R v Smith

[2020] NSWDC 123

District Court

New South Wales

Medium Neutral Citation:	R v Smith [2020] NSWDC 123
Hearing dates:	26 February 2020
Decision date:	26 February 2020
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence - four years and four months imprisonment - Non-parole period two years and eight months.
Catchwords:	SENTENCING - Firearms Act offences SENTENCING - relevant factors on sentence - multiple Firearms Act offences- Forms 1 - breach of firearms prohibition order - reason for possession ambiguous - multiple mental health issues - exposure as a child to drugs and violence - special circumstances
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996
Cases Cited:	Olbrich v The Queen [1999] HCA 54; (1999) 199 CLR 270
Category:	Sentence
Parties:	Jake Smith Director of Public Prosecutions
Representation:	Counsel: Mr A Chhabra (for the offender)   Solicitors: Crown: Hanna Legal (for the offender) Ms A Bird (for Director of Public Prosecutions)
File Number(s):	2018/00356698

sentence – ex tempore revised

1. Jake Smith is no stranger to the Courts and no stranger to gaol. He has spent most of his life either in gaol or a juvenile institution. He is again in custody facing sentence for four serious matters. Each of the matters individually calls for full-time custodial sentences. Each of the matters for sentence involves serious breaches of the Firearms Act 1996.

2. The primary purpose of Firearms Act is community protection. It must be, abundantly clear to everyone in the community that firearm possession is a privilege restricted to those who have proved themselves capable of exercising that privilege.

3. Smith was totally unable to exercise any privileges given by the Firearms Act. In fact, on 23 June 2015 he was served with and had explained to him a firearms prohibition order. The offending in each case was in breach of that order.

4. The offences for sentence are:

1. two counts of possess unauthorised pistol, s 71 Firearms Act 1996; maximum penalty 14 years imprisonment. The standard non‑parole period for an offence objectively in the middle of the range is four years.

2. Possession of a shortened firearm not a pistol without authority, s 62(1) Firearms Act; maximum penalty 14 years imprisonment.

3. Possession of an unauthorised firearm, s 7A Firearms Act; maximum penalty five years imprisonment.

5. In relation to each of the matters I am asked to and will take into account Smith’s acceptance of responsibility for other related offences placed on s 33 Crimes (Sentencing Procedure) Act 1999 Forms 1.

Agreed facts

6. In November 2018 Smith attended Wollongong Police Station to report on bail for unrelated offences. He was told that the home in Towradgi he shared with his mother grandmother and sister was to be searched. He said he did not want to be present. Soon after he called his sister and asked her to move some items. Thankfully, what she did had no impact on what then occurred but to implicate his sister in a potential offence does him no credit.

7. When police attended the home, they found under a bed a small backpack and a long brown bag that looked like a firearms case. Inside the backpack was an Italian blank fire revolver. That item is by definition a pistol: s 41 Firearms Act. It was not able to be test-fired. The chambers had been modified. Photographs of each of the weapons are before me: exhibit C. To any casual observer the blank fire revolver looked like a real firearm.

8. Next to it was another blank fire revolver, which again, while described as an, “imitation firearm,” to the casual observer would be regarded as a pistol: s 5D(3) Firearms Act.

9. In the firearms case was a semi-automatic Browning shotgun. It had its barrel cut down. It did not have a stock. It was also missing a number of items so that it was unusable and would require some modifications before it could be fired or even used to intimidate.

10. Located in the same bag was a bolt-action rifle. It was not loaded and its bolt was not with it or able to be located.

Objective seriousness

11. Individually each of the offences was objectively serious. The two pistols looked like pistols even though they were not able to fire anything, let alone a lethal projectile. The cut-down shotgun had bits missing and was not working, but I am well aware, as I am sure the public are, that there are people who can supply missing bits to such weapon. The rifle contained no bolt. It was not, therefore, in working order but could have been used to intimidate.

12. The purpose for possessing the firearms is also a relevant consideration. Here the offender told the Community Corrections officer that he was, “minding the weapons for a friend.” But he told his psychologist, Mr Borenstein, and reiterated in evidence today that had each of the weapons for his own protection as he was fearful of retribution from other criminals. Objectively, to possess a weapon for self-protection carries with it a greater risk of direct harm to the community, particularly where that belief is well‑founded and the weapon is kept in a suburban family home, than holding unfireable firearms for short period as a favour for a mate.

