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District Court 19 December 2019

R v McDonald

[2019] NSWDC 952

DrugsFirearms & weapons

Citation: R v McDonald [2019] NSWDC 952
Court: District Court of New South Wales
Date: 19 December 2019
Judge: Buscombe DCJ

Background

Following the execution of a search warrant at a residential property in Marayong on 12 February 2019, police found a loaded pump action shotgun under a mattress, two tasers, a push dagger, a baton, an extendable baton, handcuffs, a ballistic vest, quantities of ammunition, and a small amount of methamphetamine. The offender, a 48-year-old man living at the property with his wife and three children, cooperated with police by voluntarily disclosing the location of the shotgun before it was discovered.

The offender pleaded guilty in the Local Court to four substantive charges: possessing a prohibited firearm, possessing a push dagger, possessing a taser, and possessing a baton, each without a licence or permit. He also asked the court to take into account a further seven offences (via three Form 1 documents), including possession of additional prohibited weapons, an unregistered firearm, and ammunition. Two further matters (failing to keep a firearm safely and possessing a prohibited drug) were dealt with on a s 166 certificate under the Criminal Procedure Act 1986 (NSW).

The matter came before the District Court for sentencing. A psychologist's report was before the court, and the offender's mental health condition, specifically a diagnosis of post-traumatic stress disorder, was relevant to the assessment of his moral culpability.

  • What was the appropriate objective seriousness of each firearms and prohibited weapons offence?
  • Did the offender's diagnosed PTSD establish a relevant causal connection to the offending, reducing his moral culpability?
  • What aggregate custodial sentence was appropriate having regard to the totality principle, the offender's subjective circumstances, his plea of guilty, and the applicable standard non-parole periods?

Decision

Buscombe DCJ assessed the possess prohibited firearm offence as a little below the mid-range of objective seriousness. The shotgun was loaded, in working order, and unsecured. The offender also had ammunition nearby and was using prohibited drugs at the relevant time. The court found it could not conclude that the weapons were connected to any other criminal activity.

The prohibited weapons offences were assessed at the lower end of the range. The push dagger was small and concealable. The taser was not in working order. The baton, considered in the context of the full range of items capable of constituting prohibited weapons, was also placed at the low end. The Form 1 offences were not treated as warranting significant uplift to the substantive sentences.

On the question of mental health, the court accepted, consistently with the Court of Criminal Appeal's reasoning in Lawson v R [2018] NSWCCA 215, that a limited causal connection existed between the offender's PTSD and his collection of weapons for perceived family protection. The court noted that possessing weapons for personal or family protection is not itself a mitigating factor, but the causal link to mental health was relevant to moral culpability. The court also took into account the offender's limited criminal history, absence of prior custodial experience, his cooperation with police, and his plea of guilty.

Indicative sentences were imposed on each substantive charge before an aggregate sentence was determined. The court applied the totality principle, meaning the aggregate term was not a simple addition of the individual sentences.

Orders Made

  • The offender is sentenced to an aggregate term of four years imprisonment with a non-parole period of two years and six months, commencing 12 February 2019 and expiring 11 February 2023; the non-parole period expires 11 August 2021.
  • Conviction recorded on both s 166 certificate matters (failing to keep a firearm safely; possessing a prohibited drug).
  • No further penalty imposed on the s 166 certificate matters under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • All firearms and weapons forfeited.

Key Takeaways

  • A diagnosed mental health condition can reduce an offender's moral culpability where a court accepts a causal connection between the condition and the offending conduct, consistent with the NSW Court of Criminal Appeal's approach in Lawson v R [2018] NSWCCA 215.
  • Possessing firearms or prohibited weapons for the purpose of personal or family protection is not a mitigating factor when assessing offences of this kind, even where mental health is a relevant consideration.
  • The District Court treated the possession of a loaded, unsecured, working pump action shotgun alongside prohibited drugs as placing the firearm offence a little below the mid-range of objective seriousness for that category of offending.
  • Under the totality principle, an aggregate sentence is not arrived at by adding individual terms. The indicative sentences here totalled well above four years, but the aggregate was set at four years to reflect the overall criminality as a whole.
  • Section 166 of the Criminal Procedure Act 1986 (NSW) allows a court to record a conviction and impose no further penalty for related matters dealt with by certificate alongside the principal offences.

Legislation and Cases Referenced

Legislation
- Firearms Act 1996 (NSW), s 7(1)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A

Cases
- Lawson v R [2018] NSWCCA 215