R v Shinner

[2024] NSWDC 62

District Court

New South Wales

Medium Neutral Citation:

R v Shinner [2024] NSWDC 62

Hearing dates:

08 March 2024

Date of orders:

08 March 2024

Decision date:

08 March 2024

Jurisdiction:

Criminal

Before:

Anderson SC DCJ

Decision:

(1) With respect to the firearms offence under s 7(1) of the Firearms Act, I impose an indicative sentence of 3 years, with a non-parole period of 2 years.

(2) With respect to the s 33B(1)(a) of the Crimes Act, offence of using a weapon with the intent to commit a serious indictable offence, namely intimidation, the indicative sentence is 2 years.

(3) I impose an aggregate sentence of three and a half years. Taking into account my finding of special circumstances, the non-parole period will be 60 per cent of this, meaning the non-parole period will be two years and one month.

Catchwords:

CRIMINAL – sentencing

Legislation Cited:

Firearms Act 1996

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Sentence

Parties:

Office of the Director of Public Prosecutions (Crown)
David Brian Shinner (Offender)

Representation:

Counsel:
Mr D Henschell (Crown)
Ms L Barnes (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Olympus Law

File Number(s):

2022/325744

Publication restriction:

Nil

JUDGMENT

1. The reason the offender Mr Shinner is before the court today is because on 30 October 2022, he ordered a dish of sweet and sour pork from the Yam’s Chinese takeaway in Branxton. The food he received was not to the quality he had expected. Mr Shinner took the food back to his caravan, collected a shortened firearm that he had stored in a drawer and returned to the Yam’s shop. He threatened Mr Yam with the weapon and demanded to receive a “proper meal” of sweet and sour pork.

2. As a result of that action, he is now before the court.

Offences

3. The offender has pleaded guilty to two offences. Firstly, an offence under s 7(1) of the Firearms Act, an offence which carries a maximum term of imprisonment of 14 years and has an applicable standard non-parole period of 4 years. The second offence is under s 33B(1)(a) of the Crimes Act, an offence which carries a 12-year maximum term of imprisonment.

Form 1 offence

4. I have also been asked to take into account a Form 1 document which lists a further offence, namely the offence of possessing ammunition without holding a licence, an offence under s 55(3) of the Firearms Act. That offence carries a maximum penalty of 50 units. The offender asks that I take this into account when I sentence him in relation to the Firearms Act offence, which I will do, and I will do so in accordance with the principles set out in the guideline judgment.

Plea of guilty

5. Importantly, Mr Shinner entered a plea of guilty to these charges at the Newcastle Local Court on 27 September 2023 and, on that basis, I will apply 25% reduction to the sentence which would otherwise have been appropriate for the commission of these two offences.

FACTS

Disputed Factual issues

6. There was a need for the Court to deal with a factual dispute between the parties, notwithstanding the fact that there had been a Statement of Agreed Facts. I note that aggravating factors must be proved beyond a reasonable doubt while those in mitigation need only be proved on the balance or probabilities. The aggravating and mitigating circumstances that I have found will inform my assessment of the offending and have been included in the assessment of the seriousness of the offending and in the assessment of moral culpability.

7. Before dealing with the three factual disputes which arose and which required my determination, I will set out briefly the agreed facts which give rise to the offending.

8. At about 5.30pm on 30 October 2022, the offender had gone to the victim’s Chinese takeaway restaurant and ordered a meal, which included sweet and sour pork. The victims in this matter are Mr and Ms Yam. The offender ordered and paid for his food and then left the premises. He returned about 15 or 20 minutes later, asserting that the victims had not provided him with the sweet and sour pork he ordered. He said, “All I got was some pork balls and a paper bag and a sauce in a little cup.” Things escalated from there.

9. The offender left the shop and returned to it again about 15 or 30 minutes later, but this time he returned to the shop carrying a bag, inside of which was a loaded firearm. The offender approached the counter and placed with the firearm on the counter. I heard evidence during the sentence hearing that the offender waited for other customers to leave the shop and that once they did, he closed the glass sliding door and was now the only customer in the restaurant. There was, however, one customer waiting outside in his car, Mr Daniel Tetuanui, who also gave evidence before me.

