R v Meier

[2024] NSWDC 375

District Court

New South Wales

Medium Neutral Citation:

R v Meier [2024] NSWDC 375

Hearing dates:

3/10/23-12/10/23, 11/12/23, 15/3/24, 4/4/24, 7/6/24, 21/6/24

Date of orders:

21 June 2024

Decision date:

21 June 2024

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 4 years 10 months with a NPP of 3 years (3/2/24-2/2/27).

I find special circumstances.

The indicative sentences are:

Re plea indictment dated 20/10/22: (25 percent discount taken into account):

Count 1 Possess 8 unreg firearms – 3y with NPP 1y 10m (Form 1 taken into account)

Re trial indictment dated 20/10/22 :

Count 1 Use offensive weapon to intimidate – (Form 1 taken into account) – 12m

Count 3 Possess proh weapon without permit – 9m with NPP 6m

Count 4 Use offensive weapon to intimidate – 3y 4m

Count 6 AOABH – 18m

Re further matters committed from Burwood Local Court on 4/6/24 (H172664402) (25 percent discount taken into account):

Seq 3 Possess proh weapon without permit – 18m with NPP 11m

Seq 6 Possess unauthorised pistol – 18m with NPP 11m

Seq 7 Possess unauthorised pistol – 18m with NPP 11m

Seq 8 Possess proh weapon in contravention of Weapons Prohibition Order – 9m

Seq 10 Possess firearm in contravention of Firearms Prohibition Order – 10m (Form 1 taken into account)

Catchwords:

Crime – Sentence – Use offensive weapon with intent to intimidate – Possess prohibited weapon – Being unlawfully in possession of more than three firearms – Possess prohibited weapon in contravention of weapon prohibition order – Domestic violence

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Firearms Act 1996

Weapons Prohibition Act 1998

Cases Cited:

Commonwealth DPP v De La Rosa (2010) 283 ALR 324

Field v R [2020] NSWCCA 105

R vLachlan [2015] NSWCCA 178

R v Mahmud [2010] NSW CCA 219

Taylor v R [2018] NSW CCA 50

Category:

Sentence

Parties:

NSW DPP – Crown
Alexander Geoffrey Meier

Representation:

Mr A Poulos for Crown
Mr W Brewer for Accused

File Number(s):

21/314929, 24/50174

Publication restriction:

Statutory non-publication order in relation to the identity of the victim

REMARKS ON SENTENCE

1. The offender, Mr Alexander Meier is for sentence on a number of offences, some of which were the subject of a contested trial and some of which involved pleas of guilty.

2. Dealing first with the trial matters. After a judge alone trial before myself which took place between 4 and 12 October 2023, the offender was found guilty of the following offences for which he must now be sentenced.

3. Firstly, count 1 which was using an offensive weapon, a taser-type device, with intent to commit the indictable offence of intimidation. The maximum penalty for that offence is 12 years imprisonment. Count 3 is an offence of possessing a prohibited weapon, namely the same taser device, without authorisation: the maximum penalty is 14 years imprisonment for that offence and it also has specified a five year standard non-parole period. Count 4 is an offence of using an offensive weapon, namely a shortened shotgun with the intent to commit the indictable offence of intimidation. That is an offence which carries a maximum penalty of 12 years. Count 6 is an offence of assault occasioning actual bodily harm which carries a maximum penalty of five years imprisonment.

4. In addition, the offender is to be sentenced for other offences to which he has pleaded guilty. The first additional offence is one of being unlawfully in possession on 5 November 2021 of more than three, and in fact eight, firearms, one of which was a prohibited firearm. The maximum penalty for that offence is 20 years imprisonment and a standard non-parole period of ten years is specified. In sentencing for that offence, I intend to take into account a further four offences that are on a Form 1 document. I note that the plea of guilty to that substantive matter was entered at an early stage and the offender is entitled to a discount of 25% by reason of the utilitarian value of that plea of guilty.

5. There are also the following offences which all occurred on 8 February 2024 for which the offender must also be sentenced. Firstly, the sequence 3 offence which is one of possessing a prohibited weapon, namely a taser-type device without a permit, which carries a maximum penalty of 14 years imprisonment and is the subject of a standard non-parole period specification, namely five years. There is also the sequence 6 and sequence 7 offences which involve, in each case, the possession of an unauthorised pistol, that being a gel blaster air pistol. Well, in fact, two of them, and those offences also carry the maximum penalty of 14 years imprisonment and have a standard non-parole period specified of four years.

