R v Hall

[2023] NSWDC 587

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Hall [2023] NSWDC 587
Hearing dates:	28 November and 13 December 2023
Decision date:	15 December 2023
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Imprisonment for 2 years 7 months with a non parole period of 1 year 7 months.
Catchwords:	CRIME - SENTENCE - Unlawfully sell firearms 3 times or more within a 12 months - call up Community Corrections Order - unhelpful drafting technique in the Agreed Statement of Facts.
Legislation Cited:	Firearms Act 1996 (NSW), s.51(B)(1); Crimes (Sentencing Procedure) Act 1999 (NSW), s.10A
Category:	Sentence
Parties:	Rex (Crown) William Junior Hall (Offender)
Representation:	Ms Kwong (ODPP Parramatta) Mr Karim (Counsel for the offender)
File Number(s):	2022/00198521; 2022/00070257
Publication restriction:	Nil

Judgment

1. William Junior Hall, you appear for sentence today in relation to the principal offence of unlawfully supplying firearms, three times or more, within a 12-month period.

2. This offence involves a contravention of s51B(1) of the Firearms Act 1996 (NSW).

3. The maximum penalty for the offence is imprisonment for 20 years. There is a standard non-parole period of imprisonment for 10 years.

4. In addition to that principal offence, you have consented to this Court calling up a Community Corrections Order of 18 months imposed by the Local Court on 31 March 2022 for the offence of operating a motor vehicle on a road in such a manner as to cause that motor vehicle to undergo a prolonged or sustained loss of traction by one or more of its wheels. You were on this Community Corrections Order when you committed the principal offence.

5. The facts of the principal offence are contained in an amended agreed sentence document (Exhibit C) which I incorporate by reference. The relevant “highlights” are noted below. But before turning to them, I wish to make the following observation.

6. In relation to Exhibit C, I note that [37] and [51] (which deal, respectively, with what I shall later refer to as the second and third transactions) commenced with the expression “The prosecution position on Hall’s role is that he facilitated the transaction…” – and then various asserted actions or activities are particularised.

7. This is an unhelpful drafting technique for sentence proceedings which do not include a clearly articulated contested facts hearing. Unfortunately, however, in my experience, this drafting technique is not confined to this case.

8. That expression is not, on its face, a statement of any agreement.

9. And it is clear from the written submissions of your counsel (which were served upon the Crown before the sentence hearing commenced) that a number of the particularised actions or activities in those two paragraphs are not agreed to by you. No complaint was made by the Crown about those submissions; nor was a contested facts hearing requested.

10. I shall, therefore, treat the disputed particulars as not agreed facts; and those particulars will not be raised to a status beyond being “the prosecution position”.

11. Returning to the narrative, you were involved in the supply of a firearm to an undercover operative (UCO) in three separate transactions. In all three transactions, you and Mr Tannous Gittany were negotiators, intermediaries, or facilitators between the purchaser (a UCO) and the vendor (which, in all three instances, was not you). How you came to be associated with Mr Gittany and the vendor of the relevant firearms is not revealed in the material before me. Your involvement in the three transactions was for financial reward.

12. The first of those transactions was on 17 March 2022. The relevant firearm was a pistol, specifically a .22 Long Rifle calibre BROWNING Model Mark self-loading pistol. Although the pistol was without a detachable box magazine, it was in working order. Amongst other things, it was you who (on behalf of the vendor of the pistol) delivered the firearm by placing a bag containing the pistol into the boot of the UCO’s motor vehicle and received from that person $12,000.00 on behalf of the vendor. Although Exhibit C does not explicitly say so, it may be reasonably inferred that, directly or indirectly, you arranged for the $12,000.00 to be delivered, or accounted for, to the vendor. Although Exhibit C states that Mr Gittany received (an additional amount of) $2,000.00 from UCO, and although you were involved in this (and all three transactions) for financial reward, there is no evidence of how much money you received for your involvement in this first transaction on 17 March 2022, which was significant. It included: discussing the transaction with Mr Gittany; being present at the time the transaction was effected; having some discussions with the UCO at the place of the transaction; receiving $12,000.00 from the UCO on behalf of the vendor; delivering the firearm to the UCO; and causing the $12,000.00 to be delivered, or otherwise accounted for, to the vendor of the firearm. However, you were not involved in negotiating the purchase price on behalf of the vendor with the UCO.

13. The second of those transactions occurred on 31 March 2022. The relevant firearm was a .32 automatic calibre ARMI JAGER model AP15 self-loading centre rifle, which was in working order. The agreed purchase price was $23,000.00. Your role in this second transaction was not nearly as significant as in the first. On this occasion, it included: taking a photograph of the firearm, which Mr Gittany then sent to the UCO in the negotiations leading up to the agreement to purchase; and offering to deliver the firearm (on behalf of the relevant vendor) to the location where the transaction was to be completed. However (and contrary to the “prosecution position” in [37] of Exhibit C), although you made that offer, it was actually two unknown males (neither of whom fit your description, and neither of whom is alleged to be you) who brought the firearm to that location. There is no agreed fact that you were present when the transaction actually took place. Furthermore (and again contrary to the “prosecution position” in [37]), there is no agreed fact or other evidence that you were involved in negotiating the price of the firearm. As in the first transaction, there is no evidence as to what money you received for your involvement in the second transaction.