10. Once he was alone in the restaurant, the offender again demanded sweet and sour pork. The victim, Ms Yam, did not look at the offender when this demand was made, and she continued to prepare other meals in the kitchen. The offender began swearing and yelling. When he did this, he placed his hand on top of the bag which was sitting on top of the counter. The offender then opened the bag and removed the firearm. This is the action that gives rise to the charge under s 7(1) of the Firearms Act.

11. The offender then held the firearm in his right hand and pointed it at Mr Yam who at that time was in the kitchen area working, about six feet away. At this point the offender was in the front part of the shop and both Mr and Ms Yam were behind the counter, which could be accessed through a pair of bifold doors in the kitchen. Mr Yam saw the offender with the firearm but he did not know if it was real.

12. What happens next is the subject of the disputed facts hearing which I will come to. What is not in dispute is that shortly after those events the offender was heard to say, “Give me the sweet and sour pork.” Mr Tetuanui entered the shop saw the offender flying back through the bifold doors which had separated the public area of the takeaway shop to the kitchen. Mr Yam had grabbed hold of the offender and threw punches at his head and face. The offender and Mr Yam fell to the ground, wrestling for a couple of minutes. As this was happening, Ms Yam came from behind the counter, through the bifold doors and gave the offender a kick. Mr Yam was holding the offender down, including by placing a knee on his head and pulling one of the offender’s own arms over the offender’s neck. The offender was bleeding and complaining that he could not breathe.

13. Mr Tetuanui was asked to call the police, which he did, while Ms Yam told her husband to let go of the offender, which he also did. The offender then ran out of the shop, losing his shoes as he ran away. The following day, just before 5pm, police approached the offender, who at that time was staying in his motorhome on a private property nearby. When the police approached him, he said, “I knew you guys were coming.”

14. The offender agreed to participate in a record of interview with police. He made a number of admissions during that interview regarding the events involving the Yams, including that he had taken the gun to their takeaway shop for the purpose of scaring them because he had received, in his words, “a crappy meal”. He said to police, “I wanted a decent meal. I mean, I asked for sweet and sour pork and I got rocks. I mean the fried rice was all right. The sweet and sour pork, it’s supposed to be sweet and sour pork and veggies and all that with, you know, it’s just nothing like that and it was burnt. I was just peed off because I paid all that money and I got crap.”

15. The offender told police that the firearm he had taken to the Yams’ restaurant was something he had found some time ago and simply put in a drawer. He told the police that the firearm did not work and that he had pulled the trigger multiple times without it successfully firing. At that point in time, he denied pointing the firearm at Mr Yam or having moved into the kitchen area of the shop. He maintained that at all times he was on the public side of the bifold doors and that he had simply pulled the firearm out of the bag and placed it on the counter to scare Mr Yam. He told police that when Mr Yam saw the firearm he had run towards him and grabbed it. He stated that he had been assaulted by Mr Yam but that he deserved it. He was adamant that he had never actually threatened to shoot either victim. It is now accepted by the balance of the Statement of Agreed Facts and his plea of guilty that the offender no longer adhered to that particular version of events. The offender apologised for his behaviour in the record of interview, and he said he did not know why he took the firearm to the shop.

16. The firearm used in the offence was subsequently identified by police as a shortened .22 Hornet calibre Thompson centre single shot break action pistol. It had been modified from its original form with a shortened forearm and barrel. It was loaded at the time of the offence and was, in fact, in working order. Those matters are not in dispute.

17. The three aspects which were in dispute and which require my determination are as follows. Firstly, the Crown alleged that the Court would find proved beyond a reasonable doubt that the offender had pushed through the bifold doors with the gun and approached Mr Yam with an outstretched arm and held the firearm up to the right side of Mr Yam’s head, approximately two to three inches away from his head. The second issue was that when Mr Tetuanui saw the offender “flying back” the offender was flying back through the bifold doors.

