R v Jake Lewis Andrew [No. 2] - [2018] NSWDC 382

District Court

New South Wales

Medium Neutral Citation: R v Jake Lewis Andrew [No. 2] [2018] NSWDC 382
Hearing dates: 24 September 2018
Date of orders: 24 September 2018
Decision date: 24 September 2018
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
A finding of guilt, without conviction.

Catchwords: SENTENCING – Firearms offences – Intellectually disabled offender - 47 XYY syndrome – not toys-firearms – Public must know the potential consequences for use and possession of “toy guns” – Nerf and gel pellet air guns are not legally toys – ignorance of the law – plea of guilty after fitness hearing – firearms on bus – multiple firearms – “toy” collection not an arsenal – risk to community – an exceptional case – mercy required – no conviction – appropriateness of Conditional Release Order.
Legislation Cited: Crimes Act 1900
Criminal Procedure Act 1987
Crimes (Sentencing Procedure Act) 1999
Firearms Act 1987
Mental Health (Forensic Provisions) Act 1900
Cases Cited: Anderson v R [1981] VR 155
Attorney General's Application No 3 [2002] NSWCCA 303
Blackman and Walters v R [2001] NSWCCA 121.
DPP v De La Rosa [2010] NSWCCA 194
Engert v R [1995] 84 A Crim R 67
Guden v R [2010] VSCA 196
JP v R [2015] NSWCCA 267
Kwon v R [2004] NSWCCA 256
Markarian v The Queen (2005) 228 CLR 357
Muldrock v The Queen [2011] 244 CLR 120
R v Andrew No. 1 [2018] NSWDC 381
R v Chi Sun Tsui (1985) 1 NSWLR 308
Shrestha v The Queen (1991) 143 CLR 78
Tepania v R [2018] NSWCCA 247
Weininger v The Queen (2003) 212 CLR 629
Yardley and Betts v R (1979) 22 SASR 108
Category: Sentence
Parties: Jake Lewis Andrew (Offender)
Director of Public Prosecutions
Representation: Counsel:
Mr G James QC
Ms G Steedman (Solicitor Advocate for the Director of Public Prosecutions)

File Number(s): 2017/00306015
Publication restriction: Nil

Judgment

At about 9.45am on Tuesday, 10 October 2017, there was a disturbing incident on a public bus on the Windang Road, Windang. A man on the bus produced what appeared to be a large gun. CCTV from the bus shows the man firing that gun into a padded seat screen. The CCTV also shows another firearm being taken from a bag, racked and fired.
Police were alerted. The bus was stopped. The police asked the man, Jake Lewis Andrew, to get off the bus. He complied. He cooperated with the police. He had a backpack with him. It was taken from him. Andrew told the police that if they opened the backpack they would find guns.
Although Andrew is physically a large man, it is obvious to anyone who speaks with him that he has an intellectual disability. He is now 24 years old. He was born with a congenital chromosomal condition known as 47 XYY syndrome. XYY syndrome sufferers have an extra Y chromosome that is, 47 chromosomes instead of the usual 46. Those born with 47 XYY syndrome often exhibit some physical differences…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWDC 382
Decision Date: 24 September 2018

CaseChat Overview and Summary

The matter before the court involved a defendant, Jake Lewis Andrew, who pleaded guilty to possessing prohibited firearms on a public bus. The case presented unique circumstances, including the defendant's intellectual disability and 47 XYY syndrome, which contributed to his vulnerability and misunderstanding of the law. The court was tasked with determining an appropriate sentence for the defendant, considering the seriousness of the offence and his personal circumstances.

The primary legal issues revolved around the nature of the firearms in question, whether they were legally considered toys, and the impact of the defendant's intellectual disability on his culpability. The court had to balance the need for public safety and deterrence against the necessity of mercy and rehabilitation for the defendant. Additionally, the court considered whether a conviction was necessary in this exceptional case, given the defendant's plea of guilty following a fitness hearing.

In delivering the judgment, the court acknowledged the defendant's intellectual disability and his genuine belief that the firearms were toys. Despite the seriousness of the offence, the court opted for a finding of guilt without a conviction, considering the defendant's plea of guilty after a fitness hearing and the unusual circumstances of the case. The court also determined that a Conditional Release Order was appropriate to ensure the defendant's rehabilitation and to protect the community, given the potential risk he still posed. The court's decision highlighted the importance of public awareness regarding the legal status of "toy" firearms and the potential consequences of their misuse.

The final orders included a finding of guilt without conviction, and the imposition of a Conditional Release Order to manage the defendant's rehabilitation and mitigate any future risks to the community. This outcome reflected the court's balanced approach, considering both the need for public safety and the unique circumstances of the defendant.

Orders

Orders of the court

A finding of guilt, without conviction.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Jake Lewis Andrew [No. 2] [2018] NSWDC 382
Hearing dates:	24 September 2018
Date of orders:	24 September 2018
Decision date:	24 September 2018
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	A finding of guilt, without conviction.
Catchwords:	SENTENCING – Firearms offences – Intellectually disabled offender - 47 XYY syndrome – not toys-firearms – Public must know the potential consequences for use and possession of “toy guns” – Nerf and gel pellet air guns are not legally toys – ignorance of the law – plea of guilty after fitness hearing – firearms on bus – multiple firearms – “toy” collection not an arsenal – risk to community – an exceptional case – mercy required – no conviction – appropriateness of Conditional Release Order.
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act 1987 Crimes (Sentencing Procedure Act) 1999 Firearms Act 1987 Mental Health (Forensic Provisions) Act 1900
Cases Cited:	Anderson v R [1981] VR 155 Attorney General's Application No 3 [2002] NSWCCA 303 Blackman and Walters v R [2001] NSWCCA 121. DPP v De La Rosa [2010] NSWCCA 194 Engert v R [1995] 84 A Crim R 67 Guden v R [2010] VSCA 196 JP v R [2015] NSWCCA 267 Kwon v R [2004] NSWCCA 256 Markarian v The Queen (2005) 228 CLR 357 Muldrock v The Queen [2011] 244 CLR 120 R v Andrew No. 1 [2018] NSWDC 381 R v Chi Sun Tsui (1985) 1 NSWLR 308 Shrestha v The Queen (1991) 143 CLR 78 Tepania v R [2018] NSWCCA 247 Weininger v The Queen (2003) 212 CLR 629 Yardley and Betts v R (1979) 22 SASR 108
Category:	Sentence
Parties:	Jake Lewis Andrew (Offender) Director of Public Prosecutions
Representation:	Counsel: Mr G James QC Ms G Steedman (Solicitor Advocate for the Director of Public Prosecutions)
File Number(s):	2017/00306015
Publication restriction:	Nil