R v Folauhola
[2019] ACTSC 107
•2 May 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Folauhola |
Citation: | [2019] ACTSC 107 |
Hearing Dates: | 8 February, 24 April 2019 |
DecisionDate: | 2 May 2019 |
Before: | Loukas-Karlsson J |
Decision: | See [73]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – firearms offences - possession of prohibited firearms – additional offences – pleas of guilty – intensive corrections order |
Legislation Cited: | Crimes Act 1900 (ACT) s 194 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 11, 33, 57 Crimes (Sentencing Procedure) Act (1999) (NSW) s 22 Firearms Act 1996 (ACT) ss 42, 43, 180, 249 |
Cases Cited: | Cranfield v The Queen [2018] ACTCA 3 Heard v The Queen [2015] ACTCA 6 Hili v the Queen [2010] HCA 45; 242 CLR 520 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 R v Campbell [2010] ACTCA 20 R v Carmody (No 3) [2017] ACTSC 60 R v Pattman; R v Pattman [2017] ACTSC 331 R v Hill (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 4 September 2012) R v Hill [2016] ACTSC 310 R v Hughes (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 8 August 2013) R v Meyboom [2012] ACTCA 48 R v Mitchell [2016] ACTSC 85 R v Ndlovu [2017] ACTSC 244 R v Pham [2015] HCA 39; 256 CLR 550 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 Xiao v R [2018] NSWCCA 4; 96 NSWLR 1 Zdravkovic v The Queen [2016] ACTCA 53 |
Parties: | The Queen (Crown) Ilifeleti Folauhola (Offender) |
Representation: | Counsel Ms McFarland (Crown) Mr Saddik (Offender) |
| Solicitors ACT DPP (Crown) Karnib Saddik (Offender) | |
File Numbers: | SCC 307 of 2018; SCC 308 of 2018 |
LOUKAS-KARLSSON J
Introduction
On 6 December 2018, Ilifeleti Folauhola (the offender) pleaded guilty to the following offences:
(a)Unauthorised possession of a firearm contrary to section s 43(1)(a)(iii) of the Firearms Act 1996 (ACT) (Firearms Act) (CC2018/9979). The maximum penalty for this offence is 5 years imprisonment; and
(b)Unauthorised possession of prohibited firearms contrary to s 42(a)(iii) of the Firearms Act (CC2018/14482). The maximum penalty for this offence is 10 years imprisonment.
In sentencing for the offence of possession of prohibited firearms, the offender has asked the Court to take into account certain additional offences, namely:
(a)Failure to comply with storage requirements for a prohibited firearm contrary to s 180(1)(a)(i) of the Firearms Act (CC2018/14483). The maximum penalty for that offence is 2 years imprisonment;
(b)Failure to comply with storage requirements for a firearm contrary to s 180(1)(a)(ii) of the Firearms Act (CC2018/9980). The maximum penalty for that offence is 1 year imprisonment; and
(c)Unauthorised possession of ammunition contrary to s 249(1) of the Firearms Act (CC2018/14484) The maximum penalty for that offence is a penalty of $1500.
Agreed Facts
The agreed facts are set out in the Statement of Facts, which forms part of the Crown Tender Bundle. The facts of these offences are summarised below.
On 6 August 2018, police were en route to execute a search warrant obtained earlier that day under s 194 of the Crimes Act 1900 (ACT) at a residence in south Canberra (the Residence). Police observed a vehicle in the street of the Residence, being driven by Mr Zdravkovic and with the offender in the passenger seat. Police stopped the vehicle and placed both the offender and Mr Zdravkovic under arrest.
Police then conducted a search of the vehicle during which a brown leather Louis Vuitton bag was located behind the front passenger seat. In the bag was a fully loaded .357 revolver.
Police subsequently conducted a search of the Residence during which the police located a cavity behind the refrigerator containing a rifle case. The rifle case contained:
(a)A magazine containing six, .45 calibre rounds of ammunition;
(b)4 rounds of 22-250 calibre ammunition;
(c)A sawn-off self-loading 9mm rifle; and
(d)A bolt action Ruger 22-250 calibre rifle.
The offender was cautioned and provided with his rights. The Statement of Facts records he made the following admissions:
(a)He lives at the Residence;
(b)The Residence belongs to Mr Zdravkovic, his friend;
(c)The guns found behind the refrigerator belong to him;
(d)He obtained the guns several weeks prior to that date and intended on using them in self-defence should he be attacked;
(e)He did not shorten the self-loading rifle; and
(f)He owned the revolver located in the Louis Vuitton bag inside the vehicle and its intended use was for self-defence.
