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District Court 16 September 2019

R v Aird

[2019] NSWDC 512

Firearms & weapons
SENTENCING FIREARMS OFFENCES ASSORTMENT OF WEAPONS RELEVANCE OF VARIOUS MATTERS ON FORMS 1

Citation: R v Aird [2019] NSWDC 512
Court: District Court of New South Wales
Date: 16 September 2019
Judge: Hatzistergos DCJ

Background

The offender, a rural property owner at Pheasants Nest, was arrested on an unrelated matter in August 2017. Police found a knife concealed as a credit card in his vehicle and, following a search warrant executed at his property, located nine unregistered firearms (four of which were prohibited) in a toolbox in a garage, along with an extendible baton, knuckledusters, railway detonators, and assorted ammunition.

The offender's firearms licence had been revoked in 2000. He told police he had inherited most of the firearms from deceased family members, that they held sentimental value, and that he had intended to hand them in under an active amnesty running from 1 July to 30 September 2017. The offending occurred on 24 August 2017, within the amnesty period, but before any steps to surrender the weapons had been completed.

The offender pleaded guilty to possessing a prohibited weapon (the credit card knife) under the Weapons Prohibition Act 1998 and to possessing more than three unregistered firearms, including prohibited firearms, under the Firearms Act 1996. Three further matters were taken into account on each of two Forms 1, covering the baton, knuckledusters, railway detonators, ammunition, and unsafe storage of firearms.

  • Whether the offending fell at a low, mid, or higher range of objective seriousness for each sequence
  • Whether the offender's stated intention to hand in the firearms during an amnesty gave rise to genuine remorse or contrition, and what weight that intention should carry
  • Whether explanations offered for possessing individual items (sentimental inheritance, use as box cutter, decorative use) were credible and, if so, how they affected the sentencing assessment
  • How matters on the Forms 1 should be reflected in the overall sentence
  • Whether the purposes of sentencing, including public safety, warranted particular emphasis given the nature and quantity of the weapons seized

Decision

Hatzistergos DCJ assessed Sequence 1 (the credit card knife) as falling within the lower range of objective seriousness. The knife was found in the vehicle rather than on the offender's person, and the court accepted that the wide range of conduct caught by the section meant the lower end was appropriate. The additional prohibited weapon offences on the Form 1A (extendible baton and knuckledusters) were taken into account, though the court viewed the explanations offered for each item with measured scepticism.

Sequence 17 (possessing nine unregistered firearms) was treated as the more serious matter. The court noted the quantity of firearms, the presence of four prohibited firearms among them, the relative lack of secure storage given the proximity of ammunition, and the fact that the offender had been without a licence since 2000. The Crown conceded there was no evidence the firearms were to be used for any illegal purpose, but the court observed that public safety considerations remained a significant sentencing factor.

On the question of remorse and the amnesty, the court found the claimed intention to surrender the firearms carried limited weight. While the offender had spoken to a gun shop about the amnesty, he had not in fact handed anything in. His simultaneous admission that he had purchased three firearms while unlicensed because they were "good guns" undermined the submission that his possession was purely sentimental and passive. The court acknowledged some subjective considerations, including the inherited nature of some firearms and aspects of the offender's personal circumstances, but found that genuine contrition was not clearly established.

The court applied a finding of special circumstances to adjust the ratio between the non-parole period and the additional term, reflecting the offender's need for extended supervision on release.

Orders Made

  • Sequence 1 (prohibited weapon): sentenced to imprisonment, with details subsumed in the aggregate sentence below
  • Sequence 17 (possessing unregistered and prohibited firearms): total aggregate sentence of 6 years and 5 months imprisonment
  • Non-parole period: 4 years, commencing 12 July 2019 and expiring 11 July 2023
  • Additional term: 2 years and 5 months, from 11 July 2023 to 11 December 2025, with eligibility for release to parole subject to the State Parole Authority

Key Takeaways

  • A stated intention to surrender firearms during an amnesty period does not automatically establish remorse or contrition at sentencing, particularly where the offender took no concrete steps before arrest and separately purchased additional unlicensed firearms.
  • Where an offender possesses a large assortment of weapons including prohibited firearms, the quantity, type, and storage conditions all bear on objective seriousness, even absent evidence of any intended unlawful use.
  • Under the Crimes (Sentencing Procedure) Act 1999, public safety is a legitimate and weighty sentencing consideration in firearms offences, and courts are not required to set it aside simply because the Crown cannot point to a specific intended illegal purpose.
  • Matters taken into account on a Form 1 are relevant to the overall sentencing exercise and may increase the penalty for the principal offence, but the court must still have regard to the substantive maximum penalties for those Form 1 offences.
  • Credibility of explanations offered for possessing individual items (such as "decorative" knuckledusters or a credit card knife used as a box cutter) is assessed against the totality of the evidence, and implausible explanations receive limited mitigatory weight.

Legislation and Cases Referenced

Legislation
- Firearms Act 1996 (NSW), ss 39(1)(a), 51D(2), 65(3)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Crimes Act 1900 (NSW), s 93FA(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002)
- Dionys v R [2011] NSWCCA 272
- Imbornone v R [2017] NSWCCA 144
- Mack v R [2009] NSWCCA 216
- R v Brown [2006] NSWCCA 249
- R v El Jamal [2017] NSWCCA 243
- R v Howard [2004] NSWCCA 348
- R v Johnson [2005] NSWCCA 80
- R v Lachlan [2015] NSWCCA 178
- R v Mahmud [2010] NSWCCA 219
- R v Woods [2009] NSWCCA 55
- R v Why [2017] NSWCCA 101
- Sadler v R (2001) 194 A Crim R 452
- Taylor v R [2018] NSWCCA 50