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

1. 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.

2. When he was before the Local Court Gill indicated that he would plead guilty to three serious offences:

1. 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.

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

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

3. 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.

4. There was also as sequence 3 on a Criminal Procedure Act 1987 s 166 certificate offence of not keep firearm safe

5. 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 some of the material that had been led in evidence.

6. Today I received from the Crown; a highlighted copy of Gill’s interview with police when he was arrested on 8 August 2021, a Justice Health report which was helpfully tagged by Mr Schmidt, solicitor for Mr Gill. Also received a handwritten letter from Mr Gill which, in effect, reiterated matters going to remorse which he gave in evidence on the prior occasion.

7. As the guilty pleas were entered in the Local Court I must and will reduce each sentence, which will be indicated sentences as part of an aggregate sentence, by 25% to reflect the utilitarian value of the guilty pleas.

Facts for Sentence

8. In August last year the offender was living in Oak Flats at the rear of the home occupied by his aunt and uncle. He had lived there for many years. He provided care services, particularly to his uncle, who was unwell. He had an association with the occupants of another house in Oak Flats a short distance away, particularly with the male occupant, Mr Stankoski. The exact nature of their interrelationship cannot be determined. It is not unusual in sentence matters for that situation to arise.

9. Although I heard evidence in relation to the motivation for the commission of the offence, for the reasons I will outline soon I could not accept the offender’s explanation. I proceed on the basis of the agreed facts.

10. On the evening of 6 August 2021, the offender took a .22 calibre self-loading rifle that he had purchased several months earlier and kept behind the lounge. He loaded the rifle, and also took, unbeknownst to his then partner, the keys to her car. He went to the car, covered the registration plates and drove a short distance to his victim’s home.

11. There, as CCTV shows, he slowed down the vehicle, raised the rifle with his left hand, and fired a single round into the bedroom of the victim’s residence; the car was still moving at the time. That round penetrated the window and an internal wall before striking into the hallway wall and falling to the floor. The round travelled approximately 5 metres into the dwelling.

12. Soon after the shot the offender yelled, “You’re dead, cunt” and drove away, He went home and put the rifle back behind the lounge.

13. The occupants of the home, Mr Stankoski and his partner, were in bed, about to go to sleep. They heard what occurred and saw a hole in the wall on the right-hand side of the hallway in what’s called the office and holes in the roller blind and front window. The office is located at the front of the house, in the middle, and their bedroom is next to the office at the front of the residence.

14. Police, when they were notified, attended, and carried out an investigation. That investigation led them to the offender. When they entered the granny flat where he lived, they found the .22 calibre self-loading rifle. They also found; in a cushion behind the lounge a magazine containing four live rounds, shell casings, cannabis seeds, a cannabis plant and a bag containing fired .22 calibre casings.

15. Also found was what’s described in the facts as a “revolver pistol.” While the item, as the photograph indicates, certainly looks like a revolver, it was a gas-powered gel ball firearm of unknown manufacture. It was not in working order due to missing components. But pursuant to the Firearms Act and regulations such items are classified both as an airgun and a pistol.

Objective seriousness

16. As is obvious, the principal weapon, the firearm, was not kept safely. It was kept where drugs were present. Its continued possession posed a significant risk, not just to the community, but to police who attended that day to arrest the offender.

17. I will repeat, as solicitors for the Director noted I have submitted many times before in this Court, the Firearms Act 1996 makes it clear that firearm possession is a privilege that is conditional on the overriding need to ensure public safety. There was no justification here for the possession of the rifle.

18. Gill had obtained and possessed it before the incident on 6 August 2021. It was not secured. He had ammunition for it. It was not licensed nor registered nor stored safely, its possession posed, as is evident from the principal offence for sentence, a significant risk to the safety of the community. No rational explanation for its possession or for its possession for a period of months was put forward.

19. Firearms, if possessed, are liable to be used, as occurred here. If used, they are liable to be, as certainly was the case here, a source of danger and/or damage.

20. How a firearm is used is a key factor in assessing the seriousness of the offence. This weapon was used at night to fire a projectile, a bullet, into a home where the offender knew people were present. He fired the weapon from a moving car. That use and manner of use posed an even greater risk to the safety of the community.

21. It was fired into a home. It was fired at night. More by good luck than good management the bullet entered a room that was not occupied, but this offender was not to know what room was or was not occupied. If by chance it had missed the house it would have landed somewhere else. Someone could have been seriously hurt. The offence was committed without regard for public safety. The offence occurred at another’s home, an element of the offence, a matter that should not be double-counted. The objective seriousness of this offence was high.