18. In addition to those two matters, the offender asks the court to find that Mr Yam had taken the firearm from the counter. I will deal with that matter first, as it was conceded by Counsel who appeared for the offender, Ms Barnes, that there was, in fact, no evidence before the court which he could rely upon to find that fact proven. On that basis, I do not take that fact into account.

19. With respect to the two facts contended by the Crown, there was evidence given before me from Mr and Ms Yam and Mr Tetuanui.

20. Mr Yam’s evidence was that he was working in the kitchen, when he heard the offender place the bag containing the firearm on the counter. The offender kept demanding food and when it was not provided, Mr Yam’s evidence was that, the offender lost his temper and began threatening him. It was at that point that he pulled the gun from the bag and pointed it at Mr Yam. Mr Yam’s evidence was that the offender said to him, “If you don’t give me my order, I will shoot you”. At that point the offender and Mr Yam were about six feet apart, with Mr Yam in the kitchen cooking and the offender on the public side of the counter. Mr Yam gave evidence that the gun was pointed at him for about 30 seconds, which I accept.

21. Mr Yam gave evidence that after that time the offender came through the bifold doors and into the kitchen area and pointed the gun at his head, he was making another demand for food. When asked during evidence-in-chief how far away the offender was standing when this occurred, he said it was “very close”. He said, “The gun was pointing at the right side of my head and then I had to put food in containers and I turned and the gun was pointing at my forehead.”

22. Mr Yam gave evidence that he used his left hand to push the gun away and at that point the gun dropped onto the table. The offender then began to hit Mr Yam with the bag. Mr Yam maintained this version throughout cross-examination, disagreeing with the proposition that he had exaggerated what had occurred; he was adamant that the gun had been pulled upon him while he was in the kitchen and that it had been placed close to his head. He rejected the suggestion that he had made up what had occurred because he was concerned that the police may have been angered by his action in subsequently injuring the offender.

23. Mrs Yam’s evidence was that at the time the offender entered the restaurant and began yelling she was towards the back of the kitchen area, near the back door. Consistently, though, with the evidence of her husband, she said in evidence that the offender “went through the doors. I heard the doors and I saw him point the gun at my husband. It was pointing at the temple of my husband. I was so shaken, I didn’t know what to do.”

24. Mrs Yam also maintained this version of events during cross-examination, stating that she saw fighting in the kitchen itself. In contrast to Mr Yam’s evidence, she said that she saw the gun fall from the offender’s hand and land on the floor but she could not see precisely where. She did not give any evidence about how far the gun was held away from her husband’s head.

25. Mr Tetuanui also gave evidence. He stated that he had gone to the shop, placed his order with the Yams and then waited outside. While he was waiting outside, he heard some yelling coming from the shop and he entered. He heard the offender yelling. He saw Ms Yam near the cash register and Mr Yam in the kitchen, in the cooking area. His evidence was that he initially saw the offender standing in the centre of the counter, but he also gave evidence that, “I saw old mate come flying back through the bifold doors. The cook threw some punches and the old bloke fell down.” As I understood his evidence, “old mate” and “the old bloke” are references to the offender. Mr Tetuanui did not see anything in the offender’s hands while this was occurring. An important aspect of his evidence was how far into the kitchen area the offender was standing. He referred to seeing him inside the bifold doors.

26. Ms Barnes, in her submissions, relied heavily on the evidence of Mr Tetuanui. Ms Barnes submitted that there were inconsistencies between the three versions as to where Mr Yam was standing at the time the offender was allegedly pointing the gun at him and where precisely Ms Yam was and also where the offender was. Ms Barnes submitted that Mr and Ms Yam had the opportunity to discuss a version of events which they could present to the police, which could justify Mr Yam assaulting the offender.

27. The Crown submitted that the offender has always attempted to minimise exactly what occurred and that the version of events given by Mr Yam with respect to the offender entering the kitchen and placing the gun close to his head was consistent with Ms Yam’s evidence and was not inconsistent with Mr Tetuanui’s evidence.

