R v Hamstra, Andrew

[2009] NSWDC 388

CITATION:	R v Hamstra, Andrew [2009] NSWDC 388
JUDGMENT DATE:	8 September 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted. Pursuant to Section 11 of the Crimes (Sentencing Procedure) Act 1999, for the purpose of assessing the offender’s capacity and prospects for rehabilitation and assessing that rehabilitation has taken place conditional bail granted for 12 months. Review dates to assess rehabilitation progress set. 15.Failure to comply with conditions of the bail will be deemed a breach of bail 16.I require that I be notified within 48 hrs of any breach 17.Attend Court at all times required by the Court. Dates include the 11/12/09 at Sydney District Court via AVL (Broken Hill), 26/03/10 at a court to be allocated, 11/06/10 at a court to be allocated and 10/09/09 at a court to be allocated.
CATCHWORDS:	Criminal law - sentencing - firearm offences - multiple unregistered and two prohibited firearms - threats to use during breakdown of domestic relations - depression arising from employment loss in remote rural setting - focus on rehabilitation - bail granted for that purpose
PARTIES:	Regina Andrew Hamstra
FILE NUMBER(S):	2009/9799
COUNSEL:	Crown: C Simpson Defence: S Corish

JUDGMENT

1. In these sittings Andrew William Hamstra was committed for sentence on a charge that he possessed three unregistered firearms, namely four firearms that were not registered, of which two were prohibited firearms, in circumstances where he was not a person authorised by licence or permit to possess those firearms.

2. He was also before the Local Court on a charge of domestic violence towards his wife, and a number of other charges.

3. He pleaded guilty before the magistrate to both of the charges that I am focusing on for the moment. An agreed statement of facts was tendered before me and I will read that onto the record.

4. The offender and Pauline Hamstra have been married for thirty-three years. They reside at Gunn Street, Wentworth and have done so for the past six years. On Sunday 21 December 2008 at 8.30, Pauline Hamstra and her husband had an argument in their home about her visiting her mother Mary Keegan, who resided across the road. He had been drinking VB beers since 12.30 in the afternoon and had consumed twelve 375 stubbies. He was agitated and swearing at the victim.

5. There is evidence before me which amplifies that situation to indicate that he had in fact been consuming considerable quantities of alcohol over a substantial period of time because he was depressed, the depression probably being a reactive depression relating to his ever increasing physical unfitness for varying kinds of work. He was a man who was proud of his work ethic. Indeed may have been using his work ethic to keep himself away from his family because he was working huge hours, much of it away from the family, but taking pride in being a provider for that family and was suffering because, as he saw it, the roles were reversed and his wife was providing more income for the family than he was. Of course his response to it was not very clever. He was making himself less and less able to compete in the workforce by increasing his consumption of alcohol and the likelihood that he could become addicted to it.

6. On this particular day he said to her, “I can’t take it anymore, get your fucking gear and get out, get over to your fucking mother’s over the road, get your fucking gear and go”. There are a number of things that he no doubt could not take, one was his life situation, as it was. The second was his partner spending productive time with her mother and non productive time with him. I am not suggesting that is her fault, in fact rather the contrary. And, as I say, the fact that he was not happy with himself for drinking either. She was frightened that he would chase her and bring her back to the home. To make sense of that, in recent times he had been more possessive of her and had fallen out with the mother so that he would have been no doubt cranky that she was with somebody that he was not getting along with and that she was spending time away from him.

7. She arrived at her mother’s, locked all the doors and windows, fearful, the agreed facts say fearful for herself, her mother and her brother, Greg Keegan was also at the mother’s residence located across the road in Gunn Street. There may have been a couple of calls but at 9 o’clock she received a phone call from him on the mobile phone and a further argument resulted. As a result of the phone call, she became fearful for her safety in the event that she should return home. She was aware that he was in possession of illegal firearms and they were stored under the bed. The reason she became fearful for herself was a threat by him, not in direct terms to her, but suggesting that it would not be advisable if she came home because he had a loaded firearm.

8. She attended the Dareton Police Station and a statement was obtained. She told them that she was fearful of her safety, for the safety of her mother and was not going to return to the offender. The police at some point went to the offender’s home and spoke to him. They indicated that they were informed about the illegal firearms and embarked upon a lawful search. The police entered the dwelling and searched for firearms. They located an SKB Over Under double barrel shotgun which, I am informed, are used for hunting. There was a serial number on that weapon. A Winchester 330 lever action rifle, there was a serial number on that weapon. An SKS semi automatic rifle with a bayonet and a serial number was on that weapon and a Sterling point twenty two automatic rifle and there was a serial number on that weapon. I say that because very often when weapons are found the serial numbers are obliterated.

9. The firearms were stored in a way that failed to comply with the safe storage of the Firearms Legislation. Located in the shotgun were two live twelve gauge cartridges, one in each chamber of course. There was one live round of Winchester 22 -250 located on a skirting of the built-in wardrobe in the main bedroom. All the firearms were unregistered and two, as is made clear by the charge, were prohibited. The SK semi automatic and the Sterling semi automatic, both of them being self loading rifles, one with the centre fire and one with rim fire. The offender was arrested and transported to the local police station. The firearms and ammunition were seized and apparently are kept as exhibits at the police station.

10. The offender does not have a New South Wales firearms’ licence and never has, but he gave evidence yesterday, which nobody contested, that he had at one stage when he had these weapons, a Victorian licence but he knew that that had been superseded by subsequent legislation. The weapons had been transported to New South Wales from Victoria and had been in his possession, as I understand it, for thirty or more years.

