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District Court 3 September 2018

R v Chantelle Strnad

[2018] NSWDC 280

Firearms & weaponsPublic order & justice offences
CRIMINAL LAW SENTENCE USE OF A FIREARM HINDERING AN INVESTIGATION BY POLICE PLEAS OF GUILTY CRIMINAL ENTERPRISE

Citation: R v Chantelle Strnad [2018] NSWDC 280
Court: District Court of New South Wales
Date: 3 September 2018
Judge: Montgomery DCJ

Background

The offender was a 31-year-old business owner who operated a commercial signage company in Ingleburn, NSW. A billing dispute with a client escalated into a serious confrontation in early March 2016. The offender was in an intimate relationship with one of her employees, who responded to the dispute by bringing a semi-automatic rifle to the workplace.

On 7 March 2016, the offender telephoned the client and asked him to come to the factory, without disclosing that her partner was present with a loaded firearm. The agreed facts established that the offender had agreed her partner would use the firearm to intimidate the client, and that she foresaw the possibility the weapon might be discharged, though not at anyone. When her partner fired a shot into the ceiling at close range during the resulting confrontation, this gave rise to two counts of using a prohibited firearm without a licence or permit.

Following the shooting, a separate incident unfolded involving the client's brothers. Shortly after, the offender's partner shot and seriously wounded one of the brothers. The offender subsequently took steps that were found to constitute intentionally hindering the police investigation into that shooting.

  • What sentences were appropriate for two counts of using a prohibited firearm (s 7(1) of the Firearms Act 1996), each carrying a maximum of 14 years' imprisonment and a standard non-parole period of 4 years?
  • What sentence was appropriate for one count of intentionally hindering a police investigation into a serious indictable offence (s 315(1)(a) of the Crimes Act 1900), carrying a maximum of 7 years' imprisonment?
  • How should totality and proportionality principles apply when sentencing across multiple offences, including a concurrent bond for the hindering charge?
  • Whether a pre-existing good behaviour bond should be revoked on account of the commission of the fresh offences.

Decision

Montgomery DCJ sentenced the offender following guilty pleas to all three counts. His Honour considered the objective seriousness of the firearm offences, the context of the criminal enterprise, and the offender's personal circumstances, including her prospects for rehabilitation, which the evidence supported as favourable.

For the two prohibited firearm counts, His Honour imposed a total term of 3 years and 4 months' imprisonment. Noting the offender's favourable rehabilitation prospects, His Honour adjusted the standard ratio between the non-parole period and the parole period, allowing a parole period of 35 per cent of the total term. The non-parole period was set at 2 years and 2 months.

For the hindering investigation count, His Honour determined that a custodial sentence was not required and imposed an 18-month good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999. Following the approach endorsed in Grealish v R and JM v R, the bond was imposed separately but included within the aggregate sentencing exercise.

His Honour also revoked a pre-existing s 9 bond that had been in place since March 2015, and imposed 6 months' imprisonment for that breach, commencing 10 May 2016. Totality and proportionality required partial accumulation of 3 months between the breach sentence and the sentences for Counts 1 and 2.

Orders Made

  • Conviction recorded for two counts of using a prohibited firearm without a licence or permit (s 7(1), Firearms Act 1996)
  • Conviction recorded for one count of intentionally hindering a police investigation into a serious indictable offence (s 315(1)(a), Crimes Act 1900)
  • Pre-existing s 9 good behaviour bond (dated 29 March 2015) revoked
  • 6 months' imprisonment imposed for breach of that bond, commencing 10 May 2016
  • Non-parole period of 2 years and 2 months commencing 10 August 2016, terminating 9 October 2018
  • Balance term of 1 year and 2 months commencing 10 October 2018, terminating 9 December 2019
  • 18-month good behaviour bond (s 9, Crimes (Sentencing Procedure) Act 1999) for the Count 4 offence, commencing 3 September 2018, with supervision and reporting conditions

Key Takeaways

  • The District Court confirmed that an offender who agrees to a plan of armed intimidation, and foresees the possibility of firearm discharge, can be liable for using a prohibited firearm even where she did not personally handle the weapon.
  • A non-parole period shorter than the standard ratio is available where the sentencing court finds, on evidence, that the offender has demonstrably favourable prospects of rehabilitation.
  • Under the approach affirmed in Grealish v R and JM v R, a non-custodial bond imposed as part of a multi-offence sentence must be separately identified but integrated into the overall sentencing exercise to ensure totality is observed.
  • Partial accumulation of sentences, rather than full concurrency or full accumulation, was applied here to reflect the distinct criminality across the offences while avoiding a disproportionate aggregate term.
  • A pre-existing good behaviour bond is liable to revocation where the offender commits further offences during its currency, with a separate term of imprisonment capable of being imposed for the breach.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 315(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 9, 35A
- Firearms Act 1996 (NSW), s 7(1)

Cases:
- Cahyadi v R [2007] NSWCCA 1
- Grealish v R [2013] NSWCCA 336
- JM v R [2014] NSWCCA 297
- Miller v The Queen [2016] HCA 30; 90 ALJR 918
- R v De Simoni (1981) 147 CLR 383
- R v Holder (1983) 3 NSWLR 245
- R v MMK [2006] NSWCCA 272
- R v Skinner [2018] NSWCCA 185
- R v Thompson; R v Houlton (2000) 49 NSWLR 383
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Yeung v R [2018] NSWCCA 52