R v Robert Richard Cutler
[2010] NSWDC 236
•13 August 2010
NEW SOUTH WALES DISTRICT COURT
CITATION:
R v Robert Richard CUTLER [2010] NSWDC 236
FILE NUMBER(S):
2008/73196
HEARING DATE(S):
JUDGMENT DATE:
13 August 2010
PARTIES:
Regina
Robert Richard Cutler
JUDGMENT OF:
Cogswell SC DCJ
COUNSEL:
Mr Sundstrom for Mr Cutler
SOLICITORS:
Mr England for Director of Public Prosecutions
CATCHWORDS:
CRIMINAL LAW
sentence
possess firearm without being authorised
possess prohibited firearm without being authorised by licence or permit
possess prohibited weapon
form 1 offences
licensed firearms dealer
held personal firearms licence
firearms, knives, silencers, cross-bows found in multiple locations at offender's house
offender suffers from obsessive compulsive personaility disorder manifested as a hoarding disorder
history of depression with suicidal ideation
highly regarded in community
no criminal record
very good character
unlikely to reoffend
genuine remorse
prospects of rehabilitation very good
plea of guilty at earliest opportunity
no alternative but full-time imprisonment
LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999 s 10, s 12, s 21A, s 32
Firearms Act 1996 s 7A(1), s 7(1)
Weapons Prohibition Act 1998 s 7(1)
CASES CITED:
R v Basedow [2010] NSWCCA 76
R v Cramp [2008] NSWCCA 40
R v Cromarty (2004) 144 A Crim R 515
TEXTS CITED:
DECISION:
For the first offence - fixed term of 12 months. For the second offence - non parole period of 12 months, balance of term of 6 months. For the third offence - fixed term of 9 months. For the fourth offence - non parole period of 9 months, balance of term of 3 years. For the fifth offence - non parole period of 12 months, balance of term of 2 years. For the sixth offence - non parole period of 12 months, balance of term 18 months. For the seventh offence - non parole period of 1 year, balance of term of 2 years. Effective overall sentence- 5 years.
JUDGMENT:
JUDGMENT
Mr Cutler you probably know the routine from Mr Morgan telling you. Judges have to give reasons for everything they do - most things - particularly sentences, so like I did with the last offender I have to give my reasons which will take half an hour or more, three-quarters of an hour or an hour and then at the end I announce my sentence. So sit down whilst that is happening.
I am sentencing a man who would not be regarded as a criminal but he has committed some very serious crimes. He has contributed significantly to the community where he lives. He is widely and justifiably respected within that community as a man of honesty and integrity. His stock in trade as a businessman was firearms. Unlike drugs they are not certain to cause harm in the community but they have an obvious potential to cause harm by accident or intent. Hence the law strictly regulates their possession.
Mr Cutler, who is the offender I am sentencing, was well aware of that law and complied in his business. But as a firearms dealer he suffered from some worrying mental disorders and these contributed to a failure to comply with the law to an extraordinary extent at his home. What is an appropriate sentence for such an offender? The prosecution says he must go to gaol. The defence says I can suspend the gaol sentence.
First I need to record the charges that Mr Cutler faces. He has been charged with seven offences. First is a group of three which are possessing a firearm without being authorised by a licence or permit. Each of those three offences is a crime against s 7A(1) of the Firearms Act 1996 and carries a maximum of five years imprisonment.
The next group of three offences are possessing a prohibited firearm without being authorised by licence or permit. They are offences against s 7(1) of the Firearms Act. They are obviously regarded much more seriously by Parliament which has imposed a maximum of fourteen years imprisonment and, in addition, set a standard non-parole period of three years.
The last offence is an offence of possessing a prohibited weapon. That is a crime against s 7(1) of the Weapons Prohibition Act 1998. It, too, carries a maximum penalty of fourteen years imprisonment. There was no relevant standard non-parole period for that offence.
Mr Cutler has asked me when sentencing him for a number of those offences to take into account other offences. The other offences are ones which he has admitted committing and which I take into account when sentencing him for the primary offence.
When sentencing him for possessing an unauthorised firearm under s 7A of the Firearms Act, specifically possessing a BSA Majestic Triple 2 firearm, I take into account thirty-nine additional offences which are listed on a form provided under s 32 of the Crimes (Sentencing Procedure) Act 1999 which became MFI 1 in these proceedings. I will take those offences into account and I sign the form accordingly.
When sentencing him for one of the offences under s 7(1) of possessing an unauthorised prohibited firearm, Mr Cutler asks me to take into account an additional fifty-nine offences which he has admitted under the same procedure. Those fifty-nine additional offences are listed in a document which became MFI 2. The specific offence is possessing the prohibited firearm called a Universal M1 Carbine. I will take those additional offences into account and I sign the form to that effect accordingly.
