R v Ryan

[2024] NSWDC 476

District Court

New South Wales

Medium Neutral Citation:

R v RYAN [2024] NSWDC 476

Hearing dates:

10 October 2024

Decision date:

14 October 2024

Jurisdiction:

Criminal

Before:

NOMAN SC DCJ

Decision:

Aggregate sentence imposed. Indicative sentences: Discharge firearm with intent to resist arrest: 6 years, non-parole period of 3 years; Possess prohibited firearm (taking into account Form 1 offences): 3 years and 2 months, non-parole period of 19 months. Sentence imposed is 6 ½ years imprisonment, with a non-parole period of 3 years and 3 months to date from 2 November 2022. Eligible for release to parole 1 February 2026.

Catchwords:

SENTENCING – firearms offences - Discharge Firearm with intent to resist arrest – possess prohibited firearm - sovereign citizen - imprisonment

Legislation Cited:

s33A(2)(a) Crimes Act 1900 (NSW)

s7(1) Firearms Act 1996

s7A(1) Firearms Act 1996

Cases Cited:

DPP (Cth) v De La Rosa [2010] NSWCCA 194

Category:

Sentence

Parties:

Rex;
Peter Ryan

Representation:

Counsel:
Crown: H Bates
Defence: D Pace

Solicitors:
Crown: A Gunawardhana
Defence: M Huseyin

File Number(s):

2022/328823

JUDGMENT

1. The offender, Peter James Ryan, entered pleas of guilty at Coonamble Local Court on 19 March 2024 to two offences: the offence of Discharge Firearm with intent to resist arrest (sequence 4) pursuant to s33A(2)(a) Crimes Act 1900; and Possess Prohibited Firearm (.22 calibre self-loading rifle) (sequence 7) pursuant to s7(1) Firearms Act 1996. The maximum penalty for each of these offences is 25 years and 14 years imprisonment, with standard non-parole periods of 9 years and 4 years respectively.

2. When sentencing on sequence 7, the offender also asks that a further two offences be taken into account on a Form 1; being two offences of Possess unauthorised firearm pursuant to s7A(1) Firearms Act 1996. If for sentence, the maximum penalty would have been 5 years imprisonment.

FACTS

3. The details of each of these offences, including those listed on the Form 1, are contained in the agreed facts. I have read the full facts and recite key parts.

4. The offending relates to events which unfolded at the offender’s Binnaway property between the offender and police on 2 November 2022. Following attempts to arrest the offender in relation to a matter of intimidation, the offender, whose home was signposted with a plaque declaring it to be “sovereign land”, refused to leave his home and ordered police off his property. The offender stated, “You’re on sovereign ground, you will be neutralised if you fucking hurt me, or try and do anything to me”. When queried as to what he meant by “neutralised” the offender responded, “what the fuck do you think it means”. A twelve-hour siege ensued, during which police negotiators attended to attempt to peacefully resolve the situation. The police had been informed by a friend of the offender that the offender owned firearms. At about 6.30pm the standoff came to a head when four police officers approached the home, with Senior Constable Legge holding a ballistic shield and the other three officers, Senior Constable Churchill, Leading Senior Constable Tomlinson and Senior Constable Brownlee behind him and the shield. They approached the doorway and turned off the power. The offender said, “don’t do it”. From inside the house, the offender shot at police. The ballistic shield was struck causing a small hole roughly in the middle of the shield and a dent and knocking Senior Constable Legge backwards. This conduct supports the principal charge.

5. Negotiations continued for a further hour and a half and thereafter the offender exited the property into Police custody. The offender commented “It didn’t have to come to all of this. It was just a comment that everyone makes” and then he referred to having a mental breakdown and it being the anniversary of his son’s death.

6. A search of the home was conducted, during which police located three firearms and rounds of ammunition. Each of the firearms had been rendered safe by the offender. The offender did not hold a licence or permit to possess firearms.

