AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
District Court 5 August 2021

R v Tanti

[2021] NSWDC 381

DrugsTraffic & drivingFirearms & weaponsPublic order & justice offences
CRIME POSSESS SHORTENED FIREARM POSSESS DEFACED FIREARM POSSESS LOADED FIREARM IN PUBLIC PLACE SUPPLY PROHIBITED DRUG DRIVE WHILST DISQUALIFIED

Citation: R v Tanti [2021] NSWDC 381
Court: District Court of New South Wales
Date: 5 August 2021
Judge: Haesler SC DCJ

Background

The offender was a 32-year-old man with a long-term methamphetamine addiction and a criminal record dating from 2007. He had been released on parole in May 2020 but quickly reoffended, accumulating driving and drug offences over the following months before the principal offending occurred.

On 21 January 2021, police stopped a car the offender was driving on the Princes Highway near Kembla Grange. He was disqualified from driving until 2024, had no permission to use the vehicle, and was carrying 8.99 grams of methylamphetamine and $700 cash. A shortened, loaded 12-gauge shotgun with a defaced serial number, together with three extra cartridges, was in a bag on the front seat.

When police attempted to open the car door, the offender drove forward and struck a police vehicle. He fled on foot, crossing four lanes of a major highway and entering a racehorse training yard (causing injury to a horse), before being apprehended while attempting to scale a fence. He had been in custody continuously since that date.

  • What individual sentences were appropriate for each of the indictable firearms and drug supply offences, having regard to their objective seriousness and the offender's personal circumstances?
  • How should the Form 1 matters (possess ammunition, not keep firearm safe, resist police, enter enclosed lands, deal with proceeds of crime) properly affect the sentences for the principal offences?
  • How should the summary matters dealt with under a section 166 certificate (drive whilst disqualified, negligent driving, drive stolen conveyance) be treated alongside the indictable matters?
  • What aggregate sentence appropriately reflected the totality principle under the framework in Pearce v The Queen, having regard to the offender's existing Local Court sentences, his criminal history, and any mitigating factors?
  • What non-parole period appropriately balanced the purposes of sentencing, including personal and general deterrence, protection of the community, and the prospect of rehabilitation?

Decision

Objective seriousness of the firearms offences

Haesler SC DCJ assessed the firearms offences as serious. The shotgun was in working order, loaded, and immediately accessible in a public place on a busy weekday morning. Its shortened barrel made it particularly suited to concealment and criminal use, consistent with the reasoning in R v Lachlan [2015] NSWCCA 178. The defaced serial number confirmed it had no lawful purpose. The offender's explanation that he was minding the weapon for a friend and was too intoxicated to think clearly did not mitigate his culpability; the court found that possession while under the influence of methylamphetamine actually aggravated the risk he posed to the public and arresting officers. The concurrent involvement in other crimes further elevated the seriousness of the firearms offences, following the principle in R v Thurgar (1990) 51 A Crim R 109.

Drug supply and other offences

The quantity of methylamphetamine was not large, and details of the supply were limited. However, the court emphasised the broader social harm caused by the drug trade, noting the offender had no legitimate income and possessed the drug for both personal use and supply. The driving offences were treated as individually serious given the offender's lengthy history of disqualified driving and the risk his negligent driving created for others, including the collision with the police vehicle.

Form 1 matters and double-counting

Form 1 matters increase the sentence for the principal offence to reflect the need for personal deterrence and retribution. The court was careful to avoid double-counting, particularly where a Form 1 matter (such as possession of ammunition) also operated as a circumstance aggravating the objective seriousness of the principal offence.

Totality and personal circumstances

Applying the Pearce v The Queen framework, the court constructed an aggregate sentence that punished each offence distinctly while ensuring the total was proportionate to the overall criminality. The offender received a 25% discount on sentence for his early guilty pleas under section 25A of the Crimes (Sentencing Procedure) Act 1999. His lengthy criminal record meant he attracted no leniency as a first offender, and the fact he was on bail at the time of the offending was a statutory aggravating factor. The court acknowledged some recent insight into the need for rehabilitation and the presence of family and community support, but found that the escalating seriousness of his offending required meaningful punishment and protection of the community.

Orders Made

  • Possess shortened firearm (with Form 1 matters): 3 years imprisonment
  • Possess defaced firearm: 1 year 6 months imprisonment
  • Possess loaded firearm in public place: 2 years 3 months imprisonment
  • Supply prohibited drug (with Form 1 matters): 1 year 10 months imprisonment
  • Drive whilst disqualified: 4 months imprisonment
  • Negligent driving: 3 months imprisonment
  • Drive stolen conveyance: 1 year 1 month imprisonment
  • Aggregate sentence: 4 years 6 months imprisonment
  • Non-parole period: 2 years 6 months, commencing 21 August 2021 and expiring 20 February 2024
  • Balance of sentence: 2 years, commencing 21 February 2024 and expiring 20 February 2026
  • Driving disqualification: 2 years from the date of sentence
  • Forfeiture: $700 cash forfeited to the State under section 18(1) of the Confiscation of Proceeds of Crime Act 1989
  • Firearms destruction orders made

Key Takeaways

  • Possession of a shortened, loaded, and defaced firearm in a public place while simultaneously engaged in drug supply represents an elevated level of objective seriousness, particularly where the weapon creates a direct risk to police and the public.
  • Being intoxicated at the time of possessing a firearm does not mitigate the offence; the District Court found it aggravated culpability because the offender was unable to exercise rational judgment over a highly dangerous item.
  • Form 1 matters increase the sentence for the principal offence but must not be double-counted where they also operate as circumstances aggravating the objective seriousness of that same offence.
  • Under the Pearce v The Queen framework, each offence in a multiple-offence sentencing exercise must receive distinct punishment, with the aggregate sentence then tested against the totality principle to ensure overall proportionality.
  • A 25% sentence discount for early guilty pleas under section 25A of the Crimes (Sentencing Procedure) Act 1999 applies even where the offender has a significant criminal history, though that history forecloses leniency otherwise available to first offenders.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 93G(1)(a)(i)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25A
- Criminal Procedure Act 1986 (NSW), ss 166, Form 1
- Drug (Misuse and Trafficking) Act 1985 (NSW), s 25(1)
- Firearms Act 1996 (NSW), ss 62(1)(b), 66(1)(b)
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 18(1)

Cases
- Attorney General's Application No 1 (2002) 56 NSWLR 146
- Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Do v R [2010] NSWCCA 182
- El Jamal v R [2017] NSWCCA 243
- Markarian v The Queen (2005) 228 CLR 357
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- Postiglione v The Queen (1997) 189 CLR