R v McDonald

[2019] NSWDC 952

District Court

New South Wales

Medium Neutral Citation:

R v McDonald [2019] NSWDC 952

Hearing dates:

9 December 2019

Date of orders:

19 December 2019

Decision date:

19 December 2019

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

The offender is sentenced to an aggregate term of four years imprisonment and an aggregate non-parole period of two years and six months.

Catchwords:

CRIME — Firearms offences — Unauthorised use/possession of firearm

Legislation Cited:

Firearms Act 1996 (NSW) s 7(1)

Weapons Prohibition Act 1998 (NSW) s 7(1)

Criminal Procedure Act 1986 (NSW) s 166

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 10A

Cases Cited:

Lawson v R [2018] NSWCCA 215

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Cary McDonald (Offender)

Representation:

Counsel:
Mr B Robinson (Offender)

Solicitors:
Ms A Hooper (Crown)
Mr J McGrath (Offender)

File Number(s):

2019/47123

Publication restriction:

Nil

SENTENCE

Introduction

1. HIS HONOUR: The offender pleaded guilty in the Local Court to the following offences.

2. That on 12 February 2019 at Marayong he possessed a prohibited firearm, namely a black Mossman 12-gauge pump action shotgun, not being authorised to do so by a licence or permit. That is an offence under s 7(1) of the Firearms Act and has a maximum penalty of 14 years imprisonment and an applicable standard non-parole period of four years.

3. The second offence is an offence that on the same day and at the same place the offender possessed a prohibited weapon, a push dagger, without being authorised to do so by a permit. That is an offence under s 7(1) of the Weapons Prohibition Act and it has a maximum penalty of 14 years imprisonment and an applicable standard non-parole period of five years. 

4. The third offence is an offence that on the same day and at the same place he possessed a prohibited weapon being an electronic control device, a taser, without being authorised to do so by a permit. That too is an offence under s 7(1) of the Weapons Prohibition Act. 

5. The fourth offence is an offence that on the same day and at the same place he possessed a prohibited weapon being a baton without being authorised to do so by a permit.  That too is an offence under s 7(1) of the Weapons Prohibitions Act.

6. There are three Form 1s. In relation to the possess prohibited firearm offence, the offender acknowledges his guilt in relation to two further offences and asks that I take them into account when imposing sentence on the possess prohibited firearm offence. Those offences are possess unregistered firearm and possess ammunition without a licence or permit. When sentencing him in relation to the electronic control device, a taser, he acknowledges his guilt and asks that I take into account a further possess prohibited weapon offence when sentencing him on the offence concerning the taser. The further offence also involves possession of another taser.  When sentencing the offender on the possess prohibited weapon offence which involves a baton, he acknowledges his guilt and asks that I take into account three further offences being possession of a prohibited weapon, being handcuffs, possession of a prohibited weapon, being an extendable baton and possession of a prohibited weapon being a ballistic vest.

7. There are two offences on a s 166 certificate under the Criminal Procedure Act being offences of not keep a firearm safely and possess prohibited drug.

The Facts

8. The facts are agreed and the following is taken from them: On 11 February 2019 police were granted a search warrant to search the offender’s home at 30 Curran Road, Marayong.  The offender resided there with his wife and their three children, two aged 12 years and another aged 25 years.  The police asked the offender if there was anything to declare in terms of any electronic control devices and he said that he had tasers in his room next to his bed.  When searching the lounge room of the premises police found a spent taser cartridge.  Soon after police found a push dagger in the living room. They asked the offender what it was and he told them it was a knife.

9. He admitted it was his.  He was asked where he got it from and he explained that he bought it on the internet.  Whilst the search was continuing, police asked the offender if there was anything illegal that he wanted to declare to them.  The offender said that there was a shotgun under the bed and he told the police that there was some ammunition next to the bed.  He was asked if the shotgun was loaded and responded that it was not racked and loaded but that he believed there was a round in the gun.

10. The police entered the offender’s bedroom and lifted the mattress.  Underneath they found a black 12-gauge pump action shotgun.  The shotgun was loaded with one round of ammunition but was not racked, that is the round was not in the chamber.  Later testing by police determined that this was a prohibited firearm that was in working order and capable of firing a projectile by means of an explosive. 