22. The policy of Parliament evident in the Firearms Act is clear, it is reflected in the maximum penalties and the standard non-parole period. Those penalties are intended to deter and punish.

23. Those maximums and the standard non-parole periods are guides to the exercise of my sentencing discretion. As I said earlier, the rifles possession alone posed a significant risk.

24. I take care not to double-count matters which are set out in the Form 1 or relate to the same firearm, but independent punishment must be meted out for the possession offence up to its possession during the principal offence for sentence.

25. Sentences must also be proportionate to the harm caused and the objective seriousness of the offence. Any offence, but particularly those with standard non-parole periods, require the Court to carefully undertake an assessment of objective seriousness. Content must be given to the standard non-parole period. That said, I do not start by looking at the maximum or the standard non-parole period and make proportional deductions from it. Both are, however, important guides to the exercise of my sentencing discretion.

26. The possession of an unauthorised pistol carries 14 years imprisonment with four years standard non-parole period. Every firearm offence is treated seriously. There was no legal justification here for the possession of the gel pistol. It is not enough to say these things are toys or that they are available online. They are not toys. This pistol could easily have been mistaken for a real weapon. The pellets used still make such items projectile weapons. They are not allowed to be held or possessed by anyone in the community without a firearms licence, and that privilege is strictly enforced. At law there is no distinction between a replica and a real pistol. There is no distinction between the capacity to fire a gel pellet or hard ammunition.

27. The consequences of producing such a weapon do not need much amplification. In the modern world that someone is carrying a firearm can provoke a reaction, both in members of the public and law enforcement officers, that could have disastrous consequences.

28. I have had to deal with similar matters in quite different contexts: R v Crawley [2021] NSWCCA 354 at [28]; R v Andrew (no 2) [2018] NSWDC 382 at [20] at [21]. It is relevant, however, that the pistol was in pieces and unable to be fired. But the offender did admit that he used it to play games. He also admitted that he had let children use it. Possession of a weapon that can rarely be used to cause serious physical harm is also a relevant factor. But I am aware from previous matters that gel pistols can cause injury such as bruising and that a victim’s eyes, if shot with a gel pellet, can be particularly vulnerable.

29. There is also matter on a 166 certificate of not keep a firearm safe. I will include it in the aggregate sentence as a fourth matter. While there must be some independent punishment indicated for it as I have already taken into account when assessing the seriousness of the other offending It would be double counting if it were to be added again to the overall sentence.

Provocation and duress?

30. When the matter was before me on the last occasion Gill gave evidence about how he had been provoked by the male victim to this offence. He gave an account to police about such provocations.

31. All such claims have to be carefully assessed. It can be an important matter because all matters that are causally connected with or materially contributed to the commission of the crime are relevant. Where a matter is advanced in mitigation of sentence, and provocation is a matter in mitigation of sentence, if to be acted on, it must be proved on balance of probabilities. His motivation, if accepted, might have impinged upon his moral culpability.

32. In his evidence Gill said he did what he did because he was provoked by his victim and that he had had been effectively placed under duress because he feared the victim would come to his home and assault him, as, he said, he had done in the past. He also said that the rationale for committing the offence was that the victim had come to his house, asking him to obtain a firearm for him. Even though he was in possession of a firearm he did not tell his victim that. He said that the victim had previously broken into his flat and assaulted him.

33. Having reviewed all the material, including material presented today from Justice Health, it is clear that Gill is not a person whose controversial evidence could be accepted without question. It would appear that he says what he thinks might assist him without thinking through the consequences.

34. For example, he has made, positive assertions that he received no Justice Health assistance for his underlying conditions. Those assertions were disproved by the material before me. Where he told police about the actions of his victim in assaulting him or attending his flat, those assertions were disproved by independent evidence. He told police that the victim had attended his flat possibly to rob him, but he made no mention of an assault, nor did he show police any injury. Further, police recordings would have shown any facial injury he suffered.

35. I could not accept those assertions by the offender. This leaves me in the dark about the nature of any relationship with his victim or the genesis for any grievance towards him. Whatever the grievance; he clearly felt, police could not help him. But that does not assist him on sentence.

36. One of the principal reasons for having a legal system and for punishment, one of the historical functions of the criminal law, has been to discourage anyone who regards themselves as a victim, or has a grievance against another person, from resorting to self-help. As is clear from the matters before me, the consequent escalation of violence between members of the community cannot and will not be tolerated and can lead, as occurred here, to people spending lengthy times in custody.

