R v Paddison

[2021] NSWDC 291

District Court

New South Wales

Medium Neutral Citation:

R v Paddison [2021] NSWDC 291

Hearing dates:

26 June 2021

Date of orders:

02 July 2021

Decision date:

02 July 2021

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 134

Catchwords:

CRIMINAL – sentence – firearms offences – relevance of offender’s mental health condition to culpability – relevance to mitigation that the offender’s purpose was self-protection – offence committed after home invasion – offences on a Form 1

CRIMINAL PROCEDURE – statutory requirement for home detention report before directing sentence to be served by intensive corrective order

Legislation Cited:

Confiscation of Proceeds of Crime Act1989 (NSW) ss 18, 19

Crimes Act1900 (NSW) s 193C

Crimes (Sentencing Procedure)Act 1999 (NSW) ss 3A, 17C, 17D, 66, 73A

Drug Misuse and Trafficking Act1985 (NSW) ss 10, 25, 39F

Firearms Act1996 (NSW) ss 7, 65

Weapons Prohibition Act 1998 (NSW) s 7

Cases Cited:

AthosvR (2013) 83 NSWLR 224

Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146

CrampvR [2008] NSWCCA 40

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1

Guode v The Queen [2018] VSCA 205

James v R [2021] NSWCCA 23

KCvR [2009] NSWCCA 110

Lou v R [2021] NSWCCA 120

LuuvR [2008] NSWCCA 285

Mandranis v R [2021] NSWCCA 97

Muldrockv The Queen (2011) 244 CLR 120

RvAA [2006] NSWCCA 55

R v AZ [2011] NSWCCA 43

RvCromarty (2004) 144 A Crim R 515

RvHarris (2001) 125 A Crim R 27

RvKrstic [2005] NSWCCA 391

R v Lachlan [2015] NSWCCA 178

RvNajem [2008] NSWCCA 32

R vPullen [2018] NSWCCA 264

RvTolley [2004] NSWCCA 165

ThalarivR (2009) 75 NSWLR 307

The Queen vOlbrich (1999) 199 CLR 270

Wany v DPP (2020) 103 NSWLR 620

Texts Cited:

Nil.

Category:

Sentence

Parties:

Director of Public Prosecutions (NSW)
Mr S Paddison (offender)

Representation:

Counsel:
Mr P Skinner for the offender
Mr T Gabrial (solicitor) for the Director of Public Prosecutions (NSW)

Solicitors:
Director of Public Prosecutions (NSW)
Mr D Wakim for the offender

File Number(s):

2020/00121950

Publication restriction:

Nil.

SENTENCING REMARKS

1. The offender is to be sentenced, following pleas of guilt for two separate offences (sequences 1 & 13, respectively) that on 23 April 2020, he was in possession of a prohibited firearm, without authority, contrary to s 7(1) of the Firearms Act1996 (NSW). The first offence was sequence 1; the second offence was sequence 13.

2. The maximum penalty for this offence is 14 years’ imprisonment. The offence carries a standard non-parole period of 4 years’ imprisonment.

3. In addition, the offender requests that he be sentenced on a range of offences on a Form 1, in connection with the sequence 1 offence. The following table sets out those offences on the Form 1, including the maximum penalties and any applicable standard non-parole periods.

Offence	Provision	Maximum penalties	SNPP
Seq 4: deemed supply of prohibited drug	Drug Misuse and Trafficking Act1985 (‘DMT Act’), s 25(1)	15 years’ imprisonment and/or 2,000 penalty units	N/A
Seq 6: possessing ammunition w/o holding licence/permit/authority	Firearms Act, s 65(3)	50 penalty units	N/A
Seq 7: possessing prohibited weapon without a permit	Weapons Prohibition Act1998 (NSW) (‘WPA’), s 7(1)	14 years’ imprisonment	5 years
Seq 8: possessing prohibited drug	DMT Act, s 10(1)	2 years’ imprisonment and/or 20 penalty units	N/A
Seq 9: possessing a prohibited drug	DMT Act, s 10(1)	2 years’ imprisonment and/or 20 penalty units	N/A
Seq 10: possessing a prohibited weapon without permit	WPA, s 7(1)	14 years’ imprisonment	5 years
Seq 12: dealing with property proceeds of crime not exceeding $100,000.	Crimes Act1900 (NSW), S 193C(2)	3 years’ imprisonment	N/A

4. There was also a back-up offence (seq 5), also of being in possession of a prohibited drug, however the Crown has indicated that this will be withdrawn upon the offender’s conviction of the two principal offences.

5. I approach the sentencing task with reference to the cardinal evidentiary principles that the Crown must prove disputed facts upon which it relies beyond reasonable doubt and that the offender must prove on the balance of probabilities relevant facts said to be in his favour: The Queen vOlbrich (1999) 199 CLR 270 at [27]. For reasons that will become evident, this basic principle of sentencing procedure assumes particular significance in the circumstance of this case. No less than the situation in a trial, at least in so far as the principle affects the Crown’s case, in proving facts adverse to the offender, suspicion is no substitute for proof in a sentencing hearing. But saying that, in so far as it affects the offender’s case, in proving favourable facts, an absence of sufficient proof on a particular matter may mean that the Court is unable to make the favourable finding of fact.

CIRCUMSTANCES OF OFFENDING

6. Agreed Facts, relevantly signed by the offender, were before the Court as part of the Crown’s sentencing bundle.

7. All of the offences arise from the execution of a search warrant at the offender’s residential premises in Colebee (the ‘premises)’ on 23 April 2020. The offender, his wife and sister were in the premises at the time of the execution. Senior Constable Cashmere seized various chattels, which make up the offences.

8. For sequence 1, he seized a shortened 12 gauge WINCHESTER Model 220 pump action repeating shotgun from underneath the offender’s bed, and located one metre away from a sleep apnoea machine. There was a cartridge in the chamber of the firearm. The firearm was loaded with three 12 gauge shotgun cartridges. Six cartridges were located outside the firearm. Upon testing of the firearm, it was found to be in working order. The offender’s DNA profile could not be excluded as a contributor to a weak or mixed DNA profile on the handles.