28. Mr Crown emphasised Mr Tetuanui did not see the entirety of the events and could not see what occurred beyond the bifold doors into the kitchen. The Crown further submitted that there was no need for the Yams to make up a version of events in order to justify their actions to police.

29. Having heard the evidence from the three witnesses and submissions of the parties, I find the Crown has proved beyond a reasonable doubt that the offender entered the kitchen area and held the firearm very close to the head of Mr Yam. I accept Mr Yam as a witness of truth, with no need to invent a version of events in order to justify his subsequent punching of the offender and placing the offender’s arm across the offender’s neck, or in applying his knee to the offender’s head.

30. I agree with the offender’s statement that he deserved this treatment. In circumstances where he was simply going about his business and having a gun pulled on him, even at six feet away, Mr Yam’s actions towards the offender were entirely justified and he would certainly have had nothing to fear from police. I accept him as a witness of truth and I accept his version of events.

31. Moreover, it was consistent with Ms Yam’s version of events in clear respects. Ms Yam said that she saw the gun being pulled on her husband while he was working in the kitchen area. Her evidence was that she saw the gun being pointed at her husband’s head; specifically she referred to the temple area.

32. While I accept that there is some difference in her evidence as to exactly where she was standing when this occurred, either towards the back of the shop or closer to the front, near the cash register, as Mr Tetuanui had said, it does not, in my opinion, challenge the substance of Mr Yam’s evidence and my ability to accept his evidence, nor Ms Yam’s evidence. The fact that the versions actually differ between the two of them would indicate there has been no collusion.

33. Ms Barnes submitted that there is an inconsistency with the evidence of Mr Tetuanui regarding the fact that he only sees the offender at the bifold door and not well into the kitchen. I accept Mr Tetuanui’s evidence but it is not, in my view, inconsistent with the Yams’ evidence, because, of course, he only sees part of the fight and he did not see what was occurring beyond the bifold doors. The fact that he sees Ms Yam at the cash register and not at the back of the shop does not alter my view. None of the inconsistencies Ms Barnes identified go to the core issue of whether the court can rely on the evidence of Mr Yam regarding the offender’s conduct in pointing the gun very close to his head.

Objective seriousness

34. I have to apply these facts now to my assessment of the objective seriousness. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.

35. With respect to the offence under s 7(1) of the Firearms Act, I accept that the offence would have been more serious if the offender had been involved in trading in illegal drugs or participating in serious assaults or some illegal activity. Nonetheless, the carrying of a loaded shortened firearm was extremely dangerous, especially given the emotional state the offender was in.

36. The purpose of the offence of s 7 of the Firearms Act is to control the possession and use of firearms in the community. Any breach of that Act for such an offence is serious, as demonstrated by the fact that it carries a 14 year maximum term of custody. It was submitted by the offender that the offence was at the lower level of seriousness for offences of this type. I do not accept that submission.

37. I determine that the offence falls at the mid-range.

38. With respect to the offence of s 33B(1)(a) of the Crimes Act, Ms Barnes submitted that this also falls at the lower end of the range of objective seriousness, in part because the underlying indictable offence that was committed, one of intimidation, carries a maximum penalty of only five years. While I accept that it is one of the lower charges that could be the “serious indictable offence” which gives rise to a charge of s 33B(1)(a), in this instance the intimidation was one that involved three distinct acts, which, in my view, makes it more serious.

39. Firstly, the first act of intimidation was the bringing of the gun to the shop and placing it on the counter. The second act was pointing the gun at Mr Yam when he was standing about six feet away from him. And thirdly, the entering of the kitchen area and making a further threat to Mr Yam, while pointing the gun very close to his head. These three distinct acts of intimidation go beyond what could be regarded as the minimum conduct constituting intimidation. In my view, it was intentional, it was unprovoked and highly dangerous.

40. I determine the offence to fall at the mid-range.

41. In reaching the conclusions I have regarding objective seriousness, I have considered the offender’s moral culpability in the circumstances of this case and I have found that it is reduced to some degree for the reasons I will shortly detail, but is presently relevant because of his mental health and childhood deprivation issues, which are causally related in some way to the offending conduct.