7. A .22 long rifle, being a prohibited firearm, supports the offence for sentence. A .303 bolt-action rifle and a .410 single shot shotgun support the offences on the Form 1. The damage to the ballistic shield was consistent with having been caused by the .303 rifle.

8. At some stage throughout the siege the offender had written his will.

FACT FINDING

9. A number of submissions were advanced about factual findings that should be made based on the content of the facts and inferences. I am aware of the differing standards that apply when making findings of facts that aggravate or mitigate.

10. I was asked to infer the offender believed the police would kill him. Counsel for the offender indicated this would be inferred based on the offender having prepared his will during the period of the siege. I readily accept the fact the offender prepared his will reflects he contemplated he would die. Given what was occurring, that would likely involve being injured by police. However, I do not infer he held a belief that police would conduct themselves unlawfully. I do note the offender told the author of the psychological report that the police threatened to kill him: Exhibit 1 p3. I do not accept this hearsay account as reliable. This is no more likely than he knew he had a loaded firearm and if he discharged it he may be injured in efforts to secure his arrest. There is no available finding that would mitigate sentence.

11. I was asked to conclude his vision may have been impaired by the lighting. Given the time of year, there is no basis to conclude it was dark. He fired directly at the shield and hit it fairly centrally. He was without doubt aware there was an officer holding the shield. Although I consider it most likely he was aware there were other officers, given they were behind the shield I am unable to determine he was aware of other officers being present at the time of the discharge. It is however a fact that there were four officers behind the shield and the safety of each was imperilled when the firearm was discharged.

12. The offender indicated in case notes that if he wanted to do more harm he could have used different ammunition: DWS [15]; Exhibit 1 p46. There is no compelling evidence there was ammunition available that could have, or he believed could have, pierced the ballistic shield. I am asked to find the offender believed the ammunition used would not penetrate the shield. The comment made by the offender on 7 March 2023 is amongst other statements that are irrational and unreliable, such as his belief a shop keeper tried to kill him. The evidence does not support this finding.

13. It was submitted on behalf of the offender that the reference to neutralising was not repeated over the balance of the 12 hours and was therefore not an operating factor at the time of the discharge. I do not sentence the offender acting with this intent as that would support a more serious offence; as neutralising would entail an intent to kill. I do accept that in firing directly at the police, he intended some harm be occasioned to force the police to desist.

14. I was asked to conclude the offender immediately regretted his action. This finding is said to be available based on the offender stating what he did after the event: Agreed facts [21]. This passage alludes to his earlier comment about ‘neutralising’ the police. Although it was a ‘comment’, it was one that resulted in a siege and one in which he took possession of a loaded firearm that he ultimately used. The comment reflects the offender holding the police responsible for the consequences of his words and conduct. I do not accept this to be an expression of remorse or regret. The offender told the author of the psychological report that after discharging his firearm he ‘felt depleted and hollow for a long time’: Exhibit 1 p3. I do not find this to be an expression of regret. He still maintained his defiant attitude to police before he surrendered.

SERIOUSNESS

15. This offending supporting the discharge offence occurred at the offender’s home. The photographs in Exhibit B reflect the location of the house and the boundary fence and the proximity to neighbouring properties. There are a number of properties close by.

16. The offender fired the firearm with the intent nominated in the offence, with an intent to resist arrest. I accept there was both an appreciation that harm may be occasioned and an intent to cause some harm.

17. The offender discharged his firearm only the one time. He did so from inside the house where he was not seen but he evidently could see the shield. He did not discharge a warning shot. He fired directly at the shield. Firing directly at the shield entailed a risk it would penetrate the shield or hit the officer behind the shield or hit anyone of the others present in the area if his aim was not true. Firing a live round involved a substantial risk of serious harm or death occurring.

18. The single discharge actually hit the shield, which was held directly in front of the four officers.

19. The police could not have appreciated the intent of the offender at the time. Each would have felt a real fear for their safety.

20. The offender was not taken by surprise or acting impulsively. The negotiations with police had been transpiring over hours. He was informed by police hours earlier they were in attendance to secure an arrest. He fired when the power was turned off and he spoke to police. He must already have been in possession of the loaded firearm to discharge it so quickly.

