R v Keenes

[2018] NSWDC 533

District Court

New South Wales

Medium Neutral Citation:	R v Keenes [2018] NSWDC 533
Hearing dates:	15 June 2018
Decision date:	18 June 2018
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	Total sentence 4 years 6 months; total non-parole period 2 years 7 months - 2 years drivers licence disqualification.
Catchwords:	CRIME – Sentence – possess unregistered firearms – intimidation – possess offensive weapon with intent to commit an indictable offence – drive while disqualified - co-offender – overlapping criminality of some offences – intoxicated – committed offences out of misguided vigilantism – totality of criminality – ‘special circumstances’
Legislation Cited:	Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007. Criminal Procedure Act Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996
Cases Cited:	De La Rosa v DPP [2010] NSW CCA 194 Hammoud v R (2000) 118 A Crim R 66 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610
Category:	Sentence
Parties:	Regina (Crown) Joseph Keenes (Offender)
Representation:	Solicitors: Ms Harris (DPP) Mr T Hemsley (offender)
File Number(s):	2017/00025457
Publication restriction:	No

Judgment

1. The prisoner Joseph Keenes appears today for sentence in relation to a number of matters. There are a number of matters which are committals for sentence, and there are a number of matters on a ‘s166 Certificate’. Of necessity I am required to identify each of the offences and the maximum penalties relating to each, although that will take some time. The transcript of the previous proceedings on the Friday last week is not available to me, naturally enough, but it would reveal some discussion I had with the learned Crown Prosecutor and counsel for the prisoner, Mr Hemsley, who skilfully represented Mr Keene’s interests. It would appear that there had been created two Forms 1, but on face value the detail of the Forms 1 reveal charges that were either included on the s 166 certificate or were in fact matters for which the prisoner had been committed for sentence. So I declined to accept the Forms 1 having regard to the sequence numbers identified on them and the sequence numbers available to me in the Crown Sentence Summary and in the Court Attendance Notices. I do not think any injustice arises out of that for obvious reasons.

2. The offending with which I am concerned occurred effectively on the morning of 23 July 2017, although its genesis was probably in the late hours of 22 July 2017. The offences for which the prisoner is to be sentenced today are, firstly, in respect of matters for which he was committed for sentence. An offence of possessing an unregistered firearm on the date I have identified contrary to s 36(1) Firearms Act 1996. The Crown informs me that that carries a maximum penalty of 14 years imprisonment, has no standard non-parole period. Secondly, there is an offence committed on the same date. All of these offences, I hasten to say, are committed at Howlong, a township to the west of Albury, about 30 or 40 kilometres away. The second offence is one of possessing an unauthorised prohibited firearm contrary to s 7(1) Firearms Act 1996. This carries a maximum penalty of 14 years imprisonment but has a standard non-parole period of four years imprisonment.

3. There is a third offence of ‘aggravated possess an unregistered prohibited firearm in a public place without authority to possess a firearm’. This is an offence contrary to s 93I(2) Crimes Act 1900 and carries a maximum penalty of 14 years imprisonment. There is another offence of intentionally or recklessly damaging property contrary to s 195(1)(a) Crimes Act 1900. This carries a maximum penalty of five years imprisonment. The fifth offence for which the prisoner has been committed for sentence is an offence of intimidating Sean Marshall and Trayton Oswald contrary to s 13(1) Crimes (Domestic and Personal Violence) Act 2007. This carries a maximum penalty of five years imprisonment and/or a fine of 50 penalty units. For obvious reasons, as the facts will reveal and the reality of the sentencing exercise reveals, a term of imprisonment must be imposed for that matter.

4. The final offence is an offence of use or possess an offensive weapon with intent to commit an indictable offence. The Court Attendance Notice states that this was an offence committed contrary to s 33B(2) Crimes Act 1900 and the Crown coversheet said that it had a maximum penalty of 15 years. But the sequence 17 Court Attendance Notice pleads that the prisoner in fact was not in company but did use an offensive weapon, to wit, a sawn-off double-barrel shotgun with intent to commit the indictable offence of intimidation. This is an offence as pleaded contrary to s 33B(1) Crimes Act 1900 and has a maximum penalty of 12 years imprisonment, but does not have a standard non-parole period. The co-offender in relation to that matter is Shane Parker who I sentenced earlier today. The reasons for separating the two men are not as real as they were made out to me when I set upon this travel to the conclusion of these matters. But as it turned out I listed both matters at separate times due to the availability of counsel.

