R v Scheele
[2015] ACTSC 75
•19 February 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Scheele |
Citation: | [2015] ACTSC 75 |
Hearing Date: | 6 February 2015 |
DecisionDate: | 19 February 2015 |
Before: | Penfold J |
Decision: | See [23] to [26] below. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – offender to be sentenced for unauthorised possession of one prohibited firearm being a replica revolver capable of being fired – evidence suggested offender had not intended to fire it – offender claimed to be planning to use it as a lamp-base – offender knew he should not have possessed the firearm – no remorse – long criminal history including firearms offences 20 years ago – no very serious offences – offender lives with ill partner and their 6-year-old daughter – offender’s abuse of heroin and cannabis not apparently related to current offence – assessed as medium to high risk of re-offending – short prison term fully suspended subject to 12-month good behaviour order. |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) Firearms Act 1996 (ACT), s 42A(3) |
Cases Cited: | R v Pullen [2014] ACTSC 220 |
Parties: | The Queen (Crown) Paul Edward Scheele (Offender) |
Representation: | Counsel Ms E Beljic (Crown) Mr R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 46 of 2014 |
Paul Edward Scheele has pleaded guilty to one count of unauthorised possession of a prohibited firearm contrary to s 42A(3) of the Firearms Act 1996 (ACT), an offence carrying a maximum penalty of imprisonment for 10 years.
The circumstances of the offence are described in the Statement of Facts to the following effect:
Mr Scheele previously lived in Gowrie Court. While at Gowrie Court he found a bag containing a black replica revolver. When he subsequently moved to Narrabundah he brought the replica revolver with him.
On the morning of 18 October 2013, police attended Mr Scheele’s home to execute a search warrant. From inside the house Mr Scheele saw a marked police vehicle in the driveway. He walked into the kitchen, removed the black replica revolver from a kitchen cupboard and exited the premises via a side door [leading out to the back yard].
Mr Scheele had the replica revolver in his hand when he entered the back yard. He walked towards the rear of the back yard with the replica revolver still in his hand. A police officer said to him “Police, don’t move”, directing him to stop. Mr Scheele dropped the replica revolver onto a grassed area in the back yard near a shopping trolley. Police then directed Mr Scheele to move to the front of the premises. He walked towards the front of the house and was taken into custody by police.
Lying on the grass near a shopping trolley in the back yard where Mr Scheele dropped the replica revolver was the frame of the revolver. Lying separately but in close proximity to the frame was the cartridge cylinder of the revolver. Both the frame and cartridge cylinder were painted in black; the make, model, serial number and calibre of the revolver were obscured by the paint. Neither the frame nor the cartridge cylinder of the revolver was wet or covered in grass. The cartridge cylinder contained six chambers. It appeared to contain two live rounds of ammunition which was subsequently examined by a forensic firearms examiner.
Inside the kitchen cupboards the following were amongst the items located during the search: a pot of black paint, a black firearm holster, a black metal firearm part (the yoke of the replica revolver, which holds the frame of the revolver together with the cylinder), books about firearms, and two firearm handle grips inside a container that looked like a book.
Mr Scheele participated in a digital record of interview with the police where he stated a number of things:
1. That he “had dealt” with the replica revolver before.
2. That he had the replica revolver for 12 months.
3. That the replica revolver was “a toy”.
4. That “it doesn’t even work” because it “hasn’t even got a firing pin”.
5. That it had two “shells in it” and that “one’s been cut in half and one hasn’t”.
6. That he was “going to use it as an ornament” until “um, I saw this thing on TV lately about gun control and all that sort of stuff, so I just threw it out”. He was then asked why he didn’t hand it into the police and he said “Because I was thinking I was going to throw it in the bin and it was going to the tip”.
7. That he had “painted it a couple of days ago and then it’s probably, um, it was [thrown out the back] within the week”.
8. The police said to Mr Scheele “I spoke to one of the police officers ... and they stated they saw you holding a black firearm as you exited the house, in your right hand” and Mr Scheele said “Well I won’t bullshit you, yeah I dropped it on the ground when I walked out”.
9. Mr Scheele said “I didn’t think, when I walked out there, I thought to myself, after the other night on TV, I thought, I – that’s when I thought, yeah, this could get me into trouble ... I picked off out of my cupboard and I walked out and dropped it on the ground and I was walking out both that and that, I dropped it on the ground because there was no other reason you could have been there”.
