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District Court 19 December 2019

R v Ponfield

[2019] NSWDC 867

Firearms & weaponsPublic order & justice offences
SENTENCING FIREARM SUPPLY SHOTGUN AND BOLT ACTION RIFLE INTERMEDIARY BREACH OF FIREARMS PROHIBITION ORDER RELEVANT FACTORS ON SENTENCE

Citation: R v Ponfield [2019] NSWDC 867
Court: District Court of New South Wales
Date: 19 December 2019
Judge: Haesler DC DCJ

Background

The offender, a man born in 1988 with an extensive criminal history dating back to 2011, came before the District Court for sentencing on two counts of supplying prohibited firearms. He had been released from custody in September 2018 and was the subject of a firearms prohibition order made in October 2017, the effect of which had been reinforced on him in November of that year.

Between January and March 2019, the offender participated in a police controlled operation involving an undercover operative (UCO). In two separate transactions, he facilitated the supply of a Winchester 12 gauge pump action shotgun and a .303 calibre Lithgow bolt action rifle to the UCO in exchange for cash. A third arrangement, purportedly for the sale of Glock pistols and rifles for $12,000, resulted in the UCO receiving a baseball bat rather than firearms, in what the court characterised as a "rip off."

The offender was arrested in March 2019 after a foot chase and a physical struggle requiring four officers to restrain him. He pleaded guilty at an early stage. The court also noted his exceptionally deprived background: he grew up surrounded by crime, chronic drug abuse, and family members well known to the courts. His family situation was so notable that a leading Court of Criminal Appeal authority, involving his uncle, served as evidence of his childhood circumstances.

  • What sentence was appropriate for the supply of a prohibited firearm (the shotgun), carrying a maximum of 20 years imprisonment and a standard non-parole period of 10 years?
  • What sentence was appropriate for the supply of the Lithgow rifle, carrying a maximum of 5 years imprisonment?
  • How should the offender's role as an intermediary or broker affect the assessment of objective seriousness?
  • What weight should be given to the fact that the firearms were seized by police and never reached the broader criminal community?
  • How should the offender's profound background of disadvantage, institutionalisation, and lack of remorse affect the sentence?
  • Whether sentences for the two principal offences should run concurrently, consecutively, or with partial concurrence?
  • Whether special circumstances existed justifying a longer than usual balance of term on parole?
  • What Form 1 matters should be taken into account, and how should double counting be avoided?

Decision

Objective seriousness and the intermediary role. Haesler DC DCJ accepted that the offender acted as a broker or facilitator rather than a direct supplier, which provided modest mitigation of objective seriousness. However, the court drew on R v Mohammad [2005] NSWCCA 204 to confirm that an intermediary role reduces culpability only to a limited degree. Without people willing to facilitate firearms distribution, the offences could not have occurred, and the offender could not avoid the full weight of the sentencing purposes by characterising his role as minor.

Police seizure of the firearms. The court found it was of limited, though not irrelevant, relevance that the firearms were seized immediately by police rather than entering wider circulation. Drawing on R v DW [2012] NSWCCA 66, the court accepted this fact could be given modest weight on the question of actual harm, but held that the offender was morally just as culpable as if the weapons had reached other criminals. He had taken no steps to prevent distribution and could claim no credit for the police interception.

Form 1 matters and double counting. The court took care to avoid double counting. Possession of firearms contrary to the prohibition order, while appropriately placed on the Form 1, had already been treated as aggravating the principal offences. The court did not impose further punishment for those possession offences beyond recognising them as an aggravating circumstance. The proposed supply of Glock pistols and rifles was also noted as a Form 1 matter, though the court observed there was limited evidence the offender ever had genuine access to those weapons. The resistance to police at the time of arrest was taken into account as a Form 1 matter, reflecting the principle that police are entitled to have their authority respected.

Personal circumstances and special circumstances. The court acknowledged the offender's severe background of trauma, deprivation, and intergenerational criminal exposure, but noted this had not previously deterred him from offending. No remorse was expressed or found, though the court accepted the offender's complex trauma left him ill-equipped to feel such emotions and he was not penalised for that absence. A 25 per cent reduction was applied for the utilitarian value of his early pleas of guilty. Special circumstances were found, resulting in a longer than standard balance of term on parole, to allow the offender greater supervised time in the community to acquire the skills for normal community life.

Orders Made

  • Supply of prohibited firearm (shotgun), taking into account Form 1 matters: 3 years and 4 months imprisonment, with a non-parole period of 1 year and 10 months.
  • Supply of the Lithgow rifle: 1 year and 10 months imprisonment.
  • Aggregate sentence: 3 years and 9 months imprisonment, with a non-parole period of 2 years and 3 months; balance of term of 1 year and 6 months (reflecting a finding of special circumstances).
  • Sentence to commence 12 May 2019; eligible for parole 1 August 2021 (subject to the State Parole Authority); sentence to expire 11 February 2023.
  • Firearm destruction orders made.
  • Pecuniary penalty order made for $1,000 (the cash paid by the UCO to the offender in the second transaction), on the basis that this sum constituted a benefit received by the offender.

Key Takeaways

  • An intermediary or broker role in prohibited firearm supply provides only modest mitigation of objective seriousness under NSW sentencing law. The District Court applied R v Mohammad to confirm that facilitating a transaction does not markedly reduce culpability where the offending could not have occurred without the offender's participation.

  • Where police seize firearms before they reach the broader community, that fact can be given limited weight in assessing the harm caused by the offence, but does not reduce the offender's moral culpability. The principle, drawn from R v DW, is that it would be illogical to ignore actual harm (or its prevention) entirely.

  • Breach of a firearms prohibition order aggravated the principal supply offences, but the court carefully avoided double counting by not also imposing separate punishment via the Form 1 for the same factual aggravation.

  • Profound childhood disadvantage, intergenerational criminal exposure, and institutionalisation are relevant to the sentencing of a career criminal, and may support a finding of special circumstances even where optimism about rehabilitation is limited.

  • A 25 per cent discount for early guilty pleas applied, reflecting the utilitarian value of those pleas in accordance with established NSW sentencing principles.

Legislation and Cases Referenced

Legislation
- Firearms Act 1996 (NSW), ss 51(1A)(a), 51(1A); Schedule 1, cl 4

Cases
- Attorney General's Application (No 1); R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435; (1999) 48 NSWLR 327
- R v Mohammad [2005] NSWCCA 204
- R v DW [2012] NSWCCA 66