AGGRAVATING FACTORS

42. I am required under s 21A(2) and (3) of the Crimes (Sentencing Procedure) Act to consider whether there are aggravating and mitigating features, as set out in the Act. I am conscious not to take any of those features set out in s 21A(2) into account where they form part of the elements of the offence. The Crown has not submitted that any of those considerations apply beyond the possibility that there was a grave risk of injury or death, a consideration that is relevant as s 21A(2)(ib) but I do not accept that the matter falls into that category of conduct and I will not use it as one of the statutory aggravating features.

MITIGATING FACTORS

43. In terms of mitigating factors under s 21A(3), I accept that the emotional harm to the Yams, perhaps surprisingly, was not substantial. There was certainly no evidence that it was. The offender’s conduct was not part of a planned, organised activity. With respect to remorse, the offender relies on the untested hearsay statements he made to the psychologist. He did also, though, make some statements to the police. The Crown has submitted that the fact that the offender sought to change the Crown case and have a contested facts hearing demonstrates a lack of remorse. The Crown makes the submission with respect to rehabilitation as well. I do not accept that submission as it really conflates what I regard as two different concepts, the first being the acceptance of responsibility and remorse on the one hand and, secondly, the correct factual basis upon which the offender can be sentenced.

44. In the circumstances of this offender and this case, I find on the balance of probabilities that he is remorseful and I find that he has good prospects of rehabilitation. I say this because he is someone who, although he has broken the law here, in the last 30 years, apart from a driving matter, he has not come before the courts for any matter. I find that those offences on his criminal history are so old as to be of little assistance to the court when it comes to assessing his prospects of rehabilitation. However, I do take into account the sentencing assessment report and the conclusions set out therein. In my view, I find that he does have good prospects for rehabilitation and I consider him to be a low risk of reoffending.

ANTECEDENTS

45. With respect to his general antecedents and the subjective case, I note that he is 61 years of age. As I say, he does have a number of criminal matters on his criminal history and he has received various sentencing outcomes over the course of his life for those. Sadly, he has spent a long time in custody during the course of his life.

SUBJECTIVE CASE

46. With respect to the subjective material before the court, the offender did not give evidence on sentence but relied upon a combination of medical evidence dealing with his health issues while in custody. There was a psychologist’s report and three letters, which I will deal with shortly.

47. I found this material powerful in terms of setting out his personal circumstances.

Psychological report by Ms Amanda Georges

48. With respect to the psychological report, it was prepared by Ms Amanda Georges and was completed on 25 January 2024. In describing the incident before the court today, the offender demonstrated insight, according to Ms Georges, into his behaviour, stating that he understood why it was that the Yams, particularly Mr Yam, had punched him after the event and tackled him to the ground. He said that he deserved this and he recognised that his conduct would have, in his words, “freaked them out”. He also expressed that he was sorry. He expressed that he wished he had never done it and that he was sorry for what he has done and he wishes that he had never done anything so stupid. I accept that, albeit that it is, as I say, simply set out in the psychologist’s report, rather than given as evidence to me.

49. Mr Shinner has a close relationship with his younger brother, who I note also wrote a letter to the court and has offered to provide a home to Mr Shinner upon his release. He is currently caring for the offender’s dog, which is understandably a matter which is very important to the offender.

50. As a child, the offender described that he experienced physical forms of disciplining, particularly from his mother, which included being belted or hit with a stick. He told Ms Georges that he was molested at various times, which stopped in 1979, when he was approximately 18 years old and that he has subsequently commenced civil proceedings for incidents relating to that abuse.

51. He has been in a relationship which had two children, both of which are now in their 40’s. However, he is estranged from his children and grandchildren. He lives in a motorhome with no fixed address.

52. With respect to Mr Shinner’s medical history, he was diagnosed with emphysema and has been a smoker for a long time. He underwent hip surgery approximately 10 years ago. He reports having a collapsed lung, which had required hospital admission. He started smoking marihuana in the 1980’s and smoked cigarettes since he was eight years of age. He reported to Ms Georges that he has had problems with alcohol dependence and, in the past, had drunk daily. To address his alcoholism, Mr Shinner had attempted rehabilitation on several occasions but there had been minimal success. I understand that he had been drinking on the night of this offence but, of course, that does not act to mitigate the sentence in any way.