9. Relevant to the serial offences on the Form 1, applicable to sequence 1, it is agreed that:

1. SC Cashmere located a bag in the top of the walk-in wardrobe in the offender’s bedroom, comprising a box of ammunition containing six 9mm pistol rounds, a piece of plastic used to assist loading the magazine and a plastic shopping bag containing one .45 calibre road, fourteen .22 calibre rounds and one 7.65 kypnoch pistol round and SC Cashmere separately also located three 12 gauge cartridges (Seq 6);

2. Detective SC Barsic located a Knuckle duster in the upstairs office. The offender’s DNA profile was on the surface area of the knuckle duster (Seq 7);

3. Police located a large number of used syringes throughout the premises in various bins located in the premises. Specifically the following items were located:

1. 46.4g of cannabis, in the main bedroom and in a sports bag, containing two resealable bags (Seq 8);

2. 7.85g of cocaine, in the safe in the main bedroom in one plastic bag (Seq 9);

3. 8.71g of oxymetholone, anabolic and androgenic steroidal agents, in the safe in the main bedroom in blue tablets; 4.2g of testosterone in a glass vial labelled “Testosterone Cypionate’ and 2.1g of testosterone in a glass vial labelled ‘Dec Durabolin”; 10.79g of methandienone in a plastic bottle; and 28.27g of oxymetholone in a plastic bottle all located in the main bedroom wardrobe. Police seized a total of 54.06g of anabolic and androgenic steroidal agents (Seq 9);

4. A black case containing $5,700 cash (Seq 12)

10. For sequence 13, SC Cashmere also seized a shortened .22 Long rifle calibre RUGER model 10/22 self-loading rifle, with an attached silencer, on the floor of the walk-in wardrobe in the offender’s bedroom. There was no ammunition or magazine source fitted to that firearm. The chamber was empty and the firearm unloaded. This firearm was also tested and found to be in working order. Similar to the other firearm the subject of sequence 1 offence, the offender’s DNA profile could not be excluded as a contributor to both mixtures.

11. The offender agreed to participate in an ERISP interview and admitted that:

1. he resided at the premises and stayed there on the night before the search warrant was executed (the premises being leased in his wife’s name);

2. he suffers from mild sleep apnoea and he owns the machine which was located 1 metre away from the firearm the subject of sequence 1;

3. he holds a key to the safe in the bedroom in which some of the prohibited drugs were located;

4. he worked as an electrician, but, at the date of the offending, last worked 3 weeks before the interview.

12. The offender did however say other things which might be regarded as being exculpatory in intent: that the approximately $5,000 cash in the house was the result of his work and that several people have keys to the premises who are free to come and go as they wanted to.

13. A large part of the offender’s case in this sentencing proceeding centred upon the fact, and the effects, of his being the subject of a violent assault in November 2019, which occurred approximately 5 months before the subject offending. It is only in the light the effects of that assault on his mental condition, that the Court could understand why he committed the subject offending. I turn now to that subject.

Evidence for the Offender

The offender’s evidence of the November 2019 assault

14. The offender, and his wife, both gave evidence in the sentencing hearing, partly for the purposes of explaining the circumstances of the offending. Only the offender was cross-examined.

15. The offender said that he was violently assaulted by three men after he came home from work (as an electrician) in November 2019. He did not know them, and did not know why they assaulted him. The assailants only took a relatively small amount of cash and a watch.

16. The offender said that a photograph was taken of his driver licence and he was threatened that if he reported the home invasion to police, they would come back and kill him.

17. He said that it was because of this death threat that he did not report the incident to police.

18. The offender did not give evidence about any particular physical injuries he sustained, or any hospitalisation or treatment received for such injuries.

19. He said he obtained the firearms, the subject of the offences, from a friend (and now “ex-friend”). This was about 2 or 3 months before the police executed the search warrant. The offender said that the friend provided him with a bag, which contained the firearms and ammunition. He said he was not aware that the bag had two firearms and, at the time he received the bag, did not fully appreciate what else was in the bag.

20. The offender accepted that he was aware that one of the firearms had a silencer on it, but denied knowing how to use either firearm.

The offender’s reporting of the home invasion incident

21. The offender reported the home invasion to his then psychologist, Ms Fiona Kerin. Ms Kerin prepared a report on 1 May 2020, approximately a week after the subject offending following a referral from the offender’s general practitioner. She noted the offender’s reference to his being assaulted in November 2019.

22. The offender also reported to Ms Naomi Longden, when interviewed by her as part of the sentencing assessment report, in June 2021, that he had been the victim of a home invasion and assault in November 2019. These incidents were not reported to police. Ms Longden surmised that the incidents resulted in what she called an ‘ongoing paranoia of victimisation’ and his ‘losing touch with reality’; forming the attitude that he was justified in doing what was necessary to protect his household.

23. The offender told Ms Longden that he purchased the firearms and ammunition from a ‘friend’ (whose name he did not disclose). He stated his belief that he had not used them. He also told her that he regretted obtaining them after he had received them, but was not aware how to dispose of them.

24. The offender also explained that at the time of the police’s execution of the search warrant he was under the influence of steroids, which he had been taking each day and which he attributed to his body dysmorphia and fear of another invasion or physical assault.

25. The offender also reported the assault, for what he estimated was 30-40 minutes, as part of the home invasion in November 2019 to his current psychologist, Dr Rodriguez, who prepared a report dated 24 June 2021. The offender told Dr Rodriguez that the assailants had told him that if he ever reported the incident, they would come back to haunt him, and that he and his wife would be killed. He told Dr Rodriguez that since the assault, he had built up his body (with the assistance of anabolic steroids) and inked tattoos to make him look as if he was someone who should be feared.