The forensic firearms examiner, Christiaan Pieterse, received the replica revolver in three parts, a black painted revolver frame, a black painted revolver cylinder containing what appeared to be two live cartridges, and a revolver yoke.
When inspecting the revolver cylinder he found that the one cartridge was a primed cartridge head that was glued into one of the cylinder chambers to make it appear to be loaded with a live round. Mr Pieterse found that the cartridge head was consistent with formerly being part of a primed .38/.357 calibre Winchester brand cartridge, but in the form in which he found it was not a round of ammunition.
The second cartridge he removed from the cylinder chamber was .38 Special Calibre Winchester brand cartridge which on deconstruction was found to contain a primed case, propellant and a projectile. The second cartridge was a live round of ammunition.
Mr Pieterse assembled the replica revolver by fitting the revolver cylinder to the frame by way of the revolver yoke. The assembled item was similar in design to a COLT brand revolver sourced from the Firearms Identification and Armoury Team, Firearms Reference Library. Pictures of the assembled replica revolver next to a COLT brand revolver and the cylinder chamber containing the two “cartridges” are attached at Annexure “A”.
I have looked at those photographs and I can confirm that the replica revolver is a very convincing representation of the genuine revolver.
To determine whether the replica revolver would be capable of discharging ammunition Mr Pieterse cut down a commonly found split pin and placed it inside the replica revolver’s firing pin aperture, to act as a firing pin. He then placed a primed .38 special calibre cartridge into the chamber of the cylinder and successfully discharged the replica revolver. Mr Pieterse stated that “discharging a live round with this [replica] revolver would be very dangerous as it appears to be manufactured from cast iron; material which may not withstand the high pressures created during discharge. Should you be able to discharge a round without injury to the shooter, the discharge bullet will be unstable and, although not accurate, could be lethal over a short distance”.
Mr Scheele has not spent any time in custody in respect of these charges.
He pleaded not guilty in the Magistrates Court and was committed to this Court for trial. The trial was set down for 24 November 2014 on an indictment carrying two charges, but on that day Mr Scheele pleaded guilty before this Court to what was Count 2 on the indictment, the alternative count. The guilty plea came after the Crown had declined to proceed on Count 1, a more serious charge relating to unauthorised possession of three replica firearms, only one of which was capable of being fired so as to bring it within the definition of “firearm” in the Firearms Act. That decision was made after I held that a replica not capable of operating as a firearm did not fall within the Firearms Act definition of “firearm”, and therefore that the possession of three prohibited firearms could not be established.
The alternative charge to which Mr Scheele has now pleaded guilty, Count 2, appears to have been available to him for some time, and in October last year (some seven months after Mr Scheele was committed for trial), there was a short-lived attempt to negotiate a guilty plea to Count 2, which apparently foundered on the Crown’s wish to schedule one or more offences relating to the possession of the other two replica firearms.
As well as the Statement of Facts, the following material is in evidence before me:
(a)the criminal history;
(b)the Pre-Sentence Report dated 14 January 2015; and
(c)the three components of the replica revolver, being the frame, the cylinder and the yoke.
In considering the objective seriousness of the offence, I have had regard to the following matters:
(a)That the offence carries a significant penalty, even for the possession of a single prohibited firearm.
(b)that the firearm expert’s view was that the gun appears not to have been made to be fired, but that with the addition of a split pin it could have been fired, and because it was made of cast iron instead of an appropriate metal, it would have been very dangerous to the shooter, as well as to others.
(c)That Mr Scheele claimed to have found the firearm and kept it rather than having deliberately acquired it.
(d)That the firearm was discovered by police in pieces which were located separately in Mr Scheele’s house and yard, suggesting that Mr Scheele didn’t think of it as a potential weapon for emergency use, and also that Mr Scheele claimed that he had planned to use it as a lamp base.
(e)That one, but only one, live round of ammunition was found in the firearm cartridge.
(f)That there was no evidence that Mr Scheele had in his house a split pin of the kind said to be necessary to get the firearm to actually fire.
(g)That Mr Scheele had retained the firearm for some time, even after seeing a TV show which alerted him to the fact that his possession of it might be illegal, and that when the police came to his house he had the firearm in his hand; however, I interpret the Statement of Facts as describing an attempt to get rid of, or at least hide, the firearm before police found it, rather than any intention to threaten police with it.
(h)That, as already noted, the firearm was a very convincing imitation of a real working firearm.
(i)Finally, that Mr Scheele expressed no remorse.