When sentencing him for one of the other offences of possessing a prohibited firearm against s 7(1) of the Firearms Act he has asked me to take into account, under the same procedure, two additional offences. The specific offence for which I take those two additional offences into account is possessing a Ruger - misdescribed in the court attendance notice as a Rigger - Mini 14 Rifle. I will take those two additional offences into account and I sign the form accordingly.
Finally when I am sentencing Mr Cutler for the offence against the Prohibited Weapons Act, he has asked me to take into account an additional seven offences which he admits. The sentencing offence to which these seven additional offences are attached is possessing five silencers. I will take those offences into account and I sign the form accordingly.
It is important when sentencing a offender that a brief summary of the behaviour that brought about the charges is included by the judge in the sentencing remarks. In this case those facts are agreed between the prosecution and the defence and are part of exhibit A.
Briefly they describe Mr Cutler as being licensed as a firearms dealer. In 2003 he operated a business in Bathurst. The licence was valid until 2008. He was permitted by the licence to possess, manufacture, buy and sell various categories of firearms and ammunition. He was also issued with a personal firearms licence which allowed him to possess certain more limited categories of firearms and was subject to conditions imposed under the Firearms Act which included conditions about their safe storage. I observe that a breach of that condition gives rise to an offence of possessing such firearms without a licence.
What happened was this. Police were called to Mr Cutler’s house on Boxing Day 2007. He lived in a residence called Buckcumber along Colleen Hagney Lane, Peel. The police attended because of an allegation about a domestic assault. He was arrested and charged. As it happened he pleaded guilty to the assault which resulted in him being convicted of a common assault although the Magistrate obviously regarded it as appropriate for a good deal of leniency and did not record a conviction which the magistrate was able to do under s 10 of the Crimes (Sentencing Procedure) Act 1999.
Prompted by some information which they had the police, after they arrested Mr Cutler, turned up at his home in Peel with a search warrant. They found forty-eight firearms, firearm parts and weapons in three drums that had been secreted in a disused mine shaft on his property. Each had been individually sealed in plastic sleeves.
The search continued the following day. A second cache of firearms was found in a safe in the main building. There police found some knives. They found eight push-daggers and eight butterfly knives. All of those are prohibited weapons.
Continuing the search police found in a large shed five silencers, a claw knife and a mortar shell and two cross-bows, one with a pistol grip. They too are prohibited weapons.
Still searching, police came upon a shipping container. In there they found no fewer than 269 firearms. In addition, they found five prohibited weapons which are described in the summary of facts. The firearms had been packaged in ten wooden boxes. Two of the firearms in the shipping container had been reported as having been stolen in South Australia and a further one stolen from Western Australia and another reported as missing from Victoria. There is no suggestion at all that Mr Cutler had anything to do with any illegal dealing with those firearms apart from the matters that I am sentencing him for. In addition, police found two firearms in his utility.
As I mentioned earlier, not keeping firearms in a safe storage can lead to an offence under the Act. Mr Cutler’s actions of failing to ensure the safe keeping of the firearms was a breach of the conditions of his licence, thus he was exposed to the charges under the Firearms Act, which I have referred to and which I am sentencing him for.
Mr Cutler’s personal and dealer’s firearms licences were immediately suspended. A few weeks later he was served with a revocation notice which required him to immediately surrender any firearm in his possession.
As it turned out, police found out that before the search warrant was executed a Mr Michael Jakobi had handed Mr Cutler a couple of firearms which needed to be reassembled. One of them was a prohibited firearm.
In March 2008 police detected information passing between Mr Jakobi and Mr Cutler. Police detected a meeting between Mr Jakobi and Mr Cutler when the firearms were returned by Mr Cutler to Mr Jakobi. Mr Cutler had not surrendered those two firearms after his licence had been suspended, nor did he notify the authorities that he had them.
As I have noted Mr Cutler has a criminal record with only one item. That itself is not a conviction because of the order which the magistrate made and it enables him to be given the benefit, which I do, of having a clear criminal record.
Included amongst exhibit A was a pre-sentence report prepared by the Probation and Parole Service. It noted Mr Cutler’s personal background of a stable upbringing and having four children from a previous marriage with whom he has a positive relationship. He left school at fifteen, completed an apprenticeship and has operated several businesses in a financially successful manner, as the pre-sentence report described. Since suspension of his licences he has retired from full-time employment.
The report noted that since the firearms were discovered Mr Cutler “has had ongoing interventions with the Bathurst Mental Health Team.” He has received medication. It noted that Mr Cutler said that he had suffered depression over the past eight years and has taken antidepressant medication. It noted diagnoses of obsessive compulsive personality disorder which manifested itself in hoarding firearms.
