Citation: R v Handsaker [2016] NSWDC 304
Court: District Court of New South Wales
Date: 12 May 2016
Judge: Berman SC DCJ
Background
The offender was sentenced for two serious indictable offences, together with related matters listed on a Form 1 and a matter dealt with on a section 166 certificate. The principal offences were break, enter and steal, and doing an act with intent to influence a witness.
On 19 September 2015, the offender broke into a rear shed at his grandfather's property, cut the padlocks on firearm storage cabinets using bolt cutters, and stole nine firearms belonging to his father. Two were air rifles; the remainder were described as significantly more lethal. Only five of the nine were ultimately recovered.
After being remanded in custody, the offender wrote a series of letters to his then-partner, who had reported his conduct to police. Those letters attempted to persuade her not to give evidence against him, included threats of violence, and continued despite an interim apprehended domestic violence order being made against him.
Legal Issues
- The appropriate sentence for break, enter and steal involving firearms, taking into account the offender's personal circumstances and the partial recovery of stolen property
- The appropriate sentence for doing an act with intent to influence a witness, where the conduct was sustained over multiple letters and continued in breach of a court order
- Whether the offender had discharged the onus of proving his claimed motivation (a desire to destroy the firearms to hurt his father) on the balance of probabilities
- Whether special circumstances existed to justify a longer-than-standard parole period, to support rehabilitation
- The application of a 25 per cent discount for early guilty pleas entered in the Local Court
Decision
Berman SC DCJ found that the offender had not discharged the onus of proving, on the balance of probabilities, that his sole motivation was to destroy the firearms as an act of revenge against his father. The unrecovered firearms, the offender's possession of a second firearm of unknown origin, and his significant drug use at the time all pointed to other possible motivations, including the sale of firearms to fund drug use. The court declined to accept the claimed motivation, at least not as the sole driver of the offending.
On the witness intimidation offending, the court characterised it as striking at the heart of the criminal justice system. The conduct was not an isolated act: it involved at least five letters over a sustained period, repeated demands that the witness not attend court, threats of violence, and a breach of the interim apprehended domestic violence order.
The court acknowledged the offender's troubled background, including exposure to domestic violence during childhood, a fractured relationship with his father, and escalating drug use linked to those circumstances. A psychologist's report was taken into account. The court accepted that these factors had some moderating effect on the weight given to general deterrence, though general deterrence remained relevant to both offences.
The court made a finding of special circumstances to extend the parole period beyond the standard proportion, reasoning that an extended period of supervision by the Probation and Parole Service would benefit the community if it assisted the offender's rehabilitation and cessation of drug use.
Orders Made
- Aggregate sentence of five years imprisonment, comprising a non-parole period of two and a half years
- Sentence dated from 22 November 2015
- Non-parole period to expire 21 May 2018, at which point the offender becomes eligible for release to parole
- A 25 per cent discount applied to all matters to reflect the utilitarian value of early guilty pleas entered in the Local Court
- Finding of special circumstances made in favour of the offender
- Notional component sentences (had an aggregate not been imposed): 18 months for the section 166 certificate matter; three and a half years for each matter on the indictment
- Form 1 matters on each indictment count taken into account in the aggregate sentence
Key Takeaways
- Stealing firearms was treated as substantially more serious than theft of equivalent monetary value, given the lethality of the items and the potential for them to enter circulation unaccounted for.
- An offender who claims a specific motivation for offending bears the onus of proving that motivation on the balance of probabilities; the District Court here found that onus was not discharged where circumstantial evidence pointed to alternative explanations.
- Sustained correspondence from custody designed to dissuade a witness from giving evidence, particularly when combined with threats and a breach of a court order, places the offending at a serious level within the "influencing a witness" category.
- A finding of special circumstances does not operate solely for the benefit of the offender; the District Court framed the finding explicitly as serving the community interest in successful rehabilitation and reduced reoffending.
- Early guilty pleas entered in the Local Court attracted a 25 per cent utilitarian discount, which was applied across all matters in the aggregate sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW): offence of break, enter and steal (maximum 14 years); offence of doing an act with intent to influence a witness (maximum 14 years)
- Firearms Act 1996 (NSW): offence of possessing an unauthorised firearm (maximum 5 years)
- Criminal Procedure Act 1986 (NSW): section 166 certificate (limiting the District Court's jurisdiction on the firearm matter to a two-year maximum); Form 1 procedure
No cases were cited in the judgment text.