R v Struik

[2023] NSWSC 1548

Supreme Court

New South Wales

Medium Neutral Citation:

R v Struik [2023] NSWSC 1548

Hearing dates:

17 November 2023

Date of orders:

14 December 2023

Decision date:

14 December 2023

Jurisdiction:

Common Law

Before:

Yehia J

Decision:

(1) The offender is convicted.

(2) Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), I impose an aggregate term of imprisonment of 5 years and 3 months, commencing on 28 August 2020 and expiring on 27 November 2025.

(3) I fix a non-parole period of 3 years and 5 months, commencing on 28 August 2020 and expiring on 27 January 2024. The offender will be eligible for release to parole at the expiration of the non-parole period.

Catchwords:

CRIMINAL LAW — Sentence — Accessory after the fact to murder — Firearms offences — Plea of guilty — Objective seriousness of accessory after the fact to murder well below the middle of the range — Motivation of misguided loyalty — Background of disadvantage and childhood attachment issues — Explanation for gravitating to anti-social group — General deterrence

Legislation Cited:

Crimes Act 1900 (NSW), s 349(1)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D(2)(b)(ii), 25D(3)(a), 53A

Firearms Act 1996 (NSW), ss 7A(1), 58D(2), 62(1)(b)

Cases Cited:

Abbas, Bodiotis, Taleb and Amount v R [2013] NSWCCA 115; (2013) A Crim R 413

Attorney General’s Application Under s 37 of the Sentencing Act No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518

El Jamal v R [2017] NSWCCA 243

R v Johnson [2014] NSWSC 1254

R v Lisa Clare Mackett [2012] NSWSC 166

R v Ward [2004] NSWSC 420

Category:

Sentence

Parties:

Rex (Crown)
Trent James Struik (Offender)

Representation:

Counsel:
K MacKenzie (Crown)
L Brasch (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Bannisters Lawyers (Offender)

File Number(s):

2020/00251150

Publication restriction:

Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), there is to be no publication of any matter which is likely to lead to the identification of NH

JUDGMENT

Introduction

1. On 17 August 2023, Trent James Struik (the offender) offered to plead guilty to an offence of being an accessory after the fact to murder. That offer was accepted by the Crown on 30 August 2023. On 11 September 2023, a fresh indictment was presented. The offender formally entered a plea of guilty to an offence of being an accessory after the fact to the murder of Shane De Britt (the deceased) on 14 January 2020. The offence is contrary to s 349(1) of the Crimes Act 1900 (NSW) and carries a maximum penalty of 25 years imprisonment.

2. The offender also pleaded guilty to two counts of possessing a shortened firearm (that was not a pistol), without being authorised to do so by a permit, contrary to s 62(1)(b) of the Firearms Act 1996 (NSW). The maximum penalty is 14 years imprisonment. When I sentence the offender for Count 2, I also take into account five offences on a Form 1, namely possessing unauthorised firearms contrary to s 7A(1) of the Firearms Act.

3. There is no dispute that, in relation to Count 1, the offender is entitled to a 10% reduction in his sentence pursuant to s 25D(2)(b)(ii) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA). He offered to plead guilty to this offence on 17 August 2023, being more than 14 days prior to the first day of trial. As such, I am satisfied that a 10% discount should be applied to the sentence imposed on Count 1.

4. The offender also pleaded guilty to Counts 2 and 3 on the indictment. In relation to Counts 2 and 3, the offender had previously pleaded guilty in the Local Court on 18 August 2022 to one count contrary to s 58D(2) of the Firearms Act, being aggravated unauthorised possession of more than three unregistered firearms, one of which was a pistol.

5. On 28 August 2023, the Crown was advised that the firearm relied upon as the pistol for the prosecution of the offence was not a “pistol” pursuant to s 4 of the Firearms Act but rather a “shortened firearm”. As a consequence, on 11 September 2023 the offender successfully, and by consent, applied to withdraw his plea of guilty to the offence contrary to s 58D(2) of the Firearms Act, and a fresh indictment was presented by the Crown which contained the current Counts 2 and 3. The offender was immediately arraigned and pleaded guilty to Counts 2 and 3 on the indictment.

6. In these circumstances the offender is entitled to a 25% discount pursuant to s 25D(3)(a) of the CSPA for both Counts 2 and 3 on the indictment as they are “new count offences”.

