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Local Court 19 August 2010

Police V Dare

[2010] NSWLC 23

Firearms & weapons
POSSESSION OF UNAUTHORISED FIREARM SENTENCING CONSIDERATIONS OBJECTIVE SERIOUSNESS OF OFFENCES

Citation: Police v Dare [2010] NSWLC 23
Court: Local Court of New South Wales (Bourke)
Date: 19 August 2010
Judge(s): Magistrate R J Clisdell

Background

On 7 July 2010, a family from the Brewarrina district stopped on a public unsealed road near a rural property boundary while their dogs tracked feral pigs. Two young people, aged 13 and 19, remained in the vehicle while the adults were on foot in the bush. A woman's utility vehicle pulled up behind them, and shortly afterwards the occupants heard a gunshot.

The woman, later identified as the accused, drove forward, stopped level with the victims' vehicle, and fired a second shot that struck the bonnet directly in line with the steering wheel. The victims were terrified. The accused was a 36-year-old sole parent of four children, who managed a rural property and assisted in caring for her ailing father. She claimed she had believed the vehicle belonged to poachers or vandals near her father's property, which had recently been the target of damage.

When police executed a search warrant the following day, the accused led officers to a concealed unlicensed .22 calibre rifle and ammunition hidden in scrubland. She subsequently made admissions to all three charges and pleaded guilty. She had no prior convictions.

  • What was the objective seriousness of discharging a firearm in a manner likely to endanger persons or property under s 93G(1)(c) of the Crimes Act 1900?
  • How should the accused's good character and status as a first offender be weighed against the need for general and specific deterrence?
  • Whether a full-time custodial sentence was warranted in light of the accused's personal circumstances, early guilty plea, and genuine contrition.
  • What discount applied for the early guilty plea, and whether special circumstances existed to vary the standard non-parole period ratio?

Decision

Magistrate Clisdell found the offence of firing a firearm in a manner likely to endanger persons or property to be objectively serious. Drawing on a substantial line of Court of Criminal Appeal authority, the Magistrate emphasised that general deterrence is a paramount consideration when firearms are discharged near people, regardless of the offender's personal circumstances or the rural context.

The Magistrate acknowledged the accused's genuine contrition, good character, the testimonials tendered on her behalf, her responsibilities as a sole parent and carer, and the fact that her conduct was out of character. Consistent with the approach in Stanford v R, these factors were taken into account but could not displace the need for a custodial sentence. The Magistrate found that anything less than full-time custody would be an error in principle given both specific and general deterrence considerations.

A starting point of 32 months was adopted for the primary offence. A 25 percent discount was applied for the early guilty plea, reducing the head sentence to 24 months. Special circumstances were found to exist, justifying a departure from the usual non-parole period ratio, on the basis of the accused's good character, the fact that this was her first custodial sentence, her rehabilitation prospects, and the low likelihood of reoffending.

Orders Made

  • Sequence 1 (firing firearm): Convicted and sentenced to 12 months full-time custody (non-parole period), commencing 19 August 2010, expiring 18 August 2011; additional term of 12 months on parole supervised by Probation and Parole, expiring 18 August 2012.
  • Sequence 2 (possession of unauthorised firearm): Convicted and ordered to enter a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 for 3 years.
  • Sequence 3 (possession of ammunition without licence): Convicted and fined $500, with 28 days to pay.

Key Takeaways

  • General deterrence is a dominant sentencing consideration where a firearm is discharged near or at persons or property, and courts have consistently held that this objective may override an otherwise compelling set of mitigating personal circumstances.
  • Good character and a lack of prior convictions are relevant to reducing the head sentence that would otherwise have been imposed and to establishing special circumstances warranting a longer parole period, but they do not, of themselves, preclude a full-time custodial sentence for a serious firearms offence.
  • A 25 percent discount on the head sentence was applied for an early guilty plea, consistent with established sentencing guidelines under R v Thomson & Houlton.
  • Special circumstances justifying a departure from the standard non-parole period ratio can be established by a combination of factors including first-offender status, a first custodial sentence, strong rehabilitation prospects, and low risk of reoffending.
  • Where home detention and periodic detention are unavailable in a regional jurisdiction, a sentencing court has a more limited range of alternatives to full-time custody, a practical constraint that the Magistrate noted explicitly when considering non-custodial options.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 93G
- Firearms Act 1996 (NSW), ss 7, 7A(1), 65(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9

Cases
- Haidar v R [2007] NSWCCA 95
- Pearce v The Queen (1998) 194 CLR 610
- R v Abdullah [2005] NSWCCA 365
- R v Camilleri (NSWCCA, unreported, 8 February 1990)
- R v Cahill [2004] NSWCCA 451
- R v Cicekdag [2004] NSWCCA 357
- R v Dang [2005] NSWCCA 430
- R v Doan (2000) 115 NSWLR 115
- R v Dodd (1991) 57 A Crim R 349
- R v Geddes (1936) 36 SR (NSW) 554
- R v Mulato [2006] NSWCCA 282
- R v Nichols (1991) 57 A Crim R 391
- R v Thomson & Houlton (2000) 49 NSWLR 383
- Stanford v R [2007] NSWCCA 73