R v Tomkins, John

[2009] NSWDC 95

CITATION:	R v Tomkins, John [2009] NSWDC 95
HEARING DATE(S):	09/03/2009 and 10/03/2009
JUDGMENT DATE:	16 March 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Discharged pursuant to s.10 Crimes (Sentencing Procedure) Act 1999 conditional upon entering into bonds to be of good behaviour.
CATCHWORDS:	Criminal Law - Sentencing - Firearm offences- possessing four unregistetred firearms including prohibited firearm - regional NSW - one firearm unlawfully taken as consequence of insecure storaage - unsafe storage of ammunition - explanation for sawn-off barrell - objectives of firearm legislation - assessing objective criminality against purpose of Act - very strong subjective case
LEGISLATION CITED:	Firearms Act 1996 Crimes (Sentencing Procedure) Act Criminal Procedure Act
CASES CITED:	R v Rushby (1977) NSWLR 597 R v Hayes [1984] 1 NSWLR 740 R v Cuthbert (1967) 2 NSWR 329 Regina v Cromarty (2004) 144 A Crim R 515 referred to Regina v Brown (2006) NSWCCA 249 referred to R v Paris [2001] NSWCCA 83 R v Piccin (No. 2) [2001] NSWCCA 323 Walden v Hensler (1987) 163 CLR 561 referred to. Attorney General's application under section 37 of the Crimes (Sentencing Procedure) Act (2004) 61 NSWLR 305.
PARTIES:	Regina John Henry Tomkins
FILE NUMBER(S):	2009/00002822
COUNSEL:	Defence: C Taylor
SOLICITORS:	Crown: Ms K Healey

JUDGMENT

1. John Henry Tomkins has reached the sunset years of his life without a blemish on his record. He leaves in his wake community achievement after community achievement. For more than 55 years he has been a farmer and grazier on the lands his family tended since his ANZAC father was injured and returned to Pokataroo in 1916.

2. John Tomkins took over the property in 1952. Since 1960 he has been a Justice of the Peace. He fought his first rural fire in 1947 and thereafter was actively involved in the Rural Fire Service as a president and vice captain. In all, 61 years of service.

3. He has been president and held various other positions in the Collarenebri Tennis Club during the past 50 years. He was heavily involved in the Collarenebri Air Service, and instrumental in that community building an air landing strip to open Collarenebri to air traffic. He was a foundation member of the Scouts, and built a hall for the Red Cross. As he approaches his four score years all the honours, achievements and fulfilments to be savoured by one who has lived his life so well must taste like ashes in his mouth as he stands today accountable for possessing four unregistered firearms, including a prohibited firearm, on the thirtieth of August 2008 at his home at Pokataroo.

4. As sentencing judge it falls to me to resolve a number of competing contentions as I strive to determine the appropriate sentence outcome for the offence before the court committed by this offender in his community.

5. My initial task requires an assessment of the objective criminality of the offence before the court. I will also need to have regard to matters personal to him, that is, subjective matters. The starting point for such assessments requires a sentencing judge to make findings of fact from evidence before the court relating to the offence and offender. The offender's rehabilitation prospects will have to be assessed before any sentence can be made. There are likely to be technical questions relating to deterrence, discounts, whether special circumstances are to be found, back up charges brought from the Local Court to be finalised in this court, whether this offence attracts a standard non-parole period, and finally, of course, the ultimate sentencing disposition. None of these can be commenced until the primary facts are determined. What weight needs to be given to all of these matters against the imperative that all sentencing should have as the primary focus the protection of the community will also need to be determined. (R v Rushby (1977) NSWLR 597, R v Hayes [1984] 1 NSWLR 740, R v Cuthbert (1967) 2 NSWR 329).

6. I mentioned the back up charge from the Local Court. There is a s.166 certificate with reference to a charge that the accused did not take all reasonable precautions to ensure that a firearm was safely kept, the accused being the person who possessed the said firearm, between 4.30pm and 5.30pm on 30 August 2008 at Collarenebri. That is an additional charge.

Facts

7. On 16 August 2008 police were searching a motor vehicle in Collarenebri. In that motor vehicle a firearm and ammunition were located. The driver, one Elijah Treloar, was charged in relation to possessing the firearm without a permit. When asked who owned the firearm Treloar nominated he had purchased the rifle from someone other than Tomkins. That was untrue. Police inquiries quickly established the firearm was registered to Tomkins. Indeed, as ultimately turned out, it was still owned by him. Two weeks after the arrest of Elijah Treloar police attended upon Mr Tomkins at his home Pokataroo. Pokataroo is some ten kilometres from the Collarenebri Township. Mr Tomkins told police that although Elijah Treloar was caught with the rifle he did not know how he came by it.