6. There is also the sequence 8 offence which is one of possessing a prohibited weapon in contravention of a weapons prohibition order which relates to the possession of a taser type device. That is an offence under s 34(1) of the Weapons Prohibition Act 1998 which carries a maximum penalty of ten years imprisonment. Also, the sequence 10 offence of possessing a firearm in contravention of a firearms prohibition order which relates to the possession of the two gel blaster pistols, which is an offence under s 74(1) of the Firearms Act 1996 and has a maximum specified penalty of 14 years imprisonment. Also in sentencing for the sequence 10 possession of firearm in contravention of a firearm prohibition order, I will take into account on a Form 1 document a further offence of possessing ammunition in contravention of a firearms prohibition order.

7. The offender pleaded guilty to these five additional offences at the earliest opportunity and will therefore be given a 25% discount by reason of the utilitarian value of those pleas of guilty. Of course, the maximum penalties and, where applicable, standard non-parole periods are important guideposts and I have had regard to those in the sentencing exercise.

FACTS

8. Turning then to factual matters and commencing firstly with the trial facts. The facts of the first four offences which I will call the trial offences are for me to determine based on the evidence from the trial. Any aggravating matters need to be proved beyond reasonable doubt while matters in mitigation need only be proved on the balance of probabilities. The trial facts have already been canvassed in my verdict and reasons which were delivered on 12 October 2023. Based on those reasons and the evidence from which they were derived, I find the following facts for the purposes of sentence.

9. The victim, Mr J, and the offender met in October 2017 when the victim was living in crisis or transitional housing and the offender offered him a place to stay. The victim took up this offer and moved into a room at the house in Croydon Park where the offender lived with his mother. An unwritten agreement was reached in which the victim would pay rent which was about $350 per fortnight. The offender had a number of dogs living in and around the house and one of those dogs shared a bedroom with the victim. The victim initially paid rent directly to the offender’s mother who lived in a granny flat at the back of the premises, but this changed around 2018 or 2019 when the offender told him to pay the rent directly to him.

10. When the victim first moved into the house, his relationship with the offender was very good and he “looked up to” the offender like a big brother. However, this changed at a later stage and the offender began to make personal comments towards the victim relating, for example, to his height, looks, education and supposed lack of intelligence.

11. Some time after the victim started paying the rent directly to the offender, there developed disputes about the rent allegedly being late or in arrears. The victim agreed that sometimes this was true, but said that at other times he believed the offender’s claims to be incorrect or false, but that he would agree with the offender so as to avoid an argument. It is not necessary for me to determine exactly who was at fault or more at fault in relation to these matters. It suffices to say that I am satisfied that there was frequent friction between the offender and the victim about the rent.

12. The victim said, and I accept, that the offender “wouldn’t yell but it was scary. It was intimidating” as the offender was bigger than him and claimed to be able to fight and had a knowledge of weaponry. The victim had also seen the offender with weapons, including non-working pistols and a rifle. At some stage the offender had also shown him a taser which looked like a mobile phone or an electric razor.

13. In relation to trial count 1, I am satisfied beyond reasonable doubt of the following facts: On an occasion in late June 2021 and shortly after the victim had received a delivery of food, the offender came to his room and challenged him about buying food and said that he ought to be paying money for rent said to be in arrears. The offender tried to force the victim to log into his bank account but the victim tried to hold his ground, saying “no”.

14. The offender then made a derogatory comment about the victim’s daughter, whose photograph was in the room. This made the victim angry and he “went at” the offender but was pushed to the floor. At the time the offender was standing in front of the victim and had the taser tethered to his belt. The offender took hold of the taser and, after activating it, pushed it against the side of the victim’s neck or head. Although the victim felt only the pressure of the device being pressed against his skin, and no electric shock, he acted and screamed out like it hurt, hoping that the offender would stop. After this, the offender was swinging the taser back and forth and was very angry and demanding that the victim log into his bank account. The victim however said he did not do this and described his actions as “my little form of standing up for myself”.