14. The third and final transaction was on 3 May 2022. The relevant firearm was a shortened .308 Winchester calibre WEATHERBY Vanguard bolt-action repeating rifle, which was in working order. The purchase price was either $3,500.00 or $3,000.00. Your role in this third transaction was not nearly as significant as in the first. Contrary to the “prosecution position” in [51], there is no agreed fact or other evidence that you were involved in negotiating that price. In this context, I have not overlooked the following sentence in [39] of Exhibit C: “GITTANY negotiated the price of the firearm between HALL and the UCO”. Given that [51] states that “…it is not the Crown case that Hall was the owner of the firearm or had possession of the firearm before it was supplied”, the quoted sentence from [39] has no clear meaning – and certainly does not permit me to conclude, beyond reasonable doubt, that you were involved in negotiating the price of the firearm.

15. Your agreed involvement was limited to: taking a photograph of the firearm which was used by Mr Gittany in his negotiations with the UCO; and arranging (in some unspecified way) for Mr Steve Mate to become involved in the transaction.

16. There is no evidence as to what money you received for your involvement in the third transaction.

17. You were arrested on 7 July 2022.

18. It is necessary for the Court to make an assessment of the objective seriousness of the principal offence for an offence of its kind. On the facts as I have found them, in my opinion, it is towards, but not at, the bottom of the range.

19. The principal offence is additionally aggravated because: first, you were on the Community Corrections Order that I have already referred to; and, secondly, you were serving a term of imprisonment by means of an intensive correction order for the offence of driving whilst disqualified.

20. Your further subjective circumstances were placed before the Court through: a sentencing assessment report dated 9 October 2023; and the contents of Exhibits 1 and 2.

21. Part of Exhibit 1 was a report by a psychologist, Ms Hawill, dated 29 September 2023. In that report, Ms Hawill concluded that you suffer (and have suffered for some time) from Major Depressive Disorder, caused by “family dysfunction, family estrangement and significant financial stressors”.

22. Those “financial stressors” (identified in (7.4) and (7.5) of Ms Hawill’s report) were the reasons why you became involved in the criminal activity for which you are to be sentenced today. However, your experienced counsel has (correctly in my opinion) conceded that your Major Depressive Disorder was not a cause of your offending – the need for money was.

23. You expressed remorse to Ms Hawill, to the author of the sentencing assessment report, and in your letter of apology (which was also part of Exhibit 1). Although you did not give sworn evidence in the sentence hearing, I accept that your second-hand expressions of remorse are genuine.

24. Whilst you have been in custody, you have undertaken a number of courses which will further assist you to gain employment on your release. I have noted that, even before you went into custody, you held Warehousing Certificates I, II, III and IV; a forklift licence; a dangerous goods licence; a White Card; a Bluecard; a railway industry workers card; and a first aid certificate. All these valuable work skills are further positive factors in assessing your prospects of rehabilitation – as are: your age (you are now 28 years old); your supportive family network; stable accommodation and employment; a willingness to continue treatment for your depression; no substance use problems; your exceptional conduct to date as an inmate; and the ongoing supervision and support by Community Corrections which will be one of the results of the sentence I shall impose.

25. In assessing your prospects for rehabilitation, I have also had regard to your criminal record which, before your current offending, was limited to driving offences. Nevertheless, you are not entitled to the leniency which, in appropriate circumstances, can be extended to a first offender.

26. In assessing your prospects for rehabilitation (and also in considering your criminal culpability), the Crown submitted that the principal offence was “not an isolated one”. The Crown relied upon what you said to the UCO on 17 March 2022 – i.e., that you had other firearms you were selling; and, in this context, you invited the UCO to your workshop in Liverpool (cf [19] of Exhibit C).

27. Whilst I am satisfied that you said those words to the UCO, I am not satisfied, beyond reasonable doubt, that the statement was accurate. You had no workshop in Liverpool. No firearms were found by police when a search warrant was executed at your residential premises on 7 July 2022. And there is no evidence linking you to any other firearms in any other context.

28. In the overall result, I am satisfied that you have good prospects of rehabilitation - prospects which would be enhanced by a longer period on parole.

29. In fixing sentences for this type of offence, general deterrence is, as the Crown has correctly submitted, to be given substantial weight – as are considerations of specific deterrence and the protection of the community. But, of course, those important sentencing principles must have regard to the facts of each individual case.

30. I am satisfied that the s5 threshold has been crossed – that is, that no sentence other than a term of full-time imprisonment is appropriate.

31. That term of imprisonment will be reduced by 25 per cent because of your early plea of guilty.

32. I earlier mentioned that you were on an intensive correction order at the time of your current offending. That intensive correction order was revoked because of the principal offence and you were required to serve the balance of that sentence in full-time custody. That sentence expired on 19 November 2022. The start date of the sentence I shall impose today can be anywhere between 7 July 2022 (the date of your arrest) and 19 November 2022. Notwithstanding the submissions of the Crown and your counsel, by having regard to totality, and as a deliberate act of leniency, the start date will be 7 July 2022.

33. In fixing the sentence, I make a finding of special circumstances to vary the statutory ratio of the non-parole period to the head sentence. I do so because of your mental health conditions and because your prospects of rehabilitation would be enhanced by a longer period on parole.

34. William Hall, for the offence of unlawfully supplying firearms, three times or more, within a 12-month period, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 3 years 6 months. After the discount, the term of imprisonment is 2 years 7 months.

35. I fix a non-parole period of 1 year 7 months to date from 7 July 2022 and which will expire on 6 February 2024.

36. I fix a balance of 1 year to date from 7 February 2024 and which will expire on 6 February 2025.

37. I note that, although no specific submission was made concerning whether you should serve any sentence by means of an intensive correction order, I have nevertheless considered that option - and rejected it.

38. The Community Corrections Order I earlier referred to is called up. Pursuant to s10A of the Crimes (Sentencing and Procedure) Act, for the offence of prolonged or sustained loss of traction you are convicted, but I impose no further penalty.

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Amendments

25 January 2024 - Typographical error para [6].

Decision last updated: 25 January 2024