R v Hanrahan

[2023] NSWDC 230

District Court

New South Wales

Medium Neutral Citation:

R v Hanrahan [2023] NSWDC 230

Hearing dates:

22/2/23

Date of orders:

22/2/23

Decision date:

22 February 2023

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 2 years 5 months with a NPP of 15 months (14/11/22-13/2/24). I find special circumstances.

Indicative sentences (after 25 percent discount for plea of guilty):

Seq 5, Possess>3 unreg firearms – 27 months with NPP 14 months (Form 1 taken into account).

Seq 35, Possess proh weapon without permit – 7 months with NPP 4 months.

Seq 17 on s166 cert, Not keep firearm safely – 9 months

The remaining sequences on the s166 certificate are withdrawn and dismissed.

I order the destruction of the firearms and related items.

I direct that a copy of the report of Megan Godbee of 10/2/23 and the two reports of Dr Muthukrishnan be provided to Corrective Service and Justice Health.

Catchwords:

Crime – Sentence – Possession of unregistered firearms – Not keep firearms safely – Possess ammunition without authority

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Firearms Act 1996

Weapons Prohibition Act 1998

Cases Cited:

Aird v R [2022] NSWCCA 35

Basedow v R [2010] NSWCCA 76

Mack v R [2009] NSWCCA 216

R v Cromarty [2004] NSWCCA 54

R v Fangaloka [2019] NSWCCA 173

R v Mahmud [2010] NSWCCA 219

Taylor v R [2018] NSWCCA 50

Category:

Sentence

Parties:

NSW DPP – Crown
Noel Edward Hanrahan - Offender

Representation:

Ms Parsons for Crown
Ms Carr for Offender

File Number(s):

21/343218

sentence

1. The offender, Mr Noel Hanrahan, appears for sentence in relation to three offences as follows:

2. The sequence 5 offence, which is under s 51D(2) of the Firearms Act 1996, of being in possession of more than three unregistered firearms, at least one of them being a prohibited pistol. The maximum penalty for that offence being 20 years’ imprisonment and a ten year standard non-parole period is specified.

3. The sequence 35 offence is one under s 7(1) of the Weapons Prohibition Act 1998, which relates to the possession of a silencer and carries a maximum penalty of 14 years’ imprisonment with a standard non-parole period of five years being specified.

4. The third offence is the sequence 17 offence, which is on a s 166 certificate, being an offence under s 39(1)(a) of the Firearms Act of not keeping firearms safely and, with respect to that offence, the relevant maximum penalty is two years’ imprisonment and/or a fine of up to $5,500.

5. In addition, the offender asks that, in sentencing him for the sequence 5 offence, I take into account on a Form 1 document another offence, which is one of possessing ammunition without relevant authority, that being an offence under s 65(3) of the Firearms Act. The maximum penalties and, where applicable, standard non-parole periods are, of course, important guideposts in the sentencing exercise to which I have had regard.

6. The offender pleaded guilty at the earliest opportunity and, therefore, will be given a 25% discount by reason of the utilitarian value of that plea of guilty. The facts are agreed and are as follows.

FACTS

7. On 1 December 2021 police were called to the offender’s home in Kingswood for an unrelated matter. Police were told by Ms Phillips, who also lived at the house, that the offender had firearms on the premises. Permission was given by her for police to enter and search the premises. Upon searching, police found a number of items in different parts of the house.

8. Firstly, in the roof cavity they found a .22 calibre Stevens Arms Company model 52-B bolt-action rifle; a .45 calibre Colt single-action six chamber revolver, being a prohibited pistol; a .45 calibre automatic Colt self-loading pistol with two box magazines and a holster, that weapon being also a prohibited pistol; a .22 calibre Winchester Magnum Rimfire Colt New Frontier six-chamber revolver pistol; a .22 calibre Beretta 950B self-loading pistol, that being a prohibited pistol; and two .22 short calibre Butler single shot pistols.

9. In a rear room of the house, they found a silencer, also a .45 calibre Jukar single-shot black powder percussion rifle, a 12-gauge WW Greener GP Martini action single-shot shotgun and a .22 short calibre Ethan Allen seven chamber revolver with a pearl handle, that being a prohibited pistol.