Ms Paddison’s evidence

26. The offender’s wife, Ms Paddison prepared an unsigned document prior to the sentencing hearing and adopted its correctness when she gave evidence at the hearing.

27. In the document, she recorded that the assailants had bashed the offender, held a knife to his throat and yelled that they would kill him and that they had a gun. She recalled that they took a photo of the offender’s licence and threatened to return.

28. She wrote in the document that she and/or the offender had notified the real estate agent that they had been robbed. I infer that she did not inform the agent that the offender had been violently assaulted. At any rate, she indicated that the offender had installed CCTV after the home invasion.

29. She wrote that she was unaware that the offender had obtained firearms.

30. Ms Paddison said in her evidence that the offender had tattoos applied to his neck to give himself an intimidating look. This was consistent with what the offender had told Dr Rodriguez.

The effects of the November 2019 assault on the offender’s health

31. Both Ms Kerin and Dr Rodriguez diagnosed that after the November 2019 assault, the offender was left with Post Traumatic Stress Disorder (‘PTSD’). In Ms Kerin’s case, she also diagnosed that he had a pre-existing Body Dysmorphic Disorder (‘BDD’) which was also exacerbated by the assault. Further, he had a consequential substance use disorder, arising from his excessive use of steroids; partly in response to his preoccupation with his body image, but also partly for the sake of building himself up for protective purposes after the assault.

32. In Dr Rodriguez’s case, the offender reported to him that after the assault, he suffers hyper arousal, hypervigilance. Dr Rodriguez opined that there was a connection between PTSD of 2 years’ duration and his offending: he acquired the weapons as one (but not the only) means of protecting himself. He found that by doing so, his state of mind was impaired.

Consideration of evidence for the offender

33. When evaluating the offender’s evidence, I partly take into account my observations of his demeanour. But that ranks relatively low in the hierarchy of considerations, set against the consistency of his account against other evidence and the objective probabilities. Importantly, in the offender’s favour, is evidence of his essentially good character; a matter that I will return to later in these remarks. There was no serious dent in his cross-examination which would lead me to seriously question his credibility or reliability.

34. I accept, on the probabilities, the offender’s account of the assault in the home invasion. I confess that it struck me as somewhat implausible that the offender would be subject to such a vicious physical assault where the outcome, in terms of actual property stolen, was relatively modest. Nevertheless, his report was not seriously challenged and he was not shaken in cross-examination. I also place substantial weight upon the evidence of the assault upon him given by his wife, who as indicated, was not challenged in cross-examination and which essentially corroborated the offender’s account of it.

35. The evidence of his reporting of the incident to the two psychologists has less weight. To Ms Kerin, the report was made 6 months after the assault. In the case of Dr Rodriguez, the report was made 18 months’ after the assault. Nevertheless, no part of the evidence of those psychologists in this regard was objected to as hearsay and no limitation was sought on the use of that evidence.

36. Perhaps more significantly, I accept, on the probabilities, that the offender was threatened by the assailants that if he reported the assault to police, the assailants would come back and kill him. Again, I give particular weight to Ms Paddison’s corroboration of the offender’s account that the assailants took a photograph of the offender’s driver licence. It matters not, at this point, to assess the reasonableness of this belief – it may well have been the case that the assailants would have become aware of their being the subject of an accusation only after they had been apprehended, and restrained, but it is not necessary to speculate on this past hypothetical. A question which was not, and probably could not have been, explored in the hearing, was why if the offender’s evidence that he did not know the assailants was accepted, would the perpetrators have reason to think that the offender might not only report the assault perpetrated upon him, but actually identify them by name.

37. I also accept the opinions of the psychologists that at the time of the offending, the offender suffered PTSD, with hypervigilance; and was looking for means to protect himself and his family (including his wife and dog).

38. Further, I also accept the evidence of Ms Kerin that, alongside the PTSD, the assault aggravated pre-existing insecurity about his body image, and made him more determined to enhance his physical appearance.

39. Accepting these matters in the offender’s favour, the circumstances as to how the offender acquired the firearms were not satisfactorily explained, as distinct from the offender’s reason for acquiring them.

40. The offender did not disclose the name of his ‘friend’. He did not disclose why he went to this friend (and how he knew that this friend had acquired the firearms), or what he knew of the friend’s capacity to ‘assist’ him, such as what this friend did for a living.

41. Asked later about why he was ‘sorry’ for his offending, the offender said he was sorry that he listened to a “silly person and took the wrong advice”. The content of that ‘advice’ was not disclosed.

42. However, he was not subject to these inquiries when the opportunity presented itself to the Crown to ask him about them.

43. The most that can be gleaned from the communications between the offender, on the state of the evidence, is only that the offender’s ‘friend’ gave him a bag which contained (at least) two prohibited firearms, ammunition and a set of scales.

44. On the offender’s own account, he showed a distinct lack of inquisitiveness about the contents of the bag, including the two firearms and the ammunition within it. At any rate, the significance of what he knew at the time he received the bag from the ‘friend’ is not especially material: he well knew of the contents of the bag – especially the two firearms – and for a period of two of three months, he knew he was in possession of them before they were discovered in the execution of the search warrant

45. The Agreed Facts indicate that there was no conclusive DNA of the offender on either of the guns. This was consistent with the offender’s evidence that he had not actually used the firearms, but only intended to use them for their deterrent effect. He denied that he knew how to use the firearms and I accept, on the probabilities, that evidence; notwithstanding my scepticism about it, given that the offender had been a security guard. There was no rational explanation why he needed two firearms, but I am not satisfied beyond reasonable doubt that he asked his ‘friend’ for two firearms.

Objective gravity to offending

46. In R v AZ [2011] NSWCCA 43 at [73], the Court of Criminal Appeal noted that the policy underlying s 7(1) of the Firearms Act is to “deter and punish possession of firearms per se. The courts must seek to implement the legislative policy to control the possession of firearms in the community by honest citizens and not simply to disarm the criminally minded”.

