Citation: R v Jones (a pseudonym) [2019] NSWDC 40
Court: District Court of New South Wales
Date: 7 February 2019
Judge: Colefax SC DCJ
Background
The offender, referred to by the pseudonym Mr Jones, appeared for sentencing on three principal firearm offences arising from events in late 2016 and early 2017. He was approximately 41 years old at the time of the offending and was subject to a Firearms Prohibition Order that had been served on him in December 2016.
In March 2017, police executed a search at his residential premises and examined his mobile phone. They discovered SMS messages revealing his role as a broker in negotiations for the illegal sale of six prohibited firearms, including an AK-47 assault rifle and an Uzi with a suppressor, to a buyer he knew was a member of an outlaw motorcycle gang. The agreed price for the deal was $60,000, with the offender standing to receive $20,000.
The same search uncovered firearm parts in a shed and hand-drawn sketches of a MAC-10 style machine pistol. The offender admitted in evidence that he had actually manufactured such a weapon, though police were unable to locate it. He also admitted the weapon would have functioned. Two additional matters were placed before the court on a Form 1 (matters taken into account on sentence without separate conviction): sending an intimidatory message featuring an image of a pistol, and holding $3,100 in bank funds reasonably suspected to be proceeds of drug dealing.
Legal Issues
- The appropriate objective seriousness of each of the three principal offences and the two Form 1 matters
- The weight to be given to subjective factors, including the offender's background, cooperation with police, and assistance provided (the nature of which was addressed in a confidential exhibit)
- The applicable discount for a guilty plea and any further discount for assistance
- The structure of an aggregate sentence, including the non-parole period, where multiple offences would otherwise have been partially accumulated
Decision
Colefax SC DCJ assessed the first principal offence, knowingly taking part in the supply of prohibited firearms, as slightly below the middle of the range for objective seriousness. The involvement of an outlaw motorcycle gang member as a party to the transaction was treated as an aggravating feature. The judge noted that the deal was never completed, but emphasised that this was not attributable to any action by the offender.
The second offence, possessing firearm parts while subject to a Firearms Prohibition Order, was assessed as towards but not at the bottom of the range for that type of offence. The third offence, manufacturing a prohibited firearm, was assessed as mid-range. His Honour expressed significant concern about the offender's inability to explain why he manufactured the MAC-10 style weapon, stating from the bench that he found the evidence on that point difficult to believe.
The Form 1 matters produced a slight increase in the penalty for the third offence. The court accepted subjective factors including the offender's stable upbringing, early admissions to police, and personal circumstances. A 15% discount was applied for the guilty plea. A further 5% discount was applied by reference to a confidential exhibit (Exhibit B), which related to past events only. The total discount applied was 20%.
The court imposed an aggregate sentence rather than accumulating individual terms, finding that no individual sentence would have been entirely concurrent with the others.
Orders Made
- Aggregate term of imprisonment of eight years imposed for the three principal offences
- Non-parole period of five years, commencing 1 November 2017 and expiring 31 October 2022
- Balance of term of three years, commencing 1 November 2022 and expiring 31 October 2025
- Sentence backdated to 1 November 2017 to account for time already in custody
- Firearm destruction order made
- Forfeiture of $3,100 to the Crown ordered
Key Takeaways
- The District Court treated the knowing involvement of an outlaw motorcycle gang member as an aggravating circumstance in a prohibited firearms supply offence, even where the deal was ultimately not completed.
- Under the aggregate sentencing regime applied here, the court was required to determine indicative sentences for each individual offence before arriving at a single combined term, with partial accumulation the appropriate structure where offences were related but not wholly concurrent.
- A total discount of 20% was available where a guilty plea attracted 15% and a separate discount of 5% was granted for assistance or cooperation reflected in a confidential exhibit, with the court treating the two components as distinct.
- The offender's credibility on a key factual question (the reason for manufacturing the weapon) was expressly doubted by the sentencing judge, illustrating that a court may make adverse findings about evidence given in sentencing proceedings even in the absence of a contested hearing.
- Manufacturing a prohibited firearm was assessed as a mid-range offence in objective seriousness where the weapon was functional but was never located by police, and where no explanation for its manufacture was accepted by the court.
Legislation and Cases Referenced
Legislation:
- Firearms Act 1996 (NSW), s 51(1A)(a) (knowingly taking part in supply of prohibited firearms, maximum 20 years, standard non-parole period of 10 years)
- Firearms Act 1996 (NSW), s 74(2) (possessing a firearm part while subject to a Firearms Prohibition Order, maximum 14 years)
- Firearms Act 1996 (NSW), s 50A(2) (manufacturing a prohibited firearm without a licence or permit, maximum 20 years)
Cases: No cases were cited in the judgment.