5. Although this last offence I have identified has a maximum penalty of 12 years, and many of the firearms offences have maximum penalties of 14 years, there are to observations to be made, clearly the offence contrary to s 33B(1) Crimes Act 1900, that is, the use of an offensive weapon with intent to commit the indictable offence of intimidation, is the most serious of the offences. The second point to be made is that there is considerable overlap between the offending involved in that matter and the firearms offences. As with the offence of malicious or intentional or reckless damage to property and the offence of intimidation. However, when I received the bundle without having fully digested it, for reasons largely to do with the bundles given to another judge going missing and though no fault of the Crown, I thought that the matter had been somewhat over-pleaded or overcharged. It turned out when I paid particular attention to the facts of the matter I realised that there were subtle differences between the circumstances of each of the offences warranting the charges. Although, as I have said, in particular respects criminality in some charges is largely, if not completely, overlapped by criminality in respect of the most serious charge of all the charges; that is, the offence contrary to s 33B(1) Crimes Act 1900.

6. To further complicate this matter there are five matters on a certificate pursuant to s 166. I agree pursuant to s 167 Criminal Procedure Act to deal with the matters on the certificate. These offences include not keeping a firearm safely, very much intimately bound up with the other offending to which I have referred, which has a maximum penalty of two years imprisonment and/or 50 penalty units, an offence of driving a motor vehicle whilst disqualified, which is the second offence, which carries a maximum penalty at the time of the offending of two years imprisonment and/or a fine of 50 penalty units, use of an unregistered motor vehicle, use of an uninsured motor vehicle, and possessing ammunition without holding a licence, a permit or authority to have that ammunition in the prisoner’s possession.

7. Again, each of these matters are revealed in the facts to be discrete offences although there is much overlap. The prisoner will not receive any additional penalties beyond a disqualification or a further disqualification of his motor vehicle drivers licence for those matters on the s 166 certificate.

8. The prisoner has been in custody since his arrest in relation to this matter on 25 July 2017. Obviously all time spent in custody will be taken into account. The prisoner pleaded guilty to all offences at the Local Court, and as with his co‑offender Mr Parker. I propose to give the prisoner a discount of 25% upon the otherwise appropriate sentences to recognise the utilitarian benefit of the pleas of guilty that he has entered in accordance with the guideline judgment of Thomson and Houlton from 1999.

9. I should point out that, as I have said earlier, I sentenced Mr Parker and I made a number of observations about the objective facts which I will repeat for the purposes of Mr Keenes’ sentencing because there is a clear issue of “parity” that arises in respect of the common offence the two offenders have; that is the offence contrary to s 33B(1) Crimes Act 1900. Although there is a common offence there are marked distinctions in their criminality which would be self-evident. Not only by the circumstances of the actual offence that is common but by regard to the facts of the other offences for which the prisoner is to be sentenced.

10. This prisoner cooperated with the police, after initially telling some untruths to them, in a range of ways. He cooperated with the police in the sense that he made admissions against interests leading to his charging. Ultimately he cooperated with the police by identifying the location of the firearm that he had used which had been in his possession and belonged to him, enabling that firearm to be recovered. Thirdly, he cooperated with the police by nominating his friend, I assume, Mr Parker as his co-offender. It must be said, and this is not criticism of Mr Keenes, that if Mr Keenes had not identified Mr Parker it is highly unlikely that Mr Parker could have ever have been charged. The prisoner offered to give evidence against Mr Parker if required and provided a statement, although his need to give evidence did not arise because Mr Parker pleaded guilty at the Local Court.

11. As I said in the assessment of the criminality of Mr Parker, his involvement in this matter was peripheral or marginal. The victims, who I have referred to, Mr Marshall and Mr Oswald, had no idea that Mr Parker was nearby in the vicinity of the prisoner’s car. Without the statement of this prisoner Mr Parker, as I said, would probably have never been charged.

12. I am prepared to give him the combined discount of 35% on the plea of guilty and the cooperation. Bearing in mind what has been said about the appropriate measure of discounts for cooperation, whilst the cooperation was important in obtaining evidence that would implicate Mr Parker, I bear in mind, of course, Mr Parker played no leading role in this crime. In fact, he played almost no role in the crime in terms of performing any particular act that contributed to the execution of the joint criminal enterprise. I also bear in mind in assessing the discount that the prisoner did not have to give evidence against Mr Parker. As I understand it, there are no issues that arise insofar as the safety of the prisoner in custody and the like. There is no discount required to be calculated for future cooperation. And so, having regard to all the relevant factors, for example, identified in s 23 Crimes (Sentencing Procedure) Act 1999, hereinafter referred to as ‘the Act’, I have determined that 10% is an appropriate discount. I note that the cooperation was timely. I should point out, of course, that if it had been Mr Keenes sitting in the car and Mr Parker had gone and confronted the two men armed with a gun that was in Mr Parker’s possession beforehand, the cooperation that Mr Keenes offered would have been, one would have thought, more significant in protecting the community than transpired. But the prisoner is certainly entitled to a discount for past cooperation.

