R v Gill - [2022] NSWDC 722

District Court

New South Wales

Medium Neutral Citation: R v Gill [2022] NSWDC 722
Hearing dates: 2 August 2022, 4 October 2022
Date of orders: 4 October 2022
Decision date: 04 October 2022
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of 5 years with a non-parole period of 3 years.

Catchwords:
CRIME – Fire firearm at dwelling-house with disregard for safety - Possess unauthorised prohibited firearm - Possess unauthorised pistol - Not keep firearm safely
SENTENCING - Relevant factors on sentence – guilty plea - multiple firearms offences - bullet fired into home from moving vehicle - nature of grievance with resident unknown - offender’s explanation and claim of provocation and duress not accepted - threat to family – immature offender- ill health – assaulted in custody- disadvantaged upbringing - special circumstances

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1987
Firearms Act1996.

Cases Cited:
R v Andrew (no 2) [2018] NSWDC 382
R v Crawley [2021] NSWCCA 354

Category: Sentence
Parties: Braiden Gill (the offender)
Director of Public Prosecutions
Representation: Solicitors:
Mr P Schmidt, Kells the Lawyers (for the offender)
Ms A Kerr (for Director of Public Prosecutions)

File Number(s): 2021/00226153

SENTENCE – EX TEMPORE REVISED

Introduction

On 6 August 2021, at about 11pm, a shot was fired into the bedroom of a home in Oak Flats, south of Wollongong. The residents did not inform police until the following day. On 8 August 2021, after a short investigation, assisted by CCTV footage, police arrested Braiden Gill. He has been in custody ever since.
When he was before the Local Court Gill indicated that he would plead guilty to three serious offences:

Fire firearm at a dwelling house with disregard for the safety of the occupants: s 93GA(1) Crimes Act 1900. That offence carries a maximum penalty of 14 years’ imprisonment, and for an offence, taking into account only objective factors, that is in the middle of the range, there is a standard non-parole period of five years.

Possess an unauthorised prohibited firearm: s 7(1) Firearms Act 1996. Maximum penalty 14 years - standard non-parole period four years; and,

Possess an unauthorised pistol: s 7(1) Firearms Act. Maximum penalty 14 years’ imprisonment -standard non-parole period four years.

For Count 1 there are, four matters to be dealt with on a Crimes (Sentencing Procedure) Act 1999 Form 1. They relate to possession of the prohibited weapon (a detachable 20-round magazine), possession of ammunition, possession of a prohibited drug (cannabis seeds), and cultivate a prohibited plant. It is appropriate that I deal with those matters when I sentence him for the fire firearm matter.
There was also as sequence 3 on a Criminal Procedure Act 1987 s 166 certificate offence of not keep firearm safe
On 2 August 2022 I received material on sentence. I heard from Gill and his former de facto. The proceedings were adjourned to today to enable additional material to be obtained. The defence hoped to corroborate…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWDC 722
Decision Date: 04 October 2022

CaseChat Overview and Summary

The case of R v Gill involved the defendant, Gill, who was charged with various firearms offences, including firing a firearm at a dwelling-house and possessing unauthorised prohibited firearms. The dispute arose from an incident where Gill fired a shot into a house while in a moving vehicle, and subsequently, several firearms were found in his possession. The matter was brought before the court to determine the appropriate sentence considering the nature and circumstances of the offence and the relevant sentencing factors.

The primary legal issues the court needed to address were the gravity of the offence, the presence of a guilty plea, the immaturity of the offender, his disadvantaged upbringing, ill health, and the threat to his family. Additionally, the court had to consider whether Gill’s claim of provocation and duress was credible and whether there were any special circumstances that warranted a lesser sentence. The court also examined the impact of Gill's assault in custody on his sentencing.

In delivering the judgment, the court acknowledged the serious nature of Gill's actions, which involved firing a gun at a residential property and possessing unauthorised firearms. Despite Gill’s guilty plea, the court found that the nature of his grievance with the resident was unclear, and his claims of provocation and duress were not accepted. The court took into account Gill’s young age, disadvantaged background, ill health, and the assault he suffered in custody as mitigating factors. However, these were weighed against the seriousness of the offence and the threat posed to the resident’s family. Ultimately, the court imposed an aggregate sentence of five years, with a non-parole period of three years, considering all the relevant factors.

Orders

Orders of the court

Aggregate sentence of 5 years with a non-parole period of 3 years.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Gill [2022] NSWDC 722
Hearing dates:	2 August 2022, 4 October 2022
Date of orders:	4 October 2022
Decision date:	04 October 2022
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of 5 years with a non-parole period of 3 years.
Catchwords:	CRIME – Fire firearm at dwelling-house with disregard for safety - Possess unauthorised prohibited firearm - Possess unauthorised pistol - Not keep firearm safely SENTENCING - Relevant factors on sentence – guilty plea - multiple firearms offences - bullet fired into home from moving vehicle - nature of grievance with resident unknown - offender’s explanation and claim of provocation and duress not accepted - threat to family – immature offender- ill health – assaulted in custody- disadvantaged upbringing - special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1987 Firearms Act1996.
Cases Cited:	R v Andrew (no 2) [2018] NSWDC 382 R v Crawley [2021] NSWCCA 354
Category:	Sentence
Parties:	Braiden Gill (the offender) Director of Public Prosecutions
Representation:	Solicitors: Mr P Schmidt, Kells the Lawyers (for the offender) Ms A Kerr (for Director of Public Prosecutions)
File Number(s):	2021/00226153