53. On the medical evidence before me, which I have received from Justice Health, they demonstrate that he has ongoing issues with asthma, pulmonary disease, hepatitis, a visual impairment, osteoarthritis and emphysema. He is currently on a suite of medications dealing with a variety of issues, not the least of which is his mental health issues. No doubt, all of this makes his time in custody more difficult, particularly in a correctional centre environment which, for a time, had to deal with issues to do with COVID.

54. Ms Georges reported that Mr Shinner had told her that he had been diagnosed with bipolar affective disorder in 2008 and that he had anger problems and that he experienced having bad dreams involving blood. He also reported chronic symptoms of depression and had attempted suicide a number of times. Her conclusion was that the offender’s challenging background has undoubtedly had profound effects on his mental health, his wellbeing and overall life trajectory, including anxiety, depression, post-traumatic stress disorder, homelessness, relationship difficulties, social isolation and alcoholism.

55. In the 1970’s and 80’s, Ms Georges observes, there was a lack of understanding and recognition of issues to do with mental health issues, including with respect to ADHD. This societal perception led to individuals being mischaracterised as having character flaws or personal shortcomings. As a consequence, individuals grappling with some issues such as this were not always recognised.

56. Ms Georges identifies Mr Shinner would have been in that group. They are often overlooked or misunderstood by educational and health care systems. This would have exacerbated a negative trajectory for life and created problems well into adulthood. I have no difficulty accepting the evidence of Ms Georges in that respect.

57. Ms Georges concluded that Mr Shinner meets the criteria for anti-social personality disorder, alcohol use disorder and post-traumatic stress disorder. At the time of his offending, he had not been using any medications for his mental health for about four months. Ms George observes that Mr Shinner had been largely untreated, psychologically speaking, and therefore likely lacks alternative strategies to adequately and effectively navigate complex situations. She further stated that his decision at the time of the offending may have been affected by his various mental health problems which can cause extreme shifts in mood and energy levels, leading to impulsive and risky decision making during manic episodes, particularly when unmedicated. And as I note, he had been unmedicated for some four months prior to this offence arising.

58. Mr Shinner is motivated to make some positive changes in his life. He is looking forward to reuniting with his dog, which I can well understand and he plans to stay with his brother until the completion of his parole period. Mr Shinner’s prospects for rehabilitation would improve further. Should he consider seeking ongoing medical support for his mental health issues and addiction issues.

MORAL CULPABILITY ISSUES

Mental Health

59. With respect to moral culpability considerations, an offender’s mental health may be relevant on sentence in a number of ways. It may contribute to a reduction in moral culpability, it may mean that they are an inappropriate vehicle for general deterrence, it may mean that custody will weigh more heavily upon that person and be more onerous, it may reduce or eliminate specific deterrence or, conversely, such a person may present more of a danger to the community, in which case specific deterrence may increase.

60. Where a causal connection is established, mental impairment may affect both an assessment of moral culpability and the objective seriousness of the offence. The nature of the impairment, the nature and the circumstance of the offence and the degree of the connection must all be considered. In such a case, the objective seriousness might be reduced substantially, or to a lesser degree.

61. I accept that the mental health issues which have been explained to me by the evidence of Ms Georges have had a significant impact in causing the offence to occur. I accept her evidence that it may well have affected his decision making and that he acted in an impulsive and risky manner because he was unmedicated. I also accept that the mental health issues which he has been experiencing have made his time in custody more onerous and he is not a suitable vehicle for general deterrence. Nonetheless, specific deterrence is still an important consideration because Mr Shinner has to understand that if he fails to take his medication, committing offences like this in the future may well be a consequence.