13. In the sentencing of Mr Parker I summarised the facts. I am obliged to do it again but perhaps emphasising some of the matters that were not pertinent to the sentencing of Mr Parker. First of all, these offences with which I am concerned, but particularly the intimidation offence, the damage property offence and the use of an offensive weapon with intent to intimidate offence, arose out of a misguided vigilantism on the part of this prisoner.

14. He had been drinking during the evening of 22 July, early morning of 23 July, and it would appear that a friend of the prisoner, whose name I need not read onto the record, raised with the prisoner the fact that, in the course of discussion, a particular person was a perpetrator of burglaries that had been occurring in the Howlong district. The offence of possessing an authorised prohibited firearm as a discrete offence, and also the related offence of possessing an unregistered prohibited firearm, arise out of the fact that at 3.30am before other offences were committed, the prisoner showed the person, to whom I have earlier referred, the particular firearm inviting him into his bedroom where the other person saw a shortened double-barrelled shotgun.

15. Further discussion occurred in relation to the person suspected of committing burglaries in the Howlong area. The facts do not reveal any contribution to this discussion by Parker, who I am satisfied on the evidence available in his matter, was heavily intoxicated. More so it would seem than this prisoner. In any event, after the discussion with this third party to whom I have earlier referred, the prisoner at about 5am left his residence in possession of the prohibited firearm with Parker. He was driving an unregistered and uninsured motor vehicle, picked up in the s 166 certificate charges, and he drove to 70 Read Street, Howlong where the two victims lived. The prisoner was a disqualified driver. In fact, he has three times before been convicted of driving whilst disqualified. That of itself would warrant a term of imprisonment. He parked his vehicle outside the home of the two victims and approached the front door of the car carrying the firearm. This was an offence of aggravated possess unregistered firearm in a public place, thus warranting the separate offence, although it is intimately bound up in the facts of the ‘use offensive weapon with intent to intimidate’.

16. Parker is described as waiting “at the silver Mazda ready and willing to assist if necessary”. It turned out his assistance was not necessary; the prisoner was well able to do what he wanted to do without Mr Parker’s involvement. The prisoner smashed the front glass window of the house and damaged two panels of the front wooden door. He used the tip of the barrel of the prohibited weapon and hit the front wooden door twice causing two indentations of the firearm barrel into the woodwork at the door. This gives rise to the offence of damaging property recklessly or intentionally. I note in relation to all the offences that I have earlier referred to the prisoner is charged by himself. Parker is not charged for obvious reasons. Whilst damaging the property the prisoner was yelling and accusing the victims of breaking into peoples’ houses. The only information he had on this was the say-so of a drunk and pub talk in Howlong. He should understand that it is not his job to enforce the law, and vigilantism is something that warrants extra weight to be given to general deterrence.

17. The prisoner told the two victims they had “two weeks to get out of Howlong”. This gives rise to an offence of intimidation; again, a specific offence that the co-accused Parker is not charged with. The victims were woken up. The prisoner walked away for a period of time, and then he came back. This is when he committed the essence of the offence of using offensive weapon with intent to commit the indictable offence of intimidation. He walked towards the entranceway of the house, which was a glass sliding door. Marshall was standing behind the glass sliding door. The prisoner was standing approximately 2 metres from the door, and Marshall saw the prisoner holding an object, which turned out to be the shortened firearm, in his right hand. Marshall believed that the prisoner was going to smash the glass sliding door and took several steps backward. The prisoner took two steps forward and raised his right arm.

18. After seeing the weapon Marshall jumped into the kitchen out of the prisoner’s line of sight. He could hear the prisoner yelling out and saying things like he had “photographic proof” of the victims breaking into peoples’ homes, which of course he has not produced in court today and I understand he never had. Marshall yelled out from the kitchen, “Joe, what are you doing?” The reference to Joe was of course a reference to the prisoner. It is clear that Marshall identified him. The offender yelled back, “How the fuck do you know my name?” Marshall did not respond.

19. Now to be fair to the prisoner, it is to his credit although he would have been charged with more serious offences like attempted murder for which he would serve a number of decades in prison, the prisoner did not discharge the firearm and he did not use the firearm to smash the glass door. But he had intimidated the victims and it should be fairly said that it was a serious case of intimidation. We see all types of these cases usually on appeal from the Magistrates’ courts because usually intimidation is not dealt with in the District Court at first instance. Domestic violence cases are very commonly laced with intimidation, which are serious examples of cases of intimidation. But the use of a firearm to threaten someone is, to be fairly said, a serious example of intimidation, or a serious example of conduct contemplated within the general rubric of intimidatory acts.