46. The Crown referred to the citation in authority where it was said that there is absence of any ‘legitimate’ purpose in possession of shortened firearms; and the circumstances that they are particularly dangerous because of the ease of concealment and suitability for serious criminal activity (R v Lachlan [2015] NSWCCA 178).

47. Section 2 of the Firearms Act recognises that there may be legitimate circumstances in which persons may own firearms, under a licensing regime, but they require authority. If persons utilise firearms in a way which bypasses that licensing regime, that undermines the effectiveness of the regime, subverts the purposes of the legislation and potentially imperils the community.

48. This explains why the Firearms Act stipulates principles and objects at s 3 “which the courts must seek to implement” (R v Tolley [2004] NSWCCA 165 at [53]); which require “strict control” (R v Cromarty (2004) 144 A Crim R 515 at [67]; Luu v R [2008] NSWCCA 285 at [32]); and “strict adherence” (Cramp v R [2008] NSWCCA 40 at [52]).

49. R A Hulme J in R v Najem [2008] NSWCCA 32 said at [40]:

“That rationale (for the offence in s 7) includes at least a recognition that firearms and pistols, if possessed, are liable to be used, and if used, are liable to be a source of great danger or damage. It includes also a recognition that not all persons can be relied on to avoid or minimise such danger and not misuse the weapons and that misuse, even without discharge, is liable to amount to a great infringement of others [sic] rights”.

51. It is important to recognise that the offender is sentenced for an offence under s 7(1); not a more serious offence such as possession for an illegal purpose:  R v Harris (2001) 125 A Crim R 27 at [37]–[38]. On the other hand, if the offender knows that the firearm is likely to be used in connection with serious criminality, the De Simoni principle is not infringed: KC v R [2009] NSWCCA 110 at [10].

52. The Crown pointed to the physical proximity between the firearms, the ammunition, the drugs and money. For the principal offence being sequence 1, concerning possession of the WINCHESTER model firearm, the Crown noted all of the characteristics identified above. It did the same in relation to the principal offence being sequence 13.

53. The Crown argues that for both principal offences, the offending falls above the mid-range of objective seriousness.

54. The offender’s Counsel essentially confined his submissions (which were only verbal) to the offender’s subjective case.

55. In Najem, it was found that the respondent’s criminality was exacerbated by the fact that the pistol was loaded, in his possession, and available for use at the scene where a violent crime was carried out (by a co-offender): at [42].

56. The presence of ammunition nearby heightens the seriousness of the offending: R v Lachlan [2015] NSWCCA 178 at [73].

57. In this case, on sequence 1, the firearm was loaded and available for use in case there was a disturbance. The offender admitted in cross-examination that he understood that both firearms were capable of firing. The level of danger arising from the fact of possession was significantly elevated, in the sequence 1, by the circumstance that it was loaded and could result in violence with potentially fatal consequences. I consider that the offending for sequence 1 was above the mid-range of objective gravity for this offence.

58. I consider that the offending for the sequence 13 offence was at the mid-end of the range.

59. The Crown did not cite any aggravating circumstances. The circumstance that a gun was loaded, in connection with sequence 1, has been already taken into account when assessing the objective gravity of the offending.

60. Before I address, as a new general topic, the offender’s subjective case, I propose to first address the question of the offender’s culpability for the offending. Although this might conceptually be regarded as falling within consideration of an offender’s subjective case, it is relevant to assess the seriousness of the offending.

Culpability

61. Two related matters were advanced in support of the contention that the offender’s culpability for the offending is reduced. The first is that the offender was suffering from PTSD arising from the lingering effects of the violent assault perpetrated upon him which persisted at the date of the offending. The second is that the offender was in possession of the firearms only for the purpose of protecting himself and his family.

The significance of the offender’s mental health condition and the effects of PTSD

62. Ultimately, the Crown conceded that there was a causal connection between the offender’s PTSD traits, identified by Ms Kerin and Dr Rodriguez, and the offending; which, the Crown conceded, did not make him an altogether suitable vehicle for the consideration of general deterrence. I consider that concession to have properly been made and is consistent with what was said in (among other authorities) DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177].

The significance of his purpose being self-protection

63. It has been said that the fact that possession of a prohibited firearm is for personal protection is not a matter of significant, if any, mitigation: R v Krstic [2005] NSWCCA 391 at [14]. Similarly, in R v AA [2006] NSWCCA 55, the respondent had possession of a prohibited pistol for self-protection following a severe assault. Rothman J stated at [46]:

“It cannot be emphasised enough that the rule of law and the authority of courts depends upon the proposition that persons do not take into their own hands the enforcement of the law, retaliation for past offences or protection by means inconsistent with the law. It is for law enforcement agencies to protect members of the community and it is for the courts to enforce the law.

64. The principles in Krstic and AA were applied by the Court of Criminal Appeal in Thalari v R (2009) 75 NSWLR 307 at [88].

65. I am bound by the observations in Krstic, AA and Thalari. However, taken together, none of those cases suggest that a motive of self-protection is entirely irrelevant; especially for the purpose for evaluating an offender’s culpability for this offence. The passages cited point, typically, to the lack of weight, or “significance”, which affects this particular consideration.

66. The Court can also understand the offender’s preoccupation to take steps to protect himself and his family. This, I would add, extends beyond the desire to acquire firearms, and goes to other steps, such as building up his body with the ingestion of anabolic steroids, even if the latter be prohibited. This latter desire was, the Court is satisfied, also partly explicable by a pre-existing and longstanding ‘Body Dysmorphic Disorder’, as identified by Ms Kerin.

67. However, the offender was not entitled to have it both ways. His evidence was that the assailants threatened to kill him and other family members upon the basis of his reporting to police. If he said and did nothing, and did not report the assault perpetrated upon him, there was no rational reason for him to think that they would return; and therefore no reason for him to acquire prohibited firearms. Especially was this so where, as it seems, the offender gave evidence that he had relocated his residence on multiple occasions after the assault on him. No details were, however, provided as to when he did that, such as the timing for the relocation; before he was apprehended.

