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District Court 16 March 2009

R v Tomkins, John

[2009] NSWDC 95

Firearms & weapons
CRIMINAL LAW SENTENCING FIREARM OFFENCES REGIONAL NSW UNSAFE STORAGE OF AMMUNITION EXPLANATION FOR SAWN

Citation: R v Tomkins, John [2009] NSWDC 95
Court: District Court of New South Wales
Date: 16 March 2009
Judge(s): Nicholson SC DCJ

Background

The offender was a farmer and grazier in his late seventies from Pokataroo in regional NSW, with no prior criminal record and an extensive history of community service spanning more than five decades. Police attended his property following an investigation into a firearm found in a third party's vehicle, which was traced back to the offender. During that attendance, police discovered four unregistered firearms stored in a gun safe on the property, one of which was a prohibited firearm: a .22 Stirling semi-automatic rifle with a sawn-off barrel.

The offender explained that he had collected the firearms over many years for use in pest control and humane destruction of livestock. He told police the barrel had been shortened in 1989 or 1990 to make the rifle easier to carry in a four-wheel drive across the property. One of the firearms had apparently been taken from the safe without his knowledge during a period of home renovations, when the safe keys had been moved from their usual secure location. The offender cooperated fully with police, surrendered all firearms, and his licence was suspended.

Two charges were before the court: possession of four unregistered firearms (including a prohibited firearm) without authorisation, and a summary offence of failing to take reasonable precautions to store firearms safely, arising from ammunition being kept in the same gun safe as the firearms rather than separately.

  • What was the objective seriousness of the firearm possession offences, assessed against the purposes of the Firearms Act 1996?
  • What weight should be given to the offender's exceptional subjective circumstances, including his age, good character, community contributions, and full cooperation?
  • Whether the offences warranted a finding of guilt without conviction under section 10 of the Crimes (Sentencing Procedure) Act, including whether the discharge would give rise to administrative consequences (licence reinstatement) that ought to influence the sentencing outcome.
  • How to treat the explanation for the sawn-off barrel and the circumstances in which a registered firearm came to be in a third party's possession.

Decision

The court undertook a detailed assessment of the objective criminality of the offences against the legislative purposes of the Firearms Act 1996. His Honour accepted that the primary object of the Act is public safety and the prevention of firearms falling into the wrong hands. The firearms were stored in a locked safe, the offender was a licensed holder, and the evidence supported the view that the barrel modification had a benign practical explanation rather than a criminal one. The court found the level of objective criminality to be relatively low in those circumstances.

Against that, the court found the subjective case to be very strong, indeed exceptional. The offender had no criminal history whatsoever, was approaching eighty years of age, had served his community for more than half a century, held positions of civic responsibility (including as a Justice of the Peace), and had demonstrated full cooperation with police. His prospects of rehabilitation were considered essentially irrelevant given the lack of any real prospect of reoffending.

The court considered whether a section 10 discharge would produce an adverse or favourable administrative consequence, specifically the potential for the offender to recover his suspended firearms licence. His Honour concluded that those administrative consequences were purely matters for the executive arm of government and could not properly influence the criteria for granting or refusing a section 10 discharge.

Weighing all factors, the court determined that a section 10 discharge with good behaviour bonds represented the minimum punishment warranted in the circumstances. His Honour acknowledged the need to give voice to denunciation, personal deterrence, community protection, and accountability, while concluding that the bond itself achieved the necessary punitive function.

Orders Made

  • Offender discharged on the principal charge (possession of four unregistered firearms, including a prohibited firearm) pursuant to section 10 of the Crimes (Sentencing Procedure) Act, conditional on entering into a good behaviour bond for a period of one year.
  • Offender discharged on the summary offence (unsafe storage of ammunition) pursuant to section 166 of the Criminal Procedure Act, conditional on entering into a good behaviour bond for a period of six months.
  • No supervision order made.

Key Takeaways

  • The District Court confirmed that objective criminality for firearm possession offences must be assessed by reference to the protective purposes of the Firearms Act 1996, with factors such as secure storage, licensed possession, and absence of criminal intent capable of reducing the overall seriousness of the conduct.
  • A credible, unchallenged explanation for a firearm modification (here, a sawn-off barrel justified on practical farming grounds) is a relevant consideration in assessing objective criminality, even where the resulting firearm is technically prohibited.
  • Where a prohibited firearm has been taken from a secure location without the owner's knowledge, the circumstances of its initial insecurity remain relevant to the offender's culpability, but do not necessarily elevate it to a high level.
  • Under section 10 of the Crimes (Sentencing Procedure) Act, the administrative consequences of a discharge (such as the potential reinstatement of a suspended licence) are matters for the executive and do not form part of the proper sentencing calculus.
  • A particularly strong subjective case, including an unblemished record, advanced age, extensive community service, full cooperation, and low risk of reoffending, can support a section 10 discharge even where the offences involve a prohibited firearm and multiple unregistered weapons.

Legislation and Cases Referenced

Legislation
- Firearms Act 1996 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 37
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- 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
- Regina v Brown [2006] NSWCCA 249
- R v Paris [2001] NSWCCA 83
- R v Piccin (No. 2) [2001] NSWCCA 323
- Walden v Hensler (1987) 163 CLR 561
- Attorney General's Application under Section 37 of the Crimes (Sentencing Procedure) Act (2004) 61 NSWLR 305