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District Court 24 April 2020

R v ALI

[2020] NSWDC 125

DrugsFirearms & weaponsPublic order & justice offences
CRIME SENTENCING POSSESS PROHIBITED WEAPON POSSESS PROHIBITED DRUG

Citation: R v ALI [2020] NSWDC 125
Court: District Court of New South Wales
Date: 24 April 2020
Judge: Lerve DCJ

Background

The offender pleaded guilty in the Young Local Court in October 2019 to two principal charges: possessing a loaded firearm in a public place (s 93G(1) of the Crimes Act 1900) and possessing a shortened firearm that was not a pistol (s 62(1)(b) of the Firearms Act 1996). The sentence hearing took place at the Wagga Wagga District Court in March 2020, with the pleas maintained throughout.

The offending arose from events on 28 March 2019 in Young, NSW. Police observed a white van leaving a premises where unusual activity, including the swapping of registration plates, had been reported. The van fled police and was later found unattended. A search revealed an unlocked toolbox containing a loaded, double-barrelled shotgun that had been very substantially shortened at both the barrel and the stock, along with a spare shell, three prohibited weapons (a flick knife, a taser, and an extendable baton), and prohibited drugs. A DNA profile consistent with the offender's was found on the toolbox latch, a container inside it, and the taser.

In addition to the two principal charges, the offender sought to have six further matters taken into account on a Form 1 document at sentencing. Those matters comprised three charges of possessing prohibited weapons and three charges of possessing prohibited drugs. Three further matters were dealt with by way of a certificate under s 166 of the Criminal Procedure Act 1986, covering possession of ammunition without a permit, driving while disqualified, and affixing an unauthorised licence plate.

  • What was the appropriate sentence for possessing a loaded firearm in a public place and possessing a shortened firearm, having regard to the nature and circumstances of the offending?
  • What weight should be given to the Form 1 matters, particularly the three prohibited weapons charges, in fixing the principal sentence?
  • Whether the offender's evidence that he had no intention of using the weapon was credible, given it was loaded and a spare shell was present.
  • Whether special circumstances existed justifying a non-parole period shorter than the statutory default of one-half of the total sentence.

Decision

Lerve DCJ applied a 25% discount to the sentences for the utilitarian value of the early guilty pleas. His Honour rejected the offender's evidence that he had no intention of using the weapon. The court reasoned that the presence of a cartridge in the breech and a spare shell nearby was inconsistent with any claim that the weapon was not intended for use, and the offender's own admission that he had used it to shoot a snake on his farm further undermined that claim.

The court found the offending was serious. The weapon was a double-barrelled shotgun that had been very substantially shortened at both the barrel and the stock, a modification that the Court of Criminal Appeal confirmed in R v Lachlan (2015) has no legitimate use. The offender had possessed the weapon for approximately two years, a factor the court treated as relevant to the seriousness of the matter, consistent with DJ v R [2017] NSWCCA 319.

The six Form 1 matters, and in particular the three prohibited weapons charges, were found to have a meaningful impact on the ultimate sentence. The court noted that each prohibited weapons charge, if dealt with separately on indictment, would carry a maximum of 14 years imprisonment and a standard non-parole period of 5 years.

Special circumstances were found to exist, warranting a non-parole period of two-thirds (rather than the default one-half) of the total sentence. The court's reasons for that finding are set out in the judgment but were not reproduced in the available text. An aggregate sentence of 4 years and 6 months was imposed, with a non-parole period of 3 years.

Orders Made

  • The offender was convicted on all charges to which he pleaded guilty.
  • An aggregate sentence of 4 years 6 months imprisonment was imposed, with a non-parole period of 3 years commencing 30 April 2019 and expiring 29 April 2022. The balance of term (1 year 6 months) runs from 30 April 2022 to 29 October 2023.
  • Release to parole at the expiration of the non-parole period was recommended.
  • For the Drive While Disqualified charge (s 166 Certificate), a sentence of 3 months imprisonment (indicating a starting point of 4 months) was imposed, with a 12-month licence disqualification.
  • The Possess Ammunition without Permit and Affix Unauthorised Licence Plate charges were dealt with under s 10A of the Crimes (Sentencing Procedure) Act: conviction recorded, no further penalty.
  • The three Possess Prohibited Drug charges on the s 166 Certificate were moved to the Form 1 document.
  • The firearm and all prohibited weapons were forfeited to the Crown for destruction. The drugs were ordered to be destroyed.

Key Takeaways

  • A loaded, substantially shortened double-barrelled shotgun found with a spare shell in close proximity was treated by the court as a serious example of firearm offending, particularly given the offender had possessed the weapon for approximately two years.
  • Under the principles in R v Lachlan (2015) 252 A Crim R 277, there is no legitimate use for a shortened firearm, and that principle informed the court's assessment of objective seriousness.
  • Form 1 matters involving prohibited weapons offences, each carrying a maximum of 14 years imprisonment and a 5-year standard non-parole period if prosecuted on indictment, must have a meaningful impact on the principal sentence and cannot be treated as inconsequential.
  • The offender's denial of any intention to use the weapon was rejected where objective circumstances, including a loaded chamber, a spare round, and his own admission of prior use, contradicted that claim.
  • A finding of special circumstances justified setting the non-parole period at two-thirds of the total sentence, departing from the default one-half ratio under the Crimes (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 93G(1)
- Firearms Act 1996 (NSW), s 62(1)(b)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 37

Cases
- R v AD (2008) 191 A Crim R 409; [2008] NSWCCA 289
- Attorney General's Application Pursuant to s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146 (Guideline judgment on Form 1 matters)
- Baines v R [2016] NSWCCA 132
- Bugmy v The Queen [2013] HCA 37
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Casella v R [2019] NSWCCA 201
- Cross v R [2019] NSWCCA 280
- DJ v R [2017] NSWCCA 319
- R v Fangaloka [2019] NSWCCA 173
- R v GDP (1991) 53 A Crim R 112
- R v Hearne (2002) 124 A Crim R 451
- Karout v R [2019] NSWCCA 253
- KT v R [2008] NSWCCA 51
- R v Lachlan (2015) 252 A Crim R 277; [2015] NSWCCA 178
- Laspina v R [2016] NSWCCA 181
- Locke v R (2010) 207 A Crim R 34; [2010]