15. As I said in my verdict reasons, I am satisfied beyond reasonable doubt that the offender on a day in late June 2021 used an offensive weapon, being a device in the nature of a taser, to make contact with the victim’s neck or head in an attempt to deliver an electric shock, and that he thereafter moved or swung that device back and forth towards the victim in a threatening manner. I am also satisfied that in doing so the offender acted with the intention of intimidating the victim so as to cause him to fear physical or mental harm.

16. The facts in relation to count 3, trial count 3, arise from this same incident that I have just described. The relevant facts are that on this same occasion the offender was in possession of a device which was in the nature of a taser, being a prohibited weapon, which he was not authorised to possess.

17. After this incident with the taser the victim was in fear of the offender and changed his sleeping and living patterns so as to avoid him. However, he remained living at the house as he did not know where else to go.

18. Counts 4 and 6 of the trial indictment relate to an incident on the night of 14 to 15 October 2021. On that evening the victim woke up at about 10pm and ordered pizza. He waited at the front of the house for the pizza to be delivered so as to reduce the risk that the dogs would bark and alert the offender, who might confront the victim again about money issues. After the pizza was delivered, the victim commenced eating it in his room, however he then went to another room to get a drink. As he was re-entering the doorway of his bedroom he heard the offender behind him saying “where’s my fucking money”. He then turned around and saw the offender holding a shotgun. The offender was standing about 30 centimetres from the victim and the shotgun was pointed at the victim’s face. As a result the victim moved backwards and then stumbled and fell onto his backside.

19. The offender then came closer and the victim turned away towards his left‑side and put out his right hand as he feared that he was going to be shot. The victim them felt a “heavy blunt pain” to the middle-right side of his back which resulted from the offender hitting him two or three times with some part of the shotgun. The offender then asked whether the victim’s tax refund had come in and made the victim log into his “MyGov” account to display his records. The offender then said that he would be “taking all of it”, that is, the refund amount, and the victim agreed with this proposition out of fear, even though he did not believe he owed the offender such an amount of money. After this the offender left the room after feeding some of the pizza to the dog.

20. Immediately after this incident the victim placed some belongings into a bag and left the house and never returned, effectively abandoning other items of property. After leaving the house, the victim, who was in pain, sent an SMS to his friend asking if he could visit her. He then caught an Uber or similar to the friend’s house. By this stage his shoulder and back were becoming more difficult to move. Once inside the house he told his friend and her daughter that the offender had hit him with a gun and after they helped him remove his shirt, the friend took some photographs of his back. Exhibit 7 from the trial is a copy of these somewhat out of focus photographs which show a red linear mark to the right of the midline on the victim’s back.

21. Later that day the victim consulted with a Dr Hussain telling him that “I was assaulted last night with the wooden part of a gun” and that it was the victim’s flatmate who had assaulted him. Dr Hussain also confirmed that the victim complained of pain in the mid-back region and observed vertical bruising around one to two inches in length which was swollen and consistent with the history of being struck in the back by a blunt object.

22. As I said in my verdict reasons, I am satisfied beyond reasonable doubt for the purposes of count 4 that on 15 October 2021 the offender used an offensive weapon, being a shortened shotgun, which he pointed at the victim’s face and with which he hit the victim more than once to the back. I am satisfied that, in doing so, the offender acted with the intention of intimidating the victim with intent to cause him to fear physical or mental harm. As I have also said in my reasons for verdict, I am also satisfied that in pointing the weapon at the victim and hitting him in the back the offender assaulted the victim and caused him actual bodily harm, namely soft tissue injuries and bruising to his back and shoulder area.

23. That brings me to the facts of the next offence to which the offender has pleaded guilty. On 5 November 2021, police arrested the offender at his home and executed a search warrant. Inside a wardrobe in bedroom 1 they found five firearms, and in bedroom 3 they found a further three firearms. None of the firearms were stored securely. The firearms were seized and found to be as follows:

1. A shortened 12 gauge Bentley (Squires Bingham) model 30 pump‑action repeating shotgun with serial number obliterated and missing the trigger which was also a shortened firearm and also a prohibited firearm;

2. A 7.65 by 53 millimetre Mauser bolt-action repeating rifle;

3. A .30-30 Winchester lever-action repeating rifle;

4. A shortened .22 long calibre Stirling model bolt-action repeating rifle, which was also a shortened firearm;

5. A .22 calibre Marlin model bolt-action repeating rifle with no serial number;

6. A six millimetre Airsoft repeating Airsoft pistol, which was a pistol for the purposes of the Firearms Act 1996;

7. Another six millimetre Airsoft repeating pistol, not in working condition, which was an air gun, as was the previous item to which I have referred but which was also a pistol for the purposes of Firearms Act; and

8. A Chinese made imitation of a self-loading pistol with no serial number which was in broken condition and which was an imitation firearm for the purposes of the Firearms Act 1996.