68. If he chose to report the incident to police, then arguably, there may have been moral cause – if not a legal excuse – for him to take additional steps to protect himself; although that question would be affected by what steps the police might have offered him to protect himself and his family from further physical threat. Plainly, if the police had taken steps to prevent him and his family from suffering further harm from the assailants, then there would be no need for him to take the steps that he did. This, of course, is the consideration of a counterfactual which inherently, is difficult to consider in retrospect. Curiously, these issues were not explored in the sentencing hearing.

69. To be fair, arguably, the offender’s choice to take the law into his own hands rather than reporting to the police may be at least partly a manifestation or consequence of the PTSD he was experiencing; which condition has already been taken into account in the offender’s favour. The short point is that it does not afford, in my opinion, an additional and independent reason for a view that his moral culpability was reduced.

THE OFFENDER’S SUBJECTIVE CASE

70. The offender was 33 years of age at the date of the offending.

71. Part of the offender’s background emerges from the reports of Dr Rodriguez, and Ms Kerin, two psychologists whom he saw. He had seen them both after the subject offending.

72. Dr Rodriguez also spoke to the offender’s wife. Dr Rodriguez reported that the offender had a normal upbringing until he was about 13 years of age, when his father left home. He witnessed incidents of domestic violence. This left his mother in a state of poverty; whilst having to look after the offender and four siblings. He apparently spent the rest of his childhood in Department of Housing estates.

73. The offender was bullied at school but was not subjected to serious abuse. Ms Kerin noted what seemed to be an enduring sense of physical insecurity in the offender, due to his relatively short stature; which explains why he has built himself up, assisted by steroids, to supplement his weight training, to make himself bigger and stronger. Following the assault, he added tattoos to his neck; in order to give himself a more intimidating appearance with the objective (however realistic) of deterring potential assailants.

74. He must have had some scholastic ability, as he attended a selective school. Nevertheless, he left school at Year 10, and started an air-conditioning apprenticeship. He tried to relieve his mother’s sense of financial pressure; he being the oldest of the children. That reflects a creditable sense of responsibility and some apparent self-sacrifice. There was, or were, no recognisable behavioural problems. He has worked since the age of 16. It appears that he was dissatisfied with the apprenticeship and he turned to personal training and nutrition. He also obtained a qualification as a security guard.

75. Other than a period of a few weeks in his early 20s, he has found ways to make ends meet. He has had experience in diverse positions, such as being a security guard and, more recently, an electrician and has picked up a variety of qualifications. One of the testimonials he received indicated that he has recently provided relief to staff working at a dog kennel.

76. He has had two long-term relationships, which suggests a level of emotional stability. He denies having a prior history of drug or alcohol abuse; other than occasional recreational use of cannabis. I note that he told Ms Kerin that he had a significant history of marijuana use; which is relevant to one of the Form 1 offences relating to cannabis possession; but he also said he had stopped using cannabis since his relationship with his current wife.

77. Other aspects of his background were referred to in the sentencing assessment report by the Mount Druitt Community Corrections Office, authored by Ms Longden. She interviewed the offender, as well as his partner and had contact with former and current psychologists for the offender.

78. The offender reported to her that he resides with his wife in the premises where the firearms and other chattels were located. He has no history of anti-social behaviour.

79. She recorded the offender informing her that he completed schooling to the level of year 10 and had obtained various tertiary certificates in the security and food/service industries. He reported being self-employed; though did not specify what trade. He said he was a volunteer.

Antecedents

80. The offender has only a minimal criminal history. He was charged in 2014 with possession of a prohibited drug (a steroid), but that charge was dismissed. That circumstance does not diminish the entitlement to leniency usually extended to first-time offenders. That charge is really neither here nor there in the circumstances.

The guilty pleas

81. The offender is entitled to 25% discount on account of his pleas.

Good character

82. Aside from the support of his wife, the offender relied upon positive written testimonials of three character referees: Mr Mark Del Villar, Ms Corinne Powell, and Ms Lisa Moujali.

83. Mr Del Villar is an old school friend. He acknowledged the offences to which the offender pleaded but described him as being as an upright character and a supportive friend.

84. Ms Powell has known the offender as a personal trainer and nutritionist, for the past three years. She wrote that the offender was “very upset” and “very remorseful” and that she believed this to be true. Although not aware any of the specific offences he has pleaded to, she is aware of their seriousness. Despite this, she regards the offender as “trustworthy”. I place weight on this evidence.

85. Ms Moujali is a director of ‘Pound Patrol’, an organisation which provides kennels for dogs. She spoke of the offender as covering for shift workers. Unlike Mr Del Villar, and to a lesser degree, Ms Powell, Ms Moujali has had little association with the offender, no (expressed) appreciation of the offences he has pleaded guilty to. Her letter (or letters, as there were two versions of them in evidence) carries little weight.

86. It cannot be said that offences of possession of prohibited firearms are committed frequently by persons of otherwise good character so as to fall within the category of offence where less weight is afforded to an offender’s prior good character: Athos v R (2013) 83 NSWLR 224 at [44]. A court can, however, consider the question of the weight that should be attributed to an offender’s good character, but any reduction in weight cannot be on the basis of the type of offence that has been committed: Athos v R at [45].

87. I do take into account the circumstance that the offender is a person of general good character. As indicated elsewhere in these remarks, I take his good character into account when evaluating his credibility and reliability in explaining his conduct, but I also take it into account when evaluating whether he is remorseful, whether he is likely to re-offend and his prospects of rehabilitation.

Remorse

88. Ms Longden reported that the offender acknowledged to her that, subsequent to receiving treatment, his mindset at the time of the offending had been “erroneous”; and accepted that his actions were dangerous to the community. He expressed regret for acquiring the firearms and told her that he had no further contact from the ‘friend’ who he said had provided them to him.

