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District Court 28 February 2019

R v Jarrod Craig Hussey

[2019] NSWDC 34

Firearms & weapons
POSSESSION OF FIREARM

Citation: R v Jarrod Craig Hussey [2019] NSWDC 34
Court: District Court of New South Wales
Date: 28 February 2019
Judge: Mahony SC DCJ

Background

The offender was tried by judge alone and found guilty of possessing a prohibited pistol, specifically a 9mm IMI Baby Eagle, contrary to section 7(1) of the Firearms Act 1996. The conviction arose not from direct, physical possession but from the extended definition of possession under sections 4 and 4A of the Act: the offender was found to have been in possession by virtue of his connection to the premises where the firearm was located.

At the time of the offending in November 2015, the offender was 21 years old and had recently been honourably discharged from the Australian Army following his mother's illness. He subsequently associated with an outlaw motorcycle group, and clothing linking him to that group was found at the relevant premises. He was not arrested for the subject offence until approximately 12 months later.

By the time of sentencing, the offender was 24, employed full-time as a truck driver, and had the support of his partner and family. He had disengaged from his bikie associations, though he declined to accept responsibility for the offence and maintained he should not have been convicted.

Legal Issues

  • Whether the fact that the conviction rested on constructive (extended) possession, rather than actual possession, reduced the weight to be given to the maximum penalty and Standard Non-Parole Period (SNPP) as sentencing guideposts.
  • Where the offending fell on the range of objective seriousness for a section 7(1) offence.
  • Whether general and specific deterrence warranted a full-time custodial sentence, or whether an Intensive Correction Order (ICO) was appropriate.
  • Whether the offender's subjective circumstances, including rehabilitation, employment, and pre-trial disclosure, were sufficient to displace a full-time custodial sentence.

Decision

Issue 1: Weight of the Standard Non-Parole Period for constructive possession

The offender argued that the SNPP of four years carried reduced weight because his guilt was established through the extended definition of possession in sections 4 and 4A, rather than through direct physical possession. Mahony SC DCJ rejected that argument, finding it misconceived and unsupported by any authority (at [32]). The maximum penalty of 14 years and the SNPP of four years remained relevant guideposts regardless of the mode of possession by which the conviction was established (at [32]).

Issue 2: Objective seriousness

The court placed the offending in the mid-range for a section 7(1) offence, but at the lower end of that mid-range (at [31]). There was no evidence of how the offender came into possession of the firearm, nor any evidence that he intended to use it (at [37]).

Issue 3: General and specific deterrence

General deterrence was treated as an important consideration, reflecting Parliament's intention in prescribing a severe maximum penalty for firearms offences (at [32]). Specific deterrence was also relevant. The court found that the offender had an association with an outlaw motorcycle gang at the time of the offending, as evidenced by gang-related clothing found at the premises, and dismissed the distinction between "membership" and "association" as "odious and irrelevant" (at [33]).

Issue 4: Subjective factors and the appropriate sentencing disposition

The court acknowledged that the offender had made genuine progress: he had cut ties with anti-social associates, secured employment, and had family support (at [36], [38]). However, his continued denial of guilt and failure to accept responsibility were noted as limiting factors (at [35]). The court was satisfied the section 5 threshold for full-time custody had been crossed, but concluded that a two-year sentence served by way of an ICO was appropriate, having regard to the offender's rehabilitation and the protection of the community (at [38]).

Orders Made

  • The offender was convicted of possessing a prohibited pistol (a 9mm IMI Baby Eagle) on 19 November 2015 at Homebush West, contrary to section 7(1) of the Firearms Act 1996.
  • Sentenced to 2 years imprisonment, to be served by way of an Intensive Correction Order commencing 28 February 2019 and terminating 27 February 2021.
  • Standard conditions applied: no further offences; submission to supervision by Community Corrections.
  • Additional conditions: 100 hours of community service work; a non-association condition prohibiting contact with any outlaw motorcycle gang or persons associated with such organisations.
  • The offender was required to report to Community Corrections at Bankstown within 7 days of 28 February 2019.

Key Takeaways

  • The District Court held that a conviction under section 7(1) of the Firearms Act 1996 established through the extended definition of possession in sections 4 and 4A does not reduce the weight to be given to the maximum penalty or the Standard Non-Parole Period as sentencing guideposts (at [32]).

  • Under section 7(1), the objective seriousness of a constructive possession offence is still assessed by reference to all the circumstances, and placement at the lower end of the mid-range remained available on the facts here, including the absence of any evidence of intent to use the weapon (at [31], [37]).

  • General deterrence carries significant weight in sentencing for prohibited firearm possession, reflecting Parliament's prescription of a 14-year maximum penalty, and courts will impose substantial sentences in appropriate cases (at [32]).

  • A distinction between "membership" of and "association with" an outlaw motorcycle gang was rejected as a relevant mitigating factor where gang-related clothing was found at the relevant premises (at [33]).

  • An offender's failure to accept responsibility for a conviction following a contested trial is a relevant consideration at sentencing, even where other subjective factors, including rehabilitation, employment, and family support, support a sentence served in the community (at [35], [38]).

Legislation and Cases Referenced

Legislation
- Firearms Act 1996
- Crimes (Sentencing Procedure) Act 1999

Cases
- R v Farrell [2015] NSWCCA 68
- R v Pullen [2018] NSWCCA 264