24. In bedroom 3 of the house police found an extendable baton and a bulletproof vest, each of which are prohibited weapons under the Weapons Prohibition Act 1998. These are matters on a Form 1 document which I will take into account. Also in that same bedroom police found two small vials of liquid. One of them contained 5.1 grams of methylamphetamine at 3.5% purity and the other contained 1.5 grams of methylamphetamine at the same purity. Each of those matters are also on the Form 1 document.   

25. In bedrooms 1 and 3 police also found a collection of ammunition which was as follows: Eight Winchester ammunition boxes containing 30-30 rounds as well as one Norma ammunition box containing .30-30 rounds and six boxes of Federal brand ammunition containing .22C rounds, and in bedroom 3 police also located a brown wooden box containing 11 rounds of ammunition as well as two cartridges in the wardrobe and two 12 gauge shotgun shells. As I have said, those are matters to be taken into account on the Form 1 document. Swabs for DNA were taken from many of the seized items and several of these returned matches of the offender’s DNA.

26. The agreed facts indicate that the offender was not the holder of a firearms licence or permit and that none of the firearms were registered to the offender. Also the offender was not the holder of a permit allowing him to possess prohibited weapons such as the baton and the vest.

27. Turning then to the facts of the most recent offences to which the offender has pleaded guilty, those facts are as follows: On 6 February 2024 police issued a weapons prohibition order and a firearms prohibition order in relation to the offender. Two days later on 8 February 2024 police attended the home of the offender and served him with a copy of these orders and explained them to him. At that time police asked the offender if he had anything to declare prior to his premises being searched to which the offender replied “no”. A number of police then commenced a search of the premises. The offender nominated bedroom 2 as his private space and a search was conducted of that room.

28. Within it police found a leather bag on the floor under a pile of clothing. DNA testing of the handles of this bag was later matched to the offender. Inside the bag police found the following items:

29. Firstly, a gas-operated gel‑blaster pistol that was black with a pink handle. The pistol had a trigger and a working slide with an empty magazine. This item met the definition of pistol in the Firearms Act 1996. DNA from the pistol matched the offender. This is the subject of the sequence 6 offence;

30. Secondly, another gel blaster which is the subject of the sequence 7 offence. This was a revolver-style pistol and was found inside a black hardcase. That item also met the definition of pistol in the Firearms Act. DNA from the offender was found on the grip.

31. Within the same black hardcase police found a black taser-like device labelled “5,500 volt ultra-high voltage” which had two metal prongs at the top and an on/off switch to the side. This item was a prohibited weapon and the offender’s DNA was found on it. This is the item that is the subject of the sequence 3 offence of 8 February 2024. Furthermore, police found inside the same black hardcase 12 items that were ammunition for the purposes of the Firearms Act. This is the sequence 9 offence which is to be taken into account on a Form 1 document when sentencing the offender for the sequence 10 offence to which I now turn.

32. The Sequence 10 offence involved the possession of a firearm in contravention of the firearms prohibition order served on 8 February 2024 and involved the offender’s possession of the two gel-blaster pistols that I have earlier described. Finally the sequence 8 offence which is an offence of possessing a prohibited weapon contrary to the weapons prohibition order served on 8 February 2024, which relates to the offender’s possession of the taser device that I have earlier described.

24. Those, in summary, are the relevant facts.

OBJECTIVE SERIOUSNESS

34. Turning then to considerations of the objective seriousness of the various offences I make the following findings:

35. Firstly, in relation to the trial matters and commencing with trial counts 1 and 3. The count 1 offence involved the offender using a taser-type device to intimidate the victim. The count 3 offence involved the offender’s possession of that weapon. The count 1 offence occurred during a physical altercation in which the victim was initially the aggressor, although there was some provocation in that the offender had made a derogatory remark about the victim’s daughter. While the offender was entitled to use reasonable force to defend himself when the victim “went at” him, he did this without difficulty and then deliberately applied the taser device to the victim’s neck, although the victim only felt the pressure of the device on his neck and no electric shock.

