Police v Deacon
[2017] ACTMC 19
•22 November 2017
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Police v Deacon |
Citation: | [2017] ACTMC 19 |
DecisionDate: | 22 November 2017 |
Before: | Magistrate Theakston |
Decision: | See paragraph [34] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Judgment and Punishment – Sentence – possess prohibited firearm – minor theft – taking part in the manufacture of a firearm – possess ammunition – fail to appear after bail undertaking |
Legislation Cited: | Bail Act 1992 (ACT) s 49 (1) Crimes (Sentencing) Act 2005 (ACT) ss 7, 33 Crimes (Sentence Administration) Act 2005 (ACT) s 85 Criminal Code Act 2002 (ACT) s 321 Firearms Act 1996 (ACT) ss 42 (a) (iii), 228 (1), 249 (1) |
Parties: | Police (Informants) Nathan Deacon (Defendant) |
Representation: | Counsel Ms E Beljic (Informant) Ms M Voleynik (Defendant) |
| Solicitors Director of Public Prosecutions (Informant) Aboriginal Legal Service (Defendant) | |
File Number(s): | CC 3920 of 2017 CC 3921 of 2017 CC 3922 of 2017 CC 468 of 2017 CC 3776 of 2017 CC 3777 of 2017 CC 4917 of 2017 CC 8563 of 2015 CC 5752 of 2015 |
Magistrate Theakston:
Background
The defendant is before the court for sentencing, having pleaded guilty to the following charges:
(a)CC17/3920 – Take part in the manufacture of a firearm (21 May 2016) contrary to s 228(1) Firearms Act 1996
(b)CC17/3921 – Possess prohibited firearm while not authorised (4 August 2016) contrary to s 42(a)(iii) Firearms Act 1996
(c)CC17/3922 – Possess ammunition for a firearm while not authorised (4 August 2016) – contrary to s 249(1) Firearms Act 1996
(d)CC17/468 – Failing to appear after bail undertaking (15 December 2016) – contrary to s 49(1) Bail Act 1992
(e)CC17/3776 – Failing to appear after bail undertaking (13 January 2017) – contrary to s 49(1) Bail Act 1992
(f)CC17/3777 – Minor theft (20 March 2017) – Contrary to s 321 Criminal Code 2002
(g)CC17/4917 – Minor theft (28 March 2017) – Contrary to s 321 Criminal Code 2002
The defendant entered those pleas of guilty after several appearances and, in relation to the first three charges, after pleas of not guilty had been entered but before the matters had been set down for hearing. There are some complexities relating to those firearm offences, and negotiation between the prosecution and the defendant ultimately resolved the issue of guilt. In any event, I accept such pleas still provide the court and others with a utilitarian benefit. I take that into account and will reduce the sentences by 20% of what I would have otherwise imposed.
The maximum penalties for these offences are, respectively:
(a)$150,000 and or 10 years imprisonment;
(b)$2,000 and or 10 years imprisonment;
(c)$1,500;
(d)$30,000 and or 2 year’s imprisonment;
(e)$30,000 and or 2 year’s imprisonment;
(f)$7,500 and or 6 month’s imprisonment; and
(g)$7,500 and or 6 month’s imprisonment;
I note the jurisdictional maximum penalty for the first two offences is $15,000 and or 5 year’s imprisonment.
The defendant also has two good behaviour orders, for which he had previously been resentenced. He has admitted to breaching those orders by failing to comply with supervision by Corrective Services. Upon conviction of a number of the above offences, he will also breach those good behaviour orders. Those breaches relate to the two following offences for which the following orders were made:
(a)CC15/5752 – Minor theft (13 May 2015) – Contrary to s 321 Criminal Code 2002 – good behaviour order; and
(b)CC15/8563 – Failing to appear after bail undertaking (31 August 2015) contrary to s 49(1) Bail Act 1992 – 3 month suspended sentence order.
The defendant was in custody from 2 to 11 January 2016 and again since 30 March 2017. Accordingly, I will backdate any period of imprisonment to 20 March 2017.
The Circumstances of the Offences
The firearm offences came to light following the death of the defendant’s friend due to an accidental self inflicted gunshot wound to the head. The firearm involved was a homemade pistol.