13. I do not believe the evidence Smith gave today or what he said to Mr Borenstein. Matters in aggravation of sentence must be proved beyond reasonable doubt, matters in mitigation on balance of probabilities but sometimes a Court cannot make such a factual finding and has to proceed on the basis of the information available to it: Olbrich v The Queen [1999] HCA 54; (1999) 199 CLR 270. I find myself in that position.

14. I proceed on the basis that the firearms, as described were each held as described. They were kept in a suburban home; to which Smith’s relatives, including children, had access. None of them was able to be fired and it is highly unlikely that they could be used for self‑protection. None of them were fireable. They were not kept with ammunition but they were kept unsafely. Further, they were kept in breach the firearms protection order.

15. Matters relating to some of those objective facts, particularly safe storage issues, are set out in the Form 1 matters. Because I have taken those objective facts into account in aggravation of each individual offence I will not double count the matters on the Forms 1 when I come to synthesise all relevant matters.

16. Whatever Smith’s motivation for possession of the firearms, the offences were each committed without regard for public safety and were kept for some benefit which had no lawful purpose.

17. Some circumstances which often aggravate such possession offences such as being held in public or being kept with ammunition or while loaded or able to be used to fire a lethal projectile are absent from this case. Although two of the matters for sentence carry standard non-parole periods I am not necessarily required to make some comparison between these matters and an abstract offence. It is conceded by defence counsel that each of the offences is objectively serious and each could be regarded as falling within the middle of the range.

18. Many of the factors that aggravate each individual offence are common to the other. When I come to synthesise the appropriate individual sentences and how those sentences are to be accumulated care will need to be taken not double count matters in aggravation or mitigation.

19. I am dealing with four matters and each requires an individual sentence be indicated. I am also dealing with a collective crime involving four firearms. There must be some accumulation as between the offences as the more weapons possessed, the more serious the offending against the community.

Guidance

20. I take guidance from a number of sources. They include the maximum penalties and, where applicable, standard non-parole periods. They include the decisions of other Courts, particularly those designed to give guidance to sentencing Courts. They were referred to by the offender’s counsel, Mr Chhabra, and set out in the Crown’s helpful written submissions.

21. The offender’s subjective circumstances also require careful consideration. Every offence and every individual requires individualised treatment. I have regard to the purposes of sentencing which here importantly include the deterrence of this offender and others from committing similar crimes and the need to give proper recognition to the potential harm to the community that could have arisen from these offences. I am required to give content to the standard non-parole period, where applicable, however as the High Court in made clear that I should not engage in a staged approach to sentencing: Muldrock v The Queen [2011] HCA 39; 244 CLR 120. Accordingly, my finding as to objective seriousness of each offence does not compel any one result.

Offender’s subjective case

22. I have had the advantage of reading, before I came onto the bench, the material that was placed before me from the offender. Smith was born in May 1987. He has been before the Children’s Court and was subject to control orders. He has spent more of his life in custody than he has free in the community. He has a daughter, who is present in court. She is young. If at all possible she should grow up with her father available to her not having to visit him in gaol. In his evidence before me Smith said she is the primary focus of his life and that he would like to be there for her. Smith has the noble aim of being able to care for his daughter by himself.

23. Smith’s parents and his daughter’s maternal grandmother are here to support him. They have provided references: exhibit 1. At various times they had to put up with an awful lot from Smith. He does not blame them for his predicament and he welcomes their support; as does the Court. He has people to turn to when he is released. The existence of strong pro-social supports in the community is something I can and should take into account.

24. I am aware of the tragic death of the child’s mother. I am sure that it had significant impact upon him. It is a matter he will have to deal with for the rest of his life. Her death, It seems, was the catalyst for him surrendering himself to police in February 2019.

25. The sentences are aggravated by being committed in breach of bail. His surrender to some extent moderates that aggravation. He served the sentence for that earlier matter from when he went to custody until October 2019. The existence of that penalty requires consideration of the appropriate starting date for this sentence. There must be, in my opinion, a short period of additional punishment solely relevant to that earlier matter.