7. There is no issue of parity in this case. Five principal offenders pleaded not guilty to murder. Their trials are continuing. NH pleaded guilty to murder and was sentenced on 27 April 2023. Timothy Robert Lamont was sentenced by Harris DCJ on 17 October 2022. However, he was sentenced for different offences, namely an offence of concealing a serious indictable offence, attracting a maximum penalty of 5 years imprisonment, and for offences contrary to s 7A(1) of the Firearms Act, contained on a section 166 certificate, the jurisdictional limit being 2 years imprisonment.

The Agreed Facts

8. A Statement of Agreed Facts has been tendered in the proceedings. It includes the facts upon which the offender is to be sentenced, the background to the Crown case which is not disputed by the offender, and Annexures A and B. The document is some 28 pages long. I do not intend to reproduce it in its entirety in these remarks on sentence. I have had regard to the contents of the document and intend to summarise the facts only for the purpose of delivering the remarks on sentence.

9. The deceased is Shane De Britt. The Crown Case is that Brenton Hayes, Phillip Woods, NH, Brendan McLachlan, Jace Harding, James Maxwell and Brian Farnsworth, agreed as part of a joint criminal enterprise to shoot and kill the deceased. They are together the principals of the joint criminal enterprise to murder the deceased. The Crown does not allege that the offender had prior knowledge of the intention to murder the deceased.

10. The offender has entered a plea of guilty to being an accessory after the fact to murder in that he stored and concealed firearms he knew to be used in the murder during the period between 1 to 17 June 2020, with the intention of assisting the principals to evade justice (Count 1).

11. During the period between 27 May and 17 June 2020, the offender was in possession of two shortened firearms being:

1. a shortened 12-gauge Springfield (USA) double barrel shotgun disassembled into three pieces (barrel, receiver and stock) (Count 2); and

2. shortened 12-gauge British manufactured double barrel shotgun, no serial number, marked with numbers 115, 175 (Count 3).

12. The offender was also in possession of five additional unauthorised firearms contrary to s 7A(1) of the Firearms Act. The offender asks that these offences be taken into account when I come to sentence him in relation to Count 2.

13. The offender was in possession of the firearms from 27 May to 1 June 2020, at which point he became aware of their use in the murder of the deceased. Between 1 and 17 June 2020, he was an accessory after the fact to the murder.

14. Sometime between 12:35am and 4:04am on Tuesday 14 January 2020, the deceased was shot and killed by a single shot to his head while he lay in his bed at his home. The deceased was the President of the Bandidos Central West Chapter. At the time of his death, the deceased was involved in an escalating conflict with Mr Hayes, Mr Woods, and members and associates of the Grudge Bringers Social Club. The conflict led to the formation of an agreement and plan to kill the deceased.

15. The Crown Case with respect to the murder is that it was planned and directed by Mr Hayes and Mr Woods. Mr Woods was the president of the Grudge Bringers Social Club and Mr Hayes was a close associate of Mr Woods and the Club.

16. As part of that plan, NH and Grudge Bringers members, being Mr McLachlan, Mr Harding, Mr Farnsworth and Mr Maxwell, entered into a joint criminal enterprise with Mr Woods and Mr Hayes to go to the deceased’s home armed and with the intention of murdering him. The firearms were supplied by Mr Hayes. Mr Woods and Mr Hayes directed and supported the co-accused but did not attend the deceased’s house. Daniel Westbury also agreed to provide his car, a silver Toyota Yaris, for the purpose of driving to and from the murder and later to be burnt to hide any connection with the murder.

17. The offender was an associate of Mr Hayes, NH and Brook Norris. The offender was not a member or associate of the Grudge Bringers Social Club. At some time after 25 April 2020, and before 23 May 2020, Mr Hayes brought a group of seven firearms to premises at Wallaroi Road where they were stored. This included three firearms that had been used in the murder (although not the murder weapon itself). In an effort to conceal them in the period after the murder, the Grudge Bringers had painted some of this group of seven firearms black and inadvertently allowed them to rust. The offender had access to these firearms during this period and tried to clean and repair some of the firearms.

18. On 27 May 2020, Mr Hayes attended the premises at Wallaroi Road and told the offender and NH that there had been police raids at properties in the area (the raids were not related to the murder). As a precaution, Mr Hayes discussed concealing or destroying the seven firearms with the offender and NH. The offender offered to store the group of seven firearms in his storage container in Wellington for Mr Hayes. Later that afternoon, the offender wrapped the seven firearms in two green bags and took them to his storage container and locked them inside. The offender did not know at this time that some of the firearms were connected with the death of the deceased.

