legal or illegal, registered or unregistered) that if they are not stored safely and as a consequence others are harmed, then they cannot expect to be dealt with by the courts other than by the imposition of significant penalties. It is for this reason that I do not believe that a suspended sentence would be an appropriate outcome. I have however determined that the sentences I will impose can appropriately be served by way of periodic detention. The offender’s prior good character, the fact that specific deterrence has no application, his genuine remorse and his family circumstances have led me to this conclusion.
47. It is after much thought, that I am able to extend this significant leniency to the offender. I do however intend to partially accumulate the penalty for sequence 4 upon the sentences for sequences 1, 2 and 3 all of which can be served concurrently. As I have earlier indicated it is my view that the offending in sequence 4 is of a different type to that in sequences 1, 2 and 3, and that the imposition of concurrent sentences for all matters would not appropriately reflect this. The sentence for sequence 4 will commence following the expiration of 12 months from the commencement of the remaining 3 sentences. Without partial cumulation I do not believe that the sentences imposed would reflect the total criminality of the offenders conduct; there are in my view discrete acts of criminality involved in the different groups of offences, one involving possession and the other involving an ongoing failure to secure. If I were to impose wholly concurrent sentences then this would fail to take account of these differences in conduct- see R v Weldon; R v Carberry (2002) 136 A Crim R 55 per Ipp JA at par 48.
48. In coming to my conclusion regarding periodic detention I have borne in mind that there is a very strong element of leniency already built into such a sentence and that it is outwardly less severe in its denunciation of both the offender and the offence than full time imprisonment- R v Hallocoglu (1992) 29 NSWLR 67; R v Douar (2005) 159 A Crim R 154. Nevertheless it has been held that the continuous obligation to comply with an order of periodic detention over a lengthy period is in itself a salutary punishment- R v Burnett (1996) 85 A Crim R 76. The sentences that I will shortly impose are to be clearly understood as ones of imprisonment and as an expression of how seriously the law regards the conduct of the offender.
49. I do not believe that special circumstances exist, so enabling me to vary the statutory ratio between the non-parole period and the balance of the term and I do not propose to do so, other than in the limited way to which I will shortly refer. The factors that would otherwise have gone to the issue of special circumstances, including the offender’s psychological condition, his self inflicted sense of shame and guilt, my determination that partial accumulation is appropriate, and the fact that this will be his first time in custody have been taken into account by me in determining the length of the sentences imposed and the fact that those sentences can be served by periodic detention. It is however necessary for me to adjust the non-parole period for Sequence 4 so as to ensure that the overall sentences imposed do not offend the statutory ratio set out in section 44 (2) of the Crimes (Sentencing Procedure) Act, which provides that the balance of the term must not exceed one third of the non parole period for the sentence. In that regard I note that the effective total term of imprisonment is one of 30 months with a non-parole period of 22 months and 15 days; the non-parole period being 75% of the total term. I am satisfied that this will cause a result that adequately reflects the total criminality of the offenders behaviour in accordance with the principles set out by the High Court in Pearce v The Queen (1998) 194 CLR 610.
50. The ORDERS of the Court are accordingly as follows;
In respect of each charge the offender is convicted and sentenced to the following terms of imprisonment:
1. As to the charge of possessing a loaded firearm in a non public place so as to endanger life, a term that consists of a non-parole period of 18 months and a total term of 2 years commencing on the 8 May 2009 and expiring on the 7 May 2011. He will be eligible for release subject to supervision on parole on the 7 November 2010.
2. As to the charge of possessing an unregistered firearm, a term that consists of a non parole period of 18 months and a total term of 2 years commencing on the 8 May 2009 and expiring on the 7 May 2011. He will be eligible for release subject to supervision on parole on the 7 November 2010.
3. As to the charge of possessing an unauthorised firearm, a term that consists of a non parole period of 11 months and 7 days and a total term of 15 months commencing on the 8 May 2009 and expiring on the 7 August 2010. He will be eligible for release subject to supervision on parole on the 14 April 2010.
4. As to the charge of not keeping a firearm safely, a term that consists of a non parole period of 10 months and 15 days and a total term of 18 months commencing on the 7 May 2010 and expiring on the 6 November 2011. He will be eligible for release subject to supervision on parole on the 21 March 2011.
5. All sentences are to be served by way of periodic detention at the Metropolitan Periodic Detention Centre, Parramatta. The offender must sign documents relating to his sentence before leaving the court premises.
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