R v Handsaker

[2016] NSWDC 304

District Court

New South Wales

Medium Neutral Citation:	R v Handsaker [2016] NSWDC 304
Hearing dates:	12 May 2015
Date of orders:	12 May 2016
Decision date:	12 May 2016
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Sentenced to an aggregates sentence of imprisonment consisting of a non-parole period of 2½ years with a head sentence of 5 years. Form 1 taken into account
Catchwords:	CRIMINAL LAW - Sentence - Form 1 - S166 certificate - Break enter and steal - Do an act with intent to influence witness - possess unauthorised firearm
Category:	Sentence
Parties:	The Crown Tyson Handsaker
Representation:	Counsel: Mr P Krisenthal - Offender   Solicitors: Director of Public Prosecutions Legal Aid Commission - Offender
File Number(s):	2015/277978

Judgment

1. HIS HONOUR: The offender Tyson Handsaker is to be sentenced for two quite serious offences. In addition, on each of those offences, there are matters listed on a Form 1 and finally there is a matter on a s 166 certificate.

2. The first offence, which appears on an indictment, is an offence of break, enter and steal. The offender, for reasons which I will discuss in a little while, decided that he would steal some firearms belonging to his father and grandfather. They were stored appropriately in locked cabinets in a rear shed at his grandfather’s premises. On 19 September 2015 the offender and his then partner a Ms Urli, went to visit the home of the offender’s grandfather. Clearly, as it turns out, this was part of a plan on behalf of the offender to do what he later did. After they left they went to get some bolt cutters, bought some padlocks and at 9.30 pm that day the offender went back to his grandfather’s house, travelling on his motorbike, with Ms Urli following him in her car. She stayed behind as the offender went to the rear shed of the premises, used the bolt cutters to cut the padlocks and took from the cabinets nine firearms. They all belonged to the offender’s father. Two of them were air rifles but the remaining firearms were much more lethal.

3. After he had succeeded in gaining all of these weapons he went back to Ms Urli’s car and put the firearms on the rear seat. He told her he had borrowed them from his grandfather, but this of course was not true. They went back to where Mr Handsaker was living. He took the firearms from the vehicle and put them inside the bedroom. The following day the offender’s grandfather discovered what had happened and police were called.

4. It was not long before the offender was identified as the person responsible. Indeed Ms Urli quite properly, on 22 September 2015, told police about what she knew about what the offender had done. Other evidence of a forensic nature confirmed the offender’s involvement, in particular police found a set of boots belonging to the offender where the tread pattern matched a tread pattern located at the scene of the crime.

5. While the police were at the offender’s home they saw the offender and a man by the name of Ben Mathieson coming into the property and entering into the house. The offender had two firearms in his possession and as he decided to flee he gave them to Mr Mathieson. Mr Mathieson was arrested but the offender escaped. The two firearms found were both twenty twos. One of them was stolen from the grandfather’s premises but the second was not. Its provenance has never been ascertained. A short time later the offender was found hiding, arrested, refused to participate in an interview, was charged and bail refused.

6. At this stage only one of the stolen firearms had been recovered but some months later, in late November 2013, the offender contacted his solicitor. His solicitor then told police that the property that was stolen was to be found in a vehicle parked at the offender’s home. Police went to that address and they found four firearms but if you do the maths it is clear that there are four rifles which have not been recovered.

7. This is an offence of some seriousness. It hardly needs to be said, but I will say it, stealing firearms is much more serious than stealing a colour TV or an iPad. It is not so much the value of the property which is of concern but the lethality of the items stolen.

8. The other offence is also serious because it strikes at the heart of the criminal justice system. After the offender was bail refused he began to correspond with Ms Urli. It will be remembered that she had told police about his involvement in the offence of break, enter and steal. It is clear that the offender was attempting to get Ms Urli to not give evidence against him. In his letter he tells her that her statement is the only evidence they have got on him, and that she should not be worried about police threats if she decides not to give evidence. He asks her to tell police that he did not take the ten guns.