The Pre-Sentence Report author reported:
Mr Scheele minimised his actions and provided little insight into his offending behaviour. He stated he had found the firearm and justified keeping the firearm in order to make a lamp for his bar area. Mr Scheele did not believe having an illegal firearm in his possession was wrong, and stated he had been around firearms most of his life.
However, I accept defence counsel’s submission that remorse may be an emotion not readily stirred up by a relatively passive act of simple possession of a replica firearm without any apparent intention to cause harm to anyone and in circumstances where, fortunately, no real harm has been done except to Mr Scheele’s presumed wish to stay out of trouble (although one should not ignore the substantial cost to community resources involved in Mr Scheele’s prosecution). In such a situation, it might in fact be hard to express remorse in a way that would not immediately be dismissed as an expression of regret over getting caught.
Taking all those things into account I consider that this offence is of mid- to low-level seriousness.
I must also consider the subjective circumstances of the offender.
Mr Scheele is now 50. He has a lengthy criminal history in both the ACT and New South Wales. Most of his offending in the ACT involves traffic offences, although there are several apparently minor dishonesty offences. In New South Wales, there have also been many traffic offences, some drug possession offences, a number of dishonesty offences, a number of minor and not so minor assaults and, more than 20 years ago, several firearms offences, most of which were dealt with by fines but for one of which Mr Scheele was sentenced to perform 500 hours of community service. It appears that Mr Scheele has served a number of relatively short prison terms.
Defence counsel submitted that Mr Scheele’s offending was becoming less frequent, perhaps because of his increased family responsibilities or his increasing age, but the prosecutor disputed this, pointing out that the current offence was one of the most serious on his record. This is quite correct but, given the largely passive nature of the offence in this particular case, it is not necessarily inconsistent with a decline in Mr Scheele’s appetite and energy for offending in general.
The Pre-Sentence Report provided the following information about Mr Scheele’s background and circumstances:
Mr Scheele is in a de facto relationship of nine years and he has a six year old daughter from this union. Mr Scheele reported although his partner has successfully completed treatment for a serious medical condition, she tires easily and he continues to take an active role in the running of the family home and care of his daughter.
Mr Scheele is also the father of three older children from two previous relationships, two who he described as having good relationships. Further he stated he has good family support from his mother and his stepfather.
Mr Scheele resides in ACT Housing with his partner and daughter.
[He] is unemployed and has previous employment experience as a truck driver and motor mechanic. Although in receipt of a Centrelink pension, [Mr Scheele] advised he would work if he had a valid driver’s licence.
Mr Scheele has been in receipt of a Centrelink pension and reported he just manages to meet his financial obligations.
Mr Scheele reported he was a social drinker and did not have an issue with alcohol. An alcohol assessment tool administered on 12 December 2014 indicated Mr Scheele’s consumption of alcohol within the past 12 months is considered low risk. [Mr Scheele] reported a substance abuse issue with heroin and cannabis. He claimed he ceased heroin use for the past eight months and has also made a decision to no longer participate in pharmacotherapy treatment.
Mr Scheele stated he uses cannabis on a regular basis. His partner confirmed his use of cannabis and said he did not use it every day. Mr Scheele reported to frequently smoking about a quarter of a gram of cannabis, and when questioned, he admitted to being under the influence of cannabis during his interview for this report. A Drug Abuse Screening Test administered on 12 December 2014 indicated Mr Scheele is at present using illicit substances at a moderate level which requires further investigation.
ACT Health advised Mr Scheele has current referrals with Alcohol and Drug Services (ADS) for medical services and pharmacotherapy treatment. He attended a counselling session and medical review on 23 December 2014 as well as a further medical review on 2 January 2015. At this time he has no further scheduled appointments with ACT Health Services.
[Mr Scheele] reported good physical health and reported no mental health issues for which he is receiving treatment. He had a mental health issue for which he was prescribed medication in 2012 and after a short period decided to cease treatment and sought no further assistance.
...
Mr Scheele is a 50 year old man with an extensive criminal history. Despite his long involvement with the criminal justice system and having served several periods of incarceration, it would appear Mr Scheele has not adjusted his behaviour to achieve a socially accepted lifestyle. He has continued to lead an unconventional lifestyle, using illicit substances that have contributed to his offending behaviour.
Mr Scheele is assessed as a medium to high risk for general re-offending and may benefit from addressing his substance abuse issues and anti social attitudes.
It is apparent from Mr Scheele’s criminal history that substance abuse has contributed to his offending, but it is not clear that substance abuse has any particular connection with the firearms offences for which I am sentencing Mr Scheele.