21. Submissions were advanced by both parties on the suggesting finding on objective seriousness. The defence suggested a finding of ‘upper end of the low range’. The prosecution submitted it fell in the high range. I determine the offence to be a serious example of the offence provision, and although not necessary but given the specific submissions, I would indicate within the mid-range.

22. The firearm possession offence is informed by the type of weapon, whether it was loaded and the circumstances in which it was possessed. The firearm was possessed by the offender after he removed it from his then suicidal son. It was rendered safe at the time it was located although there was compatible ammunition contained in the home. It was not secured within a locked facility. It was a self-loading rifle. It is an offence of some seriousness.

PLEA

23. The pleas of guilty were entered on 19 March 2024, 17 months after arrest. The parties referred to extensive negotiations occurring. Despite the delay, the pleas each warrant a reduction of 25%.

FORM 1

24. I consider it appropriate that the further offences on the Form 1 be taken into account when I sentence on the firearm offence. I propose to do so consistent with the guidance provided in the guideline judgment. There will be a modest increase to the otherwise determined sentence.

CONSEQUENCES

25. The principal offence for sentence involves the discharge of the firearm and that this act was done with the intent to resist lawful arrest. The agreed facts detail the conduct and the immediate impact to the ballistic shield after being hit. There is reference to the force being such that Senior Constable Legge was knocked backwards. During the proceedings there was discussion about material sought to be tendered by the prosecution addressing the harm occasioned to two officers. Ultimately the prosecution asked that a victim impact statement of Senior Constable Legge and a statement of Inspector Moy addressing the outcome to Senior Constable Brownlee be assessed, not as informing the objective seriousness of the offences, but only as an acknowledgement of the consequences of the offending.

26. Both officers were members of the Tactical Support Unit. I accept they likely received additional training to general duties officers. I do not proceed on the basis they were trained to expect to have a firearm discharged directly at them from a reasonably close distance. Even if trained, the reality would differ to a training exercise.

27. Senior Constable Legge suffered the not unexpected emotional distress. He continues to suffer from this, and there is an impact to his family. He suffered a punctured lung requiring medical intervention and hospitalisation.

28. Soon after the incident Senior Constable Brownlee went on sick leave from which he did not return before he was medically discharged. He was a police officer for sufficient time to reach the rank of Senior Constable. As a consequence of this incident, he has lost his career.

29. These are real emotional and physical traumas occasioned to two serving officers. Nothing justified the events that transpired, and nothing justified the real and tangible harm to each officer.

ANTECEDENTS

30. The offender’s first adult criminal offending occurred when he was 35 in 1999 and involved personal violence and firearm offences. He has further offending, mostly involving personal violence and firearms. The most serious penalty imposed was a conditional release order in 2021. The possession of unauthorised firearms is of concern given his similar possession for the index offending. He is a person who does not comply with the requirement to be licensed. A submission was made that the risk for further offending was limited as he would not be able to secure a licence and would be subject to a Firearms Prohibition Order. This would ensure he was under scrutiny for firearm possession but could not of itself ensure an inability to access firearms if required. His record, given the nature of previous offending and the association to the index offending, does not entitle him to leniency.

31. I observe the offender has not offended whilst on remand. There are no disciplinary violations. This is of particular note given the extended remand period of 23 months.

BACKGROUND

32. The offender is an indigenous man now aged 60. The offender maintains a relationship with his very elderly mother and one of his two sisters. He intends to live with his mother upon release. I have referred to the death of his son. He is not in contact with his grandchild and this situation is unlikely to alter. He still has a daughter who he has not remained in contact with. When his children were young it is claimed their mother mistreated them and this is said to inform his domestic violence upon his wife. The offender was in employment until a heart attack in 2012 and he commenced receiving the disability pension.

33. The offender also has health issues including a serious heart condition and diabetes. The offender provided an account that he was not receiving diabetic suitable meals. He received a stent and is scheduled to receive further procedures for his heart condition. He also maintains he has received inadequate treatment for this condition.

