R v Pullen
[2014] ACTSC 220
•8 August 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Pullen |
Citation: | [2014] ACTSC 220 |
Hearing Date: | 6 August 2014 |
DecisionDate: | 8 August 2014 |
Before: | Penfold J |
Decision: | See [24] to [26] below |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – offender to be sentenced for unauthorised possession of prohibited firearms (three replica handguns) and prohibited weapons (a knuckleduster) – scheduled offence of possessing ammunition for shotgun – offender claimed ignorance that replica firearms were prohibited – knuckleduster used only for hanging tools – minor criminal history not indicating inclination to deliberate law-breaking – offender’s difficult childhood and adolescence – alcohol and substance abuse by offender but not linked to current offences – supportive references – “comparable” sentences cited by counsel – convictions recorded and good behaviour order made. |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) Firearms Act 1996 (ACT), s 42(a)(ii), 249 Prohibited Weapons Act 1996 (ACT), s 5 |
Cases Cited: | Saunders v Crowe [2010] ACTSC 78 R v Breen [2010] ACTSC, Refshauge J, 8 June 2010 R v Hill [2012] ACTSC, Nield AJ, 4 September 2012 |
Parties: | The Queen (Crown) Jedd David Pullen (Offender) |
Representation: | Counsel Ms S Gul (Crown) Mr J De Bruin (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 23 of 2014 |
Jedd Pullen has pleaded guilty to one count each of unauthorised possession of prohibited firearms and unauthorised possession of prohibited weapons. The offences, each of which applies to possession or use of the weapons concerned, arise respectively under s 42(a)(ii) of the Firearms Act 1996 (ACT) and s 5 of the Prohibited Weapons Act 1996 (ACT), and carry maximum penalties respectively of 14 years and 5 years imprisonment. The 14-year penalty applies where the offender has three or more but fewer than 10 firearms.
There is also a scheduled offence of possessing ammunition which is to be taken into account in sentencing Mr Pullen for the firearms offence. That scheduled offence arises under s 249 of the Firearms Act and carries a maximum penalty of 10 penalty units, being a fine of $1,400.
The offences came to light in November 2013, after Mr Pullen had an argument with his partner and moved out of the house they had been sharing. His partner found the items in a cupboard in the house and handed them over to Mr Pullen's mother, who advised police that she had them. The firearms consisted of three replica handguns, one made of silver metal and two of black plastic. The prohibited weapons were a set of silver metallic knuckledusters. The ammunition consisted of 62 shotgun rounds.
Mr Pullen was interviewed by police and agreed that he had obtained all the firearms, and was the owner of the knuckledusters, which had been given to him by a friend. He claimed that he had been given the shotgun rounds by a man he met at the Rivett shops who asked him to look after the contents of a Woolworths shopping bag. Those contents turned out to be the shotgun rounds. Mr Pullen conceded that he did not have a licence to possess any of the items.
Mr Pullen was charged on 12 December 2013 and on 20 January 2014 he indicated pleas of guilty; in due course the matter was committed to this court for sentence. He has not spent any time in custody for these offences.
This is a low-level example of the firearms offence. None of the replica handguns could have been operated, and the shotgun rounds could not have been used in the handguns even if they had been working guns. On the other hand, all three handguns are very realistic and, if produced in anger, would have been very frightening to anyone present. The knuckledusters were entirely real and could certainly have been used to inflict injury.
However, Mr Pullen appears not to have made any use of any of the weapons, except that at one point he sanded some rust off the metal handgun and used the knuckledusters to hang tools on. Mr Pullen's partner provided a character reference in which she reported Mr Pullen's explanation that he saw the replica guns as toys and would not have had them had he known this was illegal.
Mr Pullen's criminal history provides no particular basis for me to reject this claim. It consists of three drink-driving offences, two apparently committed on the same day in February 2008 and the third in April 2010, a failure to vote, and a drive while disqualified in April last year. None of these offences, except possibly the drive while disqualified offence, strikes me as indicative of a person who deliberately engages in activity he knows to be criminal. Mr Pullen's blood alcohol readings were high enough that his intoxication should have been apparent to him, but perhaps they were also high enough to impair his judgment, which is of course no kind of excuse for that offending behaviour but is relevant to the question whether Mr Pullen is inclined to deliberate criminal conduct.
The Pre-Sentence Report author did not report any expression of remorse by Mr Pullen, and questioned his insight into the significance of the offences. Counsel for Mr Pullen noted that some people are better equipped than others to express remorse, and I note also that it requires reasonably sophisticated consequential thinking to identify the dangers to the community posed by the mere presence of inoperative replica guns (or indeed knuckledusters and ammunition) in a cupboard in a spare bedroom.
