R v Makira

[2019] NSWDC 584

District Court

New South Wales

Medium Neutral Citation:	R v Makira [2019] NSWDC 584
Hearing dates:	30 September 2019
Date of orders:	30 September 2019
Decision date:	30 September 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Aggregate term of imprisonment of 4 years with a non-parole period of 2 years
Catchwords:	CRIME — Firearms offences — Firearms prohibition orders CRIME — Firearms offences — Unauthorised use/possession of firearm SENTENCING — Non-parole period — Principles to be applied SENTENCING — Non-parole period — Ratio of the non-parole period and balance of term
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996 Law Enforcement (Powers and Responsibilities) Act 2002 Weapons Prohibition Act 1998
Cases Cited:	R v Borkowski [2009] NSWCCA 102
Category:	Sentence
Parties:	Regina (Crown) Toka Tere Makira (Offender)
Representation:	Kylie Latimer (Crown) Anders Mykkeltvedt (counsel) (Offender)   Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2018/00276004

EX TEMPORE ReviSED JUDGEmenT

1. Toka Tere Makira was committed to sentence to the District Court of New South Wales from the Local Court in Penrith on 28 June 2018 where he pleaded guilty to two offences. The first of those is contrary to s 62(1)(b) Firearms Act 1996 alleging that he between 10.40pm and 11pm on 8 September 2018 at Ropes Crossing he possessed a shortened firearm that was not a pistol without being authorised to do so by a permit. He also pleaded guilty to a charge contrary to s 74(1) of the same Act of being in possession at the same time and place of the same weapon in contravention of a Firearms Prohibition Order that was in force.

2. He adhered to his pleas of guilty in this Court. He has not given evidence in the proceedings though evidence was called from his sister and there is a comprehensive psychological assessment provided in his case which provides an appropriate measure of insight into this man’s personality and how it has evolved against the background of his formative years in the Pacific Islands and in Australia.

3. The facts are that about 10.30pm on Saturday 8 Saturday 2018 the police were patrolling along Captain Cook Drive, Willmot when they sighted a motor vehicle travelling toward them. They saw that the rear tail light of the vehicle was defective. The police conducted a U-turn and followed the vehicle and then caused it to stop in Palmyra Road. The police approached the driver’s window. A person named Kellie Tos was the driver. This offender was in the front passenger seat and a man named Peter Cruise was in the rear passenger seat behind the driver. The police officers addressed the driver and asked for her licence. The vehicle was being monitored by another police officer as this was occurring and that officer saw a backpack on the rear passenger side footwell with the wooden butt end of a firearm protruding from it. Another officer opened the rear driver’s side door where Cruise was seated and also saw the stock of the weapon protruding from the backpack in proximity to him.

4. All occupants of the vehicle were directed out of it and a search was conducted. In the backpack the police retrieved a 22 calibre shortened rifle with a serial number identified in the facts. There was one round of ammunition located in the breech and the backpack was also found to contain a balaclava and a pair of gloves. Knuckledusters and four knives were also located in the vicinity of the driver’s seat. Tos admitted possession of those items. They have not been the subject a charge prosecuted against this offender. The weapon, as found with the round in the chamber, was configured so that it could be immediately fired if the person in possession of it intended to do so.

5. The occupants of the vehicle were taken to Riverstone Police Station. They were entered into custody in accordance with the Law Enforcement (Powers and Responsibilities) Act 2002. The firearm in due course was examined by a ballistic expert. It is identified in the facts as a shortened .22 long rifle American bolt action repeating rifle with the serial number and other particulars there recorded. My experience of such weapons is that a repeating rifle would have the capacity to carry more than one round but when I look at the picture of the weapon it does not appear to be other than a single shot .22 calibre weapon. It is not entirely clear that this is so; I have but one image showing one side of the shortened weapon. It might well have a magazine with capacity for more rounds within the structure not readily visible but without further description I shall proceed on the basis that it was a single shot firearm.

6. The weapon was found to be in working order and capable of discharging the projectile by means of the explosive in the cartridge casing. The weapon was shortened. The stock had been cut from it, leaving the pistol grip, and the barrel had been shortened so that it extended only a short distance from the front end of the stock. The resultant overall length was said to be about 632 millimetres or 24.9 inches.