89. I have noted previously that under cross-examination, the offender explained that he was sorry that he listened to a “silly person” and took the wrong advice. He had not been asked in his evidence in chief about what his attitude was to his offending. This evidence might objectively be construed as evidence of blame-shifting – though he nominally accepted responsibility. Implicit in his evidence however, was recognition that what he did was wrong.

90. That said, I think it is more likely than not that the offender’s mental condition, notably his PTSD, is such that, at the time of the offending, he honestly considered that he had no real choice: he felt impelled not to report the assault and, in lieu thereof, felt that he was justified in taking every available means to protect himself and his family. This was not just entering into possession of firearms: he also installed CCTV; and he physically built himself up with prohibited anabolic steroids.

91. I am not, however, satisfied beyond reasonable doubt that his actions were done in deliberate defiance of the law. I think it is probable that he did not turn his mind to the legality of his conduct, in his anxious and hypervigilant state of mind, including the alternative course of applying for a licence for any firearm that came into his possession.

92. The offender’s wife wrote in her document that the offender has “shown deep remorse” but that is a bare conclusion with nothing to suggest why he is remorseful. This opinion carries little weight. The character referees, Mr Del Villar, and Ms Powell also concluded that he was “incredibly remorseful” and “very remorseful” respectively. Again, there was little evidence underlying those particular opinions.

93. Even so, where the offender suffers from a mental abnormality, this may bear upon whether and to what extent, he is to be seen as remorseful: Guode v The Queen [2018] VSCA 205 at [71].

94. I find that the offender is remorseful.

95. The Crown conceded that he is not a suitable vehicle for general deterrence. In my view, the aspect of punitive deterrence is also significantly moderated by the offender’s mental state at the time of the offending.

Prospects of rehabilitation

96. The offender said that subsequent to the offending, he has disposed of the firearms.

97. Ms Longden indicated that the offender had been compliant and willing throughout the sentencing assessment interview period. He also indicated to her his willingness to undertake intervention and receive mental health treatment. This was also confirmed by his forensic psychologist, Dr Rodriguez. Ms Longden assessed the offender as being a ‘Medium-Low’ risk of re-offending, after deploying the Level of Service Inventory-Revised (LSI-R). She did not express any reasons for that prediction.

98. She assessed him as suitable to undertake community service work. She did not consider any additional conditions, other than a supervision condition, to implement a supervision plan, were required.

99. Dr Rodriguez also evaluated his risk of recidivism with reference to the LSI-R tool. He identified the offender as falling within the ‘low’ risk/needs range. The offender told him that he does not plan to keep weapons of any kind again and understood the error of weapon possession. He also said that he had no plan to use or distribute anabolic steroids. Dr Rodriguez considered that the offender required psychological and psychiatric support to help him address his PTSD issues. He regarded his prospects of rehabilitation to be ‘excellent’.

100. The offender gave evidence that, since the offending, he has been taking medication. Dr Rodriguez referred to increased dosage of his existing medication and I find that the offender is likely to implement that recommendation. He has been subjected to onerous bail conditions which he has complied with. I find that he has a very close relationship with his wife, who is very supportive of him; and, as I noted, gave supportive evidence of him. His wife said, in her written document, that he had been steadily improving following the therapeutic help he had been receiving.

101. I also find that the offender is fortunate in having a supportive wife and, as his Counsel argued, I also find that he has done relatively well in his life, after troubles with his family when he was a teenager; when he prematurely ended his secondary schooling in getting employment. He has been industrious in acquiring a variety of training skills to equip him to undertake certain jobs. As indicated, I take into account that he is a person of prior good character.

102. I also take into account that the offender and his wife have moved, no less than three times apparently, since the home invasion and assault. In conjunction with the medication he has been taking, I infer that any threat of the particular assailants being able to realize any threat against the offender and his family has substantially abated. Moreover, it remains the case that even if, in the circumstances which have occurred, the offender ultimately did report the assault perpetrated upon him, there is nothing to suggest any identification of the names (or other unusual characteristics) of the assailants; such as might give rise to a substantial risk that they might return to inflict further harm upon the offender or his family.

96. Both the community corrections officer and Dr Rodriguez appeared to administer the same form of assessment (LSI-R) for recidivism. Ms Longden was entirely independent of the offender. Dr Rodriguez was engaged by the offender; but he acknowledged that he was bound by the Expert Code of Conduct. There was nothing to suggest any prior association which might cause any bias in him in his assessment of the offender. Dr Rodriguez has impressive educational and professional qualifications. Further, in contrast to Ms Longden, Dr Rodriguez explained the basis for his assessment of the level of risk. I prefer his assessment of risk.

97. On the balance of probabilities, I regard the offender as being at a low risk of re-offending.

Hardship

105. Although this was not specifically adverted to by the offender’s Counsel in his submissions, because of his PTSD, a question arises whether the offender would find imprisonment especially onerous in comparison to other offenders for this offence. Neither Ms Kerin nor Dr Rodriguez addressed the subject.

106. Nevertheless, I consider that I can take into account Dr Rodriguez’s very recent assessment of the offender’s “intractable” fear and hypervigilance, and “extreme” anxiety in inferring that he would experience conditions of any term of imprisonment significantly as being more onerous than that experienced by the general prison population, and that this should be taken into account.

The Form 1 offences

107. Ms Longden reported that the offender denied ownership, much less knowledge of cannabis. He said this was in a bag which belonged to his sister’s ex-partner. He did however, acknowledge that the cocaine was his; albeit that he had not purchased it for years and had forgotten that it was in his safe.

108. The offender was examined and cross-examined about circumstances surrounding certain offences on the Form 1 in the sentencing hearing. In answer to a question from myself, he said that he and his wife had been living in the Colebee premises for about a year prior to the subject offending. He said the cocaine had been sitting in the safe in his bedroom for a ‘long time’. As indicated, however, that generalised estimate was not helpful and had to be seen in the context that he and his wife had not been living in the Colebee premises for more than a year. He said that the cannabis was someone else’s drug. This evidence was consistent with what he told the corrections officer. Further, the offender told Ms Kerin that he had stopped marijuana use after marrying his wife in 2015.