11. Police then spoke to the offender about the living room and told the offender that they had seized the shotgun and asked him where he had obtained it from.  He told the police that he had had the gun for a few years and had obtained it from “some guys” in the Belanglo State Forest.  He was then taken to the police station and the police continued with their search.

12. When searching the offender’s bedroom the police found the following: inside a box on the bedroom floor a taser that had the appearance of a torch.  That is one of the possess prohibited weapon offences.  In the chest of drawers a black extendable baton was located, that is one of the possess prohibited weapon offences.  On the floor next to the bed an ammunition box containing a large number of .22 calibre bullets, a 12-gauge shotgun round was also found inside a box in the chest of drawers, a .22 calibre bullet was found in a lunchbox on the shelf. 

13. This ammunition forms part of the ammunition the subject of the possess ammunition without authority offence on one of the Form 1s. Inside a lunchbox on the shelf another taser was found and it is one of the possess prohibited weapon offences on a Form 1. Inside a plastic container a pair of handcuffs was found and it is the subject of a possess prohibited weapon offence on a Form 1. The police also found inside a black men’s blazer in the cupboard a ballistic vest, and that is the subject of a possess prohibited weapon offence on a Form 1. On the bedside table a small resealable bag containing 0.14 grams of methamphetamine was also found and that is the subject of a possess prohibited drug offence on a s 166 certificate.

14. The items seized by police, which were weapons, were found to be prohibited weapons and the offender did not have any licence or authority to possess them, the ammunition or the firearm.  The offender declined to take part in an interview with police

Objective seriousness

15. I turn then to my assessment of the objective seriousness of the offences.  In considering the objective seriousness of each of the offences I have considered the evidence in the psychologist’s report that is to the effect that there is to some degree a connection between the diagnosis of the offender suffering from a post-traumatic stress disorder and thoughts of his need to collect weapons for the protection of his family. 

16. Where there is evidence of a causal connection between an offender’s mental health condition and the commission of an offence, that is relevant to an assessment of the level of objective seriousness of the offence in this State, as it is said to go an offender’s moral culpability, see by way of example Lawson v R [2018] NSWCCA 215. I will discuss the psychologist’s report a little later, however, I record now that I accept that there is a limited causal connection between the offender’s mental health condition and the commission of the offences.

17. I note also that possessing a firearm or prohibited weapon for personal or family protection is not a mitigating factor when considering such offences.

18. The possess prohibited firearm is a serious offence of its kind.  The firearm is a pump action shotgun and was loaded and in working order.  The offender also possessed a quantity of ammunition suitable for that firearm in the kitchen.  It was not secured in any way and the offender had possession of it while using prohibited drugs.  I cannot find that the possession of the firearm or any of the weapons was part of the offender’s involvement in other criminal activities.  I also have had regard to the fact that a separate charge has been brought against the offender for the manner in which the firearm was kept.  I assess the objective seriousness of this offence as being a little below the midrange of objective seriousness.

19. The possession of the prohibited weapon offence where the weapon is the push dagger is an offence where I have had regard to the fact that the weapon is small and capable of concealment.  I consider that the objective seriousness of this offence is towards the lower end of the range.  The possession of a prohibited weapon offence where the weapon is a taser, involved a taser which was not in working order. I consider that objectively the offence is at the low end of objective seriousness. 

20. The possession of a prohibited weapon offence where the weapon is a baton is in my opinion at the low end of objective seriousness when one has regard to the type of items that can constitute a prohibited weapon under the legislation.  I do not consider that the offences on the Form 1s, given their nature, ought to have a significant impact upon the sentences I am to impose on the substantive offences.

The offender’s subjective case

21. I turn then to the offender’s subjective case.  His date of birth is 28 July 1971 so he is 48 years of age.  He has a limited criminal history and has never previously spent time in custody.  He has on his record, an offence of possession of a knife in a public place dealt with in 2013 for which he was fined.  He was also fined in the Local Court on 14 March 2019 for an offence of possess a prohibited weapon which was committed on 28 December 2018.  He also has a number of possess prohibited drug offences on his record all of which were dealt with by way of a fine and/or a bond.  His limited criminal history is not such as to disentitle him to some leniency in this sentence.

22. The offender has been in custody since the date of his arrest on 12 February 2019 and the sentence will be backdated to that date to take account of presentence custody. 