8. The rifle was taken from his house. He did not sell it to Treloar. Mr Tomkins was having some renovations done to his home in July and August of 2008. That work had been given to Barry Treloar, Elijah's father. My sense from the evidence is that Tomkins held Barry Treloar in some respect and with some regard. Barry Treloar was seriously unwell. Consequently Mr Tomkins did not bring to Barry Treloar's attention criminal indiscretions he, Mr Tomkins, attributed to Elijah Treloar about this time, who also had access during this time to his house.

9. As can often happen with the elderly, their memory becomes less certain with the passage of time. Mr Tomkins gave evidence and he appeared to me to answer all questions, favourably and unfavourably, with attention to honesty.

10. However, he appears now less certain as to whether he may, in fact, have lent Elijah Treloar the rifle. Given the account Elijah Treloar gave of the possession of rifle and Tomkins' first explanation to police, it is likely that the rifle was taken from a locked safe without Tomkins' knowledge.

11. During the renovations the keys to the gun safe had been moved from their regular secure spot onto his desk in the study. They were normally hanging behind a door in another part of the house. It is unclear to me whether this is the s. 166 summary matter of not keep firearm safe, or being kept in a locked safe where ammunition was also being kept. It appears the gun safe was in the same room as the desk.

12. In the gun safe there were seven firearms, all long arms, four of which were not registered, namely a bolt action rifle, a 410 Stirling shotgun, a 12 gauge shotgun, a Stirling .22 semi automatic with a sawn off barrel.

13. Mr Tomkins readily surrendered all firearms, including the unregistered ones. His licence was suspended. His ammunition was seized. It was located on the top self of the gun safe, which I am now told is the s. 166 matter. The ammunition should not have been stored there.

14. Mr Tomkins was arrested, taken to Collarenebri police station where he was interviewed. He told police he had collected the unregistered firearms over the years. The working firearms were only used for the destruction of vermin and for humane killing of animals when the need arose. He told police the barrel had been sawn off the .22 Stirling semi automatic in 1989-1990, (he said in evidence), to make is safer to carry over the property in the four-wheel drive. He was not challenged by either police or prosecution on this account.

15. The prosecution case is the .22 Stirling semi automatic with the sawn off barrel constitutes the prohibited firearm for the purposes of the charge.

288 millimetres, (11 inches), of the barrel had been removed. That weapon was found to be in working order.

16. Mr Tomkins thought that the bolt action rifle was his father's and had always been on the property. The Stirling 410 shotgun as used to frighten birds from the sorghum paddocks; last used by him in the 1990 wet season, which he thought was the early 1990s. That 410 shotgun was described by him as a "snake gun" that his late wife used. She died two years ago. As I understand his evidence, he has not used it personally since the 1990s.

17. Mr Tomkins described himself as, "not a shooter." He used firearms only when necessary for pest control and compassion in disposal of stock. He spoke of how gruelling and soul destroying it had been for him to slaughter a large number of Merino sheep in the wool/sheep crisis of the early 1990s. I understand he used the .22 Stirling automatic for that purpose. If my understanding is correct, the barrel had been sawn off it by that time.

18. He was unaware of the requirement that ammunition be kept separate from the weapons. He secured both separately, but in the same gun safe; ammunition on the top self, the weapons below. He accepted that possession of unregistered firearms constituted a serious offence.

19. He was aware there had been a number of amnesties for the purpose of permitting firearm owners to surrender weapons without penalty. He had taken advantage of one such amnesty to surrender a pistol.

20. He was aware, during his possession of these unregistered weapons, that it was unlawful for him to keep them while they were unregistered. In that sense his offending was a deliberate choice made by him at the time he selected which weapons would be registered and which would be not.

Objective Criminality

21. From the facts as he finds them to be, a sentencing judge is required to assess the objective criminality of the offence as an essential step in a assessing the criminal behaviour of the offender. That is done by comparing objectively the criminality in the instant offence with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality offence can be evaluated. The objective criminality has an important impact upon the sentencing outcome.

22. In assessing the objective criminality of firearm offences, a useful starting point is to have regard to the principle objectives of the Firearms Act 1996 (The Act). They are to be found in s 3 of The Act as being:

“To confirm firearm possession and use as being a privilege conditional upon the overriding issue of ensure public safety. Secondly to improve public safety by imposing strict control on possession and use of firearms”.