The offender does not hold a valid license or permit in any Australian State or Territory, to posses firearms, prohibited firearms or ammunition.
Objective Seriousness
Counsel for the offender conceded that the offences were serious matters but described the offending generally as being “unsophisticated”. In addition, counsel for the offender underlined that the offender made immediate admissions to the police in relation to the offences and that in the course of those admissions he stated each of the firearms were for self-defence.
In relation to the possession of a prohibited firearm offence, counsel for the offender noted that the fact that there was a substantial maximum penalty for the offence reflects the gravity and severity of the charge. In addition, in respect of the revolver found in the bag in the car, counsel for the offender conceded that the lack of sophistication of the offending could be viewed as a matter which increases the seriousness of the offending “in terms of the risk to public safety.” Counsel submitted that in respect of this firearm, the offending is “upon the mid-range of objective seriousness”.
In respect of the weapons found at the Residence, counsel for the offender submitted that the offending should be considered to be “under the mid-range of objective seriousness”, given that:
(a)The weapons were found at the Residence, not in public;
(b)The ammunition and firearms were not prohibited, but rather restricted; and
(c)Given the manner in which the items were stored, they were not readily accessible.
The prosecution conceded that the offending took place over a relatively short period of time, “apparently a couple of weeks”, although submitted that it appeared there was an intention to hold them for significant period of time, given the assertion by the offender they were to be used in self-defence.
The prosecution also noted that the fact that there was the presence of ammunition, and in the case of the .357 revolver, ammunition loaded in the firearm, there was a possibility one of the firearms could have been discharged. The prosecution submitted that the manner in which the items were stored meant the offender had failed to ensure no person could access them.
The prosecution further noted that s 42(a)(iii) contemplates the possession of between 1 and 2 prohibited firearms, and given there was two prohibited firearms possessed by the offender, the offending is at the “higher end” of the offence. Noting in particular that one of the prohibited firearms was loaded and capable of being discharged, the prosecution concluded that, in relation to the prohibited firearms charge, the offending should be put at the “mid to upper range”.
I find the offences to be of mid-range. Nevertheless, it must be stated that references to low range, middle range and high range objective seriousness are unlikely to be helpful. As has previously been expressed in this jurisdiction, “it is preferable for a sentencing judge to confine themselves to identifying the particular features of the case that inform the objective seriousness of that case” (R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24] (Toumo’ua)). These were serious offences. In particular, I take into account the time period of possession and the fact that a firearm was loaded. I note that there are separate charges in relation to safe storage and the other ammunition.
Subjective Circumstances
In evidence before me is the Pre-Sentence Report (PSR) prepared for the offender.
The offender is 21 years of age and is one of four children to his parent’s union. His parents separated when he was 14 years of age. He remains in regular contact with most of his family.
The offender was born in Mildura, Victoria but relocated to Canberra during 2014 to participate in a sports program with a college in the ACT.
The offender has recommenced a relationship with his partner with whom he was partnered during his time attending college. He has been residing with his partner’s family since the reconciliation. His partner’s mother advised the author of the PSR that she would seek alternative accommodation for the offender should the relationship end.
The offender completed Year 12 and has held several unskilled and semi-skilled positions within the construction industry, although advised the author he was injured which hampered his work performance. The PSR notes the offender has since made enquiries to commence a Workplace Health and Safety course with a view to obtaining a permanent role in that industry. The ICO Report (detailed further below) for the offender notes the offender has commenced this course. The offender is currently employed and is saving for a house deposit.
The offender reported commencing alcohol use at 17 years of age on weekends with friends and would consume up to 12 standard drinks each time. However, the offender has reduced his alcohol use to a monthly period following reconciliation with his partner.
The offender acknowledged that prior to these offences his friends were involved in criminal behaviour and that his involvement with an antisocial peer group contributed to his offence pathway. However, the offender reported that since his first court appearance he has had increased contact with his family, which he believes could assist him to desist from criminal behaviour.
The PSR concludes with the following opinion:
[the offender] appears to have strong support from his partner and family members. Based on the information provided for this report, he appears to have led a pro-social life prior to the current offences characterised by his education, supportive pro-social relationships and a history of stable employment.
24. In oral submissions, counsel for the offender underlined in particular the age of the offender, the offender’s engagement with a supportive family rather than peers who engage in antisocial behaviour and his otherwise generally good character.