The report noted that Mr Cutler had insight into his offending behaviour and had acknowledged the seriousness of what he had done. It thought that the diagnosed obsessive compulsive personality disorder “may have contributed to his decision to hoard firearms unlawfully” and was a factor in the offending behaviour. It thought that monitoring of his mental health would be appropriate. It recommended he was suitable for both a community service order and periodic detention order.
As I said in my introductory remarks, Mr Cutler is a person who is very highly regarded within his community at Bathurst. He has many references including ones from very respectable citizens who have known him over very many years and who indicate that they know about the offences. He is obviously a man who is regarded as a person of integrity and honesty, a successful businessman who has contributed to the local community in a significant respect.
There have been tendered in evidence by Mr Sundstrom of counsel, who appeared for Mr Cutler, a number of reports relating to Mr Cutler’s mental health. There is a series of reports from a Floyd Kenny, a clinical nurse consultant with the Bathurst Mental Health team and reports from Dr Graham Vickery, a psychiatrist, and Dr Stephen Allnutt who is also a psychiatrist.
Mr Kenny’s reports noted conditions of depression and an anxiety disorder. He had been on medication; it noted he ceased in 2006; and it noted what it referred to as a “long-standing anxiety disorder that has contributed to him breaking the law”; it also noted him having a “long-standing obsessive hoarding disorder that has contributed to him breaking the law.”
Doctor Graham Vickery noted a history of depression developing a decade before the report which was dated in June 2009. Dr Vickery noted Mr Cutler reporting “a long history of both an obsessive personality type and a obsessive compulsive disorder involving hoarding”; it said that he had become increasingly aware of his compulsion with the current treatment he was receiving. Dr Vickery added that he would “argue strongly against a custodial sentence in view of his depression and suicidality. His crime would appear to be directly related to his constitution personality type and his compulsive hoarding without any evidence of criminal intent.” The report had noted what it described as “suicidal ideation over some years”.
Doctor Allnutt is a very experienced forensic psychiatrist. Dr Allnutt also noted symptoms “consistent with obsessive compulsive personality disorder”; he also thought that consideration could be given to considering that he suffers from a hoarding disorder. Dr Allnutt expressed the view that “it is likely that unconsciously he viewed registering firearms as potentially setting up a situation where he could lose all his firearms, something that a person with a condition such as he would have difficulty coming to terms with; at the material time of the alleged offence hoarding disorder as well as depressive disorder was active.”
Mr Sundstrom called his client to give evidence. He is now aged sixty. He has lived in Bathurst all his life and has had successful businesses over the years commencing in 1993; he is still caring for his aged mother who has a heart condition and he tries to see her almost every day. He became a firearms dealer over thirty years ago. He combined it with other businesses, a fishing equipment shop, a bicycle shop as well as the firearms shop; he was in the local sporting shooting association and was actively involved in education and training regarding firearms. He helped in local organisations particularly those focused on youth.
Six years ago he sold some parts of his business and relocated his firearms to home. He got rid of the shop to reduce his workload because he realised he was suffering from depression. He was grappling with, also, his obsessive compulsive disorder and hoarding disorder. He said he had had depression for some two years. Some psychiatrists he had seen had not been successful but he got on well with Mr Kenny.
His recognition within the community as a person who had knowledge of firearms was recognised by him helping the police with information and advice regarding firearms and gun laws. He had grown up in a family which had a lot to do with firearms and the military. His grandfather had won a world championship in rifle shooting. He is a relative of Sir Roden Cutler.
He acknowledged that it was his wife who had reported the firearms to the police; there had been difficulties in their marriage around about that time and there was the assault which had occurred around about Christmas 2007.
Asked what he wanted to say by Mr Sundstrom, he apologised to the court, to the police and to his family and friends and who were involved. It has, as he said, been a two and a half year nightmare for everyone concerned. He is feeling now a lot better and relies upon support from Mr Kenny.
Cross-examined by Mr England, who appeared for the prosecutor, he knew that he had too many firearms and kept saying to himself that he must take them to the shop, but he could not part with them. He was a keen collector. He acknowledged that he could have kept them in the shop and had them at home because he liked them. He kept the ones in the mine shaft so that they would be safe from burglars. The two hundred and sixty or so firearms in the shipping container, some of them he acknowledged could be made operable but he used most of them for spare parts.
He acknowledged the prohibited weapons in a shed, including butterfly knives and the push daggers. He collected unusual things. Neither of the cross-bows worked and the silencers he had for a long time, which he used for rabbit shooting.