10. In the garage, police found a .44 calibre Ruger Old Army six-chamber black powder percussion revolver pistol. In addition, police found and seized in the premises the following items of ammunition: one .30-30 Winchester calibre Remington cartridge, one 12-gauge Winchester shotgun cartridge, one .45 calibre Colt Winchester cartridge and two .22 short calibre cartridges bearing the headstamps CCI and Winchester.

11. The facts go on to state that it is accepted that all of the firearms and ammunition found on the premises belonged to the offender who did not take all reasonable precautions to ensure that they were stored safely. Of the 11 firearms located in the premises, seven were classified as a firearm or pistol pursuant to s 4(1) of the Firearms Act and four were classified as a prohibited pistol pursuant to s 4C(1)(b) of that same Act.

12. A certificate under s 87 of the Firearms Act confirmed that the offender was not the holder of a firearms licence or permit which authorised the possession or use of the various items to which I have referred. Also, a certificate under that same section confirmed that there was no record of registration of any of the firearms located in the premises.

13. Those are the facts upon which Mr Hanrahan is to be sentenced.

OBJECTIVE SERIOUSNESS

14. It is necessary, of course, that I make an assessment of the objective seriousness of these particular offences before the Court. It is obvious that they must be regarded as serious offences and that is demonstrated firstly by the maximum penalties and relevant standard non-parole periods that have been specified by Parliament. This is particularly so in the case of the sequence 5 offence under s 51D(2).

15. In R v Cromarty [2004] NSWCCA 54, Kirby J referred to the background and purposes of s 51D of the Firearms Act where at [86] he said:

“…although the primary object of s 51D, introduced in 2002, may have been the punishment of criminals who warehouse illegal firearms, the objective was, I believe, broader than that. The measures, as the Minister announced in his Second Reading Speech, were ‘designed to inhibit the illegal supply of firearms’. The purpose of the amendments extended to the stockpiling of weapons, as happened here, where that stockpile was vulnerable and, if violated, may feed the market in the illegal supply of firearms.”

16. Furthermore, and as noted in the Crown’s submissions, it was said in R v Mahmud [2010] NSWCCA 219:

“In this connection it is important to recognise the legislative purpose embodied in s 51D and other similar provisions of the Firearms Act, viz, the elimination of firearms from the community except insofar as their possession is expressly authorised. The reason is clear. The possession of firearms, except where necessary and by persons authorised to have them, is calculated to lead to substantial damage. The courts have a duty to impose penalties that conform with the legislative intention and operate as real disincentives to those otherwise attracted to the illegal possession of firearms.”

17. Furthermore, as Johnson J said in Taylor v R [2018] NSWCCA 50:

“The offence under s 51D(2) of the Firearms Act 1996 may be committed in a wide range of circumstances. The issue of public safety is a factor of significance with respect to offences under this section. The purpose of s 51D is not limited to the punishment of criminals who warehouse and harbour illegal firearms. The purpose of the prohibition is broader. It extends to the stockpiling of weapons by persons without any further criminal intent: R v Cromarty (2004) 1414 A Crim R 515…This because of the risk that a stockpile, if vulnerable, may inadvertently feed the market in the illegal supply or firearms: R v Cromarty at [86].”

18. In Mack v R [2009] NSWCCA 216 the Court of Criminal Appeal referred to a number of factors relevant to the assessment of the objective seriousness of a firearms offence. Insofar as they are relevant in this particular case, I make the following observations.

19. Firstly, the number of firearms. In this case there were 11 firearms, eight of them being pistols, with four of those being prohibited pistols. The offence thus involved well in excess of the threshold element of the section.

20. Secondly, it seems that most of the weapons possessed by Mr Hanrahan were relatively old, although there is no suggestion that they were not in working order. However, none of them were rapid fire or assault-type weapons.

21. On the other hand, and while I am conscious that an element of s 51D(2) is that at least one of the weapons be a pistol, the fact is that the offender had possession of eight pistols which, with their capacity for concealment, makes them extremely dangerous weapons in the wrong hands. There is no suggestion, however, that any of the guns were loaded when found by police, although they were found in reasonable proximity to a small quantity of ammunition which, of course, is the subject of the offence on the Form 1 document.

