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District Court 22 October 2021

R v Sequera

[2021] NSWDC 573

Firearms & weapons
CRIME

Citation: R v Sequera [2021] NSWDC 573
Court: District Court of NSW
Date: 22 October 2021
Judge(s): Mahony SC DCJ

Background

On 27 December 2014, the offender entered a hotel gaming room at Petersham armed with a sawn-off .22 calibre rifle. After attempting to clear the chamber and fleeing the premises, he fired one shot through a glass panel in the front door. The bullet embedded in a wall of the gaming room. A security guard on duty wrestled the firearm from the offender, who then fled. DNA recovered from the weapon matched the offender in August 2017, but he was not arrested until September 2020 when police located him attending a church program in Ashfield.

The offender was charged with firing a firearm at a building with reckless disregard for the safety of another person, contrary to s 93GA(1) of the Crimes Act 1900. He pleaded guilty. By the time of sentencing in October 2021, almost seven years had passed since the offence.

The security guard present on the night had since died. His daughter provided a victim impact statement, which the offender contested on procedural grounds.

Legal Issues

  • Whether the victim impact statement prepared by the deceased security guard's daughter was admissible under the Crimes (Sentencing Procedure) Act 1999 and its Regulations
  • How the objective seriousness of the offending should be assessed under s 93GA(1)
  • The weight to be given to the offender's deprived background, drug addiction, and mental health in reducing moral culpability
  • The relevance of a seven-year delay between the offence and sentencing, including a three-year police delay following DNA identification
  • Whether special circumstances existed to vary the statutory non-parole period ratio
  • The overall sentence, including the applicable 25 percent discount for an early guilty plea

Decision

Admissibility of the Victim Impact Statement

The court rejected the offender's objection to the victim impact statement prepared by the security guard's daughter. It held that as a member of the victim's immediate family, she qualified as a representative of the deceased victim under clause 9(1) of the Crimes (Sentencing Procedure) Regulation 2017, and was entitled under s 30(2) of the Crimes (Sentencing Procedure) Act 1999 to prepare and read a statement (at [28]). Construing the legislation purposively, the court found that barring a family representative from providing a statement simply because the victim had died would defeat the purpose of the scheme (at [28]). The statement was admitted but was not used to aggravate the offender's moral culpability (at [88]).

Objective Seriousness

The court assessed the offending as falling below the mid-range for s 93GA(1), but not far below it (at [86]). The court rejected submissions that the offence was spontaneous, finding it was premeditated and directed at stealing gaming room takings, even if the planning lacked sophistication (at [86]). The victim's status as a security guard on duty constituted an aggravating factor under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (at [87]). The court emphasised that general and specific deterrence are important considerations for firearms offences (at [87]).

Subjective Factors: Deprivation, Drug Addiction, and Mental Health

The court accepted that the offender suffered profound deprivation in childhood, with both parents being chronic alcoholics with mental health conditions, and with the offender leaving home at age 14 without family or community support (at [91]). Applying the principles in Bugmy v The Queen and Hoskins v R, the court found that this background reduced the offender's moral culpability (at [91]-[92]). At the time of the offence, the offender was heavily addicted to ice and benzodiazepines and was suffering depression and anxiety, which further diminished his culpability (at [93]). The court found that the offender's mental health issues meant he was not an appropriate vehicle for general deterrence and that specific deterrence was also reduced (at [99]).

Delay and Rehabilitation

The court found the delay of almost seven years between the offence and sentencing to be a significant mitigating factor, warranting a considerable measure of understanding and flexibility (at [95]-[96]). A three-year gap between the DNA match in August 2017 and the arrest in September 2020 remained unexplained beyond the Crown's acknowledgment that responsibility for the investigation changed hands within the NSW Police (at [95]). During that period, the offender completed the MERIT Program and had been abstinent from illicit drugs for over 18 months by the time of sentencing (at [94]). The court also took into account the onerous conditions in custody arising from the COVID-19 pandemic, including restricted access to programs, mental health services, and personal visits (at [98]).

Sentence

Taking all factors together, including the 25 percent utilitarian discount for the early guilty plea, the court imposed a head sentence of three years imprisonment, with a starting point before discount of four years (reduced from what would otherwise have been six years) (at [100]). Special circumstances were found under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, given the need to support the offender's rehabilitation in the community and the impact of COVID-19 restrictions in custody (at [101]). The non-parole period was set at 18 months, varying the statutory ratio to allow a longer parole period (at [101]).

Orders Made

  • The offender was convicted of firing a firearm at a building with reckless disregard for the safety of another person under s 93GA(1) of the Crimes Act 1900
  • Non-parole period of 18 months imprisonment, commencing 9 September 2020 and terminating 8 March 2022
  • Balance of term of 18 months, terminating 8 September 2023
  • Parole eligibility date: 8 March 2022

Key Takeaways

  • A family member of a deceased victim qualifies as the victim's representative for the purposes of preparing and reading a victim impact statement under s 30(2) of the Crimes (Sentencing Procedure) Act 1999 and its Regulations, provided the legislation is construed purposively (at [28]).

  • Profound childhood deprivation, including parental alcoholism, early homelessness, and the absence of family support, can reduce an offender's moral culpability under the principles established in Bugmy v The Queen, even where the offending is objectively serious (at [91]-[92]).

  • Where a significant delay between an offence and sentencing is attributable at least in part to investigative inaction by police, the sentencing court may apply a considerable measure of understanding and flexibility, particularly where the offender has made genuine rehabilitative progress in the interim (at [95]-[96]).

  • Drug addiction and untreated mental health conditions can diminish the weight given to both general and specific deterrence in a sentencing exercise, resulting in a reduction from the sentence that would otherwise be imposed (at [99]).

  • Onerous custody conditions caused by the COVID-19 pandemic, including restricted program access and prolonged lockdowns, remain a recognised mitigating factor on sentence in NSW courts (at [98]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999
- Crimes (Sentencing Procedure) Regulation 2017
- Crimes Act 1900
- Firearms Act 1996

Cases
- Blanco v R [1999] NSWCCA 121
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 ;[2010] NSWCCA 194
- DPP (Cth) v Saadieh [2021] NSWSC 1186
- Hoskins v R [2021] NSWCCA 169
- Kearsley v R [2017] NSWCCA 28
- Mill v The Queen [1988] 166 CLR 59
- Ozan v R [2021] NSWCCA 231
- R v Henry (1996) 46 NSWLR 346
- R v Todd [1982] 2 NSWLR 517
- Tuala v R [2015] NSWCCA 8