25. Counsel for the offender also drew the Court’s attention to the affidavit of the offender’s partner who deposes to the fact that since the offending has occurred, the offender has made tangible changes in his life and her belief that he will “never reoffend again”.
26. The Crown acknowledged the offender had “very good factors in his favour” noting the offender’s good character, youth and limited criminal history.
Affidavits and References
27. In evidence before me was a bundle of supporting material tendered by the offender, which included:
(a)An affidavit of the offender sworn on 24 April 2019 to which I refer later in this judgment;
(b)An affidavit of the offender’s partner sworn 24 April 2019, which includes the following extract:
Since the date of [the offender’s] release on bail till this date, I have witnessed his dramatic change in his life from bad to good, despite this matter hanging over his head.
[The offender] without a doubt had a troubled time prior to his arrest whereby he was mixing with the wrong crowd and attempting to be someone that he is not. His actions ultimately led him to the charges he is facing sentencing for and whilst it may seem that this could be read as a bad time in his life, I believe that it isn’t.
The change in [the offender’s] attitude towards his life is truly remarkable. He wakes up every morning to go to work like every other good member of our community does and after a hard day of work, he returns home to me and my family, who he now calls family.
(c)An affidavit of the offender’s mother-in-law sworn 24 April 2019, which includes the following extract:
I truly believe that [the offender] is a changed person. As a mother, I can sense sincerity and through my experience with raising my own family, I know when someone is genuine or not. [The offender], in my view, is truly a changed person.
At the time of his arrest, I was so shocked to hear about the charges he is facing and I automatically felt reserved towards him taking into account what I had just been told. [The offender] continued to tell me that these charges are not a true reflection of who he is and that in time, if he is given the opportunity, will prove to my daughter […] and I, and most importantly himself, that he is a changed man with life aspiration similar to a good member of our community.
(d)An affidavit of the offender’s father-in-law sworn 24 April 2019, which includes the following extract:
I believe he is a changed man, and a perfect example of someone who was headed down the wrong, destructive path in life that woke up and did one of the hardest things in life in such a short amount of time, which is changing his life right around.
(e)An affidavit of the offender’s partner’s grandmother sworn 24 April 2019 which includes the following extract:
I feel upset when I think of Ili’s ridiculous and uncharacteristic behaviour in committing the offences he is to be sentenced on. Ili is a beautiful young man, with his whole life ahead of him. His reckless behaviour and lack of good judgment resulted in this inevitable situation that he has been in since the date of his arrest.
Despite this recklessness, Ili now has characteristics that even he thought he could not have. He is kind, gentle and a loving man to his family and to ours.
I hope that he is granted leniency from the Court to allow us to spend more time with him, watching him follow his new aspirations and life goals he has set for himself.
(f)Two letters of reference from personal friends of the offender, each dated 24 April 2019, the first of which includes the following extract:
It is during this period of unemployment that Mr Folauhola identifies a decline in his personal circumstances as a result of his poor choices, known associates, and risk-taking behaviour. Mr Folauhola as a result of his criminal activities was arrested for … three firearms all of which were unlicensed and unregistered. I am aware Mr Folauhola pleaded guilty to these charges. I am aware … Mr Folauhola has no prior convictions. Since his arrest Mr Folauhola has shown great maturity in taking full responsibility for his behaviour, shown a depth of understanding and remorse for his actions and remains proactive in making positive changes to his circumstances.
…
Mr Folauhola is a clever and talented young man who has lots of potential to change his circumstances. His success ultimately relies on his willingness and desire to want to change and his commitment to engage in the supports available to him.
I am aware Mr Folauhola has expressed deep regret/remorse for his actions and acknowledges the significance and consequences his behaviour was likely to have it left unchallenged.
And the second includes the following:
Ili is tenacious and genuine, has demonstrated a high level of self-resentment for his behaviour and speaks of working with his support team and immediate and extended family to plan for, commit to and achieve a productive and happy future.
28. I take these affidavits and references into account on sentence. It should be noted the prosecution did not cross-examine the offender nor any of the authors of the affidavits referred to above.
Intensive Corrections Order Report
29. When this matter originally came before me on 8 February 2019, I determined that I should give serious consideration to the sentence being served by way of Intensive Corrections Order (ICO). To that end I referred the offender for assessment.