109. He said that what was described in the Agreed Facts as a “knuckle-duster” was a broken-off part of a belt. Under cross-examination, he could not explain why this object was needed when he had the firearms. He said that the digital scales were in the bag that he received; along with the ammunition. He denied that the cash which was seized were the proceeds of any actual drug supply. There was a vague suggestion it was linked to a qualitatively different offence. That topic was scarcely explored in any depth. Otherwise, the preponderance of the other prohibited drugs were the anabolic steroids he had been repeatedly ingesting to help him deal with his response to the assault upon him; which consumption, I interpolate, was also consistent with his BDD.

110. Not all of this account impressed me, but much of it did. I accept his explanation for possession of the anabolic drugs. I do not find that his purpose in having the knuckle-duster was as innocent as he suggested. I find that this was part of the ‘armoury’ he amassed to deal with any attack.

111. I was not altogether convinced of the offender’s ignorance, or indifference to the cannabis and cocaine, but am not satisfied beyond reasonable doubt that he was intending to supply them at the point of their apprehension. His evidence was consistent, or at least not inconsistent, between what he told police and what he told the Court.

112. The Court takes into account all of these offences, when considering the primary offence for sequence 1, in the sense that they are usually taken to elevate the penalty otherwise appropriate for that offence by reason of augmenting considerations of specific deterrence, for the primary offence, and the community’s entitlement to exact retribution, (also) for the primary offence: Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146. I am mindful, in particular, that I am not sentencing for the Form 1 offences themselves (56 NSWLR 146 at [39]). I do not need to consider, for example, the question of whether he is likely to re-offend in possessing anabolic steroids; except insofar as that may betoken a likelihood of his illegally acquiring possession of firearms.

113. I am not satisfied, beyond reasonable doubt, that the possession of cocaine or cannabis, individually or collectively, betokened actual drug supply. I do not find any supply of anabolic steroids – these were purely for his personal consumption. I consider that they were also referable to the condition of BDD diagnosed by Ms Kerin.

114. Further the salience of retribution to sequence 1 offence, that might be exacted for the possession of the other weapons on the Form 1 offences is not high, given his mental abnormality and his reduced moral culpability, which reduce the considerations of denunciation and retribution (James v R [2021] NSWCCA 23 per Brereton JA at [65]).

115. Overall, whilst I take the Form 1 offences into account on sequence 1, they do not substantially elevate the considerations of retribution or specific deterrence for that offence.

INSTINCTIVE SYNTHESIS

116. I have regard, first, to the maximum penalty and the standard non-parole period for this offence, as legislative guideposts.

117. I also have regard to each of the considerations in s 3A of the Crimes (Sentencing Procedure)Act1999 (NSW) (‘CS&P Act’). The paramount considerations for offending for the subject offences are ordinarily general deterrence and the protection of the community. However, the Crown conceded, I consider correctly, that this offender’s circumstances do make him an inappropriate medium for general deterrence, and thereby reduces the weight accorded to that consideration. I also find that his reduced culpability reduces the weight accorded to denunciation as a sentencing objective. I have made a similar finding about punitive deterrence. Although it is a matter of relatively minor significance, I recognise further, that the offender has been subjected to onerous bail conditions which are likely to reduce the significance of punitive deterrence. Holding the offender to account is important, but he has accepted responsibility even when afflicted by the exercise of impaired judgment; which itself was affected by his PTSD.

118. I recognise that an offender’s mental abnormality may otherwise point to an elevation of the need for community protection (Muldrockv The Queen (2011) 244 CLR 120 at [60]). However, the abnormality here – the PTSD – worked principally upon the offender at the time he committed the offending which was reasonably proximate to the home invasion and violent assault and, as explained, the effects of the PTSD have since abated, somewhat, with medication, stability in domestic life from a supportive wife and employment. I consider that he is likely to accept Dr Rodriguez’ recommendation that he increase his Zoloft dosage. That is not to say that the offender is entirely free from anxiety.

119. For reasons earlier remarked upon, the considerations of retribution and specific deterrence are not substantially elevated for sequence 1 as a result of the large number of offences on the Form 1. In this regard, I take into account the offender’s strong subjective case: his relatively good record; his guilty pleas and the sense that his guilty pleas are indicative of some remorse; his good character and his low risk of re-offending.

120. On balance, particularly having regard to the very serious nature of the offending, I am satisfied that the s 5 threshold has been crossed. This was not seriously disputed by the offender’s Counsel.

121. I take into account the principle of totality; and in particular the need to impose the appropriate sentence to reflect his overall criminality. The offending was all part of a single course of conduct. The principal offences were the same. When he was asked in cross-examination why he obtained two firearms, the offender said that he did not understand, at the time of receipt, that he did receive two firearms: both were in a bag. There was no suggestion he specifically asked his ‘friend’ for two firearms, rather than one. In short, the firearms were acquired together, and found together each at the same time. The purpose for acquiring them was exactly the same. The offender was commonly affected by PTSD. Thus, the offences were entirely interconnected. I am not persuaded that there is scope for notional accumulation in the circumstances despite the circumstance that there were two distinct offences. In my view, the sentences should be wholly concurrent.

122. I find the indicative sentences to be as follows:

Seq 1 (taking into account the Form 1 offences and the plea): 2 years, 7 months’ imprisonment

Seq 13 (taking into account the plea): 1 year and 10 months’ imprisonment

123. I consider it appropriate to impose an aggregate sentence of 2 years and 7 months’ imprisonment.

124. For reasons that I will very shortly address, relating to the manner in which any sentence of imprisonment is to be served, it is premature to consider the length of the non-parole periods, in relation to the indicative sentences or the aggregate sentence to be imposed. As Simpson AJA (Garling J and N Adams J agreeing) said in Mandranis v R [2021] NSWCCA 97 (‘Mandranis’), since no non-parole period can be set, by reason of s 7(2) of the CS&P Act, it is at this point that consideration is to be given to whether an intensive correction order (‘ICO’) should be made.