He acknowledged what was put to him by Mr England that if any of the operable firearms fell within criminal hands then they would have caused considerable harm to the general public. They could be stolen in the case of a burglary. It would have been, he acknowledged, much more sensible for him to get rid of them all.
The two or three additional firearms - I think there were two - which were handed to Mr Jakobi and not to the police, he said he gave back to the owner because they belonged to the owner and not to him. They were relics which were inoperable and a family heirloom.
The shipping container had two master padlocks which would have required an angle grinder to open them. He acknowledged that he was not always home and acknowledged that everybody knew he was a collector and that people probably knew that he had firearms collected in his home.
In his submissions Mr Sundstrom said that it was important to see these offences in the context of his client being first licensed in 1978. When he first started there were not the strict controls which now, and since 1996, have been required. He spent, as Mr Sundstrom said, some eighteen years accumulating firearms as he was entitled to do, but since 1996 he failed to deal with them in an appropriate way. None of the firearms, he said, had been acquired after 1996.
I acknowledge the significance of that submission, but it must be seen in the context that Mr Cutler himself was regarded as knowledgeable in firearms, so knowledgeable about firearms and their regulation that he was able to advise the police as a kind of public service.
Mr Sundstrom referred to the mine shaft supply or stock of firearms which he argued were safe and unlikely to fall into the wrong hands. He referred to the shipping container firearms and those in a safe. There is some force in those submissions but, as his client frankly and truthfully acknowledged, people would have known that he had firearms at his house and that there may have been some there and that they may not have been stored as securely as they might have been had they been in a shop.
So far as s 21A of the Crimes (Sentencing Procedures) Act was concerned Mr Sundstrom argued that his client should be treated as a person with no criminal record, and I accept that submission. I accept the submission that he is a person of clearly very good character.
It is, I accept, highly unlikely that he will offend again and that his prospects of rehabilitation are very good. In addition I accept that his remorse is very genuine.
It was argued that he has a disability in the form of a depressive disorder or illness as well as the compulsive behaviour as manifested in hoarding and that the illness had probably weakened his resolve to deal appropriately with these weapons. I acknowledge the force of that submission and it means that the objective seriousness is to some extent reduced and that the significance of general deterrence is less than might otherwise be the case. It also means, as Doctor Vickery pointed out, that a custodial sentence will be more onerous.
But in addition I need to take into account that Mr Cutler knew about his depressive disorder and hoarding disorder. In other words he continued to hold his licence, despite the knowledge that he suffered from some significant mental health issues for some time.
I take into account the fact that he has pleaded guilty. He pleaded guilty at the earliest available opportunity, Mr England acknowledged. For that the sentences which I might have otherwise impose, when I come to impose sentences, must be affected by that plea.
Mr Sundstrom argued that his client has suffered a significant degree of punishment other than that imposed by the law. He has been subjected to public shame by the media and has suffered the financial loss of his business which means that he has lost the financial security that it might have otherwise provided. I acknowledge the significance of those submissions, but his offences are so significant that it is not surprising that these consequences would have followed, and I put limited weight upon that factor.
I accept, as Mr Sundstrom argued, that his client did not know about the firearms which had been originally illegally obtained.
Mr Sundstrom referred to the authorities. There are some decisions of the New South Wales Court of Criminal Appeal which are relevant, specifically R v Cromarty (2004) 144 ACrimR 515, R v Basedow [2010] NSWCCA 76 and R v Cramp [2008] NSWCCA 40.
Mr Sundstrom argued that any penalties should be less than those imposed in Cromarty and in Basedow. It should be acknowledged however, as Mr Sundstrom did, that the case before the Court of Criminal Appeal in Cromarty was itself a Crown appeal. I acknowledge also that in Basedow the offender had a record of similar convictions.
Mr Sundstrom said it is difficult to imagine a stronger case for mitigating circumstances and that for the various offences that Mr Cutler has committed I could regard a top of the range head sentence as something less than two years. He then invited me to suspend such a sentence under s 12 of the Crimes (Sentencing Procedure) Act or to impose a sentence of periodic detention. He made reference also to a home detention order.
He argued if I was against him on his primary submission that there are special circumstances for adjusting the relationship between a non-parole period and the additional balance of the term, namely, his client’s age, the fact that he had no criminal record and that this would be his first time in custody as well as the matters referred to by the psychiatrists.
In Mr England’s submission he acknowledged the significance of the plea of guilty and I accept his argument that Mr Cutler was aware of the mental health issues that he was suffering whilst he was committing these offences. He reminded me that I must not allow the strong subjective features of this case - personal to Mr Cutler - to outweigh the seriousness of the crimes which he had committed.
