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2
District Court 24 September 2018

R v Jake Lewis Andrew [No. 2]

[2018] NSWDC 382

Firearms & weapons
SENTENCING FIREARMS OFFENCES INTELLECTUALLY DISABLED OFFENDER 47 XYY SYNDROME NOT TOYS FIREARMS

Citation: R v Jake Lewis Andrew [No. 2] [2018] NSWDC 382
Court: District Court of New South Wales
Date: 24 September 2018
Judge(s): Haesler SC DCJ

Background

In October 2017, a 24-year-old man boarded a public bus in Windang, NSW, and fired what appeared to be a large gun into a padded seat. CCTV footage also captured him removing a second firearm from a bag, racking it, and firing it. Police stopped the bus, and the man cooperated fully. He told officers that if they opened his backpack they would find guns.

The man, who has 47 XYY syndrome, a congenital chromosomal condition causing significant cognitive deficits and learning difficulties, believed the items were toys. His backpack contained two air guns firing hydrated gel pellets, one resembling a pistol and the other a large machine-gun. A subsequent search of his home unit uncovered seven further air guns capable of firing gel pellets, Nerf foam pellets, or foam projectiles with suction caps. None of the firearms were stored in compliance with the Firearms Act 1996.

An indictment was presented on three counts: two charges of firing a firearm in a public place under s 93G(1) of the Crimes Act 1900, and one charge of possessing more than three firearms (at least one being a prohibited firearm or pistol) under s 51(d)(2) of the Firearms Act 1987. Ten further breaches of the Firearms Act were listed on a s 166 certificate under the Criminal Procedure Act 1987. The offender pleaded guilty to all matters after a fitness hearing confirmed he was fit to enter those pleas.

  • Whether the gel-pellet and Nerf air guns constituted "firearms" within the meaning of the Firearms Act 1987
  • How to assess the objective seriousness of the offences, particularly in light of the standard non-parole period for the s 51(d)(2) charge (ten years)
  • Whether the offender's intellectual disability, 47 XYY syndrome, youth, and ignorance of the law were relevant to the sentencing synthesis
  • Whether any form of custodial penalty was warranted
  • Whether a conviction should be recorded, or whether Conditional Release Orders under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 were appropriate

Decision

Haesler SC DCJ found, on expert analysis, that all nine air guns were "firearms" within the meaning of the Firearms Act 1987. Despite their plastic construction and light weight, the law draws no distinction between replica and real firearms, or between the capacity to fire soft pellets and hard ammunition. The court was emphatic: these items are not legally toys.

On objective seriousness, the judge acknowledged the firearms posed no direct physical danger, given that gel pellets and foam projectiles could not cause serious injury. However, the court found that producing these items on a public bus created a significant public safety risk of a different kind. If bystanders or police mistook the items for real weapons, the consequences could be catastrophic, including members of the public fleeing in panic, or police responding as if confronted with real firearms.

Both the prosecution and defence agreed that no custodial penalty was warranted. The court accepted that the offender's 47 XYY syndrome directly caused significant cognitive impairment, and that he had no understanding that his "toy" collection was illegal. The judge also noted the offender's youth, his cooperation with police, his early guilty pleas (entered at the first available opportunity after the fitness hearing), and the five days he had already spent in custody. Haesler SC DCJ described this as "an exceptional case" requiring mercy, and found it would be unjust to impose a conventional sentence.

The court declined to record convictions on any count. Instead, it made Conditional Release Orders, noting that supervision through Community Corrections provided the community with ongoing protection while avoiding the disproportionate consequences of a conviction for a young, intellectually disabled man who treated the items as playthings. The judge also expressed a deliberate intention to have the judgment publicised as a vehicle for general deterrence, alerting the public to the serious legal consequences of possessing items they might regard as toys.

Orders Made

  • Counts 1, 2 and 3 on the Indictment: findings of guilt made under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, without proceeding to conviction; Conditional Release Orders for one year and three months on each count, on conditions that the offender:
  • Be of good behaviour
  • Obey all reasonable directions of Community Corrections Service for as long as deemed necessary
  • Report to the Wollongong Community Corrections office within seven days
  • Matters on the s 166 certificate: dealt with under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999; no conviction recorded and Conditional Release Orders made (fines declined due to financial hardship)
  • Firearms destruction order made for all firearms and ammunition seized

Key Takeaways

  • Under NSW law, gel-pellet and Nerf air guns that meet the definition of "firearms" in the Firearms Act 1987 are not toys. The law draws no distinction between replica and real firearms, or between pellet and live ammunition.

  • Ignorance of the law does not reduce the objective seriousness of firearms offences, but the court confirmed it remains a relevant factor in the overall sentencing synthesis, particularly when assessing moral culpability.

  • Where a defendant's intellectual disability has a direct causal connection to the offending, that disability can significantly affect the sentencing outcome, even for offences carrying maximum penalties of up to 20 years and a standard non-parole period of ten years.

  • The District Court applied the principle from Muldrock v The Queen that a staged approach to sentencing is impermissible: the standard non-parole period assessment must be synthesised with all other relevant factors, and does not compel any particular result.

  • Conditional Release Orders without conviction under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 were available and appropriate in this exceptional case, enabling community supervision while avoiding the disproportionate consequences of a formal conviction for a young, intellectually disabled offender.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 93G(1)
- Criminal Procedure Act 1987 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10(1)(a), 10(1)(b), 10A
- Firearms Act 1987 (NSW), ss 51(d)(2), 93G
- Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases
- Anderson v R [1981] VR 155
- Attorney General's Application No 3 [2002] NSWCCA 303
- Blackman and Walters v R [2001] NSWCCA 121
- DPP v De La Rosa [2010] NSWCCA 194
- Engert v R (1995) 84 A Crim R 67
- Guden v R [2010] VSCA 196
- JP v R [2015] NSWCCA 267
- Kwon v R [2004] NSWCCA 256
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- R v Andrew No. 1 [2018] NSWDC 381
- R v Chi Sun Tsui (1985) 1 NSWLR 308
- Shrestha v The Queen (1991) 143 CLR 78
- Tepania v R [2018] NSWCCA 247
- Weininger v The Queen (2003) 212 CLR 629
- Yardley and Betts v R (1979) 22 SASR 108