Mr Scheele has been assessed as unsuitable for both periodic detention and community service orders due to what are described as “unaddressed substance dependency issues”. He did complete a term of periodic detention in 2013, although the Pre-Sentence Report suggested that there had been breach action on several occasions during the term of the periodic detention.
I agree with the Pre-Sentence Report author’s suggestion that addressing his substance abuse issues and anti-social attitudes may help Mr Scheele keep out of trouble more generally, but as already noted it is not clear that the current offence has any connection with substance abuse, and nor is it clear that Mr Scheele’s approach to interior decorating is any more indicative of anti-social attitudes than, for instance, the interior decorating approach that favours the display of the heads of animals one has killed.
That said, I accept that the unauthorised possession of firearms, even those that are not properly adapted to use as firearms, and certainly those that could be so used but only at great risk to the user as well as anyone in the vicinity, is a social evil creating many risks in the community, and needs to be taken seriously. It is no accident that even the possession of a single unauthorised firearm carries a maximum penalty of 10 years in prison, with the penalties increasing for possession of greater numbers.
This is an offence for which general deterrence is not only important but may also be effective, at least to the extent that this sentencing may become known to others who might otherwise not be aware that possessing even an apparently non-functional firearm, even for nothing more than an apparently innocent purpose, may be against the law. Personal deterrence is also relevant given Mr Scheele’s claim that he doesn’t think his actions were wrong and the fact that he obviously has a keen interest in firearms.
Counsel drew my attention to my sentence of Jedd Pullen (R v Pullen [2014] ACTSC 220) in August last year for two offences, one each of unauthorised possession of firearms and unauthorised possession of prohibited weapons. Mr Pullen’s firearms offence seems to me to be slightly less serious than Mr Scheele’s offence. First, the application of the Firearms Act in relation to non-functional replicas was not raised in that sentencing, and all Mr Pullen’s firearms were non-functional replicas (R v Scheele [2014] ACTSC 317), two made of plastic. Secondly, Mr Pullen had a very minor criminal history consisting of four traffic offences and a failure to vote, and so in particular he had no previous firearms offences. Nor was it suggested that he knew he should not have had the replica firearms. Despite that, he entered very early guilty pleas. Finally, Mr Pullen had suffered a relatively traumatic childhood and had been treated for depressive illnesses on and off for many years. Thus, the fact that I made only a good behaviour order in sentencing Mr Pullen does not establish that this is all that is required in dealing with the current offence. On the other hand, I accept that Mr Scheele’s offence is not one that requires immediate custodial time.
I have already noted that Mr Scheele’s substance abuse does not appear to have any direct connection with this offending, and the Pre-Sentence Report indicates that currently, cannabis use may be his only problematic drug use. Defence counsel suggested that no supervision condition was necessary if I did make a good behaviour order, but I note the Pre-Sentence Report recommendation that Mr Scheele is assessed as a medium to high risk of re-offending and is suitable for a medium to high level of intervention, and I cannot see why some attempt to reduce those risks should not be pursued.
Mr Scheele, please stand. I record a conviction on the charge of unauthorised possession of a prohibited firearm.
I now sentence you to imprisonment for three months, reduced from four months for your plea of guilty. The circumstances of your plea of guilty would in my view not have justified more than a 20% discount, but you have received the benefit of some rounding up as well. As you will see, I do not expect that you will actually serve any of that period in custody.
The sentence will be suspended with immediate effect and I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 12 months, with security in the amount of $500.
The good behaviour order is subject to the conditions:
(a)that for such period not exceeding 12 months as Corrective Services considers necessary, you accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General or her delegate;
(b)that you undertake such counselling, courses, programs or treatments as directed by your supervising officer; and
(c)that within the next two days (so before the end of Monday, but sensibly this afternoon or even this morning), you attend Corrective Services at Eclipse House to arrange your supervision.
You will be given a written copy of the good behaviour order. It will be read to you by the court officials. You have had good behaviour orders before, Mr Scheele, and I am sure you understand that what they mean is, this time, for the next year you need to keep out of trouble, keep in contact with Corrective Services as they require, and comply with your supervisor’s directions. If you commit another offence during that time, or don’t comply with your supervision requirements, you might find yourself back before this court to be re-sentenced for this offence as well as possibly losing your $500 security and, especially if you have re-offended, you could find yourself serving some of that three months in full-time custody.
You may sit down.
| 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: |