7. It is classified as a “shortened firearm” as defined in the Firearms Act 1996 and the Regulations to that Act. The rifle in its original form was reported stolen on 5 March 2018 from an address in Glenbrook in the lower Blue Mountains. The registration of the weapon was cancelled following the theft and on the date of this offence it was not registered. The cartridge was one designed to be used in such a weapon and was classified as “ammunition” as defined in s 4(1) Firearms Act 1996.

8. The items seized were examined for DNA and fingerprints. Two fingerprints were located on the firearm, but neither of them belonged to the occupants of the vehicle. A swab taken from the bolt end of the lever, on the trigger, front and rear grip of the firearm, revealed a mixed DNA profile with the offender not excluded as a contributor. A swab was taken from the end of the table runner that was used to wrap the firearm. A mixed DNA profile was found, the major profile obtained matched the profile of this offender, and a tape lift from the inside forehead of the mask provided a DNA profile that matched this offender. A swab taken from the handle strap and shoulder strap of the backpack revealed the major DNA profile to be that of the offender and a mixed DNA profile obtained from the handle could not exclude the offender as a contributor.

9. The Crown concedes in its submissions that whatever inferences one might draw from that evidence it could not prove beyond a reasonable doubt that the possession of the firearm was for use in criminal activity. As expressed that is in my view a generous concession in the circumstances, but the Crown does not press the point further so I shall proceed only upon the basis that I am dealing with an offender who is in possession of the shortened .22 calibre weapon, and that he was in possession of it whilst the subject of a Firearms Prohibition Order exposing him therefore to prosecution under the two provisions upon which the charges were framed.

10. He declined to participate in an electronically recorded interview. He was not the holder of a firearm’s licence or permit which authorised him to be in possession of this item. He was not authorised to be in the possession of a prohibited weapon.

11. On 8 September 2018 he was the subject of a Firearms and Weapons Prohibition Order under s 73(1) Firearms Act 1996 and s 33(1) Weapons Prohibition Act 1998. Neither Tos nor Cruise was the holder of a firearm’s licence or permit or of a licence or permit that authorised the possession of a prohibited weapon. According to the material I have, Tos is the only person who is also prosecuted. She is for trial on 15 June 2020.

12. The offender was born in 1982 and is now approaching 37 years of age. He has an unenviable record of antecedents beginning in March 1998 in the Children’s Court where he was placed on probation for assault with intent to rob. His appearances thereafter in Children’s Courts were in September 1998 for driving without a licence and taking and driving a conveyance without the consent of the owner, in October 1999 for being carried in a conveyance taken without the consent of the owner, also stealing from the person, also for robbery in company, for another offence of robbery in company and another two counts of robbery.

13. In November 1999 he was dealt with for driving a conveyance taken without the consent of the owner and for driving without ever having held a licence and then in June 2002 he entered the adult courts for offences of taking and driving a conveyance without the consent of the owner, stealing from a retail store, not complying with the conditions of a good behaviour bond, driving whilst unlicensed, robbery armed with an offensive weapon, stealing a motor vehicle, possessing a shortened firearm, possessing an unauthorised prohibited firearm, robbery armed with a dangerous weapon, discharging loaded arms in company with intent to resist arrest, and discharging a firearm in or near public place, further offences of larceny, being carried in a conveyance taken without the consent of the owner and possessing or attempting to possess a proscribed restricted substance, custody of a knife in a public place, and possessing counterfeit money.

14. His adult life has for the most part been spent in gaol. According to the custodial record he came into adult custody on 7 June 2002 where he remained until 11 May 2017 when he was released to parole. After eight months he came back into custody on 24 January 2008. He remained in custody until ordered to parole on 17 February 2017. He was at large for two and a half months until he came into custody on 30 April 2017. He remained in custody until 16 February 2018. He was at large for seven months until 9 September 2018 when he was arrested for these offences. That is the date he went into Corrective Services custody, but the custodial period began on 8 September 2018 and that is the date upon which the sentence I impose today shall commence.