He argued that anything below a full-time custodial sentence would be not appropriate in a case such as this, and indeed would involve appellable error. He acknowledged the non-applicability of the standard non-parole period in a strict sense because this case involved a plea of guilty, but that of course it must be borne in mind as a guidepost.
I regard the objective seriousness of these offences as very significant. Overwhelming in this case are the numbers of firearms which are involved. This is not a case where there is a limited number such as half a dozen or more. There were an overwhelming number of illegally stored firearms, prohibited firearms and prohibited weapons. They posed a significant potential danger to the general community were they to fall into the wrong hands. Mr Cutler was known within the community as a person who was associated with firearms and he himself acknowledged that some people would know that he had firearms at home. He was a man who realised that he had mental health disorders, including hoarding disorders, and this combined with his stock in trade of firearms must have alerted to him over an extensive period of time to the danger which his storage of these firearms posed to the general safety of the community which he formed part of.
I regard myself as having no alternative, given the nature of these offences, but to impose a sentence of full-time imprisonment, or a series of sentences which would involve full-time imprisonment.
I must take into account the pleas of guilty which, as I said, were at the earliest opportunity, so that each of the sentences will be discounted by twenty-five percent.
I propose to impose the following sentences. In respect of the first offence against s 7A of the Firearms Act taking into account the matters under s 32 of the Crimes (Sentencing Procedure) Act - the offence concerning the Majestic 222 - I regard an appropriate sentence as two years imprisonment. I take into account the subjective matters and I would regard an overall sentence of eighteen months as appropriate. I will discount that by twenty-five percent and round it off to twelve months imprisonment.
The other offence under s 7A of the Firearms Act involves 269 firearms in the shipping container. I would commence at a sentence of about two and a half years but because of factors personal to Mr Cutler including his mental health condition, I would regard a two year sentence as appropriate. I will reduce that because of his plea of guilty by twenty-five per cent so that the sentence for that offence will be eighteen months imprisonment.
For the third offence against s 7A of the Firearms Act - namely the offence involving the 22 repeater - a fifteen months penalty would be appropriate. I would round that off to twelve months because of factors personal to Mr Cutler and then because of his plea of guilty I would reduce that by twenty-five per cent to nine months imprisonment.
I turn now to the offences against s 7 of the Firearms Act. The offence regarding the M1 Carbine against s 7(1) of the Firearms Act, taking into account the additional offences, fifty-nine in all, under s 32 of the Crimes (Sentencing Procedure) Act, I would regard six years as a starting point but I would reduce that to five years imprisonment because of factors personal to Mr Cutler. That in turn I would discount by twenty-five per cent because of Mr Cutler’s plea of guilty. That would result in a penalty of forty-five months imprisonment for that offence.
For the second offence under s 7 of the Firearms Act involving the Ruger rifle, taking into account matters under s 32 of the Crimes (Sentencing Procedure) Act two additional offences, I would regard a starting point as five years which I would reduce to four years because of factors personal to Mr Cutler. That I would reduce by twenty-five percent to a sentence of three years imprisonment because of Mr Cutler’s plea of guilty.
The third offence under s 7(1) of the Firearms Act concerns the five prohibited firearms in the shipping container. An appropriate starting point is four years, which I would reduce to three and half years because of personal factors of Mr Cutler. I would reduce that three and half years by twenty-five percent so that the penalty in that case for that offence would be one of thirty months imprisonment.
Finally, for the offence against s 7 of the Weapons Prohibition Act of possessing five silencers, I take into account the seven offences under s 32 of the Crimes (Sentencing Procedure) Act which are listed on the form. I would regard an appropriate commencing sentence as five years, but would reduce it to four years because of factors personal to Mr Cutler. That sentence in turn I reduce to three years as the appropriate penalty for that offence.
All right, what I am going to do is this, I just made a miscalculation there but I know what the result is. Mr Cutler so that you know, your non-parole period is going to be two years. You are going to be two years in gaol, and your additional period will be three years. The overall sentence is five with a non-parole period of two years, and after lunch I will come down and sentence you in accordance with the individual sentences. So you will be in gaol definitely for two years from today, and an additional period of three years. Do you understand that? And you will have to go into custody now, your relatives and friends may wish to see you just here now before you go into custody if that’s all right. You stay in the court room. These two Corrective Services Officers will take you may see them now. And I will bring you back at twenty past two.
LUNCHEON ADJOURNMENT
HIS HONOUR: Have a seat Mr Cutler. These are the sentences Mr Morgan and Mr Holles, and the object of the exercise, as I said, there is an overall sentence of five years with a minimum term so to speak, of two, so these are the individual sentences and I think I’ve got it right.
For the first offence s 7A, taking into account form 1, the penalty is twelve months and that will be from today 13 August 2010 to 12 August 2011.