9. This was not just one letter either. Between 5 October and 6 November four further letters were written to Ms Urli in which he repeats his demand that she not go to court to give evidence against him. Another aspect of the letter was a threat of violence made by the offender in the context of his fear that Ms Urli might leave him for another man. Not surprisingly, as a result of receiving those letters Ms Urli felt scared and anxious. She therefore told police what had happened, told them that she had been receiving almost daily phone calls from him and she did not want to receive them anymore. So an interim apprehended domestic violence order was issued. Despite that, on 13 December 2015, a month and two days after the order was made, the offender telephoned Ms Urli. He had to use some subterfuge to do what he did. Again Ms Urli did the right thing. She told police about this telephone call and once again police became involved.

10. So the offender is to be sentenced for these matters: break, enter and steal where the maximum penalty is 14 years imprisonment; doing an act with intent to influence the witness where the maximum penalty is also 14 years imprisonment; and possessing an unauthorised firearm where the maximum penalty is five years but because it is dealt with on a s 166 certificate the jurisdictional limit is two years. That firearm is the one which was not stolen from the grandfather’s premises but was found in the offender’s possession when he was arrested.

11. For reasons I will get to, the offender claims that he did what he did by way of stealing his father’s firearms because he was angry at his father and wished to get back at him. There are some difficulties in accepting that that was the sole motivation for the offender’s actions. Perhaps the most important matter in this regard is the offender’s possession of the firearm which was not stolen from his grandfather’s premises. What was he doing with it? How did it come into his possession? We do not know because he has not given evidence and all we are left to do is to speculate. It does however suggest an involvement in firearms and a desire to become involved with firearms which goes beyond merely, as he told the psychologist, wanting to steal his father’s firearms, chop them up and return them to him in that form.

12. Again if that was his motivation why are none of the firearms damaged? What happened to the ones which have not been recovered? It cannot be ignored, as the Crown submitted, that the offender was a drug user at the time, a significant drug user as well. It is possible, the Crown suggests, that he stole the firearms so that he could sell them to buy money for drugs. It is for the offender to satisfy me on the balance of probabilities that his motivation in stealing the firearms was simply to destroy them to get back at his father. I am not satisfied to that standard, that that is what motivated the offender, at least not solely. It may be that the desire to hurt his father was part of the motivation but I do not accept that he at any stage planned to destroy the firearms.

13. The offender’s background was, as is almost invariably the case for people appearing for sentence in these courts, a troubled one. His parents separated when he was quite young and although the offender had a close relationship with his mother his behaviour was such that she found it difficult to control him. A problem arose when the offender’s mother formed a relationship with a man who became the offender’s stepfather. He was, so the offender told a psychologist, a violent man, often drunk and aggressive. The offender witnessed acts of domestic violence on a regular basis until finally the relationship between his mother and his stepfather ceased when Mr Handsaker was about 15 years of age.

14. Not surprisingly whilst his stepfather was around the offender preferred to be outside the family environment which, at the age that he was when this happened, was clearly a factor in him becoming involved with some undesirable influences. The offender’s contact with his father after his parents separated was sporadic. At times he would visit his father but was disappointed at the way his father reacted to those visits. He did get on very well with a person with whom the offender’s father had formed a relationship. He described his stepmother to the psychologist as an important figure in his life. She had provided stability when he was staying with his father.

15. The relationship between the offender’s father and the offender’s stepmother broke up due to the offender’s father’s unfaithfulness. It was this breakup which the offender took hard. So good was his relationship with his stepmother that he continued to visit her even after she had broken up with his father. During that time he learnt more about his father which made him even angrier towards him, and it was in this context that he said that his drug use increased and that he committed the break and enter and steal offence, as I have said repeatedly, he says to get back at his father.