15. He is exposed to a maximum penalty of imprisonment for 14 years in respect of each of these offences. There is no standard non-parole period specified for the purposes of Pt 4 Div 1A Crimes (Sentencing Procedure) Act 1999.

16. He pleaded guilty at the Local Court and therefore is entitled to have a discount of 25% applied to each of the indicative sentences that would have otherwise been imposed or identified for his misconduct to reflect the utility that he has provided, in accordance with the decision in R v Borkowski [2009] NSWCCA 102.

17. His time in custody has not been without blemish. There are punishment details extending over three pages from 2002 all the way up to July 2019. The most recent of these is possession of a drug implement, before then intimidation, before then possessing an offensive weapon, before then possessing a drug implement. He has failed prescribed drug tests and it is apparent that in custody he has been misusing substances, something to which he has made admissions in the course of the consultation with the psychologist who provided their report.

18. The history gleaned by the psychologist is supplemented by the evidence given by the offender’s sister, Ms Hagai. She stands in contrast to her brother. She has made a significant contribution to our community. She has a child, a son, aged five. She has maintained a landscaping and lawn mowing business and at the same time she is undertaking study in aged care, drawing upon the experience that she had caring for their grandmother who passed away in 2014. Against the background that these people have had the grandmother was the dominant influence in their lives through their formative years. I shall deal with that in more detail when I come to the psychologist’s report.

19. His sister impressed me as a witness who was doing her best to assist the proceedings. She is, I believe, sincere in all that she had to say, although not fully aware of some of the problems that are affecting her brother. She is willing to provide him with whatever help she can when he is released back into the community, including accommodation and with work. She told me that she has been raised in circumstances where her grandmother imposed upon both of them the obligation, as family, to support and help each other and that is what she intends to do. She visits him monthly in custody. She said she has seen him improve, although that stands in contrast to what is recorded in his custodial record. She also told me that in the period of seven months when he was at large, only part of which was subject to parole because he did not earn parole at the expiration of the non‑parole period, and thus was not released until February 2018, she provided him with work, provided him with accommodation, provided him with support and yet he finds himself again before the Court charged with serious criminal conduct.

20. She was paying him about $250 per week for the work he did in her landscaping/lawn mowing business. She was unaware of his misuse of drugs. She was unaware of him having problems with custody. She said she would be surprised if he was using drugs and if he was burdened with that difficulty when he was released she would provide whatever support she could to assist him address the problem.

21. On his behalf there was tendered his record as a juvenile offender. I have summarised that from the antecedent report. This was offered in support of the submissions, as I perceive it, that there should be a finding of special circumstances because of the amount of time he has spent in custody, both as a juvenile and as an adult. The Crown does not cavil with the proposition, with which I agree, that there are special circumstances by reasons of his continued incarceration and a very real risk of institutionalisation bearing in mind the personality that is suggested in the psychologist’s report. Part of the evidence given by his sister, although she did not use this term, suggested a measure of agoraphobia and difficulty coping in some social settings which leaves him vulnerable to the influence of antisocial peers. That would seem to me to be a fair assessment of the offender.

22. The report from the psychologist written on 20 August 2019 was prepared upon an audio visual link between Lithgow Correctional Centre and where the psychologist was located. This occurred on 14 August 2019. There was a semi-structured clinical interview of about one and a half hours. Although the medium was not ideal and although the time was not extensive, what was gleaned from the offender represented in the report is consistent with what his sister had to say. Although there were some matters which the sister was clearly not aware that does not cause me to doubt her veracity. Overall, the report I find to be an objective and a reliable analysis of the personality with which the Court is concerned.

23. The offender grew up in the Cook Islands. He is the second of 11 children born to his mother. His parents had an on and off relationship. His father lived in Australia at various times. When he was about five his mother moved to Australia to find work and he stayed with his maternal grandmother for 12 months. He and his young siblings as well as his grandmother then migrated to Australia. He could not give specific details or reasons, but noted that he lived with only three of his siblings during childhood. At least one of his siblings was adopted out. He said his mother was a happy person and always helping people. She re-partnered when the offender was about nine. This man was caring and easy to talk to. There was occasional telephone contact with his biological father throughout his childhood. While his mother and stepfather were good support and they provided for the family, he saw his grandmother as his primary parent figure, a fact also represented by his sister in her evidence. She was his main disciplinarian and he described the way in which she would administer punishment by simply denying him access to television. There was no suggestion of abuse or excess in that regard.