The second s 7A offence is an overall sentence of eighteen months; there will be a non-parole period of twelve months from 13 August 2010 to 12 August 2011. The balance of the term will be six months from 13 August 2011 to 2 February 2012.
The third s 7A offence will be a sentence of nine months from today 13 August 2010 to 12 May 2011. There is no non-parole period for that or for the first offence.
The fourth offence - which is the first s 7 offence - the penalty is forty-five months imprisonment, that is, three years and nine months. That sentence will commence on 13 November 2011 and there will be a non-parole period of one year from 13 November 2011 to 12 November to 12 November 2012. No, that is wrong.
HOLLES: If your Honour dates the sentence from 13 August 2011, the non-parole period will expire on 13 August 2012. Your Honour achieves the same effect, that’s what I’m understanding your Honour wishes to do.
HIS HONOUR: No, what I want to do is, that sentence should expire on 12 August 2015 and - no it doesn’t work.
HOLLES: You can’t do that your Honour.
HIS HONOUR: No I can’t, you’re quite right.
HOLLES: If what your Honour is seeking to achieve is what I apprehend it is, if your Honour were to start the last three sentences from the - no that’s not what I-
HIS HONOUR: No it’s not. What I’ll do is - I thought I had this, I’m sorry.
All right, I’ll return to that fourth offence - which is the first offence under s 7 - there will be non-parole period of one year from 13 November 2010 to 12 November 2011. The balance of the term will be two years and nine months from 13 November 2011 to 12 August 2014.
The fifth sentence - which is the second s 7 offence - will be three years. The non-parole period will be one year from 13 August 2011 to 12 August 2012. The balance of two years will be from 13 August 2012 to 12 August 2014.
Number 6 is the third and last s 7 offence. That is a thirty-month sentence, two and a half years. The non-parole period will commence on 13 August 2011 and expire on 12 August 2012. The balance of the term will be one and a half years from 13 August 2012 to 12 February 2013.
What we will do with the last offence which is three years - and I am going to give Mr Cutler some benefit here - I have to commence that today in order to--
HOLLES: Your Honour, there is no head sentence which expires on 12 August 2015.
HIS HONOUR: I know that, yes, yes that’s right. It might be that I need to--
HOLLES: Would your Honour wish me to suggest a way that might--
HIS HONOUR: Yes, please. Yes, go on.
HOLLES: If your Honour’s object is to impose a total sentence of five years with a non-parole period of two years, if your Honour goes to the s 7 offence which is a really good many, plus the two offences on a schedule three years, if your Honour dates that from today--
HIS HONOUR: Which number is that?
HOLLES: That’s number 4, your Honour.
HIS HONOUR: The 45 months, yes.
HOLLES: No it’s the one after that, your Honour.
HIS HONOUR: Three years, yes. I think anything with three years doesn’t work.
HOLLES: Well if your Honour dates that from today--
HIS HONOUR: Yes.
HOLLES: --which takes it through to 12 August 2013 and your Honour commences the last sentence from 12 August 2012--
HIS HONOUR: But then it doesn’t have a non-parole period.
HOLLES: No your Honour, I’m coming to that.
HIS HONOUR: Right.
HOLLES: And then your Honour imposes a non-parole period on the second sentence to expire--
HIS HONOUR: What I could do is fix today’s sentence, the last sentence as three years from today with a non-parole period of one day.
HOLLES: Yes your Honour.
HIS HONOUR: So the sentence is, I’m afraid, extended by one day.
HOLLES: Yes your Honour.
HIS HONOUR: Yes I think that’s what I will do.
For the last offence of number 7 - the Prohibited Weapons Act offence - I fix a sentence of three years to commence on 13 August 2012 and to expire on 12 August 2013. I fix a non-parole period of one day to commence on 13 August 2012 and expire on 14 August 2012.
HIS HONOUR: Just tell me whether that makes sense, Mr Morgan, and Mr Holles.
HOLLES: Your Honour, I need to check but I think there’s some provision which says a non-parole period can’t be less than six months.
HIS HONOUR: Let’s have a look.
HOLLES: As I said I need to check, your Honour, but certainly that used to be the case; I’m not sure that it’s changed. 44(1) seems to be the relevant--
HIS HONOUR: Yes. I can’t set--
HOLLES: It was amended in February 2003, that might be the--
HIS HONOUR: Yes 46 says I can’t set a non-parole period if the term of the sentence is six months or less, that was at the back of my mind, but I don’t think there’s a restriction on the non-parole period. Mr Morgan, any suggestions?
MORGAN: I can’t assist your Honour, I regret.
HOLLES: Your Honour, if your Honour dates the three-year term of imprisonment for the silencers from 13 August 2012--
HIS HONOUR: Yes which is what I have done.
