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District Court 24 September 2020

R v WEAVER

[2020] NSWDC 556

Firearms & weapons
CRIME SENTENCING POSSESS SHORTENED FIREARM GENERAL DETERRENCE STRONG SUBJECTIVE CASE NO PREVIOUS OFFENCES

Citation: R v Weaver [2020] NSWDC 556
Court: District Court of New South Wales
Date: 24 September 2020
Judge: Lerve DCJ

Background

The offender held a current firearms licence and owned twelve registered firearms stored at his rural property near Adelong, NSW. On 2 August 2019, police executed a search warrant and, with the offender's assistance, located a locked shed about 250 metres from the main residence. Inside a large locked metal box were 31 unregistered firearms, including seven prohibited firearms (silenced, self-loading, or shortened), one pistol, and a loaded sawn-off shotgun. Several firearms were loaded. Police also found substantial quantities of ammunition, two silencers, detonators, detonator cord, safety fuse, and 16.1 kilograms of smokeless gunpowder.

The offender explained in a recorded police interview that he had deliberately stockpiled the weapons out of a belief in external threats. This explanation, introduced by defence counsel, ultimately cut against the offender's interests before the sentencing judge.

The offender pleaded guilty at an early stage to two indictable offences: possessing more than three unregistered firearms (including seven prohibited firearms and a pistol) contrary to s 51D(2) of the Firearms Act 1996, and possessing a shortened firearm without a permit contrary to s 62(1)(b) of the same Act. He also pleaded guilty to lesser charges of failing to store firearms as required and handling explosives without an authorising licence, and asked the court to take three further matters into account on a Form 1 document.

  • What was the appropriate objective seriousness of the two principal firearm offences, including the relevance of the offender's stated motive?
  • How should the court apply the standard non-parole period of 10 years for the s 51D(2) offence as a guideline in the instinctive synthesis of sentence?
  • What weight should be given to the offender's strong subjective case, including his lack of prior convictions, personal circumstances, and early guilty pleas?
  • Whether hardship to third parties and claims of extra-curial punishment warranted any reduction in sentence.
  • How to structure partial accumulation of sentences and apply the totality principle across related offences.
  • Whether special circumstances existed justifying a non-parole period below the standard one-third ratio.

Decision

Lerve DCJ characterised the objective seriousness of the principal offence as significant. The offender had deliberately stockpiled a large number of firearms over time, including multiple prohibited weapons. The court found that the offender's own explanation, that he accumulated the weapons because he believed in external threats, aggravated rather than mitigated the offending. The judge expressed concern that defence counsel had introduced the recorded police interview, which contained material contrary to the offender's interests and inconsistent with the agreed facts, noting the risk that arises when submissions go beyond agreed facts.

The court acknowledged the offender's subjective case was strong. He had no prior convictions, demonstrated genuine remorse, and entered early guilty pleas that attracted the full 25% utilitarian discount. However, Lerve DCJ was not persuaded that claims of hardship to third parties or of extra-curial punishment warranted any reduction. General deterrence weighed heavily given the nature and scale of the stockpile.

For the s 51D(2) offence, the starting point was 5 years 6 months, reduced to 4 years after the guilty plea discount and with a non-parole period of 2 years 4 months. For the shortened firearm offence, the starting point was 2 years 9 months, reduced to a total sentence of 2 years. The sentences were made partially cumulative to reflect the distinct nature of the two offences. The court found special circumstances warranting a non-parole period of approximately 60% of the aggregate sentence, to facilitate rehabilitation through an adequate parole period.

The two lesser charges under the s 166 Certificate were dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999, meaning convictions were recorded but no further punishment was imposed.

Orders Made

  • The offender was convicted of all offences to which he pleaded guilty.
  • An aggregate sentence of 4 years and 4 months was imposed, with a non-parole period of 2 years and 7 months commencing 23 September 2020 and expiring 22 April 2023.
  • The balance of term runs from 23 April 2023 to 22 January 2025.
  • The court recommended the offender be released to parole at the expiration of the non-parole period.
  • All firearms and ammunition seized by police were forfeited to the Crown for destruction.
  • For the two charges under the s 166 Certificate (sequences 1 and 48), the offender was convicted under s 10A with no further punishment imposed.
  • Remaining matters under the s 166 Certificate were marked withdrawn or dismissed.

Key Takeaways

  • A deliberate motive for stockpiling firearms, even one framed by the offender as defensive, was treated by the District Court as an aggravating feature rather than a mitigating one.
  • Where agreed facts have been signed by an offender with legal assistance, submissions or evidence that go beyond or contradict those facts carry real forensic risk, as the court may draw adverse inferences from the additional material.
  • Under s 51D(2) of the Firearms Act 1996, the standard non-parole period of 10 years and the 20-year maximum penalty operate as guideposts in the instinctive synthesis, not as prescriptive starting points.
  • A strong subjective case, including no prior criminal history and early guilty pleas attracting the full 25% discount, can substantially reduce a sentence but does not automatically warrant concessions for claimed third-party hardship or extra-curial punishment without supporting evidence that persuades the court.
  • Partial accumulation of sentences for related but distinct firearm offences may be appropriate where the offences, though arising from one set of circumstances, differ meaningfully in character.

Legislation and Cases Referenced

Legislation:
- Firearms Act 1996 (NSW), ss 40(1), 51D(2), 62(1)(b)
- Explosives Act 2004 (NSW), s 6(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 166
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes Act 1914 (Cth)

Cases:
- Taitoko v R [2020] NSWCCA 43
- Kabir v R [2020] NSWCCA 139
- Kember v R [2020] NSWCCA 152
- Moodie v R [2020] NSWCCA 160
- Nabalarua v R [2020] NSWCCA 68
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- R v Lachlan (2015) 252 A Crim R 277; [2015] NSWCCA 178
- Athos v R (2013) 83 NSWLR 224; [2013] NSWCCA 205
- Taylor v R [2018] NSWCCA 50
- Laspina v R [2016] NSWCCA 181
- Hopley v R [2008] NSWCCA 105
- Alameddine v R [2006] NSWCCA 317
- Kenny v R [2010] NSWCCA 6
- Mack & Mack v R [2009] NSWCCA 216
- R v Smith & Campbell [2019] NSWCCA 1
- Hinton (2002) 134 A Crim R 286
- Edwards v R (1996) 90 A Crim R 510
- R v Byrne (1998) 104 A Crim R 456
- Einfield v R (2010) 200 A Crim R 1