The Form 1

37. The matters on the Form 1 are relevant and will be taken into account. I do not sentence for them. They can, in an appropriate circumstance, lead to an increase in the otherwise appropriate sentence. Here, the magazine possession might have resulted in a custodial penalty if dealt with separately, but the ammunition has already been taken into account in relation to the principal offence. The cannabis matters would not have resulted in a custodial penalty or anything other than notional punishment. Because I must not double punish the Form I matters do not lead to a significant increase in any sentence for the principal offence.

Criminal record

38. Gill has a criminal record of relatively minor matters. This is his first time in custody. But, as Ms Kerr submitted, it represents a significant escalation in his offending behaviour. He is not entitled to the leniency often given first offenders, but clearly these matters are much more serious than anything that’s come before.

Victim Impact

39. I have received no Victim Impact Statement. I am told that the principal victim, the male victim, is now deceased. The absence of a victim impact statement does not give rise to an inference that an offence had little or no impact on a victim: s 30E (5) Crimes (Sentencing Procedure) Act 1999.

COVID

40. During his time in custody Gill has contracted COVID. Thankfully, the reports indicate, he was asymptomatic. That does not mean he did not suffer the anxiety suffered by all prisoners; who cannot care for themselves and are dependent upon Corrections and the extensive measures undertaken by Corrections to avoid the spread of the pandemic in custody.

41. Those measures meant, and I accept, that he had to be quarantined for lengthy periods and kept in isolation for lengthy periods; matters I can and should take into account.

42. It also meant that he could not attend the funeral of his uncle, who died while he was in custody, or have face-to-face visits for lengthy periods of time. He has also been, he told me, and I am prepared to accept, assaulted in gaol.

Assault in custody

43. There is no suggestion that these assaults had any extra curial c and he is not entitled to a reduction for extra-curial punishment. But it is notorious that victims of any crime, if placed in a position where there is a possibility of repetition of that crime, suffer anxiety. When someone is assaulted in gaol, they have to stay in the very place that they were assaulted. A person in custody has no freedom to move, at best they can ask for reassignment. They have no control over who they associate with. A past assault can mean they spend their remaining time in custody apprehensive of future assaults, if they had not been protected in the past it is unlikely, they will be protected in the future. A matter I have to take into account when I synthesise all relevant matters.

Extra curial punishment of his family

44. After Gill’s arrest the victim when to his home and spoke to his relatives a. At the time Gill was already in custody. It was not a friendly visit it is revealed in the COPS records. His sister and aunt, bore the brunt of the victim’s anger. It would not have been welcome for them, a matter I take into account although it not significant.

45. The offender’s then girlfriend told me she too was threatened, but her evidence was totally unsupported. I do not accept it.

The case for the offender

46. I heard from Mr Gill. Although I was reluctant to accept everything he said, some matters relating to his personal background can be accepted. He suffers ill health. He is coeliac. He has back problems and scoliosis.

47. But as is clear my earlier findings about Gill’s evidence he tends to exaggerate. I cannot accept his evidence that nothing has been done. He requires pain medication but the best that he can be offered in custody is analgesics. If he is, as the documents reveal, a coeliac, then he requires a dietician and special diet. He has, I accept, managed in custody without a special diet, but he has time to do more. And the reports indicate that a dietician can be made available to him. But it may require some proactive steps by him.

48. There is a Sentence Assessment Report (SAR). It indicates he has a close and supportive relationship with his mother, who is present in court. He was close to his uncle but, regrettably, his uncle died while he is in custody.

49. Set out in the SAR, and supported by evidence before me, is a history of childhood trauma, to which I will soon refer. There is material in the SAR and the Justice Health records to indicate he is a risk of self-harm. In his SAR and the material before me he has stated his regret and the fact that he did not intend serious physical injury. But the SAR notes he has significant lack of insight into the purposes of our firearms legislation.

50. Gill is willing to undertake interventions, but prior to those interventions taking he is regarding as a medium risk of reoffending.

51. His family history is set out in the affidavit of his mother and other material before me. That material is not controversial, his mother was not required for cross‑examination. That material indicates he was subject to violence from his father; who had a significant problem with alcohol. He was effectively homeless when he was 13 years of age. The violence continued, so far as his father was concerned. He was, however, able to settle into the granny flat and obtain, but not finish, an apprenticeship. It appears his back injury curtailed that work ambition.