23. The potential harm to the community that can arise from firearms being made available unlawfully to an unregistered possessor/purchaser is obvious that it needs no saying. Such a deliberate act would be an act of immense social irresponsibility.

24. The firearms laws were enacted by Parliament to guarantee public safety through the close monitoring of weapons and to ensuring that only fit and proper persons have access to these lethal items.

25. The Firearms Act of 1989 was part of a national campaign to implement firearms control. In 2002 the Minister for Police introduced to amendments to what was then the Firearms Act 1996, which inserted section 51D (2) into the Firearms Act. That is the offence that Mr Tomkins has been charged with.

When introducing this amendment the minister said:

“Firearm related crime is a major concern for both police and the community. In July 2001 the Government introduced tougher firearm trafficking laws designed to inhibit the illicit supply of firearms and this Bill is a further strengthening of our laws.”

To crackdown on possession for the purposes of illegal trafficking proposed by section 51D will introduce an offence of possessing, by an unlicensed person, of three or more unregistered firearms. That will mean that criminals warehousing illegal guns for sale on the black market will be liable to up to 20 years in gaol if the firearm is a prohibited one or is a handgun, (See Regina v Cromarty (2004) 144 A Crim R 515; Regina v Brown (2006) NSWCCA 249).

26. There is no dispute, when assessing the objective criminality, Mr Tomkins does not fall within the target group referred to by the Minister when introducing s. 51D (2). There is no suggestion these weapons were housed for purpose of illegal trafficking. Of course, illegal supply can occur simply because some thief, for a person acting illegally, knows of the presence of the unregistered firearms or comes across them in the course of illegal activity and steals them for his or her own purpose. The supply the Minister was seeking to address by introduction of the legislation was an intended deliberate supply usually for money or some other specified benefit. Unlawful access to Mr Tomkins' gun safe was not contemplated by the section's sponsors.

27. Secondly, the likely access was low. As the facts of the case reveal, it was a possibility, but given the remoteness of the property and the usual housing of his gun safe key in a place other than where it was located at this time, the possibility was an unlikely one.

28. As the activities of Elijah Treloar demonstrate, access to the weapons can be obtained by another party with or without permission. Having obtained assess, access to the gun safe became problematic. In this case while Elijah Treloar's conduct is indicative, whether surreptitious or authorised, it was a registered firearm that was in his possession, not one of the unregistered ones.

29. From Mr Tomkins' view point the unregistered firearms were secure in his gun safe. In the normal course of events, the keys giving access to them were kept in their own secure area. The four weapons the subject of the charge were secure in the gun safe when discovered by police. At the time they were discovered they were there because of their sentimental value, not because they are working weapons.

30. It would appear, apart from the 410 Stirling shotgun, the other weapons had not been used for almost two decades. The 410 Stirling had been used more recently by Mrs Tomkins prior to her demise.

31. The decision to retain the weapons unregistered was one deliberately made.

32. So far as s. 51D offences are concerned, any criminality associated with them can only date from July, 2002 when the section became operational, at least so far as s. 51D is concerned.

33. There is no evidence suggesting three of them could not have been registered. The shortened Stirling was unregisterable. In terms of the specific objectives of s. 51D (2), the criminality exhibited by Mr Tomkins' possession of the unregistered firearms was low.

34. However, the Minister, when introducing section 51D, referred to its general purpose of tightening up the firearms legislation. Against this proposition the criminality of maintaining these four weapons unregistered as part of a collection is more significant because of the potential harm to the community

35. The Government's legislative efforts to improve public safety by imposing strict control upon possession of firearms and close monitoring of them, was being ignored.

36. Again, in fairness, I am not suggesting any potential for unlawful supply by Mr Tomkins, but rather potential for unlawful access to his collection by some untrustworthy person or some criminal breaking into his premises. During the renovations, that potential was heightened by the presence of the keys to the gun safe being kept in or near proximity to it and presumably by the presence of workers, perhaps unknown to Mr Tomkins, taking part in the renovations.

37. The Crown submitted while the criminality was towards the bottom of the range, it was sufficient to require a conviction and s. 9 bond. When asked what rehabilitation purpose a s. 9 bond would serve, given the facts of this case, she conceded it would serve no rehabilitation purpose. The other function of a bond is that it does constitute a form of punishment and, of course, a s. 9 bond could easily serve that purpose.

38. The defence argued that the criminality was of such a low order that a section 10 discharge would not be inappropriate.