26. The material from Mr Borenstein has to be qualified by my failure to accept the evidence given on oath today. That said, I have respect for Mr Borenstein’s opinions. Where those opinions relate to the offender and not his offences they appear to be well-founded in all the material before me. They relate to Smith’s mental health and other issues arising from a childhood spent without restraint. Since he was very young he was exposed to the use and abuse of illicit drugs. He has been diagnosed with ADD, ADHD, oppositional defiance disorder and conduct disorders.

27. While there is evidence before me of him being the victim of a sexual assault there is nothing in the material before me that indicates that it is the significant factor behind the mental health conditions and disorders identified and set out in detail by Mr Borenstein.

28. Whatever the cause, from a very young age this offender was effectively out of control and has suffering from a variety of mental health problems to which I have referred and which are in Mr Borenstein’s report. He told his instructing solicitor, Mr Borenstein and me that, “I need to get my mental health back.”

29. In his evidence he said, and I am prepared to accept that from a very young age he hung around people who did crime and crime and hanging with criminals became predominant in his life. He has by his membership of an outlaw motorcycle gang continued to hang around people who are involved in crime. He says, and I am prepared to accept, that the rules of that club mean that he, with their help, came to grips with his prior drug problem. But it is also clear from his evidence that the gang are the main people to whom he will turn. Both in the community and in gaol they have his loyalty. That real possibility of continuing association with an outlaw motorcycle gang on release will make his path to rehabilitation so much more difficult. It may make his getting parole more difficult. But that remains a problem only Smith can resolve.

30. Smith will, given his longstanding problems, require intensive psychological treatment and intensive supervision. He needs to have drilled into him by whatever means possible that his criminal behaviour impacts negatively on the community.

31. I am prepared to accept that he is well motivated and has realised at last as he matures that what he has done has impacted on himself and those who love him and still attend to support him. He has solid plans for the future; plans that include accommodation, work and caring for his daughter. Those plans may be put to nought if he continues to engage in criminal activity or engages with people who themselves engage in criminal activity.

32. He will have the full benefit of his early plea of guilty. I will take care when I come to accumulate matters not to erode the benefit of that plea.

Synthesis

33. Smith has been effectively in custody since the backdate of his Local Court sentence to 30 October 2019. He has been in actual custody since 20 February 2019, over a year.

34. A solid basis for a finding of special circumstances exits in the partial accumulate this sentence, his background, his limited but growing insight and his need for intensive psychiatric and psychological treatment, particularly in the community. He needs positive direction by pro-social members of the community. In addition recognition must be made of the the fact that he appears to be institutionalised. He needs help dealing with that problem both for his own interest and in the community interest.

35. Individual sentences must be indicated. The principle of totality means that I simply do not add one on top of the other. The sentences have many features in common. But I must give proper weight to his possession of the number of firearms and that they were in breach of the prohibition order, an objective fact which operates heavily here. The Aggregate sentence must ultimately reflect a balance of the purposes of sentencings, the criminality of the crimes for sentence and the subjective material that has been put before me.

Orders

36. In relation to each matter I will indicate individual sentences. I will take into account what is on the Form 1. My sentence reflects a finding of special circumstances.

1. Count 1 - Possess unauthorised pistol, taking into account the matters on the Form 1, I indicate a sentence of 3 years with a non‑parole period of 2 years.

2. Count 2 - Possess unauthorised pistol, taking into account the matter on the Form 1, I indicate a sentence of 1 year 10 months with a non‑parole period of 1 year 2 months.

3. Count 3 possess shortened firearm (not pistol) w/o authority, I indicate a sentence of 2 years 5 months.

4. Count 4 possess unauthorised firearm I indicate a sentence of 1 year 10 months

37. There will be an aggregate sentence of four years and four months. The non-parole period will be one of two years and eight months imprisonment. That sentence will date from 21 March 2019. The offender will be eligible for parole on 20 November 2021. The balance of the term will be one year and eight months commencing on 21 November 2021 and expiring on 20 July 2023.

38. I make a firearms forfeiture order for the police to decide whether they are destroyed or not.

39. The backup charges are noted withdrawn and dismissed.

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Decision last updated: 21 April 2020