Family background

23. There is a Sentencing Assessment Report dated 28 November 2019 before me.  There is also before me a psychological report dated 20 November 2019 by Nicholas Lavidis.  I also have before me a letter from Phillip Haberle in support of the offender. 

24. In terms of the offender’s family background, according to the Sentencing Assessment Report, prior to his arrest he resided with his wife of 25 years and their four children.  Two of the children are in their 20s and there are twins who are 12 years of age.  He described to the author of the Sentencing Assessment Report his home environment as being positive, indicating that his family do not tolerate his drug use and are supportive of his rehabilitation.  Since he has been in custody he has received limited visits from his wife and family according to the Sentencing Assessment Report.

25. The psychological report records that his parents divorced when he was 4 years of age and that although his father lives interstate he keeps monthly contact with him.  He reports a good relationship with his stepfather and his mother.  He reported to the psychologist that he was sexually assaulted between the ages of 10 and 12 years, by a neighbour, and that this was the trigger for him to commence using prohibited substances. 

Education and employment history

26. In terms of his education and employment, he attended Baulkham Hills High School and left in year 10.  He completed a certificate 3 in Parks and Gardens at TAFE.  The Sentencing Assessment Report records that he has been a recipient of the disability support pension since 2014 following a diagnosis of hypokalaemia, which is a low level of potassium in the blood.  Prior to that point in time the Sentencing Assessment Report indicates that he held short-term employment at a local council.

Substance use

27. In terms of his substance misuse, the Sentencing Assessment Report records that the offender stated he was using methamphetamine on a regular basis at the time of his offences, and I note the presence of a small quantity of that drug at the time the police executed the search warrant. 

28. The offender attributed his offending behaviour to being under the influence of illicit substances and regular interaction with drug associates.  It appears that he has had a drug problem for a long time and the Sentencing Assessment Report records that Justice Health confirmed that he has been on the Pharmacotherapy program for over 22 years.  As I noted earlier, he told the psychologist he commenced using prohibited drugs as a consequence of being sexually abused when a young boy.

Psychological history

29. The psychologist considered that he described symptoms indicating anxiety and depression. The results of psychological testing according to the psychological report are that his depression is at a severe level and that his anxiety was at a moderate level. The psychologist considered his IQ as average and within normal limits but noted that the condition hypokalaemia is sometimes associated with a cognitive impairment.

30. The psychologist considered that the offender had a diagnosis of a major depressive disorder with anxiety, post-traumatic stress disorder and substance use disorder. The psychologist considered that his post-traumatic stress disorder consistently assists with his thoughts of vulnerability, and that he has to protect his family, and this resulted in him collecting the weapons, the subject of the charges. The psychologist considered that the offender has insight into his conditions which would indicate he has a good prognosis.

Response to supervision

31. The Sentencing Assessment Report records that he has no record of any infringements while in custody and appears to be a compliant inmate. The offender has not previously been the subject of Community Corrections supervision.

Attitude to the offence

32. In terms of his attitude to the offence the Sentencing Assessment Report records that the offender stated that his decision to purchase prohibited weapons from the internet was motivated by a perceived need to protect his family.

33. I note he did not suggest to the police that he obtained the firearm from the internet. He acknowledged to the author of the Sentencing Assessment Report that his use of illicit substances was a factor contributing to his offending. The offender, according to the Sentencing Assessment Report, acknowledged the impact his offending has had on his family and the potential impact upon victims had the prohibited weapons been used. According to the psychologist’s report he expressed remorse.

The future and risk of re-offending

34. The offender according to the Sentencing Assessment Report expressed motivation to engage with an alcohol and other drug program in the community and to re-engage with Narcotics Anonymous meetings.  He was assessed in the Sentencing Assessment Report as having a medium risk of reoffending. 

35. I consider he has reasonable prospects for rehabilitation.  He has a supportive family and a limited criminal history.  Much will depend upon his ability to manage his problem with prohibited drugs once released from custody.

Mental health

36. When discussing the level of objective seriousness of the offences I referred to the offender’s mental health and the reduction of the objective seriousness of those offences. The principles associated with the relevance of mental health and sentencing are well known. Where the state of a person’s mental health contributes to the commission of the offence in a material way the offender’s moral culpability may be reduced.

