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District Court 8 April 2020

R v Phan

[2020] NSWDC 348

Firearms & weapons
CRIME SENTENCE FORM 1 OFFENCES SUBJECTIVE MATTERS AGGREGATE SENTENCE

Citation: R v Phan [2020] NSWDC 348
Court: District Court of New South Wales
Date: 8 April 2020
Judge: King SC DCJ

Background

The offender was driving a hired Toyota HiLux in Padstow at around 9.20am on 3 July 2019 when he struck a telegraph pole and clipped another vehicle. He exited the ute with a duffel bag, quickly gathered items from the car, and left the scene on foot, talking on his phone. He made no arrangement to remain at the accident.

When police searched the vehicle, they found a loaded Glock 19 pistol concealed behind the handbrake. The weapon contained 12 rounds in the magazine and one in the chamber. A detachable box magazine was attached to the pistol. The offender's DNA was recovered from both the pistol grip and the airbags of the vehicle. He was arrested later that day at a separate address.

The offender's background was relevant to his motive. Some days before the incident, he and his family had been the target of an attempted home invasion in which three balaclava-clad men shot at him, narrowly missing both him and his young child. He told others he had obtained the Glock 19 specifically for self-defence. Medical evidence also indicated that, at the time of the offences, he had been consuming methylamphetamine for approximately two weeks without sleep and had been hospitalised with drug-induced psychosis shortly after his arrest.

  • What aggregate sentence was appropriate across three principal offences involving possession of an unregistered firearm, possession of a prohibited pistol, and possession of a loaded firearm in a public place?
  • How should the offender's self-defence motive, following a genuine threat to his family, affect the objective seriousness of the offences and his moral culpability?
  • What weight should be given to the offender's guilty plea, drug-induced psychosis, and other subjective matters?
  • Whether special circumstances justified varying the statutory relationship between the non-parole period and the balance of term in the aggregate sentence.

Decision

King SC DCJ accepted that the offender obtained the firearm in response to a real and serious threat to himself and his family. Following Sumrein v R [2019] NSWCCA 83, his Honour treated the defensive motive as reducing both the objective seriousness of the offences and the offender's moral culpability. However, the court placed firm limits on the weight of that mitigation.

Citing Thalari v R [2009] NSWCCA 170, his Honour emphasised that the legislature's intention in creating the prohibited pistol offence, with its 14-year maximum, was to deter and punish possession per se. The rule of law requires that individuals not take their protection into their own hands by illegal means, and the mere fact of a defensive purpose does not constitute significant mitigation in the face of Parliament's clear policy. The loaded state of the weapon and the risk of injury to uninvolved members of the public added to the seriousness.

For each principal offence, his Honour calculated indicative sentences before arriving at an aggregate. The indicative sentence for possessing the prohibited pistol (together with the Form 1 matters) was three years and six months, after applying a 25 per cent discount for the guilty plea. His Honour found special circumstances warranting a reduction in the statutory ratio between the non-parole period and the balance of term, largely in recognition of the offender's need for supervision and rehabilitation upon release, particularly in relation to his drug dependency.

Orders Made

  • Aggregate sentence of four years' imprisonment, with a non-parole period of two years, commencing 3 July 2019.
  • First eligible for parole: 2 July 2021.
  • Balance of term: two years, expiring 2 July 2023.
  • Order for destruction of the firearm.

Key Takeaways

  • A defensive motive, even one grounded in a genuine and recent threat to the offender's family, reduces but does not neutralise the seriousness of prohibited pistol possession offences, given Parliament's clear deterrent intention in enacting the offence.
  • Under Sumrein v R [2019] NSWCCA 83, a court may account for a defensive motive in two discrete ways: by lowering the assessed objective seriousness of the offence and by reducing the offender's moral culpability, but these reductions operate within limits set by the legislative framework.
  • The District Court confirmed that carrying a loaded prohibited pistol in a motor vehicle on a public road represents a serious risk to the broader community, regardless of the offender's subjective reasons for possession.
  • Special circumstances were found to exist, justifying a reduction of the non-parole period to 50 per cent of the total term, rather than the standard two-thirds statutory relationship, where the offender's rehabilitation needs, particularly addressing drug dependency, warranted additional supervision time on parole.
  • Drug-induced psychosis arising from prolonged methamphetamine use was noted as an aggravating contextual factor rather than a straightforward mitigant, given that the offender's own conduct produced that state.

Legislation and Cases Referenced

Legislation
- Firearms Act 1996 (NSW), ss 7(1), 36(1), 65(3)
- Crimes Act 1900 (NSW), s 93G(1)(a)(i)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Sumrein v R [2019] NSWCCA 83
- Thalari v R [2009] NSWCCA 170
- Lamis v R [2016] NSWCCA 274
- R v Thomson; R v Houlton (2000) 49 NSWLR 383