HOLLES: Which is what you have done.
HIS HONOUR: That expires right on five years.
HOLLES: Yes.
HIS HONOUR: I could well no I can't - I have to fix a non parole period.
HOLLES: Yes.
HIS HONOUR: And the minimum I can fix would be one day.
HOLLES: One day.
HIS HONOUR: And I can't suspend.
HOLLES: No your Honour that’s not possible.
HIS HONOUR: That is the only other option.
HOLLES: Yes. The only other way I can think of would be to adjust the commencement date of the section 7 offence in relation to the M1 Carbine so that it is currently a non parole period to expire on the 12 November 2011 if you fix that to - the head sentence to expire on 12 August 2015, and the non parole period to expire on the 12 August--
HIS HONOUR: The difficulty with that is that--
HOLLES: Your Honour no because you’ve got the time in that one to do that--
HIS HONOUR: Yes you are right, you are right.
HOLLES: That would seem to be the answer to the problem.
HIS HONOUR: I think you are right. I agree with you. So the expiry date will be 12 August.
HOLLES: 12 August 2015.
HIS HONOUR: It is three years and nine months so that that - no--
HOLLES: The three years and nine months would commence on 11 February 2012 and the non parole period would expire on 12 August--
HIS HONOUR: 12 August 2012.
HOLLES: And that achieves the object your Honour is seeking to.
HIS HONOUR: Yes. I think it's got to commence on the--
HOLLES: 11 February 2012 your Honour and then that - the non parole period runs for a total of nine months.
HIS HONOUR: No I think it's got to be 12 November--
HOLLES: 12 November 2011.
HIS HONOUR: Eleven yes.
HOLLES: Expiring on 12 August 2012.
HIS HONOUR: Correct.
HOLLES: And head sentence expiring 12 August 2015.
HIS HONOUR: Thanks Mr Holles.
HOLLES: Thankyou your Honour.
So I revise the sentence for offence number four, which is the first offence under s 7 of the Firearms Act. That will remain a penalty of three years and nine months but it will commence on 12 November 2011 with a non parole period of nine months to expire on 12 August 2012. The balance of the term will be three years from 13 August 2012 to 12 August 2015.
If I did not say it, the last offence is a three year penalty from 13 August 2011 to 12 August 2014 with a non parole period of one year from 13 August 2011 to 12 August 2012.
HIS HONOUR: I will explain that in a moment to Mr Cutler but I think that now achieves the sentence of five years with a non parole period of two years. Mr Morgan, Mr Holles?
HOLLES: Your Honour the only matter that concerns me is whether there is a lacuna in the non-parole period and I’m just trying to check that that doesn’t occur as we speak.
HIS HONOUR: Yes.
HOLLES: Would your Honour mind if I read them out as I understand them--
HIS HONOUR: No please--
HOLLES: --and that might--
HIS HONOUR: --I’m just doing the same mentally.
HOLLES: Count 1, s 77A plus a schedule 12 months imprisonment to date from 13 August 2010 to expire on 12 August 2011.
HIS HONOUR: Correct.
HOLLES: Count 2 which is a s 77A, the 269 firearms in the shipping container, 18 months to date from 13 August 2010; non-parole period of 12 months to expire on 12 August 2011.
HIS HONOUR: Correct.
HOLLES: And the balance of term to expire on 12 February 2012.
HIS HONOUR: Correct.
HOLLES: Section 77A the .22 repeater is nine months which expires on 12 May 2011.
HIS HONOUR: No, nine months commencing 13 August 2010, today, expiring 12 May 2011.
HOLLES: Sorry your Honour; the s 7 the Carbine commences on 11 November 2011--
HIS HONOUR: Actually 13 November 2011.
HOLLES: The non-parole period expiring on 12 August 2012.
HIS HONOUR: Correct.
HOLLES: And a head sentence expiring on 12 August 2015.
HIS HONOUR: Correct.
HOLLES: The s 7 which is the Ruger Mini 14 plus the two offences on a schedule three months imprisonment to start - non-parole period to start in one year from 13 August 2011 to expire on 12 August 2012.
HIS HONOUR: Yes.
HOLLES: And the head sentence to expire on 12 August 2014.
HIS HONOUR: Correct.
HOLLES: So that would seem to cover the--
HIS HONOUR: That’s correct.
HOLLES: Section 7(1) which is the prohibited firearms in the shipping container, 30(as said) months imprisonment to date from 12 August 2011--
HIS HONOUR: 13 August.
HOLLES: 13 August 2011 expire on 12 August 2012.
HIS HONOUR: Correct.
HOLLES: With a head sentence from 13 August 2012 to 12 February 2013.