36. However, the offender continued after this to brandish the item with the intention of intimidating the victim. The Count 1 offence was committed in the home which the victim shared with the offender and where he ought to have been safe from intimidation. As already noted, the nature of the offensive weapon was a taser type device, although apparently a rather ineffectual one. I conclude, based on the victim’s evidence, that the offender had been in possession of the taser for some time. I regard the count 1 offence as being towards the low range of objective seriousness. I regard the count 3 offence as being within the low range of objective seriousness.

37. Turning then to counts 4 and 6 from the trial indictment: these two offences were committed at about the same time, and each occurred in the home of the victim, where he should have been safe from such violence. The Count 4 offence involved, as one of its elements, the use of an offensive weapon to intimidate the victim. It is relevant to have regard to the nature of the offensive weapon, as that term can include a wide range of objects. In this case, the offensive weapon was a shortened shotgun, which is obviously a very intimidating weapon. It is also a prohibited firearm, although I do not regard this as increasing the objective seriousness of the count 4 offence, because the prohibited nature of the firearm is unlikely to have been apparent to the victim.

38. The nature of the intimidating act was, firstly, placing the barrel of the weapon close to and pointing it at the victim’s face, which would have been a terrifying experience. There’s no evidence as to whether the weapon was loaded or was operational, and so I disregard this possibility. However, the victim had no way of knowing whether or not the weapon was loaded or was in working order, which supports my conclusion that this must have been a terrifying experience for him.

39. The count 4 offence also involved the offender striking the victim at least twice to the back with an item, which I am satisfied beyond reasonable doubt was the wooden part of the shotgun. I reach this conclusion due to the relatively diffuse nature of the bruising to the victim’s back shown in trial exhibit 7, and the victim’s report to Dr Hussein (trial exhibit 11) that it was the wooden butt of the gun that was used to strike his back. The intimidation offence also involved a demand that the victim open his MyGov account, and was therefore motivated by a desire to obtain money. Whether this money was in fact owed to the offender, or not, is a question that I am unable to answer on the evidence. Having regard to all of the circumstances, I regard the count 4 offence as falling either within or just above the mid‑range of objective seriousness.

40. The count 6 offence involved the offender striking the victim to the back at least two times, using a very hard object, namely, the wooden butt of the shotgun. I am satisfied beyond reasonable doubt that this caused the victim actual bodily harm in the form of bruising and significant soft tissue injury. I am also satisfied beyond reasonable doubt that the assault left the victim in great pain immediately after the assault and for some time thereafter. I regard this count 6 offence as being slightly below the mid‑range of objective seriousness.

41. Turning then to count 1 of the indictment dated 20 October 2022, to which the offender pleaded guilty: this is an offence, as I have earlier said, of possessing more than three firearms, one of which was a prohibited firearm, and not being registered or authorised to do so. The potential seriousness of this type of offence is marked, firstly, by the maximum penalty, and the specification of a standard non‑parole period.

42. As was said in Taylor v R [2018] NSW CCA 50, “The offence under s 51D(2) of the Firearms Act 1996 may be committed in a wide range of circumstances.” The offence “extends to the stockpiling of weapons by persons, without any further criminal intent...This is because of the risk that a stockpile, if vulnerable, may inadvertently feed the market in the illegal supply of firearms.” The possession of firearms is calculated to lead to substantial damage. The legislative purpose behind the provisions is the elimination of firearms from the community, except insofar as their possession is expressly authorised (see R v Mahmud [2010] NSW CCA 219). It is for these and other reasons that general deterrence is an important feature in sentencing for such offences.

