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District Court 12 August 2021

DPP v Hickman

[2021] NSWDC 469

Firearms & weapons
CRIMINAL LAW THE NEED TO ESTABLISH ERROR WAS THE SENTENCE MANIFESTLY INADEQUATE JET SKIS ON THE MURRAY RIVER DANGERS OF NAVIGATION ENOUGH IS ENOUGH

Citation: DPP v Hickman [2021] NSWDC 469
Court: District Court of New South Wales
Date: 12 August 2021
Judge: Grant DCJ

Background

The respondent, a 52-year-old licensed firearms holder with no prior convictions in New South Wales, was holidaying on a houseboat on the Murray River during Christmas 2020. Over several days, he and his family were subjected to what he considered dangerous jet ski behaviour by another party. After a near-miss involving his nephew's girlfriend who was learning to water ski, he loaded a shotgun with clay target ammunition and fired two shots into the air.

Police were called, the respondent was arrested, and he made full admissions. He was charged with three firearm offences and one drug offence. At the Albury Local Court, Magistrate Funston imposed concurrent conditional release orders for 18 months without conviction on all charges, subject only to standard conditions.

The Acting Deputy Director of Public Prosecutions appealed to the District Court, contending that the sentences were manifestly inadequate and that a conviction and more substantial penalty were warranted.

  • Whether the Crown established the type of error described in House v The King (1936) 55 CLR 499 sufficient to enliven the District Court's jurisdiction on appeal.
  • Whether the sentence imposed by the Magistrate was manifestly inadequate, in the sense of being unreasonable or plainly unjust.
  • Whether the objective seriousness of the firearm offences, particularly the offence of possessing a firearm in or near a public place, was correctly assessed.
  • Whether general deterrence and community protection required a conviction and more substantial penalty in the circumstances.

Decision

Grant DCJ confirmed the applicable framework: a Director's appeal against sentence requires the establishment of error of the House v The King variety before the District Court's power to vary is enlivened. That includes error by acting on a wrong principle, mistaking the facts, considering irrelevant matters, ignoring relevant matters, or producing a result so unreasonable or plainly unjust that error must be inferred.

The Crown's primary contention was that the shooting carried inherent danger because the jet skier may have been within proximity of the boat when the shots were fired. Grant DCJ rejected that submission. His Honour found it failed to account for the respondent's more than 30 years of firearms experience, the limited range of clay target ammunition, and the fact that the shots were fired directly into the air. No person was at risk. The objective seriousness was assessed as well below the midrange.

The respondent's subjective case was strong: genuine remorse, early guilty plea, two nights in pre-sentence custody, a favourable sentence assessment report, a low risk of reoffending, and an otherwise exemplary life including decades of community involvement. The Magistrate was entitled to weigh those matters as she did.

Grant DCJ also reviewed comparable Local Court sentencing data for the relevant section 93G(1)(b) offence, noting that for offenders with no prior record, early pleas, and aged over 50, outcomes included section 10 dismissals, conditional release orders without conviction, and community correction orders. The sentence imposed fell within the available range. His Honour was not satisfied the outcome was unreasonable or plainly unjust, and dismissed the appeal.

Orders Made

  • The appeal was dismissed.

Key Takeaways

  • A Director's appeal against sentence in the District Court requires established House v The King error; it is not sufficient that the appellate court would have imposed a different sentence.
  • In dismissing the appeal, the District Court confirmed that objective seriousness must be assessed with close reference to the actual facts, including the type of ammunition used, the experience of the person using the firearm, and the manner of discharge.
  • Where shots are fired into the air using clay target ammunition with a limited range and no person is demonstrated to be at risk, a finding of well below midrange objective seriousness is open to a sentencing magistrate.
  • A strong subjective case, including a lengthy unblemished record, genuine remorse, an early plea, and low reoffending risk, can support a conditional release order without conviction even for firearm offences carrying a maximum of two years imprisonment.
  • Sentencing involves individualised justice; the existence of a sentencing range means that a sentence within that range cannot be said to be manifestly inadequate merely because a heavier outcome was available.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 93G(1)(b)
- Crimes (Appeal and Review) Act 2001 (NSW), s 23
- Firearms Act 1996 (NSW), ss 39(1)(a), 40(1)

Cases:
- House v The King (1936) 55 CLR 499
- DK v DPP [2021] NSWCA 134
- Dinsdale v The Queen (2000) 202 CLR 321
- Unal Okutgen (1982) 8 A Crim R 262