HIS HONOUR: Correct.
HOLLES: And the silencers three years imprisonment to date from - I don’t have a date for that your Honour.
HIS HONOUR: 13 August 2011 with a non-parole period of one year to 12 August 2012; balance of term two years from 13 August 2012 to 12 August 2014; it’s the same as number 5.
HOLLES: So that covers the period--
HIS HONOUR: I don’t think there is a gap.
HOLLES: No there’s not your Honour because I was concerned about that, but if that sentence commences when it does then it covers up to the commencement of the non-parole period of the M1 Carbine which carries the three years and nine months, so I think we’re covered.
HIS HONOUR: Okay, yes. Mr Morgan? Take your time, it’s not a straight forward exercise.
MORGAN: Yes your Honour I am taking my time. I’m finding it a little difficult to follow, I think that’s the--
HIS HONOUR: Well I proceed with the next case and then when you’re satisfied or ready I’ll come back to it. I mean it’s important, obviously, it’s not straight forward. These sentencing exercises so far as the law is concerned and the actual amounts and the calculation of the dates is never straight forward. Now, as I said, the overall sentence which I am wanting to impose on your client is a sentence of five years with a non-parole period of two years to commence today; but then we have to break it down as I’ve been doing with Mr Holles’ help and I think he and I have achieved that; so if you want to take your time checking that--
MORGAN: I would appreciate some time to check it your Honour.
HIS HONOUR: That’s fine. Now I’m happy for your client to remain here because Mr Toovey is not in custody, whilst you do that.
MORGAN: Thank you your Honour.
HIS HONOUR: And you let me know when you’re ready in some way or other and then we’ll come back to you.
MORGAN: I shall.
HIS HONOUR: Mr Cutler, I apologise for this. It is complex, but what is clear is what I announced to you before lunch, that the sentence is five years with a minimum of two years from today and I need to make sure that that is divided up correctly over the various offences. You may stay there; Mr Morgan will check the calculations. I will start another case and we’ll come and finalise your case when that’s done. Have a seat.
HOLLES: Would your Honour just permit me a brief moment with Mr Morgan first.
HIS HONOUR: I will.
HOLLES: Thank you.
MATTER STOOD IN LIST
HIS HONOUR: Mr Morgan?
MORGAN: Thank you your Honour. I’ve been through these with Mr Cutler, I thank my friend for his assistance. We’re satisfied.
HIS HONOUR: All right, you don’t have any submission about the accuracy of the figures?
MORGAN: No.
Mr Cutler I repeat, you are convicted of all of the offences that I have referred to, the seven offences. The overall sentence is five years commencing today, 13 August 2010, and it expires on 12 August 2015. There is a non-parole period of two years commencing today, 13 August 2010, and it expires on 12 August 2012. The first date on which you will be eligible for release is 12 August 2012. Your release is a matter for the Parole Authority which assesses your eligibility for release. This is not a matter where I can direct your release.
The individual sentences are those which we have been referring to: the first offence of twelve months, 13 August 2010 to 12 August 2011; the second offence, eighteen months, 13 August 2010 to 12 February 2012 with a non-parole period of twelve months; the third offence, nine months, 13 August 2010 to 12 May 2011; the fourth offence, three years and nine months from 13 November 2011 to 12 August 2015, non-parole period of nine months expiring 12 August 2012; the fifth offence, three years, 13 August 2011 to 12 August 2014, non-parole period expiring 12 August 2012; the sixth offence is two and a half years, 13 August 2011 to 12 February 2013, non-parole period twelve months, 13 August 2011 to 12 August 2012 and the seventh offence is three years, 13 August 2011 to 12 August 2014, non-parole period one year, 13 August 2011 to 12 August 2012.
HIS HONOUR: Mr Morgan what I have in mind - given the evidence about your client’s mental state and the helpful medical exhibits from Doctor Allnutt, Doctor Vickery and Mr Kenny - is to direct that those reports go into custody with him, with the warrant so that when he is assessed, which will occur in the next few days for classification, these reports are available. Do you want to consult your client about that?
MORGAN: I don’t think that will be necessary sir, I shall simply advise him. In my view it would be well warranted and of assistance to the authorities in his ongoing treatment.
HIS HONOUR: Exactly.
MORGAN: And I feel that will be necessary.
HIS HONOUR: That’s my understanding that Corrective Services very much value these sorts of reports.
MORGAN: I’d be happy to see that happen sir.
I direct that all of the reports of Mr Kenny, the report of Doctor Vickery and the report of Doctor Allnutt, which will be attached to my order, all accompany Mr Cutler into custody with the warrant.
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LAST UPDATED:
3 November 2010
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