R v Brown

[2021] NSWDC 830

District Court

New South Wales

Medium Neutral Citation:

R v Brown [2021] NSWDC 830

Hearing dates:

21/10/21

Date of orders:

21/10/21

Decision date:

21 October 2021

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Re each of Counts 1, 2 and 3:

Convicted and sentenced to a Community Corrections Order for a period of 2 years, to date from today. In addition to the standard conditions, the following condition is to apply:

1. 100 hours Community Service.

The offender is to report to the Hornsby office of Community Corrections by telephone within 7 days.

I take the matter on the Form 1 into account.

Catchwords:

Crime – Sentence – Possess prohibited firearm – Possess firearm without authorisation

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Firearms Act 1996

Category:

Sentence

Parties:

NSW DPP – Crown
Ashley Francis Brown - Offender

Representation:

Mr N Borosh for Crown
Mr G Niven for Offender

File Number(s):

2019/342591

sentence - ex tempore revised

1. Mr Ashley Francis Brown is for sentence for the following offences, two offences of possessing a prohibited firearm, for which the maximum penalty is 14 years imprisonment and to which a standard non‑parole period of four years applies, and a third offence being an offence of possessing a firearm not being authorised to do so, which relates to an air rifle. The maximum penalty for that offence being five years imprisonment.

2. In addition, he asks that when sentencing him for count 1, which is the offence of possessing a prohibited firearm, namely a shotgun not being authorised to do so, that I take into account a further offence set out on a Form 1 document which relates to three firearms, that being an offence of not keeping a firearm safely.

3. Of course, the maximum penalties and, where applicable, the standard non‑parole period are important guideposts in the sentencing exercise to which I have had regard.

4. The offender, it is agreed, pleaded guilty at the earliest opportunity and he therefore will be given a 25% discount on any sentence that otherwise would have been imposed. The facts are agreed and are as follows.

FACTS

5. On 31 October 2019 police executed a search warrant at the offender’s residence at Westleigh in relation to an unrelated matter. While executing that search warrant police found the following items in the offender’s garage, after he had disclosed their presence. Firstly, a 12 gauge pump action shotgun, which is the subject of count 1, this being a prohibited firearm for the purposes of the Firearms Act 1996. Secondly, a semi-automatic .22 rifle with scope, this being the subject of count 2 on the indictment, that weapon also being a prohibited firearm. Thirdly, a .177 calibre air rifle, this being a firearm for the purposes of the offence in count 3. I note also that police found a belt with 25 shotgun shells suitable for use with the shotgun, although that is not the subject of any further additional charge itself.

6. When found the prohibited weapons and the air rifle and ammunition were wrapped in a blanket on top of a car, rather than being secured in an appropriate gun safe.

7. The offender told police that the shotgun and the shells had come from the home of his deceased father. In relation to the .22 rifle, he said that it had come from his deceased brother’s farm. He was uncertain but believed the air rifle had also come from his brother’s farm or that he might have found it in a council clean‑up some years ago.

8. He was arrested and taken to Hornsby Police Station where he participated in a record of interview. In that interview he told police that the firearms and the ammunition were his and that they were family heirlooms. He also told police that he did not have a licence and that he was aware that it was illegal to possess a firearm without any licence.

9. In relation to keeping the firearms securely, he told investigators that he had bought or acquired somehow a gun safe, but he had not gotten around to properly installing it. Those are the facts upon which Mr Brown is to be sentenced.

OBJECTIVE SERIOUSNESS

10. It is necessary of course in imposing any sentence that the Court makes some assessment as to the objective seriousness of the offence or offences before the Court.

11. Firearm offences must be treated very seriously given the potential harm that firearms can cause. This is confirmed by the maximum penalties in this case and by the fact that a standard non‑parole period is specified in relation to the offences under s 7(1) of the Firearms Act 1996 involving prohibited firearms. However, I must make an assessment of the objective seriousness of these particular offences arising from the facts and circumstances in this case and the offender’s actions in committing these offences.

12. As to the nature of the weapons, the pump action shotgun, which is the subject of count 1, and the semi-automatic .22 rifle, which is the subject of count 2, are clearly dangerous weapons. On the other hand, there is no evidence that any of the offences came to light as a result of any criminal actions by the offender either in relation to the weapons themselves or otherwise. It is agreed that the weapons were discovered in the course of the execution of a search warrant issued for unrelated purposes.

13. There is also no evidence to suggest that the offender had used any of the firearms at any stage. Indeed, and as accepted by the Crown, the circumstances in which the offender came to be in possession of the two prohibited firearms were that he effectively inherited them from deceased relatives. In my opinion this distinguishes this case from many others wherein persons have intentionally set out to obtain firearms often in circumstances where they intend effectively to “arm” themselves with such items, with the possibility of using them if circumstances arise.

14. Having regard to all of the circumstances I regard the objective seriousness of counts 1 and 2, prohibited firearm matters, as being well below the midrange, and while not at the very bottom of the range of objective seriousness for this type of offence, I consider that those two offences fall within the low range.