20. The victims naturally contacted the police and they attended and the prisoner was shortly spoken to. The prisoner’s car was located nearby. He had left various items identifying him as connected with the car or the house where the car was found for police to locate. Police searched the premises where he lived and found six empty shotgun shells and four live shotgun shells. They also located two empty shotgun shells and one live shotgun shell in another place. Hence the possess ammunition without holding a licence, permit or authority to do so.

21. The facts reveal that the prisoner admitted at a later stage, when he owned up to being the possessor of the firearm, that he had had the firearm in his possession for four years. I do not know what experience the prisoner has of criminal activity, although he is no stranger to the Courts, but certainly for a Judge who has been sitting for 18 years sentencing people for all sorts of offences involving shortened firearms I can assure him, as I said in the course of submissions, that the possession of a shortened firearm has a very, very sinister connotation.

22. However, there is no evidence the prisoner has been involved in armed robberies. There is no evidence the prisoner was planning any armed robberies. But I believe it is of some significance in terms of the issue of the circumstances of the prisoner’s possession of a shortened firearm that he did not hide it somewhere like a treasure that he could uncover at some future time, perhaps even after he had been to prison. He threw it away in a waterway, perhaps with a view to recovering it at a future time. As it transpired, again to his credit having first denied that he had a firearm in his possession although admitting most other matters alleged against him, he gave a second interview to police in which he admitted possession of the firearm and told the police where it could be found. It was subsequently found by police on 29 July 2017.

23. I summarise what he said in his various interviews. He gave two electronic interviews to add the observation that he admitted the possession of the prohibited firearm for the past four years. So it brings us back to the question of what did he have a shortened firearm for? I could give him the benefit of the doubt, which I will, that he may have used it for shooting feral pigs or animals. Although there is some limitation on the extent to which people in Howlong can go around shooting kangaroos and the like. But still, again, I have taken into account the character of the firearm that was in his possession and its potential for harm, which is considerable.

1. There was a man called David Gundy who was shot by a police officer. He died within minutes of being shot. He was shot with a Remington shotgun. I know a lot about that matter for reasons I need not go into. What killed David Gundy, a perfectly innocent man who was defending his home not knowing that the police were going to break down the door, was that one pellet out of that gun severed his artery and he bled to death. It goes to show the destructive power of shotguns. Even though the policeman never intended to injure him, as I would understand it. The striking of him by the pellet was, for want of a better description, inadvertent.

2. With regard to this offending, as I pointed out, this prisoner and the co‑accused have a common charge. But there are a number of differences between their circumstances insofar as the objective facts are concerned. The first point to be made in relation to this prisoner is that the other offences for which he has been committed for sentence particularly inform the seriousness of the offending that is common to the two of them and those other offences have nothing at all to do with the co-offender. Mr Parker had no responsibility for the firearm and he did not at any time suggest that it be used.

3. Clearly on the facts, as I have outlined them, and having regard to the findings I made in relation to Mr Parker in the absence of Mr Keenes, this prisoner’s role was considerably greater and more significant. Thus his criminal culpability and moral culpability are much greater than that of Mr Parker. It was this prisoner who determined upon a course of action which involved confronting the victims. I pause for a moment to point out, if I could use the expression, in fairness to the prisoner, I gleaned from one of the references that was provided in this matter that the prisoner has lived in Howlong most of his life and is regarded well amongst a number of people in the Howlong district. One of the people who provided a reference observed in relation to the prisoner, if I could just quote from that part of the reference, that the prisoner had been away in Melbourne for a few years and had moved back “to his beloved town of Howlong”. So I am prepared to accept, although his vigilantism was misguided, he is a person who had a great deal of affection for the town and for whatever reason was greatly offended at the idea of people committing crimes within the town. I again stress it is not for him to take the law into his own hands. He claims to realise that now.

4. All the acts giving rise to the common offence with the co-offender were committed by this prisoner in the absence of the co-offender. And as I said, this prisoner committed a number of crimes outside the scope of the common criminal enterprise. The actual execution of the joint criminal enterprise was entirely within the discretion of this prisoner. There is no suggestion that Mr Parker told him to do anything in particular by way of threat or by way of other acts giving rise to other crimes. There is no evidence that the co‑offender in any way encouraged the prisoner to specifically use the firearm in any way as ultimately occurred, although the evidence would suggest that he was aware of the fact that the prisoner had in his possession a firearm. I also note this prisoner drove to the scene in his own vehicle taking the co‑offender with him and this prisoner disposed of the firearm that was used to avoid police attention. These and the other matters I identified in relation to Mr Parker are significant reasons to distinguish this prisoner from the co‑offender in terms of determining a starting point of any sentence.