CHILDHOOD DEPRIVATION

62. With respect to issues of childhood deprivation, where the profound childhood deprivation, in whatever form it occurred, is taken into account by way of a reduction in moral culpability or more broadly as part of the offender’s subjective case, is largely a matter for the assessment of the sentencing judge. Identifying whether there is a causal link is not always straight forward. Sometimes there are subtleties and nuances.

63. The offender submitted that his social circumstances were akin to a background of deprivation and social disadvantage. It is well established that a disadvantaged background of an offender may mitigate sentence that would otherwise be appropriate. I accept in this case that there has been relevant disadvantage, based on the evidence I have set out above and that this serves to lessen his moral culpability and his mental health issues also serve to lessen his moral culpability.

PURPOSES OF SENTENCING

64. I have taken that into account when it comes to my assessment of the objective seriousness of the offences. Section 3A of the Crimes (Sentencing Procedure) Act sets out the purposes of sentencing.

The purposes for which a court may impose a sentence on an offender are as follows:

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.

65. I have taken them into account in assessing the appropriate sentence for Mr Shinner.

THRESHOLD

66. With respect to s 5 of the Crimes (Sentencing Procedure) Act, having considered all the possible alternatives to a custodial sentence, I am satisfied that no penalty other than imprisonment is appropriate. Counsel for the offender did not submit to the contrary.

SPECIAL CIRCUMSTANCES

67. Ms Barnes submitted that I should make a finding of special circumstances, relying on the fact that he has been bullied while in custody, has spent time in protection and he has ongoing health issues. Given the amount of time he has spent in custody during his life, I believe that Mr Shinner is someone who would also benefit from the assistance of Community Corrections and I accept Ms Barnes’ submissions with respect to the basis upon which I could find special circumstances and I will make a finding of special circumstances.

Sentence commencement date

68. Mr Shinner has been in custody solely in relation to these matters since 31 October 2022. His sentence will be backdated to commence on that day.

The instinctive synthesis

69. I am required to sentence on the basis of what is referred to as the instinctive synthesis. Notwithstanding Mr Shinner’s strong subjective case, the reduction in moral culpability and the positive findings I have made regarding his future prospects of rehabilitation, the sentence I impose must still reflect the objective seriousness of these offences, which, as I say, both fall in the mid-range. But for his age, his mental and physical health issues and the fact that this seems to be an aberration with respect to his conduct over the past 30 years, something which may well be linked to his non-compliance with his medication, his sentence would have been significantly longer than the sentence I am going to impose.

ORDERS

70. I intend to impose an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act and, in imposing that sentence, I am conscious of issues of totality, noting that while they are different offences, the two offences occurred simultaneously, with the same victims and in the same circumstances.

71. I am also taking into account the Form 1 which attaches to the firearms offence.

72. Each indicative sentence is reduced, as stated earlier, to reflect the pleas of guilty. But for the pleas of guilty, these sentences would have been 25 per cent longer.

73. I nominate the following indicative sentences:

1. With respect to the firearms offence under s 7(1) of the Firearms Act, I impose an indicative sentence of 3 years, with a non-parole period of 2 years.

2. With respect to the s 33B(1)(a) of the Crimes Act, offence of using a weapon with the intent to commit a serious indictable offence, namely intimidation, the indicative sentence is 2 years.

3. I impose an aggregate sentence of three and a half years. Taking into account my finding of special circumstances, the non-parole period will be 60 per cent of this, meaning the non-parole period will be two years and one month.

74. Mr Shinner, can you please stand up for me? I am now going to formally impose these orders upon you.

1. You are convicted for each of the two offences to which you have entered pleas of guilty before the court.

2. The sentence imposed upon you will be an aggregate sentence which commences on 31 October 2022 and will expire on 30 April 2026. The non-parole period will expire on 30 November 2024, which is the first date you will be eligible for release.

3. You will be eligible for release to parole at the expiration of the non-parole period. The non-parole period is 60 per cent of the total head sentence, which indicates my finding of special circumstances.

75. Whether you are released to parole is a matter for the Parole Authority. No doubt, it will take into account how you conduct yourself whilst in custody in determining your appropriate release date.

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Decision last updated: 13 March 2024