11. He participated in an electronically recorded interview where he cooperated fully with the police and made full admissions of ownership. He claimed that the shotgun had been stored in a loaded condition for five years beneath the bed and he had stored the ammunition unsecured in his house. He accepted that he knew of safe storage requirements. He has been in custody since his arrest and that is close on nine months now.

12. There is a report from Anna Robilliard. She found him to be soundly intelligent with sound cognitive ability, that he answered questions promptly, cogently, was well organised, consistent and cognitively intact. She had taken history of recent emotional and behavioural deregulation and said that he had insight into that. He did present with symptoms which were consistent with borderline personality disorder which in his case she said translated into under regulated emotions and behaviour and rapid and extreme mood swings. The thing about any of these personality profiles is they are a snapshot of a view at the relevant time and like any other time you may change and as your weight may change, your mood may change.

13. Such a person from a judge’s point of view is a bit of a risk, that is with rapid extreme mood swings a judge has to be careful in letting such a person into the community. I would want to see some stabilisation of your mood swings and I imagine that will happen as things come more and more down to normal. What is clear is that at the time, and even perhaps still, there are residual sequelae of the drinking, the physical breakdown might be an extreme word but it gets a sense of what I am saying, the loss of physical fitness, the emotional turmoil, all of those are probably still making some contribution even at this stage to personality profile.

14. Clearly a case has been made for counselling. The offence with the firearm weapons is very serious, even as Mr Crown described it, towards the lower end of the range. Firearm offences by their very nature are very serious and a loaded firearm in circumstances where someone is depressed, angry at the partner and ready to kill himself can spell unmitigated disaster and has spelt unmitigated disaster in numerous other cases. It would be bad enough for everybody if you killed yourself, but if you were to kill someone else alongside yourself, that would be an overwhelming calamity. If I thought for a minute that anything like that was likely to happen, you can be sure I would not be releasing you.

15. The evidence comes through that the offerder is strongly supported by his family. His wife of thirty-four years, to her everlasting credit, reported this to the police. That is the best and most direct way to deal with domestic violence. It shows that they will not tolerate it and for my money nothing can be better. The best way of ending crime is to know that it will be reported. I am told from her daughter she has become stronger since then. She is realistic about the conduct, she accepts what was in the statements, nonetheless she has obviously much invested in thirty-four years of life together and children together and is seeking to reconcile but is going to be sure that the reconciliation is properly done and done at a speed that is suitable to her and hopefully suitable to you.

16. Your daughter and her fiancé are also supportive, they have been supportive all of them in their visits and all of them in their willingness to assist you when you are released. She has offered you a place of accommodation at Flamingo Drive, Mildura and it will be a condition of your bail that you live there.

17. This afternoon I have been given a document from Dr John Buckley who practices in Merbein, Victoria. It tells me he is your treating general practitioner and says he would be able to assist you with ongoing counselling for severe depression and alcohol abuse. He says that he will refer you to the local drug and alcohol counsellors, depending upon the availability of Wendy Huggins from the Family Relationship Centre in Mildura and has arranged an appointment for you with one of her staff on 5 October next to become involved in the Men and Family Planning Program and you will be required to engage in that to the best of your ability. Gerald Purchase a clinical phycologist, who would appear to be very experienced, has been asked by Dr Buckley to see you for opinion and management and is also going to assess you two hours after Sam De Luca at 11.30 on 5 October with a view to ongoing psychotherapy. You will participate in those sessions to the best of your ability as a condition of your bail.

18. The offender will be granted conditional bail and for that purpose I formally convict you of both offences, that is the domestic violence offence in the Local Court and the firearms offence before me. The conditions are that you will be of good behaviour, that you will reside at Flamingo Drive, Mildura, that you will accept supervision of probation and parole and all reasonable directions from your case manager and pursue them, whether in this jurisdiction or in Victoria, to the best of your ability.

19. You will abstain from the consumption of alcoholic beverages for the duration of the bail period. You will obtain as soon as possible, access to an income stream, presumably that would be initially from Centrelink or one of the employment agencies but ultimately and hopefully it will be from some form of employment. You will give at least one-tenth of whatever is you get as an income stream to your daughter for accommodation purposes. You will do all you can to find and maintain and I underline the word “suitable”, suitable employment for yourself that takes into account your physical limitations. You will attend counselling. Initially you will attend upon Dr John Buckley and obtain from him a referral to the local drug and alcohol counsellors with such support as Dr Buckley wants to give to you. You will attend upon Gerald Purchase should that be, as I anticipate it will be, the source of counselling that Dr Buckley refers you to at 11.30am on 5 October 2009 at his rooms in Mildura. You will attend upon Sam De Luca of the Family Relationships Centre at 8.30am on 5 October 2009 at Mildura or such earlier time as either of those two people can fit you in.

20. You will volunteer at least three hours of one day every week in some community based activity. You will attend all meetings, programs and counselling required by your case manager. You will provide at each review we have, proof that you have done or complied with conditions of your bail. That may be for instance, with Mr Purchase, a card with the time and date and his signature to show that you attended there but from him and from probation and parole I will be wanting reports on the review dates. I cannot make him but I can ask and I can order the probation and parole to give me the reports.

21. It will be a condition of your bail that failure to comply with any of those above conditions will be deemed a breach of the bail and I require to be notified within forty-eight hours by probation and parole of any breach of bail.

22. I give leave to the parties, and particularly to the Crown, to apply at short notice for an AVO or any other matter that is concerning the Crown. It will be a condition of your bail that you attend my court at all times required by me. The dates of review are 11 December this year at Broken Hill, 12 March next year at Broken Hill and by that time hopefully the other place will be up but I am making these other two Broken Hill, 11 June and 10 September.