22. As to the offender’s purpose in possessing the weapons, he claims to be a collector. This claim is given some support by the history given to the psychologist, which involved the offender being raised on a rural property in the 1950s and being given a gun by his grandfather when he was only a child.

23. I therefore accept that his possession was in the nature of a collection and there is no evidence to suggest that the offender had the weapons with the intention of selling them or with the intention of using them in connection with any other criminal activity, such as drugs or intimidation or any other offence of violence.

24. On the other hand, there is no doubt that the offender was, given his history of being dealt with for a firearms offence in the year 2000, well aware of the illegality of his behaviour. The weapons were found in an ordinary house in a residential area. Although they were hidden from plain view, they were not secure and the fact that they were in the house was also known to another person who lived there.

25. In these circumstances, there was an unacceptable risk that the weapons could have found their way into the community and possibly into the hands of persons with criminal tendencies.

26. It was submitted by the Crown that the sequence 5 offence falls within the mid-range of objective seriousness, while counsel for the offender suggested it was well below that range. In my view, the objective seriousness sits above the low range and is close to but slightly below the mid-range.

27. The sequence 35 offence of being in possession of a prohibited weapon without a permit relates to the possession of a silencer. As the Crown submitted, there can be no legitimate purpose in a member of the public possessing such an item, which is quintessentially a feature of weapons intended to be used for inflicting violence or death. This item was also not at all securely stored and also involved the risk of getting into the community given that it was in a suburban home and at least one other person may have known it was there. On the other hand, there is no suggestion that the offender had the item for the purposes of sale or that he intended to use it to commit other offences. Furthermore, as prohibited weapons go, it was not in itself as dangerous as many other such weapons. I regard this as being an offence that is above the low range but below the mid-range of objective seriousness.

28. The sequence 17 offence of not keeping firearms safely relates to the same 11 firearms that are the subject of the sequence 5 offence. This offence is to be dealt with under s 167 of the Criminal Procedure Act 1986 and is, therefore, subject to the two-year maximum penalty that applies in the Local Court. Given the number of firearms and the manner of their possession and storage, to which I have already referred, I regard this offence as being slightly below the mid-range.

SUBJECTIVE MATTERS

29. Turning then to subjective matters relating to the offender himself. The offender is now 77 years of age and was 76 at the time of the offences. His criminal history is quite limited with his first appearance in a Court being in 2000 when he was aged about 55. On that occasion, he was fined for some drug offences but, more significantly, he was placed on a s 9 bond for failing to keep a firearm safely. His only other offence was nine years later, which involved custody of a knife in public, for which he was placed on a s 10 bond for six months.

30. While his criminal history is not extensive, it does reduce, to some extent, the degree to which he can expect any leniency, especially given his prior conviction for firearms offences in 2000.

31. His background and current circumstances have been placed before the Court by means of the psychological report of Megan Godbee and some other written materials and the Court also has a Sentencing Assessment Report.

32. The psychologist notes that she had great difficulty in obtaining a full history from the offender due, in part, to his hearing problems and particularly due to his tendency to speak at length about peripheral matters from his past. These problems limited the ability of the psychologist to form any clear view about the presence of any mental health issues.

33. The offender grew up on a farm near Bathurst, the second of four children to his parents. Although he denied any domestic violence, he reported not feeling loved by his mother and also being subjected to strict physical punishment amounting to physical abuse at times by both parents. He reported having run away from his home in his early teens and living in an abandoned car and then staying with an aunt from when he was about 15. He left school in year 8 but had subsequently taught himself to read and write.

34. At age 15, he worked in a timber mill for three years and then in a variety of seasonal farming type jobs before getting married in his early 20s and moving with his wife to Sydney where he worked in an aluminium factory. After this, he appears to have been regularly employed until opening his own business assembling trucks, which he carried on until the late 1990s when the business had to be closed due to the offender’s degenerative problems and his related inability to renew his driver’s licence. When I say “degenerative problems”, I mean his degenerative eye problems.