5. As his counsel conceded in his helpful submissions, the prisoner’s criminal history does not afford him any particular reason for leniency, or, to put it another way, does not help him. However I ultimately could not accept the Crown’s submission that I should regard his criminal history as reflecting an aggravating factor pursuant to s 21A(2) of the Act. With regard to his criminal history he first appeared in the Corowa Children’s Court when he was about 15 years of age in relation to some driving matters, and he had appearances it would appear in Victoria around about the same time as he was beginning to appear in the Children’s Court. He had an appearance in the Wodonga Children’s Court in 2009 for a range of offences, including an offence of intentionally cause injury, but I do not see that as particularly significant given his youth at the time.

6. He came back into New South Wales, committed further driving offences, including his first drive whilst disqualified. He has a finding of guilt for damaging property in 2008 in New South Wales. In 2012 he had some significant convictions in Victoria which were matters dealt with at the Bendigo Magistrates’ Court. These offences include findings of guilt in relation to burglary, theft, obtain property by deception, reckless conduct endangering - serious injury, intentionally damaging property, behaving in an offensive manner in a public place, resisting police, assaulting police. All these matters, plus others, attracted what the record suggests are terms of imprisonment, albeit imposed in a Magistrates’ Court where the sentencing discretion is more limited. I should say in relation to those terms of imprisonment from the way I can best read the Victorian record, the total term of imprisonment imposed was six months.

7. He returned to New South Wales. He had further findings of guilt including failing to leave licensed premises, driving whilst disqualified in New South Wales in 2014. He then had another driving whilst disqualified matter in Victoria in 2015 for which he was sentenced to a term of imprisonment according to the record, as well as what appear to be other related driving offences including driving with some alcohol in his system, or some related offence under Victorian law with which I am not that familiar. His last appearance in New South Wales, as I pointed out, is the drive whilst disqualified matter. He was, I am informed, disqualified at the time of coming into custody up until 2019. His counsel has pointed out, that any period of disqualification will be stayed whilst he is in custody, and I am obliged under the law to accumulate any period of disqualification to the drive whilst disqualified matter upon any existing period of disqualification.

8. The prisoner’s counsel produced a number of references which I have referred to just briefly, and I will come back to those in a moment, but also a psychiatric report from a Dr Dayalan. The prisoner did not give evidence before me. I do not hold that against him. He wrote a letter to me which I will refer to in a moment. The history given by the prisoner I am prepared to accept insofar as it assists, for example, the formulation of any opinions about his mental health.

9. The prisoner reflected upon a history of depressive symptoms in a range of ways, largely fuelled by the use of alcohol and the use of cannabis. He had some marked symptoms relating to stress, including some panic attacks, anxious ruminations, but he had no history of delusional beliefs or hallucinations. He had been prescribed antipsychotic medication when in a correction centre in Victoria at the age of 18, and he has also been given antipsychotic medication in New South Wales. In fact the psychiatrist notes medical records, that are included in the defence bundle, from a Dr Leigh Bennie which reveal that in January 2016 the prisoner had reflected in examination a history of sleep disturbance and depressive symptoms, and he was commenced on medication for the symptoms that were pleaded or identified by him.

10. He gave a history of commencing alcohol use at the age of 14 and cannabis use at the age of 17. He has experimented with other drugs and has been apparently a regular user on occasions of amphetamines. Although he denied intravenous use of drugs he had never attended any rehabilitation facility. He left school at the age of 15 or thereabouts, and the references and the history reveals that he is a bricklayer or a bricklayer’s labourer by trade and is a hard worker, which I take into account in his favour, and is well-regarded by those that have employed him as an industrious person. Bricklaying and builder’s labourers, or bricklayer’s labourers are very hard workers.

11. So far as his family history is concerned he has three sisters and two brothers according to the report. His older brother has suffered from drug induced psychosis or schizophrenia. The history is not that precise. He was born in Corowa, nearby to Howlong, and he had a relatively happy upbringing and denied any history of abuse from his parents, although his parents separated when he was 16 years of age. His criminal history reveals a little bit of peripatetic living, particularly, it would seem, moving back and forth from Victoria over a period of time.

12. Having regard to the clinical examination and the history given, the psychiatrist said that the history would “suggest” that the prisoner was suffering from substance induced mood and anxiety disorder around the time of the offence. He also had given a history that would support diagnoses of “alcohol and cannabis use disorder” currently in remission. He has no developmental disability, he has no “chronic” mental illness insofar as long term symptoms of a mental disorder, other than that that would be induced by the abuse of alcohol and/or drugs. He currently does not present any features of major depressive or anxiety disorder. It is thought that he would benefit from a rehabilitation program to address his substance use disorder. This will be a matter for the Parole Authority. The psychiatrist said that the prisoner demonstrated an understanding into the factors contributing to his behaviour and was willing to engage in rehabilitation to minimise the risk of reoffending. He expressed remorse to the psychiatrist.

