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District Court 6 December 2019

R v West

[2019] NSWDC 838

Assault & violenceFirearms & weaponsDomestic & family violencePublic order & justice offences
SENTENCING FIRE FIREARM INTIMIDATION POSSESS FIREARM. SENTENCING RELEVANT FACTORS ON SENTENCE PARITY

Citation: R v West [2019] NSWDC 838
Court: District Court of New South Wales
Date: 6 December 2019
Judge: Haesler SC DCJ

Background

In the early afternoon of 9 April 2018, the offender drove a stolen vehicle to the home of his former domestic partner in Berkeley, New South Wales. He arrived with a companion and, from the car, directed a prolonged and explicit series of threats at the former partner and her family, including threats to shoot and kill them.

The offender then produced a shortened (sawn-off) firearm, pointed it out of the car window with his finger on the trigger, and the weapon discharged. One round struck the inside of the car door. A bystander nearby felt something strike her leg. The offender's companion had intervened and pushed the gun downward just before it fired, likely preventing serious injury. The offender fled, and the stolen vehicle was later found burnt out.

The offender was arrested two days later and remained in custody from 11 April 2018. The matter was originally listed for trial, but guilty pleas were entered after a special callover of outstanding trials in the Wollongong and Nowra areas.

  • What was the appropriate aggregate sentence for four offences arising from the same course of conduct, including a domestic violence firearms incident?
  • What guilty plea discount applied, given that an early offer to plead had been made in the Local Court but was not accepted at that stage?
  • How should parity with a co-offender's sentence be treated?
  • What weight should be given to the offender's youth, personal disadvantage, and history of multiple Children's Court offences?
  • Was a finding of special circumstances warranted, justifying a longer-than-standard balance of term?

Decision

Objective seriousness. Haesler SC DCJ assessed each offence separately but noted they formed a related course of conduct. The firearms and intimidation offences were treated as particularly serious: the victim was personally targeted by a former partner in the context of a domestic relationship, producing a shortened firearm with a clear intent or recklessness that created a real risk of death or injury. His Honour noted the court could not determine on the facts whether the offender intended to fire the weapon, but applied the principle from The Queen v De Simoni (1981) 147 CLR 383, declining to sentence on the basis of a more serious offence not charged. At most, the conduct was described as "utterly reckless." The possession of a shortened firearm was treated as inherently serious, the court observing that such weapons serve no lawful purpose.

Guilty plea discount. Because the offender had offered to plead to the principal firearm offence in the Local Court but that offer was not accepted by the Director of Public Prosecutions at the time, his Honour determined that a 25 per cent discount applied to the firearms count, representing the utilitarian value of an early plea. A 20 per cent discount applied to the remaining matters. The court was careful not to undermine the value of those discounts through the process of accumulation when constructing the aggregate sentence.

Subjective factors and special circumstances. The offender had an extensive Children's Court history but this was treated as his first adult offence. His Honour considered background reports and evidence of significant personal disadvantage, including a difficult upbringing, immaturity, and a lack of insight. The court found the offender had never lived a normal life in the community, which informed a finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999. This finding extended the non-parole period ratio, producing a longer balance of term to allow for supervised parole and rehabilitation support.

Parity. The court also considered the sentence imposed on the co-offender, Joshua Williams, in a related matter (R v Williams [2019] NSWDC 804), applying parity principles to ensure consistency where appropriate given the different roles each played.

General sentencing purposes. His Honour expressly addressed deterrence and retribution, noting that courts must signal the community's repugnance at firearm violence in domestic contexts and must vindicate the dignity of victims. The victim impact statement was taken into account within the limits prescribed by s 29 of the Crimes (Sentencing and Procedure) Act 1999.

Orders Made

  • Drive while never licensed (s 53(3) Road Transport Act 2013): Conviction confirmed; dealt with pursuant to s 10A Crimes (Sentencing Procedure) Act 1999 (no further penalty imposed).
  • Fire firearm (s 93G(1)(c) Crimes Act 1900): Indicated sentence of 4 years and 1 month.
  • Intimidation (s 13(1) Crimes (Domestic and Personal Violence) Act 2007): Sentence of 1 year and 9 months.
  • Possess unauthorised firearm (s 7A(1) Firearms Act 1996): Sentence of 1 year and 7 months.
  • Drive conveyance without owner's consent (s 154A(1)(b) Crimes Act 1900): Sentence of 1 year and 2 months.
  • Aggregate sentence: 5 years and 2 months, with a non-parole period of 3 years and 2 months; balance of term of 2 years (reflecting special circumstances).
  • Sentence commences 11 August 2018; eligible for parole consideration 10 October 2021; sentence expires 10 October 2023.
  • Firearm destruction order made.

Key Takeaways

  • The District Court applied a 25 per cent guilty plea discount where an early offer to plead had been made but not accepted in the Local Court, treating the offer as having utilitarian value equivalent to an early plea for the principal count.
  • A shortened firearm is treated as inherently serious at sentence: the court observed there is no lawful purpose for possessing such a weapon, a conclusion that informs both the objective gravity of the offence and the weight given to maximum penalties.
  • Where an offender has never lived a normal life in the community, extensive personal disadvantage and immaturity can support a finding of special circumstances, extending the balance of term to accommodate supervised parole and rehabilitation needs.
  • The Queen v De Simoni principles were applied to limit the sentencing court to the offence charged: although the conduct may have been consistent with a more serious offence, the offender was sentenced only for the recklessness inherent in the charge of firing in a manner likely to endanger safety.
  • Retribution and general deterrence were assigned significant weight in the context of domestic violence firearms offending, with the court noting the importance of vindicating victims' dignity and signalling community repugnance at such conduct.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 93G(1)(c), 154A(1)(b)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 29
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Criminal Procedure Act 1988 (NSW), s 166
- Firearms Act 1996 (NSW), s 7A(1)
- Road Transport Act 2013 (NSW), s 53(3)

Cases
- The Queen v De Simoni (1981) 147 CLR 383
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Engert (1995) 84 A Crim R 67
- Hearne (2001) 124 A Crim R 451
- R v Oinonen [1999] NSWCCA 310
- DM v R [2005] NSWCCA 181
- Slade v The Queen [2005] NZCA 19
- Elliot and Blessington [2006] NSWCCA 305
- KT v R (2008) 182 A Crim R 571
- DPP v De La Rosa [2010] NSWCCA 194
- JM v R [2012] NSWCCA 83
- R v Williams [2019] NSWDC 804