19. However, from 1 June 2020, he had knowledge of both the use of some of the group of seven firearms in the murder of the deceased and the importance of concealing them to assist the principals. This knowledge crystalised when the offender was a party to conversations from 1 June onwards about the details of the murder and the use of some of the firearms he had stored in the shipping container at a storage facility shed. The offender's act of assistance was continuing to allow the firearms to be stored in the shipping container.

20. On 17 June 2020, the police, via a covert search warrant, searched the shipping container and located and seized the seven firearms.

21. The offender was an accessory after the fact to murder between 1 and 17 June 2020, in that knowing that some of the firearms had been used in the murder, he continued to allow the firearms to be stored in his shipping container in order to assist the principals to avoid arrest, trial or punishment for murder.

22. On 24 June 2020, the offender discovered that the firearms were no longer in his storage container. The offender made efforts to find the firearms, without success, and paid Mr Hayes compensation for their loss.

Objective Seriousness

Accessory after the Fact to Murder

23. The circumstances of an offence of being an accessory after the fact to murder vary widely both in their objective circumstances and the subjective situation of the offender: see R v Lisa Clare Mackett [2012] NSWSC 166 at [22] (Adams J). Adams J went on to say at [22]:

“[22]   The degree and character of actual assistance provided is perhaps the most significant marker of objective seriousness. Just as, by and large, the criminal law pays by results, assistance that significantly helps the perpetrator to escape justice is objectively more serious than assistance that is ineffectual.”

24. In R v Johnson [2014] NSWSC 1254, Hamill J set out a list of factors that are relevant to assessing the seriousness of an offence of being an accessory after the fact to murder at [13]. Applying those factors to the present case, I am satisfied that the objective seriousness of this offence falls below the middle of the range but not at the bottom of that range.

25. There is no doubt that the circumstances of the murder itself were very serious. In sentencing NH, I determined that the objective seriousness fell above the mid-range, but not at the highest end of the range.

26. The offender had no prior knowledge of the intended murder nor was he present at the deceased’s home. His knowledge of the murder came to him through conversations with others from 1 June 2020, at a time after he had stored the firearms in his storage container. He was not aware that some of those firearms were used in connection with the murder of the deceased, before 1 June 2020.

27. The act which constitutes the offence of accessory after the fact to murder is allowing the firearms to continue to be stored in the storage container which the offender maintained, between 1 and 17 June 2020, after he had come to know that some of the firearms had been used in connection with the murder. The firearms stored in the storage container did not include the murder weapon.

28. The firearms remained in the storage unit until police seized them on 17 June 2020. The offender assisted the principals in the storing of the firearms for just over two weeks. What is unique to this case is that the requisite act constituting the offence did not require the offender to physically do an act, but rather to maintain what was the status quo. The offence is constituted by continuing to allow the firearms to be stored at the storage unit.

29. The act of storing the firearms did not occur immediately in the aftermath of the murder but approximately four months after the murder. A further unique feature of this case is that the act of the offender did not delay or thwart the investigation or prosecution of the principal offenders. By 1 June 2020, the police were aware of the firearms and had installed surveillance and recording devices monitoring conversations. The police were aware of the presence of the firearms at the storage container. There was little, if any, risk that the firearms would be moved without the knowledge of the police.

30. The Crown submitted that the offender’s motivation is not limited to assisting his friend. The offender had a personal interest in that he was to obtain one of the firearms. The offender did not in fact obtain possession of one of the firearms for his personal use. There may have been an expectation, but that expectation was not realised.

31. The primary motivation of the offender was to assist Mr Hayes. It is true that he became involved with criminal elements and demonstrated a willingness to ingratiate himself with Mr Hayes. The recordings of his conversation suggest that he enjoyed his involvement with Mr Hayes and others, rather than being fearful of them. However, the offender’s involvement with criminal elements must be considered in the context of his subjective circumstances, notably the association between complex trauma and childhood abuse impacting upon his adult relationships, attachments, and emotional and behavioural dysregulation.

32. Ms De Santa Brigada, counselling psychologist, opines that the offender’s early attachment problems may have contributed to his inability to form secure attachment and trust with others in adulthood. This lack of interpersonal skills may explain the offender’s difficulties in maintaining prosocial friends. His background of childhood disadvantage together with the consolation of complex post-traumatic stress disorder (PTSD), operates to reduce his moral culpability, a matter to which I will return after I summarised his subjective case.