16. I mentioned the offender’s drug use. He began to consume alcohol around thirteen. He began to smoke cannabis at the age of fourteen and use methamphetamine from 18 years of age. Since going into custody Mr Krisenthal, who appears on his behalf, says that he has dried out and now is able to look rationally at what he has been doing and realise the error of his ways. Indeed Mr Krisenthal submits that the offender’s decision to get his solicitor to tell police where the firearms were located is part of the offender’s realisation and maturity as he gave up drug use. The Crown of course has a different submission. The Crown points out that he only told his solicitor to contact police after his attempts to get Ms Urli to withdraw statements she made to the police failed, and it was in those circumstances that he really had no alternative.

17. It may be that the offender’s assistance to the authorities in order to get the firearms recovered was late and it may be that his motivation went beyond wanting to assist the authorities alone, and there was an element of self-interest involved. But it has to be recognised that it is better that he did what he did, which allowed four firearms to be recovered, than if he had not done it at all. Mr Krisenthal submits that the offender is entitled to a discount on his sentence to reflect that assistance to the authorities, and the Crown agrees. I will therefore take it into account. I do not propose to quantify it but it is a matter that I have taken into account in determining the sentence.

18. It is also, I suppose, evidence of remorse, at least a step in the right direction. The offender could have hoped that the authorities would not discover the firearms and that they would be available to him on his release from custody. That he admitted where they were is, as I have said, a step in the right direction for the offender.

19. At the time of these offences the offender was on s 9 bonds. It is important that I do not double count. The offender served a sentence of imprisonment after having been called up for breaching those bonds. It would be wrong for me to commence the sentence I will impose from the expiry of that sentence, and at the same time regard the fact that he was on conditional liberty as an aggravating factor. I will not do that. I will commence the sentence I will shortly announce on 22 November 2015, which is two months before that sentence expired.

20. It is conceded that full-time custody is required. As I began these remarks on sentence the offender’s crimes were serious. They were certainly not spur of the moment decisions made and immediately regretted. There was planning involved in the break, enter and steal offence and the offender’s efforts to persuade his partner to not come to court to give evidence against him were ongoing. It is clear that general deterrence is of relevance for both offences, maybe not as much as would have otherwise been the case because of the matters referred to in the psychological report but general deterrence is still of importance in the sentence that I will impose upon the offender.

21. The offender’s prospects for rehabilitation are uncertain. The offender has a history of criminal behaviour, including for break, enter and steal. Although whilst in custody his barrister tells me that he has not used drugs what will happen upon his release from custody is uncertain. I am told that he wishes to go to residential rehabilitation but whether he will or not remains to be seen.

22. In these circumstances it is difficult, indeed impossible, to assess the prospects of the offender’s rehabilitation. I will do however what I can to encourage it, both by imposing a term of imprisonment on the offender which should personally deter him from committing offences of this type in the future, but also by making a finding of special circumstances. The offender will be assisted by the supervision of the Probation and Parole Service for an extended period upon his release from custody. If he does what he says he wants to do, that is give up drugs and return to a law-abiding lifestyle, then the opportunities will be available to him. If he does that then the community benefits. That is why I have made a finding of special circumstances in his favour, not as a favour to him but because of the beneficial effect that such extended period of parole should have for the community.

23. I will impose an aggregate sentence. Were I not to have done so I would have imposed a sentence of 18 months for the possess unauthorised firearm matter on a s 166 certificate, and on each of the matters on the indictment a period of imprisonment of three and a half years. I should make it clear that I have allowed a discount of twenty five per cent for the offender’s pleas of guilty at the Local Court to reflect the utilitarian value of those pleas. The aggregate sentence I will impose consists of a non-parole period of two and a half years with a head sentence of five years. The sentence will date from 22 November 2015. The non-parole period will expire on 21 May 2018, on which day the offender is eligible to be released to parole. Of course those sentences did take into account the Form 1 matters on each of the matters on the indictment.

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Decision last updated: 15 November 2016