Citation: [2020] NSWDC 105
Court: District Court of New South Wales
Date: 14 April 2020
Judge(s): Noman SC DCJ
Background
The offender was a man with links to an Outlaw Motorcycle Gang who, on 4 September 2018, was found in possession of multiple firearms at his mother's home in Ramsgate, NSW. Police attended to execute a search following the service of both a Firearms Prohibition Order and a Weapons Prohibition Order on him. The search uncovered six firearms laid out on a bed, a crossbow, and various quantities of compatible ammunition.
The firearms included a self-loading shotgun (a prohibited firearm), a shortened pump-action shotgun (both a shortened and prohibited firearm), and two double-barrel shotguns. All items were tested and found to be in working order. None was stored safely.
The offender pleaded guilty in the Local Court to four firearms offences and asked the sentencing court to take five additional matters into account on a form 1 (a procedure that allows related offences to be considered when sentencing on the principal charge, resulting in a longer sentence than would otherwise be imposed).
Legal Issues
- Whether the offender's claimed duress, arising from coercion by Outlaw Motorcycle Gang members, was sufficient to reduce his moral culpability for the possession offences
- Whether the offender's cooperation with the search constituted a mitigating factor
- Whether special circumstances existed to justify adjusting the ratio of the non-parole period to the total sentence
- What aggregate sentence was appropriate across four offences, having regard to concurrency and accumulation principles, the form 1 matters, the guilty plea discount, and the relationship to existing custodial sentences
Decision
Duress and moral culpability: The offender gave sworn evidence that in early 2018, gang members assaulted him, tied him to a chair, and poured boiling water on him as punishment. Around March 2018, gang members deposited a stolen car containing the firearms and directed him to store them. His account was supported by family members. The court accepted on balance that the assault and the coercive arrangement had occurred, and that this explanation reduced the seriousness of his possession. However, the offender stored the items for approximately six months, and the court noted he could have surrendered them to police at any time. It accepted that doing so required a level of fortitude he did not possess, but this did not extinguish his culpability.
Cooperation with search: The defence submitted that providing access to the property assisted the administration of justice. The court rejected this, finding that the offender's conduct amounted to no more than accepting the inevitable once informed a search was to occur.
Plea discount and sentence structure: The court applied a 25% reduction to each indicative sentence to reflect the early guilty pleas entered in the Local Court. Although all offences were committed at the same time and called for considerable concurrency, the court found that a single sentence could not fully capture the criminality involved across different weapons and imposed some accumulation. Special circumstances were accepted in light of the offender's mental health, PTSD, and drug issues, along with the additional burden of accumulated sentences, justifying an adjusted non-parole period ratio.
Existing custody: The offender had been in custody since 9 March 2019, and a 20-month Intensive Correction Order entered on 9 November 2018 had been revoked. The court determined that the aggregate sentence would commence on 9 November 2019 to reflect the overall sentence period, including the currently running sentence.
Orders Made
- The offender was convicted of four firearms offences (Sequences 7, 8, 13, and 14)
- Indicative sentences were nominated as follows:
- Sequence 13 (ATA ARMS double barrel shotgun): 15 months imprisonment
- Sequence 14 (BOITO double barrel shotgun): 15 months imprisonment
- Sequence 8 (shortened Remington pump-action shotgun): 3 years imprisonment
- Sequence 7 (SKB ARMS self-loading shotgun, including five form 1 matters): 4 years imprisonment with a non-parole period of 2 years
- An aggregate sentence of 4 years and 6 months imprisonment was imposed, with a non-parole period of 2 years and 6 months, commencing 9 November 2019
- Non-parole period to expire 8 May 2022; total term to expire 8 May 2024 (a ratio of 55%)
- Overall sentence incorporating the existing ICO breach sentence: 5 years and 2 months with an overall non-parole period of 3 years and 2 months (a ratio of 61%)
Key Takeaways
- Accepted duress arising from gang coercion can reduce an offender's moral culpability for firearms possession, even where the offender stored prohibited weapons over an extended period, provided the court is satisfied the account is credible and supported by evidence.
- A claim that cooperating with a police search constitutes a mitigating factor will not succeed where the offender had no practical alternative once advised the search would proceed.
- Where multiple firearms offences are committed simultaneously, some degree of accumulation is still appropriate when different weapons are involved and a single sentence would not fully reflect the overall criminality.
- Special circumstances justifying adjustment of the non-parole period ratio can be established by reference to mental health conditions, PTSD, drug dependency, and the compounding effect of accumulated sentences.
- Under the Crimes (Sentencing Procedure) Act 2002, form 1 offences taken into account at sentencing, including those carrying the same or a higher standard non-parole period than the principal offence, will result in a longer sentence than would otherwise have been imposed.
Legislation and Cases Referenced
Legislation:
- Firearms Act 1996 (NSW), ss 7(1), 7A(1), 62(1)(b)
- Weapons Prohibition Act 1998 (NSW)
- Crimes (Sentencing Procedure) Act 2002 (NSW), ss 3A, 5
Cases:
- No specific cases were cited in the provided text, though the court referenced "the guideline judgment" in relation to principles governing form 1 offences.