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District Court 12 April 2021

R v Roth Mony

[2021] NSWDC 188

DrugsFirearms & weapons
CRIMINAL LAW FIREARM OFFENCES POSSESS A PROHIBITED FIREARM CUSTODY OF ONE FIREARM PART DRUG OFFENCES FORM 1 MATTERS

Citation: R v Roth Mony [2021] NSWDC 188
Court: District Court of New South Wales
Date: 12 April 2021
Judge: Hatzistergos DCJ

Background

The offender was found asleep in his vehicle outside a Wakeley address on 18 February 2020. Police, who had attended in response to a welfare concern, discovered that a Firearms Prohibition Order (FPO) had been in place against the offender since 24 September 2014. A search of the vehicle uncovered a sealed black bag in the boot containing two shortened homemade firearms, a silencer, a firearm part, and ammunition.

Police also executed the FPO at a residential address, where further items were located, including small quantities of testosterone, trenbolone, ephedrine, and cannabis leaf. The offender had pleaded guilty to a range of firearm and prohibited drug offences arising from these events.

Critically, the offender had a prior record that included possession of unauthorised or prohibited firearms, making the present offending a repeat of the same category of conduct despite being subject to a prohibition order.

  • What sentences were appropriate for multiple serious firearm offences, including offences committed in direct contravention of a Firearms Prohibition Order?
  • Whether the offender's stated reason for possessing the firearms (personal protection) constituted a mitigating factor in sentencing.
  • How the principles in R v Bugmy (2013) 249 CLR 571, which address the relevance of background disadvantage in sentencing, applied to this offender.
  • Whether special circumstances existed to justify a departure from the standard ratio between the non-parole period and the balance of the term.
  • What weight to give to mitigating factors including an early guilty plea, remorse, and positive rehabilitative engagement.

Decision

His Honour found that the offender's claim that he possessed the firearms for personal protection was not a mitigating factor. Possessing prohibited and shortened firearms for self-protection does not reduce the gravity of such offending; the use of unlicensed firearms as a means of personal security is itself a serious concern to the community.

The court identified significant aggravating factors, most notably the offender's prior record for possessing unauthorised or prohibited firearms and the fact that the offending occurred while a Firearms Prohibition Order was in force. Against this, the court accepted mitigating factors including the early guilty plea, genuine remorse, and positive engagement with programmes during custody.

The principles from R v Bugmy were engaged, which require courts to take into account the effects of background deprivation on moral culpability, without allowing such background to diminish the seriousness of violent or weapons offences. The court assessed the offender as presenting a medium-high risk of reoffending but acknowledged positive rehabilitative progress.

Special circumstances were found, based on the offender's young age, the risk of institutionalisation, and the need for an extended period of supervision on parole. This justified setting a non-parole period that produced a longer-than-standard additional (parole) term.

Orders Made

  • Aggregate sentence of 5 years and 9 months imprisonment, commencing 18 February 2020.
  • Non-parole period of 3 years and 9 months, from 18 February 2020 to 17 November 2023.
  • Additional term of 2 years, from 18 November 2023 to 17 November 2025, during which the offender is eligible for release on parole.
  • Convictions entered for the drug possession offences (sequences 10, 11, 12, and 13) with no further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Referral to the Drug Court for consideration of eligibility for the Compulsory Drug Treatment Programme.
  • Earliest possible release date: 17 November 2025.

Key Takeaways

  • Claiming that prohibited firearms were possessed for personal protection does not operate as a mitigating factor in sentencing; the District Court rejected this argument outright.
  • A prior record of possessing unauthorised or prohibited firearms constitutes a significant aggravating factor, particularly where the subsequent offending is of the same character and is committed in direct breach of a Firearms Prohibition Order.
  • Under the R v Bugmy principles, background disadvantage remains relevant to moral culpability even in serious weapons matters, but does not diminish the objective gravity of the offences themselves.
  • Special circumstances permitting a longer parole term can be established by a combination of the offender's young age, the risk of institutionalisation from an extended custodial period, and the need for structured post-release supervision to support rehabilitation.
  • Where Form 1 matters (offences taken into account without separate conviction) overlap significantly with principal offences in objective seriousness, the court will factor them into the assessment of the principal offence rather than treat them as entirely separate aggravating elements.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A, 33
- Drugs Misuse and Trafficking Act 1985 (NSW), s 10
- Firearms Act 1996 (NSW), ss 4, 7, 65, 74
- Weapons Prohibition Act 1998 (NSW), s 7

Cases:
- R v Bugmy (2013) 249 CLR 571
- Attorney-General's Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Mack v R [2009] NSWCCA 216
- R v Kristic (2005) NSWCCA 391
- R v AA (2006) NSWCCA 55
- Thalari v R [2009] NSWCCA 170
- Branko Balic, NSWCCA, 29 September 1997