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District Court 12 July 2019

R v Schneider

[2019] NSWDC 483

Assault & violenceFirearms & weapons
CRIME SENTENCE POSSESS PROHIBITED FIREARM ASSAULT OCCASIONING ACTUAL BODILY HARM

Citation: R v Schneider [2019] NSWDC 483
Court: District Court of New South Wales
Date: 12 July 2019
Judge(s): Colefax SC DCJ

Background

The offender, a 26-year-old man, appeared for sentencing on a charge of possessing a prohibited firearm, contrary to s 7(1) of the Firearms Act 1996 (NSW). The firearm in question was a sawn-off, semi-automatic .22 calibre rifle, found during a police search of premises where the offender was frequently present. The rifle had been purchased two months earlier; the offender was present at the purchase and contributed half the purchase price, sharing ownership with his cousin.

At the time of the firearm offence, the offender was nine months into a two-year suspended sentence (a s 12 bond) imposed for assault occasioning actual bodily harm in company. That earlier sentence had come with an express judicial warning that a breach would likely result in imprisonment.

The court also dealt with the revocation of the suspended sentence alongside the new firearm charge, imposing an aggregate sentence across both matters.

  • Whether the s 12 suspended sentence bond should be revoked following the firearm offence
  • The objective seriousness of the firearm possession offence
  • The weight to be given to subjective circumstances, including drug use history, mental health concerns, and prospects of rehabilitation
  • Whether special circumstances existed to justify reducing the non-parole period below the standard 75% ratio
  • The appropriate aggregate sentence, including indicative sentences for each offence

Decision

His Honour found that the breach of the suspended sentence could not be regarded as trivial, and there were no good reasons to excuse non-compliance. The bond was accordingly revoked. The court assessed the firearm offence as falling approximately midway between the bottom and middle of the range of objective seriousness, with one additional aggravating factor: the offence was committed while the offender was on conditional liberty.

The court expressed particular concern about the offender's explanation for possessing the firearm. The offender had told the sentencing assessment report author that he believed his actions were justified by fears for his safety. His Honour found this disturbing because those fears arose from paranoid thoughts, and a person experiencing paranoia being in possession of a firearm was a matter of serious concern. The court also remarked on the offender's long history of cannabis use since age 13, noting the well-recognised connection between adolescent cannabis use and serious mental health outcomes, though no expert evidence was available to establish a direct causal link in this case.

On rehabilitation, the court assessed the offender's prospects as "guarded." Positive factors included his age, limited prior criminal history, and apparent abstinence from drugs during remand. Negative factors included the blatant breach of the earlier sentence and continued drug use while on the bond. Special circumstances were found to exist, on the Crown's own submission, to justify a longer parole period aimed at supporting rehabilitation.

The court imposed an aggregate sentence of two years and nine months, backdated to 13 July 2018. Indicative sentences were 18 months for the firearm offence (after a 25% discount for an early guilty plea, reduced from a starting point of two years) and two years for the assault offence. The non-parole period was set at one year and nine months, with a balance of parole of one year.

Orders Made

  • The s 12 suspended sentence bond was revoked
  • Aggregate sentence of two years and nine months imprisonment, backdated to 13 July 2018
  • Non-parole period of one year and nine months, expiring 12 April 2020
  • Balance of sentence (parole period) of one year, expiring 12 April 2021
  • Firearm destruction order made in respect of the prohibited firearm

Key Takeaways

  • Committing an offence while on a suspended sentence is a recognised aggravating factor in sentencing, and a breach that results in a further serious offence will ordinarily lead to revocation of the bond.
  • A 25% discount on the indicative sentence was applied for an early guilty plea to the firearm possession charge, reducing the starting point of two years to an indicative sentence of 18 months.
  • Under the standard sentencing framework, the non-parole period should represent 75% of the head sentence; a finding of special circumstances is required to reduce that ratio, and the District Court noted that such findings should not be made routinely.
  • Where the Crown itself submits that special circumstances exist, the sentencing court may treat that as a significant factor in making the finding, particularly where a longer parole period is considered conducive to rehabilitation.
  • Paranoid ideation combined with firearm possession was treated as an independently aggravating circumstance, reflecting the court's view that the combination posed a heightened risk to community safety.

Legislation and Cases Referenced

Legislation:
- Firearms Act 1996 (NSW), s 7(1)
- Crimes Act 1900 (NSW), s 59(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12 (suspended sentences)

Cases:
- R v GWM [2012] NSWCCA 240 (Court of Criminal Appeal caution against over-use of special circumstances findings)