15. The facts relating to the air rifle, which is the subject of count 3, are slightly different in that the offender was unsure as to whether that item had been inherited or whether he had found it abandoned during a council clean‑up. He gave evidence this morning and indicated that his memory about the acquisition of that item is somewhat hazy. Nonetheless each of the earlier comments I have made in relation to the objective seriousness of the other offences apply in relation to the objective seriousness of this offence concerning the air rifle in that it was discovered during the execution of an unrelated search warrant. There is no evidence that the item had been used by the offender and no evidence, for example, that any alterations had been made to it or that any significant attempts had been made to conceal it. In my view this offence in count 3 also sits within the low range of objective seriousness.

16. The Crown does not suggest that there are any aggravating features present in this case.

17. On the other hand, there are a number of mitigating factors to be taken into account. Firstly, the offender’s motivation in possessing the weapons was, it seems, and as was effectively not challenged by the Crown, to secure them from theft or loss, rather than to keep them for some improper purpose. Secondly, and as the Crown fairly conceded in its submissions, the offender’s actions in failing to deal with the firearms appropriately was casual or negligent, rather than deliberate.

18. Thirdly, and as I have noted already, the offender’s motivation in possessing the two prohibited firearms appears to have been motivated by seeking to protect and preserve inherited family property, rather than to acquire and potentially use dangerous weapons.

19. In his evidence today the offender said that he did not really consider whether or not he ought to have informed the police about his acquisition of these weapons.

20. I have considered this evidence. However even if I accept it, which I have some hesitation in doing, it seems to me that it provides little in the form of mitigation because in this day and age it is well known in the community that a person cannot possess firearms without an appropriate licence or permit. In those circumstances it seems to me that a person such as Mr Brown, who acquired these items, would at least have adverted to either the need to apply for some appropriate permit or authority, or at least raise the matter with local police as to what his obligations in fact were.

21. The circumstances in which the weapons were stored, it seems to me, also involved some level of mitigation in the sense that, according to the evidence given by the offender today, they were stored in a garage where he conducted his business and wrapped up in a manner that effectively disguised them and made them less likely to, for example, fall into the hands of children or some other person who might use them inappropriately.

22. In all of the circumstances I regard the moral culpability for the offences as being fairly low.

SUBJECTIVE MATERIAL

23. Turning to subjective matters. The offender is now 66 years of age and, leaving aside one matter that arose as a juvenile, his criminal history consists effectively of two offences of dishonesty in 1991, which were dealt with in 1994 on appeal and which resulted in the charges being dealt with without a conviction being recorded. In my view therefore he is entitled to be treated as a first offender, which is a matter of some significance for a man of 66 years of age.

24. Also, and as is stated in the Sentencing Assessment Report, he has stable accommodation, runs a successful business, and has a strong and supportive family. He also expressed some remorse, which I accept, and the author of the Sentencing Assessment Report considered that the offender had expressed genuine regret for his actions and shown insight into the wrongfulness of those actions. He was cooperative with police and with the author of the Sentencing Assessment Report, and these are matters that, together with his lack of convictions, pro-social attitudes, stable employment and family support, lead me to conclude that he has a very low risk of reoffending.

25. While the Crown appropriately and fairly conceded that the offender’s prospects of rehabilitation are good, it seems to me that he is not really a candidate for rehabilitation as that term is ordinarily used because in my view these offences represent an aberration in his otherwise law-abiding life. This conclusion, it seems to me, is also supported by the various testimonials that have been tendered on his behalf.

26. Clearly general deterrence is of importance in matters of this kind, especially considering that there is a significant level of gun violence in our community, and that trafficking in and possessing prohibited weapons are offences that frequently come before the courts. However, and as I have already observed, the offences in this case amount to an aberration, in my view, and the offender is not someone who generally presents a significant risk to the community.

27. The Crown has fairly submitted in this matter that the s 5 threshold in the Crimes (Sentencing Procedure) Act 1999 has not been crossed and that a non‑custodial sentence is an available option. I agree with that submission.

28. While the offences are not trivial and do require the recording of a conviction, it would be contrary to community expectations and inconsistent with proper sentencing practice and sentencing patterns to impose a custodial sentence in this case. In my view to impose a prison sentence in this matter would be to criminalise a man whose history demonstrates that he is not a criminal, but someone who, at age approximately 66, made a very poor decision.

DETERMINATION

29. I intend to deal with the matters in accordance with s 8 of the Crimes (Sentencing Procedure) Act 1999. In determining the sentence for count 1 I have taken into account the matter on the Form 1.

30. In relation to each of counts 1, 2 and 3 I impose a Community Corrections order for a period of two years which will date from today. That order will be subject to the standard conditions: firstly, that Mr Brown not commit any offence. Secondly, that he appear before the Court if called upon at any time during the period of that order. I impose one additional condition, that being that the offender perform 100 hours community service.

31. Mr Brown is to report to the Hornsby office of Community Corrections within seven days by telephone. Mr Crown, Mr Niven, anything to raise from any of those orders?

32. BOROSH: No, not from the Crown’s part, your Honour.

33. NIVEN: And not from the defendant’s part, your Honour. Thank you, your Honour.

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Decision last updated: 10 November 2022