37. Consequently, the need to denounce the crime may be reduced with a reduction in the sentence. I found earlier that the offender’s mental health did contribute in a material way to the offending hence the need to denounce his conduct is reduced. A mental health condition may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed.

38. I consider that there is still a need to reflect an element of general deterrence and personal deterrence in the sentence imposed here given the nature of the offending. There is nothing about the offender’s mental health condition which suggests that his time in custody would be more onerous than it is for other offenders although I acknowledge he has a significant level of depression.

Imposition of sentence

39. I noted earlier the offender pleaded guilty in the Local Court and I will allow him a 25% discount of his sentence for the utilitarian value of his plea. His plea of guilty together with statements recorded in the psychologist’s report and the Sentencing Assessment Report satisfy me that he has some remorse in relation to the offences.

40. He has a significant drug problem and will no doubt need assistance with his rehabilitation once released into the community. That together with the fact that this will be his first time serving a sentence of imprisonment leads me to make a finding of special circumstances when fixing the non-parole period.

41. I will utilise the aggregate sentencing provision when imposing sentence. Given the number of weapons involved, if I had not done so there would have been some partial accumulation of the sentences that I would impose, to reflect the number of different weapons involved in the offending.

42. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act. General deterrence looms large whenever sentencing for offences such as those committed by the offender. Although because of his mental health condition he is less of a vehicle through whom to express general deterrence, it still has a role to play in this sentence. The community is very concerned about the illegal possession of firearms and other prohibited weapons in our community. Significant sentences must be imposed for such offending to act as a real deterrent to an offender and to others.

43. The only appropriate sentence is one of full-time imprisonment given the serious nature of the offending. While I have had regard to the fact that the offences could have been dealt with in the Local Court, given the seriousness of the prohibited firearms offence, it was clearly appropriate that the matter be finalised in this Court.

44. The maximum penalty and standard non-parole periods have been taken into account as legislative guideposts. It will be seen that I have departed from the standard non-parole periods when imposing sentence. That is because of my assessment of the objective seriousness of the offences and my finding of special circumstances.

45. As indicated earlier I will utilise the aggregate sentencing provisions when imposing sentence. I will firstly record the indicative sentences and where there is an applicable standard non parole period, an indicative non-parole period. In determining the indicative sentences and fixing the aggregate sentence I have had regard to all of the objective and subjective factors I referred to earlier. The sentences the offender will first hear me announce are what are called indicative sentences. Mr McDonald will then hear me announce an aggregate sentence which is the sentence and the non-parole period that he will serve. It is not arrived at by simply adding up all of the indicative sentences. When announcing the aggregate sentence, I will tell Mr McDonald the date it starts from, the date it ends and the dates when he is first eligible for parole. I will not require him to stand because he is appearing via AVL.

39. Mr McDonald is convicted of the offences to which he has pleaded guilty. There is an indicative sentence on the possess prohibited firearms offence of three years and six months and there is an indicative non-parole period of two years and two months. There is an indicative sentence on the possess prohibited weapon offence, being a push dagger, of eight months imprisonment with an indicative non-parole period of five months. The indicative sentence on the possess prohibited weapon offence, being a taser, is one of six months. I do not record an indicative non-parole period because the indicative term is only one of six months. The indicative sentence on the possess prohibited weapon offence, being a baton, is one of eight months imprisonment with an indicative non-parole period of five months.

40. The aggregate sentence is one of four years imprisonment with a non-parole period of two years and six months. It commences on 12 February 2019 and expires on 11 February 2023. The non-parole period expires on 11 August 2021.

41. The earliest date you are eligible to be released to parole is the date of the expiry of the non-parole period which is 11 August 2021. Whether you are in fact released to parole that day is a matter for the State Parole Authority which will no doubt take account of your behaviour in prison in determining whether you are released then or on another date.

42. Regarding the two matters on the s 166 certificate I simply record a conviction. No further penalty under s 10A of the Crimes (Sentencing Procedure) Act. The firearm and weapons are to be forfeited.

Orders

1. The offender is sentenced to an aggregate term of four years imprisonment and an aggregate non-parole period of two years and six months.

2. Record a conviction in relation to the two matters on the s 166 certificate.

3. No further penalty under s 10A of the Crimes (Sentencing and Procedure) Act.

4. The firearms and weapons are to be forfeited.

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Decision last updated: 16 February 2021