Subjective Matters

39. I turn now to the subjective factors. I am both entitled, and required, to do that. Not only am I sentencing for a criminal offence, but I am also sentencing this offender for it.

40. Each offender coming before the court varies from other offenders who stand for sentence. Circumstances personal to an offender may offer to the court some explanation and insight in the commission of an offence for some reason for a more or less sentencing outcome being appropriate.

41. At the outset of these remarks, I canvassed many of the favourable subjective features. References were tendered in his case. They would appear to establish Mr Tomkins is a committed family man with two children, a son and a daughter and grandchildren; generous in his support of others in the district needing assistance; widely popular; giving assistance to others in times of flood. 42. Shire Counsellor, Robert Greenway, described John Tomkins as, "One of the most honest and respected persons I know." Another referee described Mr Tomkins's conduct as, "Out of character." As I earlier remarked, the decision not to register these four firearms is a long standing one. If the referee meant no more than other criminal conduct is out of character, I accept that is true, but this particular criminal conduct, that is failure to register, is long standing.

43. Doctor Jamal Smit provided a report listing Mr Tomkins' past medical history. Doctor Smit observes, "Mr Tomkins has been quite sick in the last 18 months and has an extensive medical history."

44. Hypertension has been diagnosed since January, 2003. Kidney problems have been diagnosed since November, 2004. That condition exacerbated over the years until there was, "no right kidney and at the same time there was a cyst on the left kidney, (September, 2007)". In December, 2007 he experienced pneumonia in his left lung. In April, 2008 there was carcinoma found in the colon, which required an anterior resection.

45. Mr Tomkins' doctor observed it was in Mr Tomkins' best health to not engage in activities causing stress.

46. During his evidence in court, others were present. They were not identified, but it seems axiomatic that those present were supporters of his and likely to be friends or relatives,

Resolution of the Matter

47. It was without argument in the circumstances of this case that this particular sentence is not one attracting the standard non-parole period. The offence is one, however, that can carry a maximum penalty of 20 years with a standard non-parole period of 10 years.

48. As can be seen from the maximum penalty of 20 years and the standard non-parole period of 10 years, this is an offence of a kind, which the legislature regards with considerable gravity.

49. The maximum penalty is a reflection of the seriousness with which the public as expressed, and understood by the legislature, regards particular forms of criminal conduct, (See Regina v Brown (2006) NSWCCA 249).

50. The maximum penalty is, of course, reserved for the worse category of cases. No doubt the worst categories would have features consistent with the description given by the Minister in the Second Reading Speech of targeting offending for which section 51D was designed to confront.

51. This offence has none of those features. Although not argued before me, my mind has turned upon the question of whether a section 10 discharge can ever be appropriate for an offence, which carries a standard non-parole period after trial. Insofar as this case is concerned, I have already determined that the standard non-parole period does not apply to it.

52. Secondly, if the legislature intended to deny access, or limited access to s. 10, it would have made statutory provision, as it has done within the Motor Traffic and PCA legislation. That it has not done so is clear demonstration that there is no denial of access to a s. 10 discharge in an appropriate case.

Section 10 contains the following relevant provisions heading

.

(1) without proceeding to conviction a court that finds a person guilty of an offence may make one of the following orders:
(a) an order directing that the relevant charge be discharged.
(b) an order discharging the person on condition that person enter in to a good behaviour bond for a term not exceeding two years.
(c) an order discharging the person on condition that the person enter in to an agreement to participate in an intervention program and to comply with any intervention program arising out of the program.
(2) an order referred to in subsection 1(b) may be made if the court is satisfied:
(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or
(b) that it is expedient to release the person on a good behaviour bond
(2)(a) an order referred to subsection 1C may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person...
(3) in deciding when to make an order referred to in subsection (i) the court is to have regard to the following factor:
(a), the person's character, antecedents, age health and mental condition
(b) the trivial nature of the offence
(c) the extenuating circumstances in which the offence was committed.
(d) any other matters that the court thinks proper to consider...”

53. As can be seen section 10(3) of the Crimes (Sentencing Procedure) Act sets out factors to be considered. Case law establishes none are conclusive but all are to be taken in to account. R v Paris [2001] NSWCCA 83. R v Piccin (No. 2) [2001] NSWCCA 323.

54. At the outset I have dealt with Mr Tomkin's character. His contribution to the community has been exceptional. His integrity and character appear highly regarded by those who know him. As a family man, farmer and grazier he has made significant contributions to the community other than those that brought him to the notice of his peers.

