Citation: R v Tape [2018] NSWDC 57
Court: District Court of New South Wales
Date: 9 March 2018
Judge(s): Berman SC DCJ
Background
The offender was charged with multiple offences arising from his possession and supply of stolen paintball guns. The guns had been taken from the Ultimate Skirmish Game premises in a break-in that netted 139 paintball guns, large quantities of ammunition, air canisters, and protective clothing. The offender came into possession of a number of the stolen firearms and began selling them, offering bulk discounts for purchases of 10 or more guns. Intercepted telephone calls revealed he was aware his conduct exposed him to weapons charges.
Police also found substantial quantities of stolen property in the offender's possession at the time of his arrest, including medical equipment such as pacemakers valued at approximately $178,000. The firearms and dishonesty offences were dealt with together at sentencing.
At an earlier appearance in April 2017, the court had adjourned sentencing under section 11 of the Crimes (Sentencing Procedure) Act to allow the offender to demonstrate his claim to have given up drug use. He returned to court having fully complied with urinalysis conditions and presenting clean results.
Legal Issues
- What weight should be given to the nature of the firearms (paintball guns, which are non-lethal and not designed to imitate lethal firearms) in determining the appropriate sentence?
- Whether the standard non-parole periods applicable to the supply and possession offences should be imposed, given those periods are ordinarily calibrated for lethal firearms?
- Whether the offender's rehabilitation, early guilty plea, and other subjective factors warranted a non-custodial outcome such as a section 9 good behaviour bond?
- Whether the offender was a suitable candidate for an Intensive Corrections Order as an alternative to full-time custody?
- What sentence reflected parity with co-offenders who had already been sentenced?
Decision
Berman SC DCJ opened by acknowledging parliament's justifiably serious approach to firearms offences, noting their capacity for lethal harm. However, his Honour drew a clear distinction between lethal firearms, imitation firearms, and the paintball guns in this case. The paintball guns were neither lethal nor designed to imitate lethal weapons. This distinction was central to the sentencing exercise, and it provided the primary reason for departing from the standard non-parole periods that would otherwise apply. The court was careful not to trivialise the offences, expressly declining to characterise the paintball guns as "mere toys."
The supply of prohibited firearms on three or more occasions carried a maximum of 20 years imprisonment and a standard non-parole period of 10 years. The court accepted that those benchmarks were calibrated with lethal firearms in mind and were less apt here. The offender's early guilty plea attracted a 25% discount. His compliance with section 11 conditions, clean urinalysis results, continued employment, and positive character references all weighed in his favour. His Honour was satisfied the offender had genuine prospects of rehabilitation and was unlikely to reoffend.
The court rejected the submission that a section 9 bond was appropriate, finding that the objective seriousness of the conduct required significant punishment. However, the court also determined that the likely sentence was two years or less, which opened the possibility of an Intensive Corrections Order. His Honour adjourned sentencing and ordered that the offender be assessed for suitability to serve the sentence by way of an Intensive Corrections Order, with bail to continue unconditionally in the meantime.
The court also addressed the offender's letter citing hardship to his family and dependants. His Honour commented directly that such consequences are commonplace when offenders with dependants commit serious crimes, and that the resulting hardship is the offender's own responsibility, not the court's.
Orders Made
- Sentencing adjourned to 27 April 2018 for sentence
- The offender ordered to be assessed for suitability to serve a sentence by way of an Intensive Corrections Order
- Bail continued unconditionally in the interim
Key Takeaways
- The District Court confirmed that paintball guns, while technically classified as prohibited firearms under relevant legislation, occupy a distinct category for sentencing purposes because they are neither lethal nor designed to imitate lethal weapons.
- Standard non-parole periods for firearms supply and possession offences are not automatically applied; the nature of the specific firearm is a legitimate reason to depart from those benchmarks.
- Compliance with section 11 adjournment conditions, including clean urinalysis results, can constitute meaningful evidence of rehabilitation capable of influencing sentencing outcomes, though it does not by itself displace the need for significant punishment.
- A section 9 good behaviour bond was held to be an inadequate response to the objective seriousness of supplying stolen prohibited firearms on multiple occasions, even where the offender demonstrated strong rehabilitative progress.
- Hardship to an offender's family and dependants carries limited mitigatory weight where the offender committed the offences knowing those dependants existed and would be affected by detection and punishment.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act (NSW), sections 9 and 11
- Firearms legislation (NSW) (governing prohibited firearms, standard non-parole periods for supply and possession offences)
- Crimes Act (NSW), section 166 certificate (for related dishonesty offences)
Cases:
No cases were cited in the provided text.