13. I should pause for a moment in the context of legal principles to be applied to indicate that I have had regard to the psychiatrist’s report and the notes from the doctor that treated him in 2016. In my view, whilst there appears to be nothing that affects his circumstances of custody, it would appear as though there are aspects of his mental health, if I could use that expression in a loose sense, that have contributed to his use of alcohol and drugs. Thus, I am prepared in the context of the principles laid down in the decision of De La Rosa, a 2010 decision of the New South Wales Court of Criminal Appeal, particularly in the judgment of McClellan CJ at CL at [177]-[178], to marginally diminish the weight to be given to general deterrence, although it is significantly present in any event. There is nothing in the background of the prisoner or his condition as assessed by the psychiatrist to consider the prisoner as prima facie a danger to the community. So there does not need to be a commensurate increase in the weight to be given to personal deterrence. However, I cannot diminish the prisoner’s “moral culpability” for the offending significantly or substantially.

14. It is to be borne in mind, of course, that he had the sawn-off shotgun for four years on his own admission before the offending in July 2017, and it is clear that the prisoner was motivated to commit the offences not by his conditions as opined by the psychiatrist, but his desire to effect some sort of vigilante action against people that offended his community responsibilities; that is, being a citizen of Howlong.

15. With regard to the other material available, I have noted the references of the neighbours of his parents, or the people that provided a handwritten reference, or the person Kevin Smith, has known the prisoner since he was a child. He speaks well of his family and speaks well of his industry. Likewise, Rick Quirk, who is a bricklaying foreman, has known the prisoner four years and speaks of his industry and his hard work in a tough trade. He indicates that the prisoner would benefit from returning to the workforce, and that would be so if the prisoner can avoid abusing prohibited drugs and alcohol. It is not to be forgotten that he was prepared to commit these offences when he was involved in the bricklaying trade. So it has not stopped him from committing offences. But it is to be borne in mind that he is capable of industry.

16. Insofar as his own letter is concerned, he expresses regret and remorse, and I am prepared to accept that he is relevantly contrite and remorseful and that is a mitigating factor arising under s 21A(3) of the Act. He says that whilst in custody he has reflected upon his life and his circumstances. He asserts,

17. “I value and respect the law and understand the seriousness of my wrongful actions”.

18. If that be true he would have a full understanding that in fact the sentences I have imposed upon him, even allowing for the discounts, may reflect some element of leniency. He claims that he is aware of the wrongfulness of his conduct, describes himself as a hardworking person, talks about his loving partner, who has a three year old daughter, and speaks of “another child due shortly”, asking for mercy and understanding stating that he has “excellent prospects of rehabilitation”.

19. Like all of these matters unfortunately, as life experience reveals, there is more than one casualty in this affair. Not just the prisoner and Mr Parker, who must serve time in prison, and the victims who have been intimidated or threatened by this prisoner, there is his partner who was in court a moment ago but whose child is unsettled. Unbeknownst to the prisoner and his partner at the time of committing this offence she was pregnant. In fact, she was two to three weeks pregnant. Sadly, I read in her letter, that she discovered she was pregnant after he went into custody.

20. His domestic situation is a little bit unclear. I am aware of the fact that at the time of committing the offence he was not living with his partner. She was living elsewhere. But she does say in her reference to me that she was in the process of moving from her then current accommodation with a view to moving in with the prisoner. Perhaps living with him might have been a settling influence upon him. He certainly would not have been out, hopefully, drinking alcohol until all hours of the morning with his mates if he had had a partner at home to be looked after. She describes him as a “loving partner”, a “good worker and a wonderful dad”. It is a matter of no comfort to me to be gaoling people with family affected, but unfortunately the seriousness of some offending precludes looking for alternatives other than imprisonment for some particular offenders.

21. I have taken into account her eloquent reference on his behalf and I accept, as I note from the other references provided, there is obviously a side to the prisoner, which I am prepared to acknowledge, that stands in contrast to the type of person that goes around to someone’s house at 5am in the morning to threaten them. I believe this must be a troubling time for the prisoner to be separated from his newborn child. He obviously, by being in custody, has missed a number of landmarks and this has been distressing for his partner and no doubt for him. Again, I acknowledge that. There is not much I can do about that; the prisoner can only look to himself.

22. That having been said, I note the fact that with his partner waiting for him, and his newborn child safely arrived, there are reasons for him to readdress his life on release and reconsider his circumstances. One of the matters he is going to have to face, as is often the case in this type of situation, is the fact that he will not have a drivers licence. He will be disqualified from driving for at least a year or two after he gets out of custody. This is going to impose upon him a considerable burden given the fact, I would expect, that his work as a bricklayer would take him away from Howlong. I do caution him, however, against driving whilst disqualified again. He has already been convicted of this three or four times and further driving whilst disqualified can only lead to longer and longer periods of disqualification which will inevitably place greater and greater hardship upon himself and his partner and his children I am sure. If the prisoner wants to make a fresh start on his release from custody securing his driver’s licence and securing employment and avoiding the use of alcohol and drugs are the only ways that he can assure himself of not having to come back to courts.

