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District Court 30 September 2019

R v Makira

[2019] NSWDC 584

Firearms & weapons
PAROLE PERIOD — RATIO OF THE NON PAROLE PERIOD AND BALANCE OF TERM

Citation: R v Makira [2019] NSWDC 584
Court: District Court of New South Wales
Date: 30 September 2019
Judge(s): Bennett SC DCJ

Background

Police stopped a vehicle in Ropes Crossing late at night after observing a defective tail light. The offender was seated in the front passenger seat. An officer spotted the wooden butt of a firearm protruding from a backpack in the rear footwell. A search recovered a loaded, shortened .22 calibre rifle, together with a balaclava and gloves. Knuckledusters and knives were also found near the driver's seat, though those items were not attributed to the offender.

DNA analysis linked the offender to the firearm, the wrapping around it, the balaclava, and the backpack. No fingerprints from the vehicle's occupants were found on the weapon itself. The Crown conceded it could not prove beyond reasonable doubt that the possession was for use in criminal activity, and the court proceeded on that basis.

The offender pleaded guilty in the Local Court to two charges: unauthorised possession of a shortened firearm (contrary to s 62(1)(b) of the Firearms Act 1996) and possession of the same weapon in contravention of a Firearms Prohibition Order (contrary to s 74(1) of the same Act). He maintained those pleas in the District Court.

  • What was the appropriate aggregate sentence for two firearms offences, given the circumstances of the offending and the offender's personal history?
  • What weight should be given to the offender's guilty pleas, personal background, and psychological profile in mitigation?
  • How should the non-parole period relate to the head sentence, having regard to the principles in R v Borkowski [2009] NSWCCA 102 and the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999?
  • Whether the totality principle justified an aggregate sentence rather than consecutive or concurrent individual terms?

Decision

Bennett SC DCJ found the objective seriousness of both offences to be below mid-range, though not by a wide margin. The shortened rifle was loaded and immediately operable. The offender was subject to a Firearms Prohibition Order at the time, which elevated the seriousness of the second charge. The DNA evidence, while not sufficient to establish possession for criminal purposes, firmly connected the offender to the weapon and its accessories.

The offender's personal history weighed significantly in the sentencing exercise. He had an extensive criminal record dating from 1998, including prior firearms offences, robbery offences, and a history of discharging a firearm in a public place. His adult life had been spent largely in custody, with short periods at liberty between releases on parole. A psychological report and evidence from his sister were received, and the court acknowledged the offender's difficult personal background, including his upbringing in the Pacific Islands and in Australia.

A 25 per cent discount was applied to each indicative sentence to reflect the utilitarian value of the guilty pleas. The court engaged all of the sentencing purposes under s 3A of the Crimes (Sentencing Procedure) Act 1999, including punishment, general and specific deterrence, community protection, rehabilitation, accountability, and denunciation. The court noted that the threshold in s 5 of that Act for imposing imprisonment was clearly crossed.

Applying the totality principle, the court imposed an aggregate sentence rather than separate consecutive terms. The non-parole period of two years was structured to allow for the possibility of parole while ensuring a meaningful custodial period, consistent with the principles governing the ratio between the non-parole period and the balance of term discussed in Borkowski.

Orders Made

  • The offender was convicted on both charges.
  • Indicative sentences of 3 years and 4 months were specified for each offence (after a 25 per cent plea discount).
  • An aggregate sentence of 4 years imprisonment was imposed, commencing 8 September 2018 and expiring 7 September 2022.
  • A non-parole period of 2 years was set, expiring 7 September 2020.

Key Takeaways

  • The District Court confirmed that possession of a shortened, loaded firearm while subject to a Firearms Prohibition Order, even absent proof of intended criminal use, falls below but not far below the mid-range of objective seriousness for these offence categories.
  • A 25 per cent discount applied to the indicative sentences to reflect the utilitarian benefit of guilty pleas entered at the Local Court level and maintained in the District Court.
  • All seven purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 were engaged, with particular emphasis on specific deterrence and community protection given the offender's lengthy and serious criminal history.
  • Where an offender has a substantial record of prior firearm-related and violent offending, that history informs both the weight given to deterrence and the structuring of the non-parole period, even where some subjective mitigation is accepted.
  • An aggregate sentence is available in multi-charge matters to avoid a crushing combined term, but the structure of the non-parole period must still reflect the totality of the criminality and the principles in Borkowski.

Legislation and Cases Referenced

Legislation:
- Firearms Act 1996 (NSW), ss 4(1), 62(1)(b), 73(1), 74(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Weapons Prohibition Act 1998 (NSW), s 33(1)

Cases:
- R v Borkowski [2009] NSWCCA 102