MENTAL HEALTH

34. I am assisted by the psychological report authored by Susan Hawil. Ms Hawil was provided with Justice Health and psychology records to assist in the preparation of her report. It appears she had the full notes although only relevant ones are tendered. She observed him to present as experiencing moderately severe levels of anxiety and depression. The diagnosis proffered is one of PTSD and prolonged grief disorder. Both are said to have been occasioned after the death of his son.

35. Just less than a year before the offending the offender’s son committed suicide. Prior to his death his son had been engaged with government agencies regarding access to his daughter. This further fostered in the offender a distrust of the government. The offender already distrusted the government due to the COVID requirements and other irrational beliefs.

36. Some of his irrational beliefs concerned a belief persons intended to poison or kill him. He was involved in a long-standing dispute with his Local Council about rates and his inability to attend in person due to being unvaccinated.

37. The offender identified as a sovereign citizen from 2020. This informs the plaque on his gate. However, he adhered to the customs of the Court, and he recognised the right of the Court to sentence.

38. By the time the police attended, to attend to a legitimate arrest, the offender was socially isolated and suffering mental health issues. The case notes, tendered by both the prosecution and the defence, contain an insight into his disturbed thought processes. The indicia of disorder presents as diminishing with time. In the tendered psychological report, it is stated that he retains little interest in social interactions.

39. The earlier case notes include an opinion of paranoia and persecutory beliefs and a delusional disorder. Most of the beliefs are focussed on the government. In June 2023 he still referred to his intention to neutralise the authorities if they entered his land: Exhibit D, p3. By July 2023 a doctor excluded delusional disorder. The doctor noted continued sovereign beliefs were not delusional.

40. Ms Hawil opined the features of prolonged grief disorder and PTSD inform the offender’s response to the situation presented by the police attending his property.

41. It was submitted on behalf of the offender that his preparedness to engage with psychological services in custody boded well for his future prospects. Evidently, he requires assistance to render him more stable. His preparedness to engage can be perceived only as beneficial. It is a positive step, but many more steps are required.

42. I accept Ms Hawil assessed the offender as falling in the low/moderate risk for committing offences relative to others. She has proposed a treatment plan to minimise his risk of recidivism. She opined his personality, and an absence of family support remain the greatest risk factors. I observe his mother is elderly and suffers various health limitations. She would not be capable of providing much meaningful support. His sister is available, but the extent of her availability is not known. There is no other documented support.

MORAL CULPABILITY

43. The defence submitted the offender’s mental health has a direct bearing upon his moral culpability. It is submitted the operating factors include the contemporaneity to the death of his son, the circumstances surrounding and informing his distrust of government, his sovereign citizen beliefs and that he felt threatened when police attended including a belief the police would kill him and was in a heightened emotional state. It is further submitted that the trauma and grief, the distrust and paranoia and the social isolation inform the offending. In combination, these are said to lessen the offender’s moral culpability.

44. I accept that his mental health issues were operating at the time of the offending and inform his conduct on the day leading up to his offending. I accept they operate to moderate his moral culpability.

REMORSE

45. The pleas of guilty do not inherently convey remorse. There has been no expression of insight or what I consider to be genuine remorse. The statement to Ms Hawil of feeling hollow and depleted after having shot at police is not something I accept to reflect remorse. It is contained in a version of events that does not accord with the facts. It is inconsistent with his statements that he would still defend his property if someone again entered without his consent. I do not accept the defence submission that his education and belief system impacts his capacity to articulate remorse: DWS [52].

PROSPECTS

46. I am assisted by the psychologist’s assessment of the risk of reoffending. It was submitted the situation was unique and it would not be expected that the offender would encounter a similar situation.

47. The offender is prepared to receive psychological assistance as demonstrated by his voluntary engagement in custody and is compliant with medication.