23. In respect of the matters that were raised by his counsel and by the Crown, I have referred to most of those matters in the course of these remarks on sentence. I have determined ultimately in light of the fact that some sentences will be partially accumulative upon others that I should make a finding of “special circumstances” pursuant to s 44 of the Act. But there are other factors in my view that warrant such a finding; the prisoner's a relatively young man still, certainly far younger than I, 26 years of age. He has the opportunity to reinvent himself and to start afresh, and thus in my view there should be an adjustment of the relationship of the effective minimum term to the balance of sentence to provide that opportunity. It will be a matter for the Parole Authority whether he is released to the community at the conclusion of his non-parole period.

24. I am required to give regard, as was submitted to me, to the totality of criminality and fix an appropriate sentence. The prisoner can consider himself lucky that he is not in Texas where judges routinely just pile one sentence on top of another willy-nilly, leading to preposterous outcomes of dozens and dozens and dozens, or even hundreds of years of imprisonment. Not that this criminality deserves that punishment. The totality of criminality requires me in accordance with Pearce v The Queen, to which I referred earlier in Mr Parker’s sentencing, to fix an appropriate sentence for each offence and then turn my attention to the extent of the accumulation and concurrency to reflect the totality of criminality such as is discussed in Mill v The Queen. I am mindful of what has been said about the issue of “totality” in decisions again that I referred to in Mr Parker’s sentencing, including Hammoud from 2000, and that summary of principles helpfully set out in the judgment of Justice Hall in the decision of XX from 2014.

25. Insofar as the sentencing of the prisoner is concerned I have noted the weight that needs to be given to general deterrence, albeit with some slight limitation. There is a need also to deter the offender from further offending. There is some element of protecting the community from the offender and making him accountable for his actions. I must denounce his conduct and recognise the harm done to the victims by his behaviour. I am also required to promote his rehabilitation. All these purposes of sentencing arising under s 3A apply to varying extents.

26. Insofar as aggravating factors under s 21A are concerned I note the character of the offending is reflected very much in the elements of the charges. It was submitted by the learned Crown, as I mentioned earlier, that the criminal history of the prisoner was an aggravating factor but I determined that that has not been established beyond reasonable doubt. It is not that he does not have relevant convictions. But, notwithstanding the fact that he had the firearm in his possession for four years which is a fact in the case, I could not conclude that he had a propensity to commit crimes of the particular character with which I am now concerned.

27. There are some mitigating factors to be considered. Firstly, the offence or offences were not quite planned or organised criminal activity. The prisoner has shown remorse relevantly under s 21A(3)(i). As with Mr Parker his plea of guilty is a mitigating factor and his assistance is a mitigating factor, but for those matters he receives a discrete discount as well.

1. Insofar as his likelihood of reoffending and his prospects of rehabilitation, well I cannot conclude that he is unlikely to reoffend and I cannot conclude that he has “good prospects of rehabilitation”, although he says that he has “excellent prospects of rehabilitation”. The proof is in the pudding so to speak. His criminal history does not assist him. That having been said, I am not entirely without confidence that he can turn the corner. But I would need a crystal ball, which I am not provided in my line of work, to determine his future prospects. I am prepared, however, although I cannot be satisfied on balance that he has good prospects of rehabilitation to recognise the fact that if he takes certain steps on his release he has the capacity to avoid offending in the future. The ball, as I said in Mr Parker’s case, is entirely in his court.

2. I should point out in relation to one of the firearms matters, the possess unauthorised prohibited firearm pursuant to s 7 Firearms Act 1996, that it has a standard non-parole period. This requires me to consider Pt 4 Div 1A of the Act,

“A standard non-parole period represents the non-parole period for an offence in the table, to the Division Table, taking into account only the objective factors affecting the relative seriousness of that offence that is in the middle of the range of objective seriousness, or the middle of the ‘range of seriousness’”. (s 54A(2) of the Act)

53. I have concluded that the offending reflected in the charge is, given the absence of any sinister connotation provable as to his possession, just below the middle range of objective seriousness, acknowledging that the middle range of objective seriousness is not necessarily a “narrow band”, to cite the wise words of Chief Justice Spigelman. Insofar as s 54B(2) of the Act is concerned it states that;

“The standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender without limiting the matters that are otherwise required or permitted to take into account in determining the appropriate sentence for an offender”.

