Citation: R v Harley James Buhagiar [2017] NSWDC 339
Court: District Court of New South Wales
Date: 10 November 2017
Judge: Hatzistergos DCJ
Background
Police stopped a vehicle driven by the offender on 18 September 2016 in Austral, NSW. Checks revealed two outstanding warrants and an expired registration, and the offender was placed under arrest. A search of the vehicle uncovered a loaded shortened double-barrel shotgun in the driver's footwell, 20 tablets later identified as 7.08 grams of methylamphetamine, a gas-powered air pistol in the boot, a sword, a machete, a wooden tribal weapon, assorted knives, and ammunition.
The offender was charged on indictment with three counts: supplying a prohibited drug (methylamphetamine), unauthorised possession of a prohibited firearm (the shotgun), and unauthorised possession of a prohibited pistol (the air pistol). Additional items, including the cannabis leaf, assorted ammunition, and the bladed weapons, were dealt with on a Form 1, meaning the court took them into account when sentencing without recording separate convictions.
The offender entered guilty pleas on 5 October 2017. A psychological report recorded his account that he had purchased the firearms to sell them to fund his methamphetamine habit, and that he had not intended to use them personally.
Legal Issues
- What was the appropriate objective seriousness for each of the three counts, particularly where the firearms were inoperable but one was loaded and accessible?
- Whether the firearms were connected to the drug supply enterprise or were held for a separate purpose (sale to fund drug use).
- What weight to give to guilty pleas, remorse, the offender's personal circumstances, and prospects of rehabilitation in mitigation.
- Whether special circumstances existed to justify a departure from the standard ratio between the non-parole period and head sentence.
- How to apply the principles of totality and accumulation to arrive at an appropriate aggregate sentence.
Decision
On the drug supply count, the court accepted the joint submission that the offending fell in the lower range of objective seriousness. The quantity of methylamphetamine (7.08 grams) was at the lower end of the indictable range, and the Crown conceded the offender's activities were directed at supporting his own drug habit rather than commercial profit.
On the firearms counts, the court acknowledged that both weapons were inoperable at the time of the offence, but emphasised that this did not eliminate their danger or the seriousness of the possession. The court applied the reasoning from R v Najem that firearms, if possessed, are liable to be used and remain a source of potential danger or infringement of others' rights even without discharge. The court also noted that an inoperable firearm can still serve as an instrument of intimidation. The court assessed Count 2 (the shortened shotgun, which was loaded and within arm's reach of the driver) as above the mid-range of objective seriousness, and Count 3 (the air pistol) as falling in the mid-range to lower range.
In mitigation, the court took into account the guilty pleas, evidence of remorse, the offender's personal history including substance dependence, and the psychological report. The court considered the principles from R v Thomson and Houlton governing the discount for guilty pleas. The sentencing court found special circumstances existed, justifying a longer additional term relative to the non-parole period, to support the offender's rehabilitation and supervision on release.
Applying the principles of totality and accumulation, the court imposed an aggregate sentence rather than running each term consecutively in full, to ensure the overall sentence was proportionate to the totality of the offending.
Orders Made
- The offender was convicted on all three counts.
- An aggregate sentence was imposed comprising a minimum (non-parole) term of 2 years and 6 months, commencing 18 September 2016 and expiring 17 March 2019.
- An additional term of 1 year and 2 months was imposed, commencing 18 March 2019 and expiring 17 May 2020, during which the offender is eligible for parole.
- The overall head sentence is 3 years and 8 months imprisonment.
Key Takeaways
- A loaded but inoperable firearm found within reach of a driver was assessed as above the mid-range of objective seriousness, reflecting the court's application of the principle that possession alone carries inherent danger, including the potential for intimidation.
- Under s 7(1) of the Firearms Act 1996 (NSW), the rationale for criminalising unauthorised possession extends beyond the risk of a weapon being fired; it encompasses the broader danger and infringement of rights that any possession creates.
- Where an offender advances an account of why firearms were held (here, to sell them rather than use them), the court may consider that account without necessarily accepting it fully, and may find the offending serious on either version of events.
- Totality and accumulation principles required the court to step back from the indicative individual sentences and impose an aggregate term proportionate to the overall criminality, rather than simply adding each sentence.
- Special circumstances within the meaning of the Crimes (Sentencing Procedure) Act 1999 (NSW) can justify adjusting the ratio between the non-parole period and the head sentence where factors such as substance dependence and rehabilitation needs call for a longer supervisory period on release.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 53A
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29, sch 1
- Firearms Act 1996 (NSW), s 7(1)
Cases
- R v Najem [2008] NSWCCA 32
- Thalari v R [2009] NSWCCA 170
- Atkinson v R [2014] NSWCCA 262
- R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Borkowski [2009] NSWCCA 102
- R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369