33. I am satisfied that the offender’s primary motivation was a misguided loyalty to his friends, and in particular, a desire to ingratiate himself with Mr Hayes.

Firearms Offences

34. The offender must also be sentenced for two counts of possession of prohibited firearms, namely shortened firearms. In relation to Count 2, I must take into account his possession of five further firearms on a Form 1.

35. The shortened firearms have no legitimate purpose and are particularly dangerous due to the capacity for concealment.

36. I have had regard to the fact that the offender was in possession of the firearms for 19 days. He ceased to be in possession of them only because the police seized them. The reason for possession, at least initially, was the offender’s hope to keep the lever action firearm; to stop the firearms from being damaged; to help a friend; and to prevent the police from locating them.

37. The firearms were stored in a container that had two padlocks attached. While the padlocks could be cut and the firearms could have fallen into the hands of other criminal elements, it is unlikely, in this case. The police were aware of the location of the firearms. They could have seized them at any time during the relevant period.

38. That said, the possession of such firearms is extremely serious criminal offending. I am satisfied that each of the firearm’s offences fall in the middle of the range of objective seriousness.

39. Five offences of possession of unauthorised firearms, contained on the Form 1, are to be taken into account when I sentence the offender on Count 2. I take into account the Form 1 offences as demonstrating an additional need for personal deterrence and retribution. They operate in this case to increase the otherwise appropriate sentence for the substantive offence to reflect the additional weight afforded to those considerations: see Abbas, Bodiotis, Taleb and Amount v R [2013] NSWCCA 115; (2013) A Crim R 413 at [23], [64], [104] (Bathurst CJ, Basten JA and Hoeben CJ at CL); Attorney General’s Application Under s 37 of the Sentencing Act No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42] per Spigleman CJ (with Woods CJ at CL, Grove, Sully and James JJ agreeing).

Subjective Circumstances

40. The offender’s background is before me primarily by way of a psychological report prepared by Ann-Marie De Santa Brigida, counselling psychologist, dated 28 October 2023 and a Sentencing Assessment Report prepared by Community Corrections, dated 2 November 2023. I have also had the benefit of a letter of apology from the offender, references, and certificates of attendance into special programs whilst in custody.

41. The offender is the youngest of two children. His parents separated before he was born. His father worked as an electrician and his mother worked as a cleaner and bus driver. His father suffers from Parkinson’s disease. After his parent’s separation, he was raised together with his sister, by his father.

42. The offender was the victim of physical violence at the hands of his father during his childhood. He recalled being hit with a leather belt and had timber broken across his back. He also witnessed domestic violence perpetrated against his mother and his father’s subsequent partner, Pearl. On one occasion, his father held a gun to Pearl’s head.

43. The offender went to live with his mother, but she told him to leave after six months. At about the age of 13, he came under the care of the Department of Community Services. Thereafter, he was “in and out of about twenty refuges”. At the age of 14, there was an attempt to make the offender a ward of the State, but he was returned to his father’s custody. The offender lived with his father for a brief period, until he ran away to escape the physical abuse perpetrated upon him.

44. He was “on the street” and caring for himself with little money. He reported that on one occasion he had attended a take-away shop to get food and cigarettes when the owner of the store sexually touched him and tried to initiate oral sex. When the owner’s wife entered the shop, the offender ran away and made a complaint to the police.

45. At the age of 25, he commenced a defacto relationship which lasted approximately 10–12 years. He has 2 children from this relationship, aged 14 and 17. His partner suffered from bipolar disorder and borderline personality disorder. Once they separated, Family & Community Services became involved due to his partner’s violence and aggression. The offender attempted to take custody of both daughters, however, due to his alcohol abuse, he was unsuccessful. His eldest daughter attempted to run away from home and is living in accommodation organised through Life Without Barriers at Tweed Heads. His youngest daughter is a State Ward, although in the care of the offender’s mother.

Education and Employment

46. The offender had a disrupted education attending a number of primary schools and high schools. He was suspended on a number of occasions for fighting, smoking and swearing at teachers. The offender was expelled at the beginning of Year 10 and did not return to school.

47. He commenced employment at the age of 19 or 20, and worked as a “brickies’ labourer”. At the age of 23, he started working with his father as an electrical trade assistant and later installing solar panels. He worked with his father for some 15 years.

