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District Court 29 July 2015

R v DOWELL; R v HEARNE

[2015] NSWDC 320

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL

Citation: R v Dowell; R v Hearne [2015] NSWDC 320
Court: District Court of New South Wales
Date: 29 July 2015
Judge: Judge S Norrish QC

Background

Two offenders, Thomas Dowell and James Robert Hearne, were sentenced for a joint criminal enterprise involving the break and entry of a rural dwelling at Cootamundra between late November and mid-December 2014. The pair entered the victim's home, located keys from a metal box in the bedroom, and used those keys to open a firearm safe and cabinet stored in an adjacent secured room. They stole nine firearms in total, along with ammunition. Three firearms remained unrecovered at the time of sentencing.

Each offender faced the principal charge of break and enter a dwelling house and commit a serious indictable offence (larceny in circumstances of aggravation, in company), contrary to section 112(2) of the Crimes Act 1900. That offence carries a maximum penalty of 20 years imprisonment and a standard non-parole period of five years.

Both offenders also faced additional firearms charges arising directly from their possession of the stolen weapons. Hearne faced five further committal-for-sentence charges, including one under section 7 of the Firearms Act 1996 for possessing a prohibited firearm, which carries a maximum of 14 years imprisonment and a standard non-parole period of three years. Dowell faced one committal-for-sentence charge of unlawfully possessing a firearm (an air rifle) and two section 166 certificate matters for possessing ammunition without a licence and failing to store a firearm safely.

  • What sentences were appropriate for each offender on the principal break-and-enter charge, having regard to objective gravity and individual circumstances?
  • How should the additional firearms and ammunition charges be sentenced, and how did the totality principle apply across the whole sentence?
  • What weight should be given to early guilty pleas, cooperation with police, and mental health issues in mitigation?
  • Did parity between the two offenders require adjustment of either sentence, given their different criminal histories, personal circumstances, and the number and nature of firearms charges each faced?
  • How did the standard non-parole period framework under the Crimes (Sentencing Procedure) Act 1999 apply to the principal offence?

Decision

Judge Norrish identified the principal offence as objectively serious: the offenders targeted a family home, accessed a secured firearms storage area, and removed nine firearms, three of which were never recovered. The presence of the victim's family at the property was a relevant aggravating feature. The theft of firearms from a rural property, where owners may be subject to less immediate oversight, was treated as a matter of genuine community concern.

Both offenders made early guilty pleas and cooperated with police by participating in recorded interviews and making full admissions. These matters were given meaningful weight in mitigation. Hearne's cooperation was particularly notable: he volunteered admissions in the presence of his father when police located the firearms in his father's gun safe. The court also considered each offender's mental health background as a mitigating factor relevant to personal circumstances.

On the question of parity, the court acknowledged the different situations of the two offenders, including Hearne's greater number of firearms charges, and structured the sentences so that the distinction between them was principally reflected in the length of the respective non-parole periods. The court applied the principle that sentences for co-offenders should not produce a result that is unjustifiably disparate, while also recognising that differences in culpability and personal circumstances can legitimately produce different outcomes.

For the ammunition possession offence involving Dowell, the court discovered mid-sentencing that the offence carried only a fine (up to 50 penalty units) rather than a term of imprisonment. The court accordingly convicted Dowell and imposed a fine of $500 for that matter rather than a custodial term.

Orders Made

Full sentencing orders were pronounced for both offenders across all charges. The key elements are as follows:

  • Both offenders convicted and sentenced on the principal break-and-enter charge under section 112(2) of the Crimes Act 1900.
  • Each offender received a term of imprisonment with a non-parole period; the non-parole periods differed by nine months between the two offenders, reflecting their different circumstances and charge profiles.
  • Additional firearms charges for both offenders sentenced as part of the overall sentencing exercise, with cumulation and concurrency applied under the totality principle.
  • Dowell convicted and sentenced to imprisonment (non-parole period of six months commencing 29 July 2015, expiring 28 January 2016; balance of sentence of six months expiring 28 July 2016) on the firearm possession charge, with the sentence backdated to his date of custody.
  • Dowell fined $500 for the ammunition possession offence, with 28 days to pay.
  • All recovered firearms directed to be returned to the lawful owner.

[Full sentencing orders for all charges, including Hearne's sentences, were not completely reproduced in the text provided.]

Key Takeaways

  • The District Court treated the theft of nine firearms from a secured rural property as an objectively serious instance of the principal offence, with the three unrecovered weapons weighing heavily in the assessment of harm to the community.
  • Early guilty pleas and full cooperation with police, including voluntary admissions in a recorded interview, were recognised as genuine mitigating factors capable of reducing the sentences otherwise warranted.
  • Where co-offenders are sentenced together, the parity principle requires that any difference in outcomes be explicable by reference to legitimate distinctions in culpability, criminal history, or personal circumstances; here the nine-month difference in non-parole periods was anchored to those distinctions.
  • Mental health issues, when established, form part of the individual offender's subjective circumstances and may operate in mitigation, though their weight depends on the evidence before the court.
  • A sentencing court must identify the correct maximum penalty before imposing sentence: when the court discovered mid-hearing that the ammunition offence carried only a monetary penalty, it substituted a fine for the custodial term it had initially contemplated.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 112(2) (break and enter dwelling house)
- Firearms Act 1996 (NSW), ss 7, 7A
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- DPP v De La Rosa [2010] NSWCCA 194
- Harris v R [2007] NSWCCA 130
- R v Henry [1999] NSWCCA 107
- Huynh v R [2005] NSWCCA 220
- Jimmy v R (2010) 77 NSWLR 540
- Markarian v R (2005) 228 CLR 357
- Muldrock v R (2011) 244 CLR 120
- R v Ponfield (1999) 48 NSWLR 327
- R v Postiglione (1998) 189 CLR 295
- R v Thomson and Houlton [2000] NSWCCA 309