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District Court 30 July 2014

R v Clissold

[2014] NSWDC 271

Theft & propertyFirearms & weapons
CRIMINAL LAW PARTICULAR OFFENCES LARCENY STOLEN CARAVAN STOLEN FIREARMS SENTENCE

Citation: R v Clissold [2014] NSWDC 271
Court: District Court of New South Wales
Date: 30 July 2014
Judge: Cogswell SC DCJ

Background

The offender was a 29-year-old man with a negligible criminal record who became involved in a series of property offences over approximately one month in late 2012. The offending centred on the theft of a caravan worth around $35,000, and the subsequent receiving and disposing of stolen firearms, a gun safe, a GPS unit, and various personal items taken during residential burglaries at Lugarno.

Police executed a search warrant at the offender's Mount Druitt address in December 2012 and found the stolen caravan along with numerous stolen items. A co-occupant, Robert Manning, was also linked to the address. Evidence on the offender's mobile phone indicated he and Manning were seeking buyers for the stolen firearms, which were ultimately located at the home of a third man, Joshua King.

The offender was arrested in June 2013 and made limited admissions to police. He pleaded guilty to all charges on 18 October 2013, which was treated as the earliest available opportunity.

  • What sentence was appropriate for nine charges involving larceny and the receiving and disposing of stolen property, including multiple firearms?
  • What discount should apply for an early guilty plea?
  • Whether special circumstances existed to justify adjusting the standard ratio between the head sentence and the non-parole period under s 44(2)(a) of the Crimes (Sentencing Procedure) Act 1999.
  • How the principle of parity applied given the sentence previously imposed on co-offender Joshua King.
  • Whether an aggregate sentence was appropriate under s 53A of the Crimes (Sentencing Procedure) Act 1999.

Decision

The court imposed an aggregate sentence, reflecting the totality of the offending across nine charges. The offences involving the disposal and receiving of firearms were treated as the most serious, each carrying a maximum of ten years' imprisonment under s 188(1) of the Crimes Act 1900. The larceny of the caravan, carrying a maximum of five years under s 117, was treated as comparatively less serious. Three additional matters were taken into account under s 32 of the Crimes (Sentencing Procedure) Act 1999 without being recorded as convictions.

A 25 percent discount was applied to reflect the early guilty plea. The court found that the offender's personal circumstances, including his youth, negligible criminal record, strong family support, positive pre-sentence report, and the fact that this was his first time in custody, warranted a finding of special circumstances. This justified a generous adjustment to the ratio between the head sentence and the non-parole period, allowing for a longer period of supervised parole.

On parity, the court approached the comparison with Joshua King's sentence with caution. King had pleaded guilty to six counts of possessing a firearm without a licence under s 7A(1) of the Firearms Act 1996, offences carrying a maximum of only five years each. The present offender faced charges carrying a maximum of ten years, making the offences materially different in gravity. King also had a significantly worse criminal record, including a conviction for recklessly causing grievous bodily harm, and was on conditional liberty at the time of his offending. These distinctions limited the direct application of parity.

The court noted that the offender had committed what was described as a misdemeanour while in custody, but this did not significantly alter the sentencing outcome given the weight of mitigating factors. The parole eligibility date was set for 4 February 2015, with the offender subject to supervision and support conditions upon release.

Orders Made

• Sentence of 40 months imposed
• Non-parole period set at 20 months (one year and eight months)
• Eligible for parole on 4 February 2015
• Remaining one year and eight months of sentence to be served in the community on parole
• Parole Authority to fix conditions for parole, including supervision by Probation and Parole and assistance with drug habit
• Transcript of remarks on sentence to be taken out
• No order made for disposal of firearms; firearms to be returned to their owners by police

Key Takeaways

  • A 25 percent discount for a guilty plea entered at the earliest available opportunity was applied, consistent with sentencing practice under the Crimes (Sentencing Procedure) Act 1999.
  • Special circumstances under s 44(2)(a) may be established where an offender is young, has a negligible criminal record, is serving a first custodial sentence, and receives a positive pre-sentence report indicating suitability for supervised parole.
  • The principle of parity has limited application where co-offenders were sentenced for materially different offences carrying different maximum penalties and had substantially different criminal histories.
  • Under s 188(1) of the Crimes Act 1900, disposing of or receiving stolen firearms attracts a maximum of ten years' imprisonment, placing such offences in a significantly higher category than a straightforward larceny under s 117.
  • An aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 was appropriate where multiple charges arose from a connected course of conduct over a discrete period.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 117, 188(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 32, 44(2)(a), 53A
- Firearms Act 1996 (NSW), s 7A(1)

Cases: No cases were cited in the judgment text.