Substance Abuse History

48. The offender has a long-standing substance abuse problem. He was introduced to cannabis and alcohol at the age of 10. From the age of 18, he was smoking cannabis on a daily basis, reporting the consumption of 20 to 30 “cones” per day. When he was arrested, he was smoking between 40 to 50 cones per day. From the age of 13, he consumed large amounts of alcohol.

49. Upon entering custody for the current offences, the offender was placed on Valium due to concerns that he may suffer seizures from alcohol withdrawal. He reported that he has not received any treatment in the community for his substance abuse.

50. Ms De Santa Brigida opines that the offender would have met the criteria for severe alcohol use disorder and cannabis use disorder at the time of the commission of the offences. She further noted that “excessive drinking has the ability to lower inhibitions, impair a person’s judgment and increase the risk of aggressive behaviours”.

51. Since being on remand, the offender has attended and participated in 12 sessions of the Remand Addictions Program and 5 sessions of the Narcotics Anonymous and Alcoholics Anonymous Remand Addictions Program.

Psychological Profile and Physical Health

52. Ms De Santa Brigida opines that the offender met the criteria for oppositional defiant disorder during his childhood. He reported having difficulties throughout his life. Testing revealed that he suffers from attention deficit/hyperactivity disorder.

53. The offender suffers from a history of attachment problems stemming from his childhood and adolescence. Ms De Santa Brigida remarked on that history as follows:

“Indeed, these early attachment problems are reflected in the cohort he was associating with prior to the current offences. The fact that Mr. Struik had been homeless when younger, and feared not being accepted by people in mainstream society, would make him more susceptible to gravitating towards more marginalized individuals with similar interests or common traits.

Mr. Struik’s failure to form a close bond with his parents may have contributed to his inability to form secure attachment with others and develop trust. This lack of interpersonal skills may explain Mr. Struik’s difficulties in maintaining pro-social friends and he has gravitated towards anti-social cohorts.”

54. A number of tests were administered, the results of which indicate a diagnosis of PTSD and significant underlying trauma. The offender presented symptoms which included: intrusive thoughts; dreams and nightmares; difficulty relating to others; and avoidance of stimuli associated with the trauma. The offender is also suffering from severe depression and anxiety.

55. Ms De Santa Brigida reported:

“It has been noted that Mr. Struik has experienced a significant and prolonged trauma history starting in early childhood and extending through to adolescence. He used emotional suppression, avoidance behaviours (of thoughts, memories, situations and people) and distraction as a way of survival. He reports problems with emotion regulation, beliefs about self are diminished and difficulties in sustaining relationships or feeling close to others.”

56. The Personality Assessment Screener was also administered during examination. The results indicate that the offender is impulsive and experiencing suicidal thoughts. He experiences social withdrawal and alienation.

57. The offender’s personality, informed as it is by a childhood marred by attachment problems, goes a long way to explaining his association with Mr Hayes and others involved in the killing of Mr De Britt. His background of disadvantage, together with his mental health issues, operate to reduce his moral culpability.

Remorse/Prospects of Rehabilitation and Likelihood of Reoffending

58. The offender expressed his remorse to Ms De Santa Brigida. After his arrest, he found out that the deceased was the husband of the bartender at the pub that he used to attend. It made him reflect upon his part in the offence, for which he expressed his regret. In his letter of apology, the offender expresses a deep remorse for his actions.

59. The author of the Sentencing Assessment Report was of the view that the offender continued to justify his behaviour. He reported that he was aware that the firearms were used in the commission of the offence. He did not advise police once he was made aware, due to the fear for himself and his family’s safety.

60. Notwithstanding the opinion of the author of the Sentencing Assessment Report that the offender continued to justify his behaviour, I accept that he is genuinely remorseful. I make that determination because this is an unusual case where the offender was not aware of the connection between the firearms and the murder until after he had assisted in hiding them in his storage container. This was not a case where the offender, having knowledge of the shooting of the deceased, assisted the co-accused by disposing of the murder weapon or other firearms associated with the killing. His expressions of remorse to the psychologist and in his letter to the Court are in my view, genuine.