The defendant’s home was searched and a number of tools and firearm components, both ordinary and homemade, were located within the home. The defendant made admissions that the defendant’s partner’s brother had been involved in that manufacture. The prosecution’s case is not that the defendant was personally involved in such manufacture, but rather he allowed steps in the manufacturing process to take place at his premises. The defendant gave evidence that the deceased was also involved in the manufacture of the pistol and I accept that evidence.
During the search a single barrel break action .410 calibre shotgun, with part of the barrel and butt-stock removed, was located in a bag at the end of the defendant’s bed. The firearm was found to be unable to fire due to a missing firing pin. The defendant expressed a belief to police that he did not require a licence for the firearm because it was antique.
Also located during the search were three firearm rounds of .222 and .22 calibre.
The first fail to appear charge related to a mention in relation to the initial breach proceedings for the above two breach matters. Approximately two weeks later, the defendant was arrested on a warrant and brought before the court. He was located hiding within a rolled up rug under a bed.
The second fail to appear charge also related to a mention for the same matters. Approximately two months later, the defendant was arrested at his home and was observed to be attempting to exit his second storey rear window when police attended.
The two minor theft matters involve the defendant shoplifting a Bluetooth speaker from JB Hi Fi Westfield Belconnen on each two separate occasions. The speakers were valued at $79 each.
The breach minor theft offence related to shoplifting two DVDs and a DVD box set from JB Hi Fi Westfield Belconnen. The total value of the property was $172.97.
The breach fail to appear offence involved the defendant failing to appear at a mention while on police bail. He was arrested on a warrant days later.
The offence of taking part in the manufacture of a firearm is clearly the most serious matter for which I need to sentence the defendant. It is objectively serious, and this is reflected in the maximum penalty for the offence. The Firearms Act 1996 describes an object of improving public safety. The risk to the community of unregulated firearms is obvious. Authorities are unable to manage access to, and insist upon safety standards for, illegal firearms. Those limitations give rise to the risks of violence, injury and death. In this case the third risk manifested with the accidental gunshot wound causing death.
That offence is also an offence that captures a range of criminality. It includes those who actually participate in the manufacture of a firearm, including those who are complicit in such manufacture, for example by making arrangements for others to perform the actual manufacture. It also includes those who arrange finance for such manufacturing and, as in this case, those who allow such manufacturing to occur on their premises. The offence also captures different scales and sophistication of manufacturing. The objective seriousness of any particular example of the offence will differ depending upon the above variations. In this case, the manufacturing appears to have been primitive and unsophisticated, and at the smallest of scales. The defendant’s role was that of someone who was aware of the manufacture and allowed it to occur within his home, but did not participate or otherwise contribute to the same.
Accordingly and notwithstanding the associated death, I assess the objective seriousness of this offence as falling below the half way mark for an offence of this type.
In relation to possess prohibited firearm, I note that this was an older style and smaller size shotgun in the absence of any corresponding firing pin or cartridges, but with a modified butt-stock and barrel. This falls below the half way mark for objective seriousness for an offence of this type.
Each of the minor theft matters involved shoplifting of items of limited value. I assess they each fall towards the lower end of objective seriousness.
Each of the failing to appear offences related to non-appearances at mention dates, and I assess they fall below the half way mark of objective seriousness for offences of that type.
The Defendant’s Subjective Circumstances
The defendant is a 24 year old aboriginal man in a supportive and stable relationship with his partner of four years. He has two children, aged 2 years and 5 months. The youngest child was born while the defendant was remanded in custody for these offences.
The defendant completed schooling to Year 10 and has subsequently been employed in various labouring and kitchen hand roles. However, he has been unemployed since November 2016.
The defendant’s father passed away due to a car accident when the defendant was 15 years old. It was at about that time the defendant commenced use of illicit substances including cannabis, heroin and methylamphetamine. It appears from the Pre-Sentence Report that the defendant’s use of heroin and methylamphetamine was at a significant level just prior to him coming into custody in March 2017.
The defendant reported suffering drug induced psychosis and has been medicated for the same while in custody. He also reported being diagnosed with anxiety, depression and post-traumatic stress disorder, with the third condition linked to the death of his father. There was no further evidence about these mental health conditions or their relationship with the offending conduct.
The defendant has received conditional approval for entry into the Bennelong’s Haven residential rehabilitation centre at Kinchella NSW, subject to him ceasing the methadone program. I understand he is in the process of withdrawing from his methadone use. The defendant has also applied for admission into the Arcadia House rehabilitation program.