43. The offence before the Court involved eight firearms, one of which was a shortened and prohibited firearm. Also, that item, the shotgun, had had its serial number removed, making it potentially more attractive to a black market. There was also another firearm that had been shortened. Shortened firearms have no legitimate purposes and are especially dangerous due to their capacity to be concealed (see R vLachlan [2015] NSWCCA 178). Also, the offence involved the possession of two pistols, in the nature of air guns, one of which was not in working condition, and another, broken, imitation pistol. While these are no doubt less dangerous than pistols using actual bullets, they are nonetheless items that are capable of being concealed, have an intimidating appearance, and, when working, have some capacity to cause injury. None of the eight firearms were stored safely, and there was also an amount of ammunition, compatible with some of the weapons, nearby. The period of the offender’s possession is unclear, but I am satisfied that he had been in possession of the shortened shotgun, and at least one of the long rifles, for quite some time - weeks, at the minimum - because these weapons are consistent with those that the victim described in parts of his evidence. I assess the objective seriousness of this offence as being around the mid‑range.

44. Turning then to offences of 8 February 2024, to which the offender has pleaded guilty. Firstly, the sequence 6 and sequence 7 offences each involved the offender’s possession of gel blaster pistols, which were found in his possession on 8 February 2024. I have already made observations about the nature of such items, and these ones were not stored safely. I assess the objective seriousness as being below the mid‑range and towards the lower range.

45. In relation to the sequence 3 offence of possessing the taser type device: again, this was an item that was not securely stored, and the image in the statement of facts shows that it was in working order. I assess this as an offence below the mid‑range and towards, but not within, the low range of objective seriousness.

46. A common factor in relation to each of the sequence 3, 6 and 7 offences is the question of when the offender acquired possession of these items. The Crown submitted that I would find that the offender acquired these items after the various firearms and other items had been seized from him on 5 November 2021. Mr Brewer, counsel of the offender, however, submitted that, given the chaotic nature of the offender’s home, which is depicted in some photographs that were tendered on sentence, I would conclude that these items had been overlooked when police searched the home on 5 November 2021. While it seems to me improbable that a police search would have missed these items, I am not able to reach this conclusion beyond reasonable doubt. I therefore approach these items on the basis that the offender had continued to be in possession of them after 5 November 2021 until their discovery on 8 February this year.

47. Approaching these offences on this more benign basis, however, does not really assist the offender much, because it means that he was in possession of these items for an additional two years three months, which included the period after he was charged for possessing firearms and other prohibited items, and during which he actually stood trial in this Court in relation to the possession and use of a taser and a shotgun. The offender’s actions in continuing to be in possession of these items in these circumstances increases his moral culpability for the offences of 8 February 2024 - or at least the offences that are the subject of sequences 3, 6 and 7.

48. Turning then to the objective seriousness of the sequence 8 offence of possessing a prohibited weapon in contravention of a weapons prohibition order. This offence relates to the possession of the taser‑like device in contravention of the weapons prohibition order. Given the nature of that device, and the fact that the order had only been served on the offender that same day, I assess this offence as being towards the lower end of objective seriousness. In relation to the sequence 10 offence of being in possession of the two gel blaster pistols in contravention of the firearms prevention order, given the nature of the two firearms, and the fact that that order had only been served on the offender that same day, I assess this offence also as being towards the lower end of objective seriousness.

49. I also note that at the time of the 8 February 2024 offences, the offender was on bail. This does not increase the objective seriousness of any of the offences, but it is an aggravating matter in the sentencing exercise, which influences considerations of punishment, deterrence and community protection (see Field v R [2020] NSWCCA 105). I note, in relation to all of the offences before the Court involving the possession of prohibited firearms and weapons, that apart from the incidents in the trial indictment, there is no evidence that the offender was engaged in using any of these items for any other criminal activity. Nor is there any evidence of sophistication or planning. These are matters I have taken into account in my assessment of the seriousness of the various offences.

50. A Victim Impact Statement from Mr J was admitted in evidence in relation to the trial indictment offences. This does not aggravate the objective seriousness of any of those offences, but it describes the fear the victim experienced, and the subsequent psychological trauma arising from the shotgun incident primarily. I have taken into account his descriptions of fear and trauma as consequences that might ordinarily be expected from such an incident.

SUBJECTIVE MATTERS

51. Turning then to subjective matters relating to the offender himself. The offender is now aged 44 years. Apart from driving-related matters, he has no other criminal history. His background and current circumstances have been placed before the Court by means of some written material. The psychological report of Mr Chafic Awit notes that the offender was born in Switzerland but moved to Australia when he was aged about five. His parents separated not long after this, and he does not report any domestic violence in the home at that stage. His mother later remarried to a man who was a doctor, and this relationship lasted about ten years. The offender described a fairly good relationship with his step-father, although he said there was one incident, the details of which he did not provide, in which the offender had his jaw broken, in which he said was a “freak incident”. Given the lack of detail, is it not possible for me to determine the relevance of this.