61. The offender has a criminal history in New South Wales, Queensland and the Australian Capital Territory. His criminal history dates back to 1997, when he was a juvenile. In New South Wales, his last conviction was in February 2018 for a drink driving offence. He has a limited criminal history in Queensland. The last conviction in the ACT is in 1999 when he was dealt with for taking a vehicle without authority. Although he has previous criminal convictions, I am not persuaded that his criminal antecedents completely disentitles him to leniency.

62. The author of the Sentencing Assessment Report assessed the offender at a medium risk of reoffending. Given the nature of the offences, the offender’s criminal history, and the criminogenic factors referred to in the material, I am guarded about his prospects of rehabilitation. However, this is not a case where it can be said that his prospects are poor. With the right type of treatment and support, there is some prospect that the offender can exercise some autonomy and agency in his own life and avoid association with antisocial peers.

63. His prospects of rehabilitation and the unlikelihood of his offending will in large part depend upon the offender engaging in treatment for his substance abuse and mental health issues.

Purposes of Sentencing

64. General deterrence and retribution are substantial considerations when sentencing an offender for the offence of accessory after the fact to murder: see R v Ward [2004] NSWSC 420 at [51] (Hulme J).

65. In El Jamal v R [2017] NSWCCA 243 (per Hoeben CJ at CL (with Latham and N Adams JJ agreeing)), the Court emphasised the importance of general deterrence in sentencing an offender for firearms offences:

“[35]   General deterrence was a particularly important aspect of this offending and of firearm offences generally. As was said by R A Hulme J (with whom Rothman J and I agreed) in Alrubae v R [2016] NSWCCA 142:

‘36 … One of the underlying principles of the Firearms Act is the "overriding need to ensure public safety’: see s 3(1)(a). Latham J said in R v Krstic [2005] NSWCCA 391 at [14] that ‘the policy of the legislature evinced by the enactment of the offence [in s 7(1)] and a maximum penalty of 14 years imprisonment is to deter and punish possession of firearms per se’.”

66. General deterrence, denunciation, specific deterrence and holding the offender to account are all relevant and weighty considerations in determining the appropriate sentence. Rehabilitation, and the protection of the community that successful rehabilitation affords, are also relevant and important considerations.

Special Circumstances

67. The offender urges a finding of special circumstances, based primarily upon the offender’s need for intervention to address his alcohol abuse and childhood trauma.

68. A consideration of whether special circumstances exist is not confined to a limited set of criteria. There are several factors that could justify a finding of special circumstances. There is no exhaustive list. The question as to whether such a finding is made will depend upon the circumstances of the individual case.

69. Ms De Santa Brigida noted that the offender has not obtained any intervention in the community for the trauma he experienced in his childhood, nor for his substance or alcohol abuse disorder. She recommends that the offender receive treatment for his drug and alcohol abuse before commencing intervention for his childhood trauma once he is released from custody. Upon release, the offender intends to live with his father and wants to relocate to Tweed Heads to have contact with his daughters.

70. I am satisfied that special circumstances exist. I make that finding because a longer than usual additional term is required to assist the offender in readjusting to life in the community, affording him an extended period of treatment, supervision and monitoring with respect to his substance abuse and mental health issues.

71. I have also had regard to the fact that there will be a measure of accumulation reflected in the aggregate sentence. Notwithstanding the fact that each offence was committed over a discrete period and involved the same firearms, each offence involves distinct criminal conduct. I am not of the view that the sentence for one offence fully comprehends the total criminality. In determining the extent of accumulation, I have had regard to the principle of totality.

72. The offender has already been in custody for a lengthy period of approximately three years and three months. In my view, that period comes close to reflecting an appropriate non-parole period.

Sentence

73. Accordingly, the offender is convicted. Before I impose the aggregate sentence, I set out the following indicative sentences:

1. Accessory after the fact (Count 1) — taking into account a 10% discount, I indicate a term of imprisonment of 3 years and 6 months.

2. Possession of a shortened firearm (Count 2) — taking into account a discount of 25%, and the Form 1 offences, I indicate a term of imprisonment of 4 years and 3 months.

3. Possession of a shortened firearm (Count 3) — taking into account a 25% discount, I indicate a term of imprisonment of 2 years and 9 months.

74. Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), I impose an aggregate term of imprisonment of 5 years and 3 months, commencing on 28 August 2020 and expiring on 27 November 2025.

75. I fix a non-parole period of 3 years and 5 months, commencing on 28 August 2020 and expiring on 27 January 2024. The offender will be eligible for release to parole at the expiration of the non-parole period.

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Decision last updated: 10 December 2024