46. Gill’s background is important relevant by way of mitigation. Exposure to violence when a child can have a highly detrimental impact on the person so assaulted. I do not devalue the impact of a series of traumatic offences as a child. It can be, as here, destructive of the adolescence of an offender. It should be given proper effect. It does here, mean Gill should not be regarded as having the same level of moral culpability as a person whose background was not so marred.

Structure of the sentence

53. There are three matters for sentence, some have common features. There must be some accumulation to reflect the fact the rifle was possessed for some period prior to it being used. The aggregation must be a just and appropriate measure of the total criminality involved.

54. The pistol matter, if it had stood alone, might not have received a custodial sentence, but it did not stand alone.

55. A finding of special circumstances will be made. Gill should have the opportunity for a long period on parole. I make that finding because of the evidence that I have accepted relating; to his ill health, the impact of the COVID pandemic, his need for help adjusting to normal community life on release, his need for supervision on release and need for a supervision plan (as set out in the SAR or to be assessed as assessed by the State Parole Authority) mean that than would be provided for unless. I am mindful, however, that the minimum period he should be imprisoned must properly reflect what he did and the purposes of sentencing.

Submissions

56. I have had received helpful submissions from Ms Kerr, solicitor, for the Director of Public Prosecutions and Mr Schmidt, solicitor, for Mr Gill. I have tried to address matters raised in those submissions in these remarks and in discussions prior to this ex-tempore decision. I hope I have done justice to them.

Synthesis

57. Synthesising all those matters. On behalf of our community both State and Federal governments have introduced legislation that restricts the availability of weapons and firearms. Judges must give effect to those laws whose primary role is to ensure public safety. The normal way we do so is by the imposition of harsh penalties. We do this in an attempt to impress upon offenders, and anyone who might be tempted to offend by unsanctioned possession and use of weapons, the dire consequences of breaching our laws.

58. The laws are there for a reason. If possessed weapons can be used against others and if used against others the victims can be both physically and mentally hurt.

59. What Gill did was a fundamentally antisocial act committed without any regard for the safety of others and without any regard for the peace and wellbeing of our community. It demonstrates why, very sensibly, our community treats firearm possession and the use of firearms as a privilege. That said, every offence and every offender requires individualised treatment.

60. Although I have not accepted everything said by Mr Gill, it is clear from all the material before me that he had considerable trouble as a child. He is still immature. He has a lot of growing up to do. His moral culpability should not be assessed in the same way as a person who had the advantages that most in the community expect. I have given some weight to the expressions of regret expressed by the offender. His expressions of significant remorse could not be accepted given my doubts as to his capacity to be utterly truthful with the Court.

61. I take as one reference the maximum penalties and the applicable standard non-parole periods. I have had regard to the opinions of other courts, particularly those designed to give guidance. I have had regards to the purposes of sentencing.

62. There must be some weight given to the deterrence of this offender and others. He must be properly punished. Mitigating matters should be given appropriate weight. I must try to vindicate the dignity of the victims of the principal offence, even though one is now deceased. I have to express the community’s disapproval. And, I repeat, one of the historic functions of the criminal law is to discourage people from restoring to self-help.

63. There will be an aggregate sentence. I will, so far as each indicated sentence, reduce each indicated sentence by 25% to take into account the plea of guilty. His plea of guilty, even in the face of a reasonably strong Crown case, should be taken into account and synthesised beyond that of the 25% for its utilitarian value.

Orders

64. The formal orders of the Court are:

In relation to sequence 1 - fire firearm at dwelling house - taking into account the matters on the Form 1 and the plea of guilty, I indicate a sentence of a sentence of four years and six months, non-parole period two years eight months. My starting point was six years.

In relation to sequence 2 - Possess firearm, I indicate a sentence of sentence of one year six months, non-parole period 11 months.

Sequence 3 - possess unauthorised pistol - I indicate a sentence of fixed term of four months. Accordingly, there is no to indicate a non-parole period.

Related s 166 matter - not keep firearm safe- I indicate a sentence of 4 months imprisonment.

There will be an aggregate sentence of five years imprisonment. It will commence on 8 August 2021. There will be a non-parole period of three years, reflecting a finding of special circumstances. It will date from 8 August 21. Gill will be eligible for consideration for release to parole on 7 August 2024. The balance of the term of two years will commence on 8 August 24 and expire on 7 August 2026.

65. I make a firearms destruction order.

AUDIO VISUAL LINK CONCLUDED AT 12.59PM

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Decision last updated: 14 March 2023