54. So that means take into account, amongst other matters, the matters that arise under s 21A, the cooperation of the prisoner with the authorities and the favourable matters that I have concluded from the evidence produced by the prisoner.

55. I am obliged, I believe, to fix a non-parole period in relation to that matter. I have determined, in light of the fact that the firearm was possessed for a discrete period of time to that concerned with the use offensive weapon with intent to commit an indictable offence, that the sentence for that latter offence should be accumulative upon that non-parole period. But the non-parole period, in the context of an offence that has a standard non-parole period of four years imprisonment for an offence of a middle range of objective seriousness, is frankly modest.

56. As I said, the sentences I have settled upon reflect in my view the totality of criminality but also reflect the finding of special circumstances to which I have earlier referred.

57. I am sorry Mr Keenes, it takes a long time to deal with all the legal issues that arise in sentencing and this matter is not less than complex. Could you stand up please, thanks very much? I have to deal with each of these matters.

58. In relation to the possess unregistered firearm, in respect to that offence, you are convicted. You are sentenced to a term of imprisonment of one year and four months to date from 25 July 2017, expiring on 24 November 2018.

59. In relation to the offence of possess unauthorised prohibited firearm, that is sequence 2, you are convicted. You are sentenced to a term of imprisonment of one year and three months by way of a non-parole period to date from 25 July 2017, expiring on 24 October 2018. The balance of sentence is one year, three months. That will expire on 24 January 2020.

60. In relation to the aggravated possess unregistered prohibited firearm in a public place you are sentenced to a term of imprisonment of one year and four months to date from 25 July 2017, expiring on 24 November 2018.

61. In respect to the offence of intentionally or recklessly destroying property you are sentenced to a term of imprisonment of one year and four months to date from 25 October 2018, expiring on 24 February 2020.

62. In relation to the separate offence of intimidation you are convicted and sentenced to a term of imprisonment of one year and four months to date from 25 October 2018, expiring on 24 February 2020.

63. In respect to the use of offensive weapon with intent you are convicted. You are sentenced to a term of imprisonment which consists of a non‑parole period being one year four months to commence on 25 October 2018, expiring on 24 February 2020. So that is the date of your minimum term for release. The balance of the sentence is one year and ten months expiring on 24 December 2021. You will be eligible for release to parole on 24 February 2020.

64. You can sit down now sir, thanks very much. I have other sentences to impose but there is no point in you standing.

65. In relation to the s 166 certificate matters, the related offences, in respect of the offence of sequence 4, not keep firearm safely, you are sentenced to six months imprisonment to date from 25 July 2017, expiring on 24 January 2018. In respect of the drive whilst disqualified matter you are convicted. You are sentenced to a term of imprisonment of six months to date from 25 July 2017, expiring on 24 January 2018. You are disqualified from holding a motor vehicle drivers’ licence for a period of two years accumulative upon your existing period of disqualification.

66. In respect to the offence of using an unregistered motor vehicle you are convicted - or the offence is proven under s 10A of the Crimes (Sentencing Procedure) Act 1999. I am satisfied that it is inexpedient to inflict any punishment.

67. In relation to sequence 7, which is the offence of using an uninsured vehicle, that offence is proved, but pursuant to s 10A Crimes (Sentencing Procedure) Act 1999 I am satisfied that it is inexpedient to inflict any punishment. That matter is dismissed.

68. In respect of the possession of the ammunition, that offence is proved, conviction is recorded, but pursuant to s 10A Crimes (Sentencing Procedure) Act 1999 I am satisfied that it is inexpedient to inflict any punishment. I should point out to you that those last three offences carry fines as penalties. I see no point imposing a fine upon you because when you get out of custody you would have to pay it before you could get your car registered or get a driver’s licence. So if it is any small consolation to you, when you get out of custody, at least as far as my orders are concerned, you will not have any fines to pay. That would be a burden you will for a period of time not be able to afford.

69. Yes, Madam Crown, are there any matters?

70. HARRIS: Yes, the forfeiture of the firearm..... 

71. HIS HONOUR: Sorry, yes. I further order the forfeiture of the relevant firearm, the shortened side by side double-barrel shotgun.

72. I will have to add that to the orders. I will have the copies of the orders printed out for you, Madam Crown and if you might be able to provide a copy to counsel for the prisoner in due course?

73. HARRIS: Yes I will.

74. HIS HONOUR: Mr Keenes the effect of the sentences I have imposed, as I said, is to impose a non-parole period of two years seven months, a balance of sentence of one year ten months. And as I calculate it thus you’ll be eligible for release to parole on 24 February 2020, right? If, while you are on parole you don’t comply with your conditions of parole the parole authority will revoke your parole and you’ll go back into custody until the parole authority determines that you should be released, or until such time as your sentence expires. Right, thank you.

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Decision last updated: 27 February 2020