24. At the age of 15 he began to engage in antisocial behaviour and then his record of antecedent offences began to evolve. His grandmother arranged for him to move in with his paternal uncle to build a relationship with his father’s family, but he said he found that confusing. He was not given any explanation why the separation from his grandmother and his other siblings was occurring. He attributed his stepfather with heavy alcohol consumption and death as a consequence of liver failure about eight years ago. He has a brother who also has an alcohol problem and another brother who has a history of convictions for violence.

25. His education was effectively absent. He had a few months of schooling in the Cook Islands before coming to Australia and here he had limited English, which impacted upon his learning capacity. He continued to struggle with reading and writing, and in Year 9 was not gaining anything from school and was moved to take another course. His behaviour at school did not apparently involve significant misbehaviour, although he was suspended after starting a fight on one occasion.

26. His custodial history, as I said, started in the adult facilities in 2002, but before then he had juvenile detention after the Children’s Courts had used various options available to them to try and redirect his path, without success. He wishes to work with his sister when he finally is released. There is reference to his promise as a rugby league player and his sister spoke to that. She said that he was talented in that regard, but because of the path he has unfortunately taken those opportunities were lost to him.

27. His medical history is discussed – it is of no real significance to the assessment I have to make of this matter. He said to the psychologist that he has not used alcohol, cannabis, cocaine or heroin since about 18 years of age, when he began to focus on his football career, although he began smoking heroin at the age of 15. He has undertaken multiple drug and alcohol intervention programs including SMART, SMART Recovery and EQUIPS Addiction, but the Violent Offender Treatment Program is said to have been the most helpful for him. He completed that four years ago and he said that he has not used any drugs since that time. That again is not consistent with the custodial record and his custodial offences.

28. He described himself as shy, but easy to talk to. He has some friends in the community not engaged in substance abuse or offending. He is said not to be in contact with antisocial associates, but the offending on this occasion was, as the psychologist notes, when he was engaged with antisocial peers and this is an area of concern that she identified.

29. There is reference in the report to other firearms being found in the motor vehicle. That is a misperception, it would appear, by the psychologist because there was only one firearm found and that is the subject of these charges.

30. There is a discussion of his relationship history, which has not been entirely successful, which is not surprising in the circumstances where he persists in offending. He attributes the weapon to a friend and that the friend had been passing “them” around to a group of people to look at and that is how his DNA ended up on some of “them”. Again, the use of the plural is a mistake, I expect. He then said he did not know the weapons were in the car. He said he does not have any interest in guns. That is unlikely, according to the psychologist, given his history of convictions for possession of firearms - an observation with which I would agree.

31. He has low self-esteem, according to this. His perception is that he is worthless and useless. His grandmother’s death in 2014 had a significant impact upon. He evolved into depression and grief, with which he has not been able to adequately cope. His sense of worthlessness allowed him to engage with like-minded peers, which facilitated his misuse of substances and his antisocial, criminal lifestyle. The light in his life though, as I have noted, is his sister, and if he is going to be redirected it will be through her efforts, one hopes.

1. The Crown’s submissions in writing raise every relevant matter that I need to bring to account. The Crown reminded me of the inconsistency between his custodial history and the perception the sister has of the offender and his misuse of substances. The Crown has addressed the objective seriousness of the offence.

2. In each case the possession of a firearm, adjusted as this one is, is a problem. It must be dealt with by the Courts to reflect what Parliament intended with this legislation. I have brought to account the nature of the weapon, the fact that it was loaded and that, upon the material I have, it must be dealt with as a single-shot .22 calibre weapon, shortened as described.

