Citation: R v Mirad [2016] NSWDC 336
Court: District Court of New South Wales
Date: 2 December 2016
Judge(s): Hatzistergos DCJ
Background
The offender pleaded guilty to possessing a prohibited firearm without a licence or permit, contrary to s 7(1) of the Firearms Act 1996 (NSW). Police executing a search at his Bonnyrigg home in March 2016 recovered a loaded .38 calibre Smith and Wesson revolver from a bag in his wardrobe, together with 26 loose rounds of ammunition. The serial number on the firearm had been ground off.
When police arrived, the offender voluntarily disclosed the weapon and escorted them to it. In a recorded interview, he admitted he had possessed the firearm for approximately two years, having found it at a friend's premises after that friend went missing and was suspected to have been murdered. He said he kept it for self-defence.
Three further charges were listed on a Form 1 to be taken into account on sentence: possessing ammunition without authority, failing to keep a pistol safely, and possessing a defaced firearm. The offender had never held a firearms licence.
Legal Issues
- What was the appropriate objective seriousness of the principal offence under s 7(1) of the Firearms Act 1996 (NSW)?
- Whether the offender's explanation for retaining the firearm (protection of a missing friend's family, and later self-defence) constituted a mitigating factor.
- What weight should be given to aggravating factors, including a prior conviction for being an accessory after the fact to murder?
- What mitigating factors applied, including remorse, an early guilty plea, and prospects of rehabilitation?
- Whether special circumstances existed to justify departing from the standard non-parole period ratio under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Decision
Objective seriousness. Hatzistergos DCJ accepted the Crown's submission that the offending fell in the mid-range of objective seriousness. Two features elevated that assessment: the firearm was loaded, and possession had continued for an extended period in an urban residential area.
The self-defence explanation. The court rejected the offender's claim that he had lacked a safe means of disposing of the weapon. Both parties agreed, and the court confirmed, that retaining a loaded firearm for self-defence carries no mitigatory weight. The policy underlying s 7(1) is deterrence and punishment of possession; a subjective belief about personal danger does not reduce the gravity of the offence. The court also noted that, because police had been regularly attending the offender's home, his perceived threat was illusory.
Aggravating factors. The offender's criminal history was a significant aggravating feature. Most weighty was a 2003 conviction for being an accessory after the fact to murder, arising from his role in facilitating the escape of co-offenders who had committed a fatal shooting during a group conflict. Additional earlier convictions for violent disorder and assault were noted but afforded lesser weight.
Mitigating factors and sentence. The court accepted genuine remorse, supported by the offender's evidence, the forensic psychologist's report, and the pre-sentence report. An early guilty plea attracted a 25 per cent discount from a notional head sentence of four years. Hatzistergos DCJ found special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, warranting a longer parole period than the statutory ratio would otherwise produce, given the need for supervised reintegration. The offender's reasonable rehabilitation prospects, lengthy interval since his last offence, and strong family support were weighed against the need for personal and general deterrence, denunciation, and accountability.
Orders Made
- The offender was convicted and sentenced to a total term of three years imprisonment, commencing 24 March 2016 and expiring 23 March 2019.
- Non-parole period of two years, from 24 March 2016 to 23 March 2018.
- Additional (parole) term of one year, from 24 March 2018 to 23 March 2019, to be served under supervision by Community Corrections.
- Special circumstances found; statutory non-parole ratio varied pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Key Takeaways
- Possessing a loaded, serially defaced pistol over an extended period in a residential area places an offence under s 7(1) of the Firearms Act 1996 (NSW) in the mid-range of objective seriousness, even where the offender voluntarily discloses the weapon to police.
- A self-defence rationale for retaining an unauthorised firearm is not a mitigating factor; the legislative purpose of s 7(1) is deterrence and punishment of possession, irrespective of the offender's subjective reasons for keeping the weapon.
- Where a subjective belief about personal danger has no objective foundation, that belief provides no basis for reducing the gravity of the offence.
- A prior conviction for a serious violence-related offence, particularly one involving group conflict and a loaded firearm context, carries significant weight as an aggravating factor under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Special circumstances justifying a departure from the standard non-parole ratio may be established by a combination of factors, including the need for extended supervised parole, reasonable rehabilitation prospects, and strong family support.
Legislation and Cases Referenced
Legislation
- Firearms Act 1996 (NSW), s 7(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2), 21A(3), 32, 44(2), 47(3)
- Crimes Act 1900 (NSW), s 61
Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146
- R v Mirad [2004] NSWSC 701 (Barr J)
- R v Najem [2008] NSWCCA 32
- Thalari v R [2009] NSWCCA 170