52. The offender attended Barker College from Years 7 to 12 and then did 18 months of an arts degree before dropping out. After this, he obtained a licence to work in the security industry and also completed baton and handcuff courses as well as some certification in IT. After leaving school, the offender eventually did security work for a decade, coached students at Barker College in fencing and worked in IT at other times. He also owned a pizza shop for about two and a half years and after selling this, he engaged in property maintenance type work.

53. The offender told the psychologist that he was sexually abused by a paedophile on about six occasions when he was aged 12. He also told the psychologist of a serious incident in which he was bashed and robbed, as well a number of other traumatic incidents and experiences, and that he still experiences nightmares and flashbacks as a result. Based on all of the information provided to him, the psychologist concluded that the offender’s history justifies a diagnosis of Post-Traumatic Stress Disorder, mild depression and moderate anxiety. The Crown did not challenge these findings and I accept them. I also accept that the existence of these psychological conditions will render the offender’s experience in custody more difficult (see Commonwealth DPP v De La Rosa (2010) 283 ALR 324).

54. I have also taken into account evidence relating to the offender’s mother who is fairly elderly and suffers a number of medical issues and is to a significant degree, reliant on the help of others. Prior to his incarceration, the offender provided some of this assistance, and there is evidence before the Court that the mother is in need of greater support from her son, given that the previous major carer no longer lives close by. In my view, the evidence does not amount to the sort of extreme circumstances that would justify a significant reduction in the penalty that is otherwise appropriate. However, I have taken into account the evidence relating to the offender’s mother’s situation along with the other matters that need to be considered.

REMORSE

55. Turning then to questions of remorse. There is no remorse in relation to the offences in the trial indictment, as the offender essentially maintains the versions he gave at trial, which I did not accept. This psychologist notes, however, that the offender “apologised for his part in these offences”. It is difficult to determine exactly what this rather vague comment in the psychological report means, and it has to be compared with comments attributed to the offender in the Sentencing Assessment Report which noted a nonchalant attitude and no insight and the claim that the victim fabricated evidence. In my view, there is no genuine remorse in this case, and while there has been a plea of guilty to some offences, those pleas were really just an acceptance of the inevitable, given that the various items were found in the offender’s bedroom with many of them containing his DNA.

RISK AND REHABILITATION

56. The offender is assessed as a medium-low risk according to the Sentencing Assessment Report, while the psychologist suggests that the offender’s risk could be reduced by psychological intervention. Given the offender’s diagnosed psychological conditions and the number of offences before the Court, I think he remains a risk of committing similar offences in the future. His prospects of rehabilitation are reasonable but guarded.

DETERMINATION

57. In determining the appropriate sentence in this matter, I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 which include the importance of ensuring that the offender is adequately punished for the offence, the importance of protecting the community, making the offender accountable, denouncing his conduct, recognising the harm done to the victim and the community and also, of course, the importance of general deterrence.

58. In this case, I am satisfied that the importance of general deterrence is slightly reduced by reason of the mental health issues affecting the offender. I am satisfised, however, that personal deterrence remains important given the repetitive nature of the offending with offences involving firearms and other prohibited weapons. I have had regard also, of course, to the importance of promoting the rehabilitation of the offender, which is another one of the purposes set out in s 3A.

59. I am satisfied that the threshold referred to in s 5 of that same Act is crossed in relation to the various offences and that, in other words, no penalty other than imprisonment is appropriate. I intend to impose an aggregate sentence in this case, given that there are multiple offences. In those circumstances, I am required to set out the indicative sentences that I would otherwise have imposed for the various offences. These are not the ultimate sentence; the ultimate sentence I will announce in a few moments.

60. The indicative sentences are as follows:

61. For trial count 1, a head sentence of 12 months’ imprisonment.

62. For trial count 3, a head sentence of nine months’ imprisonment and I specify a non-parole period of six months.

63. For trial count 4, a head sentence of three years, four months’ imprisonment.

64. For trial count 6, a head sentence of 18 months.

65. For the possession of the eight firearms on 5 November 2021, after a 25% discount and taking into account the matters on the Form 1, I specify a head sentence of three years imprisonment and a non-parole period of one year, ten months.