Whether imprisonment should be served by Intensive Correction Order

125. The main battleground in the sentencing hearing was ultimately whether the imprisonment should be served by ICO, as urged by his Counsel, and opposed by the Crown.

126. The prevailing approach I must apply, was recently confirmed by McCallum JA in Wany v DPP (2020) 103 NSWLR 620 at [18]-[21] & [56]. It involves the following three steps, two of which have already been considered:

1. satisfaction that the s 5 threshold is passed;

2. determining the term of the sentence, without regard to the manner in which it is to be served^[1] ; and

3. determining whether to make the direction under s 7.

   1. In this respect, I am conscious of the impropriety of artificially crafting an aggregate term simply for the purpose of enlivening the sentencing option of an ICO: Lou v R [2021] NSWCCA 120 at [18]; also Mandranis at [35]-[36] & [61].

127. In Mandranis, Simpson AJA observed (at [47]-[52]) that it is not necessary to positively conclude that an ICO is more likely (than full-time detention) to address the risk of the offender re-offending, and by the terms of s 66(1), other sentencing considerations (ie those under s 3A) are subordinate, at the present point of determining how a sentence of imprisonment is to be served, to the paramount consideration of community safety (the s 3A considerations having already shaped the selection of imprisonment as the appropriate sentencing option). But her Honour also observed that the question of what is the better way to address the offender’s risk of re-offending is but one of the considerations contributing to the assessment under s 66(1).

128. It matters not, for the purpose of deciding whether an ICO is appropriate, that the duration of the aggregate sentence does not exceed 3 years, but the indicative term for one of the offences does exceed two years: R vPullen [2018] NSWCCA 264 at [83].

129. The Crown opposed an intensive correction order as the means through which the term of imprisonment would be served but, alternatively, argued that a home detention condition (amongst other additional conditions) would be appropriate as an additional condition. The offender’s Counsel’s fundamental submission was that an ICO with a home detention condition was sufficient; although he did not address the Crown’s other suggested conditions, being a community corrections condition and rehabilitation treatment condition.

130. The utility of home detention as a form of imprisonment and its advantages over full time detention was alluded to by McCallum JA in Wany at [6]. It seems to me, that with a stable family environment, including a very supportive wife and employment – the offender told Dr Rodriguez that he was capable of working from home – there is evidence which would indicate that there is at least a reasonable prospect that the Court would find that home detention would be more suitable as the means to address his risk of re-offending.

131. However, by s 17D(2) of the CS&P Act, an ICO with a home detention condition cannot be made unless the Court has first obtained an assessment report relating to the imposition of such condition. That has not yet occurred. (A sentencing assessment report has been received which has identified that a community supervision condition is appropriate). The Court is not in a position to waive that requirement under s 17D(1A).

132. This proceeding should be adjourned to enable such assessment report to be obtained; after which the question of whether the sentence is to be served by imprisonment is to be revisited.

133. The parties have already addressed the Court on whether an ICO is appropriate and it will be unnecessary for them to repeat those submissions. Nevertheless, they should have the opportunity to make submissions in response to the content of the sentencing assessment report that is to be supplied, and make such further submissions as they wish to address any appropriate conditions that may be attached to an ICO. For example, to my mind, one such possibility, which has not hitherto been raised by the parties, in the event that an ICO is directed, is a rehabilitation treatment condition which is not only relevant to the offender’s PTSD, but also his other conditions, including his BDD.

Orders

134. Mr Paddison, please stand.

135. You are convicted of the offences of sequence 1 and sequence 13.

136. You are sentenced to an aggregate sentence of a term of imprisonment of 2 years and 7 months’ imprisonment commencing 2 July 2021 and expiring 1 February 2024.

137. I have in contemplation, as a reasonable possibility, an order that your sentence is to be served by way of an intensive correction order, with at least one additional condition to such order being a home detention condition.

138. By the terms of ss 73A(3) and 17D(2) of the CS&P Act, before the Court could impose such a condition, the Court must receive a suitability assessment report. Accordingly, and for the purposes of s 17D(2) of the CS&P Act, I request that a home detention suitability assessment report be obtained from the Mount Druitt Community Corrections Office.

139. By the terms of s 17C(2) of the CS&P Act, the circumstance that I have requested a home detention suitability assessment report after imposing a sentence of imprisonment upon you will stay the execution of this sentence and the issues of the commencement date of that sentence and your eligibility for release (both matters being addressed in s 48) until the Court determines whether or not to make an intensive corrections order.

140. I note that you have already been assessed as suitable for a community service condition. The Crown has also submitted that it would be appropriate that you be subject to a rehabilitation treatment condition. Your Counsel has not objected to these conditions, but they will need to be considered at the time that the home detention condition is considered.

141. You may resume your seat.

142. This sentencing proceeding is adjourned for consideration of whether the Court will make an order under s 7 of the CS&P Act to 27 August 2021 in Sydney.

143. Pending the receipt of the suitability assessment report for the home detention condition, the offender is to remain on bail, subject to the existing conditions.

144. In the meantime, I make the orders, by consent (Exhibit D) that:

1. Pursuant to s 18(1) of Confiscation of Proceeds of Crime Act1989 (NSW) the sum of $5,700 found at the offender’s former premises on 23 April 2020 be forfeited to the State; and

2. Pursuant to s 19(3)(a) of the same legislation, the property herewith be disposed of forthwith.

145. I make a Drug Destruction order under s 39F of the Drug Misuse and Trafficking Act 1985 (NSW).

146. The Court further notes that the back-up offence for sequence 5 is withdrawn.

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Endnote

Decision last updated: 02 July 2021