35. The offender suffers from a number of medical conditions of some severity. Currently, the most debilitating of these appears to be a disorder which causes the creation of excessive mucus which, in turn, leads to hearing problems, difficulty with balance and also affects the eyes. He also has asthma and food allergies and in about 2013 had open heart surgery.

36. These problems meant that the offender’s period in custody from December 2021 until March 2022 was very difficult for him, particularly in not having access to his usual medications and his usual diet, which is aimed at minimising his various symptoms. That period in custody also coincided, of course, with the COVID pandemic, which I accept would have made his period in custody somewhat more difficult. I also accept that any future period in custody is likely to be rendered significantly more difficult for the offender than would be the case if he did not have the various medical issues which he continues to suffer with.

37. When speaking about the offences, the offender noted to the psychologist that he had grown up with guns and was given his first gun as a child. He reported having had a collection of firearms from the American Civil War when he was in his 50s and said that this was the basis of the offence for which he was dealt with in 2000.

38. The psychologist noted that the offender holds distorted attitudes about the need for licences and safe storage of firearms and felt that his own possession and storage of the weapons the subject of the matters before the Court was responsible given that they were hidden in the house and their whereabouts were only known to him and the female friend who also lived there.

39. These comments are consistent with the views reported in the Sentencing Assessment Report where the author notes that, while the offender was able to identify the relevant firearms laws and the need for them, he minimised their importance in relation to his own situation, saying that he was a collector and did not have the weapons for any malicious purpose.

REMORSE AND REHABILITATION

40. I turn to consider questions of remorse and prospects of rehabilitation. As already noted, the offender tended to minimise the importance of firearms laws in relation to his own situation and so there is little, if any, remorse. This is explained, to some extent, by the fact that the possession and use of firearms was normalised in the offender from a young age. However, this provides no excuse for the offences, especially where the weapons were held without a licence or permit.

41. It is also concerning that the current offences involving a large number of weapons were committed by a person who had previously been convicted of failing to store firearms safely. The Sentencing Assessment Report notes that the offender presents as a medium/low risk of reoffending.

42. Taking that into account, but taking into account also the offender’s lack of insight, it makes it difficult for the Court to form a positive view about his future prospects, which I think are guarded or uncertain.

43. In determining the appropriate sentence, I have had regard to the offender’s age and, of course, his health problems. Health and age, of course, are relevant to the length of any sentence and can also be relevant to whether it is appropriate to impose a sentence of imprisonment at all. However, of course, much depends upon the circumstances: R v Sopher (1993) 70 A Crim R 570. In addition, and as was said in Woodward v R [2017] NSWCCA 44, age cannot operate so as to reduce the sentence to one that does not reflect the objective seriousness of the offending.

44. In relation to the Form 1 offence, which relates to the possession of five assorted firearm cartridges, I note the following. Given that these were found in the context of the possession of firearms, at least some of which were of the same or similar calibre, the Form 1 offence should, in my view, operate so as to increase the need for personal deterrence and the importance of the community’s entitlement to exact retribution for what I have found to be a serious offence under s 51D.

45. I have, however, taken care not to double count this factor given that I have also taken into account the presence of ammunition in assessing the objective seriousness of the sequence 5 offence.

DETERMINATION

46. In determining the appropriate sentence, I have had regard to s 3A of the Crimes (Sentencing Procedure) Act 1999, namely the need for adequate punishment, the importance of preventing crime by deterring the offender and others, the need to protect the community, the importance of making the offender accountable for his actions, of denouncing his conduct, of recognising the harm done to the community by these types of offences, but also to promote the rehabilitation of the offender.

47. I am satisfied that the s 5 threshold in that same Act is passed. In other words, no sentence other than one of imprisonment is appropriate, especially in a case where I consider the moral culpability of the offender to be relatively high.

48. I intend to impose an aggregate sentence. In determining the sentence, I have had regard to statistics kept by the Judicial Commission, although keeping in mind the limitations of such a resource, and I have also had regard to a number of Court of Criminal Appeal decisions, including Aird v R [2022] NSWCCA 35 and other cases referred to in that case.

46. I have also had regard to Basedow v R [2010] NSWCCA 76 and Mack v R [2009] NSWCCA 216. I do not suggest that any of those cases are directly comparable to this case but, nonetheless, they have provided me with some guidance in regard to principle and, to some extent, the range of sentences that have been imposed in previous cases.