66. In relation to the remaining offences which occurred on 8 February 2024, the indicatives are as follows:

67. For sequence 6, possession of the gel blaster; after the 25% discount, a head sentence of 18 months and a non-parole period of 11 months.

68. For sequence 7, possession of a gel blaster; after the 25% discount, a head sentence of 18 months and a non-parole period of 11 months.

69. For sequence 3, possession of the taser; after the 25% discount, the indicative is a head sentence of 18 months and a non-parole period of 11 months.

70. For sequence 8, which is the contravention of the weapons prohibition order, after the 25% discount the indicative term is nine months.

71. And for sequence 10, contravening the firearms prohibition order, taking into account the matters on the Form 1, and after the 25% the indicative is ten months.

TOTALITY

72. Given that I am sentencing for a number of offences, I have given close attention to principles of totality. In other words, the importance of ensuring that the total effective sentence is derived through a process of accumulation or concurrency of individual sentences so as to appropriately reflect but not exceed the overall criminality. In my view, there should be a limited degree of notional accumulation in relation to trial counts 1 and 3, Given that count 3 relates to the possession of the same taser device that was used for the purposes of intimidation under count 1. in my view there should be some, BUT a limited degree of accumulation between trial counts 4 and 6, Given that they arise, essentially out of the same incident, and involve the use of the same shotgun. However, it cannot be overlooked that count 6 involved the actual infliction of injury.

73. There does, however, need to be some degree of notional accumulation as between the two separate incidents that make up the trial counts 1 and 3, on the one hand, and counts 4 and 6 on the other hand, given that they were separate incidents. There does also need to be some degree of notional accumulation in relation to the possession of the eight firearms that were detected on 5 November 2021, given that this involved separate criminality.

74. As to the offences on 8 February 2024, it seems to me that there should be some additional degree of notional accumulation for these when compared with the trial matters and the 5 November 2021 matters because they represent separate additional crimes. However, any notional accumulation among sequences 3, 6 and 7 need only be minimal and in my view, the penalties for the sequence 8 and sequence 10 offences, ought to be treated as notionally concurrent with each other and with the sequence 3, 6 and 7 offences given that these relate to the same items that are the subject of sequences 3, 6 and 7.

SPECIAL CIRCUMSTANCES

75. I have made a finding of special circumstances for varying the ration between head sentence and non-parole period. I make that finding by reason of this being the offender’s first period in custody, his mental health issues and the need for him to be monitored upon his release for a reasonable period of time.

76. Mr Meier, if you just stand up I will explain the sentence. The sentence I impose is an aggregate head sentence of four years, ten months. I impose a non-parole period of three years. Those will each date, so as to have regard to time already served, from 3 February 2024. The head sentence therefore will expire on 2 December 2028 and the non-parole period on 2 February 2027.

77. Ms Crown, Mr Brewer, anything to raise about those numbers or anything else, factual matters?

78. BREWER: No, your Honour. There is one other matter, there’s an AVO outstanding. I’d ask your Honour to finalise an order in that matter today.

79. HIS HONOUR: All right, do I have any papers about that?

80. BREWER: I’m not sure, your Honour.

81. TSALDIS: Your Honour, I don’t have any papers for that matter. I understand that it’s an interim order with a further mention to take place sometime in August. The OIC just reached out to me to raise that with you, but unfortunately I don’t have any papers.

82. HIS HONOUR: This is an Apprehended Violence Order in relation to Mr J?

83. SALDIS: Correct.

84. BREWER: Well your Honour, if that be the case it does have to be dealt with in the Local Court, I think.

85. HIS HONOUR: Well as I say, I don’t have any papers.

86. BREWER: Just impractical for your Honour to deal with now.

87. HIS HONOUR: Yes well it would have been probably, but practically speaking I can’t. I will just note given that there are some people in Court, that there is a - well is there a statutory non-publication order in relation to Mr J given that it’s a domestic violence related type matter?

88. BREWER: There probably is, yes.

89. HIS HONOUR: I think it is. So his name must not be published by anybody. Thank you. The Court will adjourn.

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Decision last updated: 26 August 2024