10. Mr Pullen did not engage readily with the Pre-Sentence Report author, but some information about his background and circumstances emerged from the Pre-Sentence Report and from references provided by his partner, former employer and a friend. I note, and have taken account of the following matters:
(a)Mr Pullen's childhood and adolescence were difficult having regard to his parents' early separation, his father's absence at significant times, and his mother's erratic behaviours, apparently associated with alcohol abuse and poor health, including depression.
(b)Unfortunately, Mr Pullen's older brothers were not able to make up for the lack of parental support, and in the words of Mr Pullen's former employer, left him to "mostly bring himself up."
(c)Mr Pullen suffered a traumatic accident at the age of nine, in which he was hit in the eye with a bullet that had ricocheted off a wall, and received injuries such that he feared either blindness or death. Since then, Mr Pullen has suffered from obsessive compulsive disorder, at certain periods to a debilitating degree. He has also been diagnosed with anxiety and depression and has been treated with antidepressant medication on and off for many years; he has recently resumed taking antidepressant medication.
(d)Mr Pullen has been unemployed since 2013, but his former employer, who owns a concreting business, provided a favourable reference to the court indicating that he has offered to re-engage Mr Pullen depending on the outcome of the sentencing process, and has confirmed that offer to the Pre-Sentence Report author in July this year.
(e)Although Mr Pullen did not report any pro-social leisure activities to the Pre-Sentence Report author, his former employer described his interest in landscape gardening, which had apparently been put to good use in the rented house that Mr Pullen had shared with his partner.
(f)Mr Pullen has over the past couple of years provided ongoing support to the writer of the third reference, Ms Lofts, an older woman who has benefited from Mr Pullen's help with jobs but also from his friendship with her intellectually disabled son. Ms Lofts said in her letter to the court, among other things, that she would be happy to provide a home for Mr Pullen if he ever needed one.
(g)Mr Pullen has in the past abused alcohol and illicit drugs. The current position in relation to both of those substances is unclear; Mr Pullen claimed to the Pre-Sentence Report author that he has abstained from alcohol for the last six months, whereas his partner indicated in her character reference that most of the disagreements they had had in their relationship have been about Mr Pullen's use of drugs.
(h)According to Mr Pullen's partner he had even before these charges were laid begun investigating the availability of help to improve his mental and physical health, including help with his substance abuse and with anger management.
(i)Mr Pullen has not engaged well with Corrective Services in the past, and the Pre-Sentence Report author considers he is in denial about his substance abuse; for those reasons the Pre-Sentence Report author is doubtful about Mr Pullen's willingness to engage with alcohol and drug services.
(j)The Pre-Sentence Report author also indicated that as well as alcohol and drug treatment, cognitive behaviour therapy may be beneficial to Mr Pullen.
(k)Because of his unaddressed substance abuse issues, Mr Pullen is assessed as not suitable for either community service or periodic detention.
11. It is not at all clear that Mr Pullen's substance abuse, or his mental health difficulties, had any direct connection with this offending. On the other hand, both of them leave him at risk of re-offending in some way or another, and I cannot see any reason why I should not take rehabilitation needs generally into consideration in determining his sentence.
12. I accept Mr Pullen's pleas of guilty as early, and have taken them into account in this sentencing.
13. General deterrence is presumably a relevant issue in this case, given that possession of firearms, even replica ones, can have unfortunate consequences for the community. In the sentencing of a Mr Fromholtz (R v Fromholtz [2011] ACTSC, Penfold J, 16 February 2011 (Fromholtz)), I dismissed a charge of unauthorised possession of a firearm laid against an autistic 19-year-old for possession of plastic guns bought from toyshops. In those sentencing remarks I said:
The Firearms Act applies to replica and imitation guns, and generally for very good reason, since such items may be used to good effect in criminal activity against victims who have no way of being sure they are not real, and may also lead to potentially dangerous responses by police officers who are unsure of the nature of the items. On the other hand, deterrence is unlikely to be effective if people remain ignorant, not only of the penalties imposed on offenders, but even of the fact that possession of replica firearms is an offence carrying a substantial penalty.
14. In Fromholtz, I went on:
However there is a real problem if items covered by the Firearms Act are available for sale for a few dollars in toy shops or variety stores.
[Mr Fromholtz’s] offence was not constituted by waving his guns around, it was constituted by his possession of them, which suggests that many other citizens, including children, as well as presumably the retailers, are also committing the same offence on a regular basis.