30. The assessment was carried out with the assistance of:
(a)Four interviews with the offender;
(b)A telephone conversation with the offender’s partner’s mother on 17 April 2019;
(c)A Home Visit Assessment on 5 April 2019;
(d)Court documents and ACT Corrective Services records;
(e)An ACT Health Information Letter dated 26 February 2019;
(f)A revised Level of Service Inventory;
(g)An Alcohol Use Disorder Identification Test; and
(h)A Drug Abuse Screening Tool.
31. The ICO Report confirms much of the information contained in the PSR. It also notes the offender’s compliance with his bail conditions has been considered satisfactory and he is assessed as being a low risk of general reoffending with protective factors including stable accommodation, fulltime employment and pro-social supports. The report notes the offender continues to save for a house deposit.
32. The ICO Report dated 23 April 2019 concludes with a recommendation that the offender has been assessed as suitable for an ICO. In particular the report notes:
Due to Mr Folauhola’s assessed low level risk and absence of any significant risk factors, this Service would support him in ensuring he continues to maintain the positive changes he has made in his life through supervision.
…
Mr Folauhola is a 21 year old male assessed as low risk of general reoffending. He maintains many protective factors in his stable accommodation, fulltime employment and pro-social supports. He has successfully complied with the ICO assessment and demonstrated his willingness to comply with the conditions of an ICO should he be so sentenced. Due to his low level of risk, this Service would support Mr Folauhola through supervision by encouraging him to continue to maintain his protective factors and abstain from anti-social behaviour.
Remorse and Insight
33. The ICO Report notes that the offender agrees with the Statement of Facts and has accepted responsibility for his actions in relation to the current offences. It further notes he provided insight into his offending behaviour by stating his association with antisocial peers contributed to his commencement of criminal activity.
34. In evidence before me was an affidavit of the offender sworn on 24 April 2019, in which the offender expresses remorse and insight for the offending the following terms:
On 06 August 2018, my birthday, I was charged by the Australian Federal Police.... I take this opportunity with full conviction of my wrongdoing to express both regret and remorse for my involvement in this matter.
I accept full responsibility for my involvement and culpability, and at no stage did I feel coerced or controlled by any other individual to participate in this criminal activity apart from my own self, and my foolishness to try and be someone who I am not.
My actions demonstrated a lack of insight into the significant risks I placed not only on myself, but also on others in our community. I accept that I was in possession of those firearms, whilst unlicensed and without the skills or competency to operate them.
Upon reflection on my actions, my desire now is to achieve a sense of belonging, and identity accompanied by the nativity of my Pacific Islander background. Throughout this Court process, I have gained real life experience of bearing the grave consequences of my actions and heightened my maturity which was diminished before as a result of my poor decision-making skills and my own choices to engage in such a criminal activity as this.
Every morning I am greeted with my inner shame and guilt, alongside my reflection of my dark past life experiences but thankfully through the support of my partner and my new family, I comfortably manage to guide and positively influence my current decisions.
35. Counsel for the offender submitted remorse is “very clear” and pointed to the pleas of guilty as also evidencing this.
36. The prosecution accepted that the admissions made by the offender to police also go to the remorse of the offender.
37. I accept that the offender is remorseful on the evidence before me.
Criminal History
38. The offender has a minor criminal history with a conviction in 2018 for driving a motor vehicle with alcohol in the blood or breath. This is not a criminal history of major significance in the sentencing exercise before me in relation to the current offences.
Plea of Guilty
39. The offender entered pleas of guilty for the offences in the Magistrates Court on the fourth mention.
40. In this respect, the prosecution referred to the cases of Heard v The Queen [2015] ACTCA 6 and Cranfield v The Queen [2018] ACTCA 3 regarding the appropriate discount to apply. It was submitted that a plea of guilty in the Supreme Court will usually attract a discount of 10 to 15% but that negotiations must be weighed against this in exercising the discretion. The prosecution also submitted in this context that the admissions of the offender made the Crown case strong.
41. Nevertheless, the prosecution conceded that “this must be considered to be an early plea” and accepted that a discount more on the order of 20% rather than 25% was appropriate.
42. Counsel for the offender submitted that as a plea of guilty was indicated, but not entered, on the first occasion but that negotiations continued therein, the discount applied should be “more towards” 25%.
43. Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard. This provision may be compared with the less prescriptive terms of s 22 of the Crimes (Sentencing Procedure) Act (1999) (NSW). Section 22 is focused on the utilitarian value of pleas of guilty: see Toumo’ua at [41]-[48]; see also Xiao v R [2018] NSWCCA 4; 96 NSWLR 1 in relation to the utilitarian value of pleas of guilty in Commonwealth matters.
44. Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 noted that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW at [47]. However, the ACT statutory scheme does differ from that of NSW: see Toumo’ua at [50].
45. As the plea was entered in the Magistrates Court, while not at the first opportunity, nevertheless at an early stage, I will allow a discount of approximately 20%.
Time in Custody
46. The offender has spent one day in custody referable to this offence.
Cases
47. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this court relating to offenders who committed similar offences. The following cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].
48. The prosecution referred the Court to the following comparable cases.
49. In R v Hill (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 4 September 2012) the offender was found guilty of contravening ss 42(a)(iii) and 249 of the Firearms Act. The offender had a minor criminal history and had taken steps towards rehabilitation but had not shown remorse and had been in an “outlaw motorcycle club” for seven years before the commission of the offences. The offender was sentenced to a period of imprisonment for 9 months for the firearm offence and fined $100 for the ammunition offence. The sentence of imprisonment was suspended and the offender ordered to enter into a good behaviour undertaking.
50. In R v Hughes (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 8 August 2013), the offender was charged with a number of offences including possession of a prohibited firearm and ammunition. The offender had a significant criminal history, was conditional liberty at the time of the offending and the sentencing judge was unable to conclude the offender was remorseful or that he was unlikely to reoffend. The offender was sentenced to a period of 2 years and 8 months for the prohibited firearm offence, taking into additional offences.
51. In R v Pattman; R v Pattman [2017] ACTSC 331, Penfold J summarised two cases in addition to those above as follows at [77]:
(c) In R v Okwechime [2015] ACTSC 129 (Okwechime), Burns J noted that the claim that Mr Okwechime possessed two prohibited firearms, one of them found loaded, and four other prohibited weapons, for protection from members of the Rebels motorcycle gang had "little effect in mitigating sentence" (at [17]). Mr Okwechime was much younger than Stephen Pattman, but had an extensive criminal history. He had committed the possession offences in breach of good behaviour orders, had behaved badly in custody, had been non-compliant with community-based orders, had poor prospects of rehabilitation, and required personal deterrence. Mr Okwechime was sentenced for the possession offence for 16 months imprisonment, some of it concurrent with sentences for 4 other weapons offences dealt with in the same sentencing process.
(d) In R v Thompson [2017] ACTSC 141, the offender had a substantial criminal history. He possessed an unregistered Magnum revolver which had been used in a robbery, for which possession he was sentenced by Burns J to 22 months imprisonment, reduced from 30 months for his plea of guilty, all but 8 months of which was to run concurrently with other sentences.
52. I take these cases into account as ‘yardsticks’ in the manner referred to by the High Court.
Additional Offences Taken into Account
53. The offender has requested that, under Part 4.4 of the Sentencing Act, certain offences (referred to above at [2]) be taken into account for the purposes of sentencing in relation to the offence of possession of a prohibited firearm.
54. A number of relevant principles in relation to consideration of additional offences were enunciated by the Court of Appeal in R v Campbell [2010] ACTCA 20 from [46]-[50], including:
(a)The Court is required to ask the offender whether they wish the Court to take into account the additional offences, the answer to which much be clear and unequivocal ([43], Sentencing Act s 57(1));
(b)Any penalty imposed for the offence cannot exceed the maximum penalty even if additional offences are taken into account ([46], Sentencing Act s 57(1));
(c)In taking additional offences into account, greater weight is given to considerations of personal deterrence and community retribution ([47]) and in taking them into account they will no doubt be considered in the assessment of the offender’s character and prospects of rehabilitation ([50]);
(d)It is not necessary for a court to indicate precisely what effect the taking into account the additional offences has ([49]) and while there may be occasions when it is appropriate for a judge to refer to the effect, it is not obligatory to do so ([50]);
(e)“Taking offences into account” means to do so in the same manner as other matters that are taken into account on sentence. It will generally have the result of increasing, or changing the nature of, the sentence to be imposed ([50]); and
(f)The offender is not to be sentenced for the additional sentences ([50]).
55. I will take into account when determining the appropriate sentence for the possession of a prohibited firearm offence, the additional offences referred to above (at [2]). I also have regard to the principles outlined in Campbell as to how the offences are to be taken into account.
