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District Court 9 April 2021

R v Ferguson

[2021] NSWDC 226

Firearms & weapons
CRIME USE UNREGISTERED FIREARM PROHIBITED FIREARM NOT GUILTY PLEA WHAT IS A REASONABLE SUSPICION GUILTY VERDICT

Citation: [2021] NSWDC 226
Court: District Court of New South Wales
Date: 9 April 2021
Judge: Haesler SC DCJ

Background

In November 2019, two men attended the offender's family home in Horsley, Southern Wollongong, with apparent criminal intent. They attempted to force entry through a locked security screen door. The offender produced a pistol and fired five shots through the door, after which the men fled. The incident was captured on CCTV from multiple properties.

Police attended shortly afterwards and found the offender and his wife apparently preparing to leave. No pistol was located, though CCTV footage showed the offender briefly driving away from the home and both he and his wife apparently attempting to dispose of spent cartridge cases. A subsequent search of the home uncovered multiple mobile phones and three bundles of cash totalling approximately $33,000, including $24,480 concealed at the bottom of a wardrobe.

A jury acquitted the offender in December 2020 on two serious charges of discharging a firearm, accepting his self-defence claim. The court then turned to sentence and a summary hearing on the remaining matters: possessing a prohibited firearm while subject to a firearms prohibition order, possessing an unregistered firearm, possessing ammunition, and dealing with property suspected of being proceeds of crime (the $24,480 in cash).

  • Whether the prosecution of the proceeds of crime charge under s 193C(2) of the Crimes Act 1900 required the Crown to identify and particularise the specific type of criminal offence from which the cash was derived.
  • What role s 193F of the Crimes Act 1900 plays in relieving the Crown of the burden of proving a particularised offence for the purposes of a proceeds of crime charge.
  • What discount, if any, applied to the guilty plea on the principal firearms prohibition offence, given the history of charge negotiations and the late timing of the plea.
  • How the sentencing court should weigh the offender's ill-health, the assistance rendered by facilitating the surrender of the pistol, time already spent in custody, and the lack of an extensive criminal record.

Decision

Proceeds of crime charge. Haesler SC DCJ found the offender guilty of the s 193C(2) proceeds of crime offence. Drawing on the trial evidence and additional Crown material, his Honour was satisfied beyond reasonable doubt that there were reasonable grounds to suspect the $24,480 in cash was proceeds of crime, and specifically that it was derived from drug dealing. The defence argued, relying on R v McKellar (No 3) and the majority reasoning in Chen v DPP (Cth), that the Crown was obliged to particularise the type of offence from which the money derived. His Honour accepted that this authority had persuasive force but found it did not defeat the prosecution on the facts.

Section 193F. His Honour held that s 193F goes no further than excusing the Crown from proving a particular criminal event particularised by reference to a specific person, date, time and place. It does not relieve the Crown of demonstrating the type of crime that generated the property. His Honour noted, without needing to resolve the point, that proceeds of crime can realistically flow from multiple criminal activities simultaneously, and that weapons and drugs are notoriously associated.

Guilty plea discount. The offender had offered, during Local Court charge negotiations, to plead guilty to possessing a prohibited firearm in full discharge of all indictable matters. The DPP rejected that offer and pressed for a plea to "use" rather than mere "possession." His Honour accepted that this history was relevant to the level of utilitarian discount. A 25% discount was applied to the principal s 74(1) offence, reflecting the late but genuine plea and the context in which it was eventually entered.

Sentencing considerations. His Honour found special circumstances, having regard to the offender's significant ill-health, his limited prior record, and the prospects of rehabilitation under supervision. The court also allowed a two-month reduction for assistance rendered by facilitating the surrender of the pistol to police. The aggregate sentence of three years and four months commenced from the date of arrest, 15 November 2019.

Orders Made

  • Possess ammunition (s 65(3) Firearms Act): Convicted; no further penalty imposed pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (a fine was considered inexpedient given time served in custody).
  • Possess/use unregistered prohibited firearm (s 36(1) Firearms Act): Convicted; sentence of 1 year and 6 months imprisonment, to be served wholly concurrently with the principal offence.
  • Deal with property proceeds of crime (s 193C(2) Crimes Act): Convicted; sentence of 1 year imprisonment.
  • Possess prohibited firearm subject to prohibition order (s 74(1) Firearms Act): Convicted; sentence of 3 years imprisonment (reflecting a 25% guilty plea discount).
  • Aggregate sentence: 3 years and 4 months imprisonment (after a 2-month reduction for assistance), commencing 15 November 2019; non-parole period of 2 years and 1 month; eligible for parole on 14 December 2021; total sentence to expire 14 March 2023.
  • Proceeds of crime forfeiture order: $23,650, with entry of the order deferred 7 days to allow further submissions.
  • Firearm destruction order made.

Key Takeaways

  • The District Court confirmed that s 193F of the Crimes Act 1900 does not excuse the prosecution from identifying the type of criminal activity from which alleged proceeds are derived; it only relieves the Crown of proving a specific particularised criminal event (a particular person, date, time, and place).

  • A reasonable suspicion that cash is proceeds of crime can be established from circumstantial evidence, including the context in which it was found, associated items, and conduct observed by police, even where no specific offence is particularised to a single event.

  • Where a defendant made a reasonable plea offer during Local Court negotiations that the DPP rejected, and ultimately pleaded guilty to a materially similar charge, that history is a relevant consideration in determining the level of utilitarian discount on sentence.

  • Ill-health can operate as a mitigating factor in sentencing, and may support a finding of special circumstances justifying an extended parole period relative to the non-parole period.

  • Assistance rendered by facilitating the surrender of a weapon to police can attract a sentence reduction under the relevant assistance provisions, even where the assistance does not involve cooperating against co-offenders.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33A, 93G, 193A, 193C(2), 193F
- Firearms Act 1996 (NSW), ss 36(1), 65(3), 74(1)
- Criminal Procedure Act 1986 (NSW), ss 166, 167, 168
- Criminal Code Act 1995 (Cth), Ch 10, Pt 2.2, Division 400 (including ss 400.5, 400.13)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 23

Cases
- Chen v Director of Public Prosecutions (Cth) [2011] NSWCCA 205
- R v McKellar (No 3) [2014] NSWSC 106 (cited but not extracted in full in the provided text)
- CMB v Attorney General NSW (2015) 256 CLR 346
- Hili v The Queen (2010) 242 CLR 520
- Olbrich v The Queen (1999) 199 CLR 270
- Barbaro v The Queen (2014) 253 CLR 58
- Forrest v Director of Public Prosecutions (NSW) [2020] NSWCA 162
- Hussein v Chong Fook Kam [1970] AC 942
- George v Rocket (1990) 170 CLR 104
- R v AZ (2011) 205 A Crim R
- Irwin v R [2019] NSWCCA 133
- Do v R [2010] NSWCCA 182