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Supreme Court 14 November 2019

R v Tarantino (No 9)

[2019] NSWSC 1669

Firearms & weapons
CRIME SUMMARY OFFENCES SENTENCING NO QUESTION OF PRINCIPLE

Citation: R v Tarantino (No 9) [2019] NSWSC 1669
Court: Supreme Court of New South Wales
Date: 14 November 2019
Judge(s): Beech-Jones J

Background

The accused had presented himself voluntarily to Surry Hills Police Station in November 2016, ostensibly to confess to the 1998 murder of a twelve-year-old girl. At the same time, he disclosed that he was carrying a knife and handed over a thirty-five centimetre blade. He was charged with both murder and a summary offence of having custody of a knife in a public place without reasonable excuse under s 11C(1) of the Summary Offences Act 1988.

After a trial running from September to November 2019, the jury acquitted the accused of murder. The summary knife possession charge, which had travelled with the murder count to the Supreme Court by certificate under s 166 of the Criminal Procedure Act 1986, then required separate determination.

Following the acquittal, the accused entered a guilty plea to the knife possession charge. Beech-Jones J proceeded to sentence on that charge, working within findings consistent with the jury's verdict.

  • Whether the accused had a reasonable excuse for possessing the knife, given his genuine but delusional fears of reprisals from persons associated with bikie gangs
  • What weight should be given to the accused's schizoaffective disorder in sentencing
  • Whether a non-conviction order under s 10 of the Crimes (Sentencing Procedure) Act 1999 was available given the accused's criminal history
  • What custodial sentence, if any, was appropriate in all the circumstances

Decision

Beech-Jones J found that the accused's fears of reprisals were genuinely held, but were entirely rooted in delusional beliefs arising from his schizoaffective disorder. This finding was consistent with an earlier interlocutory ruling in R v Tarantino (No 6) [2019] NSWSC 1174, and the judge confirmed it after hearing the full trial evidence. The court was also bound to sentence in a manner consistent with the jury's acquittal on murder.

On the question of a s 10 non-conviction order (a provision allowing a court to dismiss a charge without recording a conviction in appropriate cases), the court rejected that course outright. The accused's criminal history, which included a malicious wounding conviction in 1993, and offences in 2006 and 2007 involving weapons and grievous bodily harm, weighed heavily against leniency. The court found that specific deterrence concerns were prominent given that pattern of conduct.

The court acknowledged the difficulty that arises when sentencing offenders with psychiatric conditions. General deterrence carries reduced weight in such cases, but specific deterrence remains a live consideration, particularly where there is a history of weapons-related offending and an ongoing risk of recurrence. No sentence other than imprisonment was considered appropriate.

A fixed term of three months was imposed, backdated to commence on the date of arrest (20 November 2016) and expiring on 19 February 2017. Because the accused had already served that period, no further time in custody was required.

Orders Made

  • The accused was convicted of having custody of a knife in a public place without reasonable excuse, contrary to s 11C(1) of the Summary Offences Act 1988
  • Sentenced to a fixed term of imprisonment of three months, commencing 20 November 2016 and expiring 19 February 2017

Key Takeaways

  • A genuine fear of reprisals does not constitute a reasonable excuse for knife possession in a public place where that fear is entirely the product of a delusional psychiatric condition.
  • Beech-Jones J confirmed that sentencing must be conducted consistently with a jury's acquittal verdict, particularly where aspects of the accused's circumstances were necessarily resolved in the accused's favour by that verdict.
  • Under s 10 of the Crimes (Sentencing Procedure) Act 1999, a non-conviction order was unavailable where the offender had a significant history of weapons-related offending, even where a mental illness contributed to the current offence.
  • Where an offender suffers from a psychiatric condition, reduced weight attaches to general deterrence, but concerns about specific deterrence can nonetheless support a custodial sentence.
  • Backdating a sentence to the date of arrest, where the full term had already been served by the time of sentencing, is a mechanism by which the court gives practical effect to the time already spent in custody.

Legislation and Cases Referenced

Legislation:
- Summary Offences Act 1988 (NSW), s 11C(1)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(2), 10

Cases:
- R v Tarantino (No 6) [2019] NSWSC 1174