Child and Youth Protection Service are currently involved with the defendant’s children and have provided a reference. They report that the defendant has, while in custody, engaged well with that service. They support the defendant’s desire to engage in residential rehabilitation and opine that the same would go some way in reducing their concerns in relation to the children.
The defendant provided a letter to the court and gave evidence. He impressed as someone who has, during his time in custody to date, reflected upon his offending. He expressed remorse and regret about his offending, including regret about the loss of his friend. He expressed a desire to attend residential rehabilitation and described his motivation to reform as being associated with his desire to do the right thing by his children.
I accept those sentiments are genuine and include insight into the impact his conduct has had on others. The defendant’s desire to address his issues is of course a positive step. However, it will take more than mere desire to move on from his addictions. Any success will of course depend upon what actions the defendant takes.
The defendant’s criminal history contains a range of entries, in addition to the above breach matters, that include failing to appear, shoplifting and receiving stolen property. He has only a limited history of dishonesty, some history for failing to appear and no history for firearm offences. The history also documents issues with the defendant’s compliance with court orders. I take that history into account, not for the purpose of punishing the defendant again for those earlier matters or increasing the sentence for the current matters beyond what would otherwise be appropriate, but rather to determine what degree of leniency should be afforded to him.
Consideration of Sentencing
I have turned my mind to the purposes of sentencing and relevant considerations described at sections 7 and 33 of the Crimes (Sentencing) Act 2005. Each offence requires appropriate denunciation and general deterrence. The offences are each either of a type that are prevalent within the community or involve potentially serious consequences. Accordingly, each requires sentencing to deter others who may be contemplating committing similar transgressions. Additionally, the defendant’s repeated failure to appear in answer to his bail requires specific deterrence.
The defendant is a young man. There remains the possibility that he may still make a positive contribution to society, his community and his family. He currently desires reform and is willing to commence rehabilitation. I accept rehabilitation should feature highly.
Having considered the available sentencing alternatives, I am of the view that in relation to the take part in manufacturing firearm, possession of prohibited firearm and fail to appear offences, no other penalty, other than a period of imprisonment, is appropriate. I will however release the defendant part way through his sentence to allow him the opportunity to engage in rehabilitation.
Sentence
I make the following orders:
1. In respect of the breach matter of failing to appear (CC15/8563) – the good behaviour order is cancelled and the defendant is imprisoned for a period of 2 months, commencing on 20 March 2017 and ending on 19 May 2017.
2. In respect of the breach matter of minor theft (CC15/5752) – I take no further action.
3. In respect of the offence of failing to appear (CC17/468) – the defendant is convicted and imprisoned for 2 months, commencing on 20 April 2017 and ending 19 June 2017
4. In respect of the offence of failing to appear (CC17/3776) – the defendant is convicted and imprisoned for 2 months, commencing on 20 May 2017 and ending 19 July 2017
5. In respect to the offence of possess prohibited firearm while not authorised (CC17/3921) – the defendant is convicted and imprisoned for 2 months, commencing on 20 June 2017 and ending 19 August 2017.
6. In respect of the offence of take part in the manufacture of a firearm (CC17/3920) – the defendant is convicted and imprisoned for 6 months, commencing on 23 July 2017, suspended after serving 4 months on condition the defendant enter into a good behaviour order for a period of 12 months from the date of his release, and the defendant is to:
a. comply with his obligations under s 85 of the Crimes (Sentence Administration) Act 2005;
b. be subject on probation to the supervision of the Director-General of Corrective Services or delegated supervisor for a period of 12 months from the date of his release, or such lesser period as deemed appropriate by the supervisor; and
c. obey all reasonable directions of that supervisor, including any direction to attend any assessment, program, counselling or rehabilitation, including residential rehabilitation.
7. In respect of the offence of possess ammunition for a firearm while not authorised (CC17/3922) – the defendant is convicted and released upon entering into a good behaviour order for a period of 6 months, with core conditions only.
8. In respect of the offence of minor theft (CC17/3777) – the defendant is convicted and sentenced to the rising of the court.
9. In respect of the offence of minor theft (CC17/4917) – the defendant is convicted and sentenced to the rising of the court.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Magistrate Theakston. Associate: Sam Lynch Date: 22 November 2017 |
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