48. The offender maintains his sovereign citizen beliefs which often arouse tension when interacting with any branch of government or authority. The offender may be socially isolated in the community, which is said to be a risk factor, but even more so his beliefs render him isolated from more reasonable views. I accept he will be supervised in the community for a period of time and there may be protection from the implementation of a FPO or an extended supervision order.

46. I accept the submissions advanced on his behalf that he has limited convictions and no institutional misconduct charges. I am cognisant of the suggested factors that inform risk. Although a close family member, the role his mother may serve given her age and health, is limited. I have referred to the uncertainty regarding his sister although I accept there will be endeavours to render the requisite assistance. The reality is that the support in the community is limited and he maintains marginalised belief systems that further socially isolate.

47. The evidence leaves me uncertain about his prospects of not reoffending, despite the psychologist’s assessment. The most that may be concluded is that his prospects are guarded. I do not consider there has been rehabilitation. This may well eventuate with further intervention and adherence to the treatment plan.

DETERRENCE

51. General deterrence is of significance when sentencing for any firearm offence and more so one involving a weapon being discharged. Of even greater significance is when the offence involves that firearm being discharged at a member of the Police Service.

52. The offender still maintains his sovereign beliefs. I accept the submission advanced on his behalf that it is non-mainstream but not akin to a terrorist organisation. It is however a belief system that caused issues for the offender in his interaction with others and endorsed irrational thoughts. The offender has not demonstrated remorse or real insight into his offending and what precipitated it. I consider personal deterrence has a continuing role to play.

53. It was submitted on behalf of the offender that the De La Rosa principles applied to warrant a reduction of the importance of general deterrence with no elevation of the role of personal deterrence. The prosecution argued for there to be no impact, or if there was the reduction of one resulted in the elevation of the other.

54. I determine that there is a modest adjustment to the role of general deterrence, but this equates with a countervailing adjustment to the role of personal deterrence.

IMPRISONMENT

55. It is not in issue that a sentence of full-time imprisonment is required. The length of that sentence is to be determined. Statistics and asserted ‘comparable’ cases were provided. The limitations of both sources of guidance were acknowledged.

56. The prosecution submitted the cases provided were to assist with the application of principle and pertinent factors.

57. In addressing the cases proffered by the prosecution, the defence submitted on the features that were inapposite to the index case: DWS [12]. I have not accepted the defence submissions about the applicability of individual features as addressed earlier.

58. Neither party ultimately suggested there was any case that would be regarded as comparable. I have nonetheless reviewed those cases and the individual features considered to inform the seriousness when assessing the seriousness of the principal offence.

59. I am guided by both the maximum penalty and the standard non-parole period each of which informs the seriousness with which the legislature regards each offence.

TOTALITY

60. It is unchallenged that a custodial sentence will be imposed. Although the offences arose in the same incident, they are different in nature. It cannot be determined that the criminality for one encompasses the overall criminality. Some accumulation to the sentences is required. This proposition was accepted on behalf of the offender.

SPECIAL CIRCUMSTANCES

61. I have taken into account the earlier period of remand coincided with the COVID restrictions in custody. This entailed more onerous conditions. I am mindful this is the offender’s first period in custody. The offender has advanced his health is compromised in custody. His solicitor has attested to observing a deterioration in his appearance. It is submitted his health conditions render custody more arduous.

62. I consider these factors well warrant a finding of special circumstances.

SENTENCE

63. The offender is convicted on both offences.

64. I propose to impose an aggregate sentence. I nominate the following indicative sentences:

65. Discharge firearm with intent to resist arrest offence: 6 years imprisonment with a non-parole period of 3 years; and

66. Possess prohibited firearm offence, taking into account the offences on the Form 1: 3 years and 2 months with a non-parole period of 19 months.

67. The sentence imposed is one of 6 ½ years imprisonment with a non-parole period of 3 years and 3 months to date from 2 November 2022. Eligibility for release to parole arises on 1 February 2026. The variation of the statutory ratio to 50% gives effect to my finding of special circumstances. No lesser sentence would reflect the seriousness of the offending.

**********

Decision last updated: 14 October 2024