47. Given that I intend to impose an aggregate sentence, I am required to nominate the indicative sentences that would otherwise have been imposed. These are not the sentences that I will ultimately impose. I will make that clear at the end of these remarks. The indicative sentences are as follows.

48. For the sequence 5 offence, taking into account the Form 1 matter and taking into account the 25% discount, the indicative sentence is 27 months’ imprisonment with a non parole period of 14 months.

49. For the sequence 35 offence, after the discount of 25%, imprisonment of seven months with a non parole period of four months; and

50. For the sequence 17 offence, after the 25% discount and, of course, based on the Local Court maximum of two years, the indicative term is nine months.

51. Instead of those indicative sentences, I impose a head sentence of two years five months, that is 29 months, but having giving consideration to whether it is appropriate to order that that sentence be served in the community by means of an Intensive Correction Order, I have given paramount consideration to community safety and to whether making such an order or directing that the sentence be served by full-time detention is more likely to address the offender’s risk of reoffending.

52. I have also, however, given weight to the other purposes of sentencing set out in s 3A and, in particular, the need for general and personal deterrence. That is most important in sentencing for offences of this kind. In R v Fangaloka [2019] NSWCCA 173 Basten JA said at [67]:

“…there will remain cases in which the significant element of leniency contained in an ICO is inconsistent with the imposition of an adequate penalty, so that an ICO is an unacceptable form of punishment.”

56. In my view, the offences, in particular the sequence 5 offence, and the importance of personal and general deterrence are such that, in this case, an Intensive Correction Order would be inadequate and would not address all of the purposes of sentencing.

57. I intend, therefore, to order that the term be served by full-time custody.

58. I impose a non-parole period of 15 months.

59. I have made a generous adjustment by reason of special circumstances based upon the offender’s age, his health conditions and this being his first period of full-time detention. I have taken into account the approximate 100 days that the offender has already spent in custody and I intend to backdate the sentence in accordance with that consideration.

60. The sentence, therefore, will date from 14 November 2022. The head sentence will expire on 13 April 2025 and the non-parole period will expire on 13 February 2024.

61. Ms Carr, Ms Crown, anything you need to raise?

62. PARSONS: Yes, there are back up offences which need to be withdrawn.

63. HIS HONOUR: Sorry, say that again?

64. PARSONS: There are back up offences on the 166 that need to be withdrawn.

65. HIS HONOUR: Right, what are they?

66. PARSONS: They are sequences 6 to 12 inclusive, sequences 14 to 16 inclusive and sequence 33.

67. HIS HONOUR: I note in relation to those various charges which the Crown has just listed that those are withdrawn and dismissed.

68. PARSONS: Thank you. The Crown is also seeking a firearms destruction order.

69. HIS HONOUR: Do I need to do anything more than just state that I make such an order?

70. PARSONS: No, your Honour.

71. HIS HONOUR: I make an order for the destruction of the firearms and other items to which I have referred.

72. PARSONS: Thank you, your Honour.

73. CARR: Just to assist, in relation to how I came up with the 101 days - I hear your Honour has given approximately 100 and I don’t think there’s a difficulty - it was a situation where he was arrested on 1 December and was bail refused but he didn’t enter into Amber Laurel custody until the third. He was hospitalised for a period, so that’s how I’ve come up with the couple of extra days, just so that everybody’s clear on the record, but approximately 100 days is probably accurate. We would request that your Honour consider attaching the medical evidence to the warrant so that those details can be provided for Corrective Services on intake.

74. HIS HONOUR: Yes, all right. When you say the medical details, do you also include the psychological report?

75. CARR: Yes, for completeness I think it’s probably appropriate, your Honour.

76. HIS HONOUR: I direct that a copy of the report of Megan Godbee of 10 February 2023 and also the two reports of Dr Muthukrishnan be provided to Corrective Services and also to Justice Health.

77. Does that cover it, Ms Carr?

78. CARR: Yes, thank you.

79. HIS HONOUR: Thank you. Mr Hanrahan will have to be taken into custody.

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Decision last updated: 27 June 2023