15. I cannot see a reliable way of ensuring that the sentence has deterrent value except possibly by sentencing Mr Pullen to the maximum 14-year term, which might at least generate some publicity, but this would clearly not be an appropriate use of this sentencing for general deterrence purposes.
16. While Mr Pullen also needs to be personally deterred from repeating this offending, I am not convinced that this requires any particular severity of the sentence.
17. The prosecutor says that a prison term is necessary for this offence, but concedes that no full-time custody is required.
18. Counsel referred me to several similar sentences in the Supreme Court in recent years, starting with Fromholtz and covering a wide range of circumstances.
19. In R v Hill [2012] ACTSC, Nield AJ, 4 September 2012, the offender was found guilty of unauthorised possession of what appears to have been a functioning firearm loaded with two bullets. Mr Hill was 45 and had a somewhat more serious criminal record than Mr Pullen. He did not admit the offence or show any remorse. Nield AJ considered a number of previous sentences for firearms offences (not including Fromholtz), identified a theme that firearms offences require sentences of imprisonment, and sentenced Mr Hill to nine months imprisonment, fully suspended, while noting that he had already spent 19 days in pre-sentence custody.
20. In R v Geiger [2009] ACTSC, Higgins CJ, 17 February 2009, Higgins CJ dealt with possession of several weapons, including several apparently functioning firearms that his Honour noted did not from their external appearance look like firearms. This was said to be an aggravating factor. Mr Geiger had also pleaded guilty to possession of methylamphetamine, and had a previous conviction for possession of a prohibited weapon. Mr Geiger was convicted and a two-year good behaviour order was made with a requirement to accept supervision and pursue drug rehabilitation.
21. In R v Breen [2010] ACTSC, Refshauge J, 8 June 2010, the offender was found to have unauthorised firearms in the context of what Refshauge J described as "problematic behaviour” associated with a relationship breakdown. Mr Breen had three shotguns in the main bedroom of his house, apparently in working order although without ammunition. He was later assessed as suffering a bipolar disorder. He claimed to have found the guns, and knew that he was committing an offence by keeping them. He was sentenced to six months imprisonment, reduced from eight for his guilty plea and suspended subject to an 18-month good behaviour order.
22. In Saunders v Crowe [2010] ACTSC 78, Higgins CJ, on appeal from the Magistrates Court, set aside a $300 fine for possession of a .22 calibre rifle that the appellant had retained after coming into possession of it more or less inadvertently, and his Honour simply recorded a conviction. That judgment gives no information about the appellant's background.
23. It is apparent that the firearms offence covers a multitude of sins as well as some conduct that probably couldn't even be called a sin. I am satisfied that Mr Pullen's offence falls close to the low end of the spectrum, and close enough to tip the balance away from the need to impose any prison term. In reaching that conclusion, I remind myself that a prison term should not be imposed, even if the intention is to suspend it initially, unless in all the circumstances it would be appropriate for the offender actually to serve that term in full-time custody.
24. Mr Pullen, please stand. I record convictions on one charge each of unauthorised possession of prohibited firearms and unauthorised possession of prohibited weapons.
25. I also note the scheduled offence of possessing ammunition, and I have taken it into account in sentencing for the firearms offence.
26. I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for two years, with security in the amount of $500. That good behaviour order applies to both the offences. The good behaviour order is subject to the conditions:
(a)that for such period not longer than two years as ACT Corrective Services considers necessary, you accept supervision of ACT Corrective Services and obey all reasonable directions of the Director-General, or delegate;
(b)that you undertake such counselling, courses, programs or treatments as directed by your supervising officer, in particular relating to drug and alcohol abuse and mental health issues; and
(c)that you be assessed and, if found suitable, that you undertake the Men's Cognitive Self-Change program.
27. You will be given a written copy of the good behaviour order and it will be explained to you by the court officials. In short, it means that for the next two years you need to keep out of trouble, keep in contact with Corrective Services for as long as they require, comply with your supervisor's directions and, if appropriate, take part in the Cognitive Self-Change program. If you commit another offence during that two years, you may find yourself back before this court to be re-sentenced for these offences, as well as possibly losing your $500 security. I should say to you, Mr Pullen, that if you committed a new offence that suggested that your possession of the guns and knuckledusters wasn't mainly just silliness, then I might well have another think about whether a prison term would in fact be appropriate for this offence.
28. If you have any questions about the orders I have just made, please talk to Mr De Bruin about it, he will be able to explain the details.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: |
0
3