3. The Crown also points, correctly I believe, to the fact that having modified the weapon in this fashion, by shortening the barrel compromises the capacity for the weapon being discharged without the risk of greater danger. The weapon was in the car. If, as the Crown points out, there had been some episode whereby the vehicle was involved in a crash, it has the potential for threat to the emergency first responders, whether police officers or paramedics. Although the Crown concedes the length at 63 centimetres leaves it still an item of some substance, it was capable of being concealed and within the backpack as found. The Crown points to the alteration to the manufacturer’s intended firing velocity and accuracy of the firearm upon discharge with the modifications made. There is no evidence before me with regard to that. It is a matter of which I could take notice I believe. Rifles are designed with rifling to be used in a particular way. By shortening the barrel in this fashion, the capacity for accuracy is compromised.

4. As I said, the Crown concedes that it cannot prove beyond reasonable doubt that the possession of the firearm in this offender was for use in criminal activity. As it points out, it is of concern that his DNA was found on the balaclava and on the backpack in which the weapon was found.

5. The Crown concedes there is to be a measure of concurrence between the two sentences for these offences but there must be some accumulation. They are different offences. Bare possession attracts punishment, but possession of the same item when subject to a Firearms Prohibition Order requires that there be some accumulation to produce a sentence reflecting the totality of the misconduct upon which the offender was engaged.

6. The Crown concedes the risk of institutionalisation as a special circumstance.

7. The submissions made on behalf of the offender urge the view that the sentences should be wholly concurrent, or very nearly so. I do not agree with the proposition that the sentences must be concurrent. It is conceded that his prospects of rehabilitation are somewhat guarded.

8. I have taken into account the background that is described in the psychologist’s report and supported by the evidence given by his sister. He has had a measure of disadvantage through his formative years and was therefore someone who might well be vulnerable to a lifestyle in which he was led astray by other peers, bearing in mind his lack of education and the limited chance he had to improve his education because of his lack of English when he came to this country. That said, his sister, notwithstanding that she must have suffered the same sort of challenges, has progressed in life and is a worthwhile and contributing member of our community.

9. His record of antecedents is conceded as an aggravating factor but that does not increase the objective seriousness of the offending or what is otherwise a proportionate sentence for the misconduct. It does inform the question of leniency of course that might have otherwise been extended and the extent to which the aspect of specific deterrence must be brought to account in the determination of sentence.

10. I do not agree with the proposition that this offence is significantly below mid-range. I accept that the offences are below mid-range but not by very much in the circumstances.

11. All of the purposes of sentencing articulated in s 3A Crimes (Sentencing Procedure) Act 1999 are engaged. There must be punishment, there must be weight given to general deterrence and the need to deter this offender from continued misconduct in the community. This sentence must do what it can, both as to its length and structure, to provide protection to the community and promote his rehabilitation. He must be made accountable for this misconduct, which must be denounced, and the harm to the community must be recognised. Possession of weapons such as this cannot be tolerated and the Court must make clear that if people are detected in such circumstances they will face appropriate punishment.

12. The line in s 5 Crimes (Sentencing Procedure) Act 1999 has been crossed and there is no sentence other than one of imprisonment that can be imposed in this case.

13. Accordingly, in each case the offender is convicted. In each case, allowing a discount of 25%, which ultimately will be a little greater, I specify a sentence of imprisonment of 3 years and 4 months as indicative sentences and I specify an aggregate sentence of imprisonment of 4 years, comprising a non-parole period of 2 years and a further period during which the offender will be eligible for parole. The sentence shall commence on 8 September 2018.

14. Accordingly, upon conviction and adopting the indicative sentences I have specified, I sentence the offender to a term of imprisonment of 4 years from 8 September 2018 and expiring on 7 September 2022, with a non-parole period of two years, which will expire on 7 September 2020.

15. Mr Makira, just stand up for me. You have a custodial sentence of 2 years and then you can apply for parole, which will be on 7 September next year, but you have to stop misbehaving in custody. If you keep committing offences in gaol, you are not going to get parole. If you then get parole, you are going to be under supervision for 2 years. Your sister is there to stand by you. Take advantage of what she wants to do for you and change your ways. You are getting to a stage of life where you are going to have nothing to look forward to other than gaol; you have to start to do something for yourself.

16. I will leave the exhibits on file for such a period as the parties require.

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Decision last updated: 21 October 2019