55. He has no prior matters before the court. At 77 years of age the ignobility of an arrest must have been galling. His health has been of serious concern in the past 18 months. He is stressed, although much of that stress arises from his being charged in these proceedings and should abate shortly after these proceedings have been finalised.

56. It would be inappropriate to assess this offence as trivial. I have assessed it as falling towards the low end of the range. I note the practice book speaks of determining and assessing the "Triviality of the offence" by reference to the actual offence committed by the offender and the circumstances surrounding the offence and not by reference to the maximum penalty. (see Walden v Hensler). Since Walden v Hensler (1987) 163 CLR 561 greater regard to assessing the seriousness of offences such as these is given to assessing whether that offence falls within a mid range of seriousness. "Triviality" is really another way of expressing a measure of absence of significant criminality.

57. There was nothing in Mr Tomkin's conduct that promoted criminality. The potential for his weapons to fall in to another's hands virtually required criminal conduct by a third party. That conduct would have been required in a remote location in the state.

58. In assessing the issue of triviality it is important to note how the prosecution has exercised its discretion in the charge it formulated. The charges formulated to embrace a one hour period of possession i.e. between 4.30 and 5.30 on 30 August 2008. In the light of admissions made in the interview it was open to formulate the charge so that a greater time span of possession was pleaded. Indeed, the charge, on the evidence available to police, could have been formulated as "For the period first August 2002 to thirtieth August 2008". It could also have been formulated "Between the first of August 2002 to the thirtieth of August 2008". In charges formulated in those ways the time of possession becomes part of the actual criminality charged. In the present charge the period of the possession charged is minimal.

59. That minimal period is, of course, to be evaluated in its criminality against the background of it not being an isolated period. Nonetheless, this is a distinction that makes a difference in the actual criminality of the charge. This offender is being called accountable for the criminality exposed by one hour of his possession rather than accountable for all six years of his possession. (Six years because the section was enacted in July 2002).

60. The prosecutorial discretion exercised by the charging police was not interfered with by the DPP. It would not be surprising, given Mr Tomkins age, reputation in the community, and prior good character, that police would have some sympathy for his possession when charging him.

61. I do not see any extenuating circumstances in which the offence was committed. Nor, in fairness, has any been relied upon by the defence. As to any other matter the court thinks proper to consider the case law establishes that it is erroneous to dismiss a charge under the section to avoid the consequences of a conviction if a dismissal is otherwise warranted. See for example Re the Attorney General's application under section 37 of the Crimes (Sentencing Procedure) Act (2004) 61 NSWLR 305.

62. A conviction would disqualify Mr Tomkins from holding a shooters licence in the future. A discharge would have the consequence of permitting him to retrieve his suspended licences or apply for new ones. In evidence he says he does not want to have weapons any more. My own view is he has forfeited his right to hold a licence given he refused to abide by the statutory provisions. While it may be impermissible to consider consequences to avoid unfavourable consequences when giving a section 10 discharge, I have considered whether the obverse is true. That is, if a section 10 is otherwise merited should it be denied so adverse administrative consequences will flow (in this case loss of access to a shooters licence)? I have decided these are purely matters for the administrative arm of government and cannot impact upon the criteria relevant to the granting of a section 10 discharge or criminality.

63. Several of the purposes of sentencing have been given voice in these proceedings: Denunciation, personal deterrence, recognition of the potential for harm to the community, making the offender accountable for his acts, protection of the community. My own view is a minimum level of punishment is required.

64. I intend to achieve that by the imposition of a bond as provided by section 10 of the Crimes (Sentencing Procedure) Act.

65. Mr Tomkins, I find proved, the offence that you on 30 August at Collarenebri in the state of New South Wales did possess more than three firearms, to wit four, that were not registered, one of which was the sterling .22 semiautomatic sawn-off rifle, which was a prohibited weapon, in circumstances where you were not a person authorised by licence or permit to possess those firearms.

66. However, I intend to discharge you conditional upon you entering in to a bond to be of good behaviour for a period of one year from today.

67. I also find the offence that you between 4.30 and 5.30 on 30 August 2008 at Collarenebri did not take all reasonable precautions to ensure that your firearms were kept safely because you kept the ammunition in the top draw and the guns in the bottom part of the cabinet, again I intend that you will be discharged on that conditional upon you entering in to a bond to be of good behaviour pursuant to section 10 for a period of six months.

68. The second sentence that I just pronounced was, of course, an exercise of s.166 of the Criminal Procedure Act. I make no orders as to supervision. What I am seeking to achieve is the punishment derived from having a bond imposed.