Statutory and Other Relevant Considerations
56. In sentencing the offender, the Court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.
57. By reference to the circumstances of the offender and of the offending referred to above, counsel for the offender drew the Court’s attention to the following considerations under s 33: actions taken by the offender to make reparation for any injury loss or damage resulting from the offence (s 33(h)), the degree of responsibility of the offender (s 33(i)), the impact on his family (s 33(o)), the reasons for the commission of the offence (s 33(v)), demonstrated remorse (s 33(w)) and compliance with an assessment or referral (s 33(x)).
58. The Court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, and recognition of harm are important sentencing considerations.
59. Rehabilitation is also an important consideration having regard to the offender’s youth, and previous good character, apart from the driving matter referred to above.
60. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. Both parties accepted a period of imprisonment is appropriate for these offences and it was conceded by the prosecution that “something in the terms of the ICO would be the best way to serve that sentence.”
61. On considerations of rehabilitation, specific deterrence and general deterrence required to be taken into account by the Court on sentencing it is apposite to refer to the decision of R v Carmody (No 3) [2017] ACTSC 60 in relation to ICOs where Refshauge J observed at [8]:
It is a punitive sentence while incorporating elements of rehabilitation. It aims to combine supervision and strict conditions with an opportunity for an offender to change his or her behaviour, thus promoting simultaneously the best interests of the community and the best interests of the offender, as well as those who are dependent upon him or her.
62. His Honour (at [59]) also cites French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506, who observes at [32]:
Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.
63. As stated by Murrell CJ in R v Hill [2016] ACTSC 310 (Hill) where a person has very good prospects of rehabilitation, the Court, by supporting those prospects in the sentence imposed, thereby also addresses likely future harm to the community and protection of the community. It was also emphasised in Hill that sentencing must always deliver individualised justice.
64. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
65. When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic). The real question is whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen (1988) 166 CLR 59 (Mill); R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71].
66. In the context of these offences, the prosecution in oral submissions referred to the decision of R v Ndlovu [2017] ACTSC 244 where Murrell CJ noted at [70]:
In relation to the offences against the Firearms Act 1996, I note the underlying principles of the Act, which are directed to ensuring and improving public safety. In relation to such offences, the s 7 purpose of protecting the community is dominant.
67. I also note the observation of Refshauge J in the decision of R v Mitchell [2016] ACTSC 85, and that is, in referring to the Port Arthur massacre in Tasmania, that as a result of those events, there was a national reform of gun laws in the Territory and the rest of Australia. His Honour set out the underlying principles of the Firearms Act contained in s 5, namely:
(a)to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety; and
(b)to improve public safety—
(i) by imposing strict controls on the possession and use of firearms; and
(ii) by promoting the safe and responsible storage and use of firearms; and
(c) to facilitate a national approach to the control of firearms.
68. Refshauge J then continues at [2]-[3]:
2. It is clear that a most important consideration in the regulation of firearms is safety and their proper storage.
3. While this context is important for an understanding of the offences created by the Act, and is relevant to sentencing, it is important to recognise that sentencing for offences, even under the Firearms Act, should be conducted with regard to standard sentencing principles.
Sentence
69. In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences and subjective matters.
70. The appropriate sentence for the offence of unauthorised possession of a firearm contrary to section s 43(1)(a)(iii) of the Firearms Act (CC2018/9979), is 12 months and 15 days reduced to 10 months on account of the discount for the plea of guilty.
71. The appropriate sentence for the offence of unauthorised possession of prohibited firearms contrary to s 42(a)(iii) of the Firearms Act (CC2018/14482), is 25 months reduced to 20 months on account of the discount for the plea of guilty.
72. Overall there will be a sentence of 2 years, taking into account appropriate accumulation and concurrence.
Orders
73. I make the following orders:
(a)I record convictions in relation to the offences.
(b)In respect of the offence of unauthorised possession of a firearm contrary to section s 43(1)(a)(iii) of the Firearms Act (CC2018/9979), the offender is sentenced to a term of 10 months of imprisonment, commencing on 1 May 2019 and ending on 29 February 2020.
(c)In respect of the offence of unauthorised possession of prohibited firearms contrary to s 42(a)(iii) of the Firearms Act (CC2018/14482), the offender is sentenced to a term of 20 months imprisonment, commencing on 1 September 2019 and ending on 30 April 2021.
(d)The sentence is to be served by way of an Intensive Corrections Order pursuant to s 11 of the Sentencing Act. I impose the core conditions.
| I certify that the preceding seventy-three [73] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson Associate: Date: |