Citation: R v Wilson (No.3) [2021] NSWDC 174
Court: District Court of New South Wales
Date: 6 May 2021
Judge: Abadee DCJ
Background
The offender attended a residential property in Thornton on 1 August 2019 at the request of a woman who claimed her former partner had taken property belonging to her. Earlier attempts to recover the items, including a visit with four brothers, had failed. The offender travelled to the property knowing those prior attempts had been unsuccessful.
At the property, the offender knocked on the front door and falsely identified himself. When the occupant refused to open the door, the offender displayed a black pistol through the front window, pressing it against the glass and threatening to use it. He was not licensed or authorised to possess the firearm.
After the victim retreated to call emergency services, the offender changed tactics. He found a jerry can of fuel on the veranda, removed the lid, spilled petrol near the timber front door, and threatened to burn the house down. Police arrived before the threats were carried out. The victim, who maintained throughout that the property items were his, was left in genuine fear throughout the episode.
Legal Issues
- Whether the offender's guilty pleas to using an offensive weapon to intimidate and threatening to damage property, combined with his conviction for unauthorised firearm possession, were to be sentenced together and on what factual basis.
- What weight should be given to the offender's background, including whether the Bugmy principles (relating to the impact of profound social disadvantage on moral culpability) were engaged.
- How the totality principle applied to three offences arising from a single episode but involving distinct conduct and separate elements.
- Whether the two back-up intimidation charges under the Crimes (Domestic and Personal Violence) Act 2007 should attract any separate penalty.
Decision
Abadee DCJ sentenced the offender following guilty pleas to the weapon use and property damage threat offences, and a conviction after a judge-alone trial on the firearm possession offence. The facts were determined partly through the trial process, with both parties agreeing that evidence relevant to the guilty plea offences could be resolved at the same time as the firearm charge.
His Honour accepted that the Bugmy principles were engaged, noting that deprivation and disadvantage in the offender's background reduced his moral culpability to some extent. The court also accepted that incarceration weighed more heavily on the offender than it might on others, and that a longer parole period would better serve rehabilitation and community protection. The forensic psychiatric material from Dr Furst was considered in this context.
On totality, the court found that the three offences formed part of a single episode directed at a single victim, which warranted substantial notional concurrency. At the same time, the threats were qualitatively different (a firearm, then a petrol threat), the offences had distinct elements, and the overall sentence needed to reflect that cumulative criminality. A modest degree of notional accumulation was therefore applied before the totality principle was used to avoid a crushing outcome.
The two back-up intimidation charges under the Crimes (Domestic and Personal Violence) Act 2007 were dismissed. The Crown did not oppose this course, and the court agreed they duplicated the conduct already captured by the indictment offences.
Orders Made
- Count 1 (weapon use offence): indicative sentence of 3 years' imprisonment
- Count 2 (firearm possession offence): indicative sentence of 1 year and 6 months' imprisonment
- Count 3 (property damage threat offence): indicative sentence of 1 year's imprisonment
- Aggregate sentence: 3 years and 6 months' imprisonment, commencing 20 October 2019 and expiring 19 April 2023
- Non-parole period: 2 years and 1 month, expiring 19 November 2021
- Back-up intimidation charges dismissed; no further penalty imposed
- Sentencing remarks and Dr Furst's report of 22 April 2021 directed to be forwarded to Justice Health and Corrective Services
Key Takeaways
- The District Court applied the Bugmy principle that profound social disadvantage may reduce an offender's moral culpability, even where the offending is serious, provided the connection between the background and the conduct is properly established.
- Where multiple offences arise from a single continuous episode directed at one victim, substantial notional concurrency is appropriate, but some degree of accumulation remains necessary when the offences involve distinct conduct and separate legal elements.
- A longer parole period can be justified where close supervision is assessed as beneficial to rehabilitation and the offender's personal circumstances mean that imprisonment weighs more heavily on them than it would on others.
- Back-up charges that duplicate the conduct captured by counts on an indictment will ordinarily attract no separate penalty and may be dismissed.
- Under s 7A(1) of the Firearms Act 1996 (NSW), possession of an unauthorised firearm carries a maximum of 5 years' imprisonment; here, the firearm's role in enabling the primary intimidation offence was treated as a relevant sentencing consideration across the aggregate.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 33B, 199
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Firearms Act 1996 (NSW), ss 3, 7
Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Dean v R [2020] NSWCCA 317
- Filippou v R (2015) 256 CLR 47
- R v Mostyn (2004) 145 A Crim R 304
- R v Najem [2008] NSWCCA 32
- R v Perez (unrep, 11/12/91, NSWCCA)
- R v Wilson (No.2) [2020] NSWDC 549
- Strbak v The Queen [2020] HCA 10
- Thurgar v R (1990) 51 A Crim R 109
- Turnbull v R [2019] NSWCCA 97
- Zreika v R (2012) 223 A Crim R 460