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District Court 1 October 2021

R v Fahey

[2021] NSWDC 717

Assault & violenceFirearms & weapons
CRIME RECKLESS WOUNDING POSSESS UNAUTHORISED FIREARM RELEVANT FACTORS ON SENTENCE HISTORY OF CHILDHOOD DEPRIVATION REDUCED MORAL CULPABILITY

Citation: R v Fahey [2021] NSWDC 717
Court: District Court of NSW
Date: 1 October 2021
Judge: Haesler SC DCJ

Background

The offender pleaded guilty in the Local Court to four offences arising from two separate incidents on the same day in December 2020. The first involved a dispute over a debt of $100, which culminated in the offender cutting the victim's neck with a knife, causing a laceration 15 centimetres long and 3 centimetres deep requiring 11 sutures. The victim had brought a knife and knuckledusters to the meeting but had placed them on the ground before the wounding occurred.

Later that morning, police searched the offender's home and found two firearms under his bed and in a corner of his bedroom: a homemade "slam fire" 12-gauge shotgun in working condition, and a shortened German-manufactured rifle that was not in working condition. A small safe in the same room contained three 12-gauge shotgun shells that fitted the homemade weapon. The offender had never held a firearms licence or permit.

At sentencing, the central dispute was not whether a custodial sentence was required, as both parties accepted it was, but whether the balance of the term remaining after time already served could be served in the community under an Intensive Correction Order (ICO).

  • What was the objective seriousness of the reckless wounding and the two firearms offences?
  • What weight should be given to the offender's history of childhood deprivation and its effect on moral culpability, following Bugmy v The Queen (2013) 249 CLR 571?
  • Was a finding of special circumstances warranted, and if so, to what extent?
  • Was an ICO appropriate given the nature and cumulative seriousness of the offending?
  • What aggregate sentence properly reflected the totality of the offending?

Decision

Objective seriousness and the wounding

Haesler SC DCJ assessed the reckless wounding as sitting in the mid-range of objective seriousness. The court found that the victim had placed his knife on the ground before the confrontation escalated, and that it was the offender who produced a knife and lunged at the victim multiple times. Companions urged the offender to stop, and the victim pleaded with him, but the offender pressed a knife to the victim's neck. The court accepted that the wounding itself may have been unintentional in the strict sense, but characterised the preceding conduct as a series of deliberate acts. The court also noted the likely terrifying psychological effect on the victim.

Firearms offending

The court treated the two sets of offending as distinct in character. The wounding arose from an impulsive, emotionally driven dispute, while the firearm possession was a quite separate matter reflecting a different kind of risk to the community. The homemade shotgun was functional and loaded ammunition was available for it. His Honour found these were serious offences, particularly the possession of the functioning homemade weapon.

Subjective factors and reduced moral culpability

The court applied Bugmy v The Queen, recognising that a background of childhood deprivation, exposure to violence, and other traumas can have a lasting impact and reduce moral culpability. This principle applied with force to the offender's circumstances and warranted leniency in the sentence imposed. The early guilty pleas attracted a 25% utilitarian discount.

ICO and special circumstances

The court rejected the submission that an ICO was appropriate. The cumulative seriousness of the offending, particularly the wounding and the functional firearm, meant full-time custody remained necessary to protect the community. The court also noted that no rehabilitation programs had in fact been put in place, in part due to COVID-19 restrictions on program delivery. Despite this, the court made a substantial finding of special circumstances, which extended the non-parole period ratio, to reflect the offender's need for supervision and support during parole and to account for the hardship of serving a sentence during the pandemic.

Orders Made

  • Reckless wounding (s 35(4) Crimes Act 1900): sentence of 3 years with a non-parole period of 1 year 6 months.
  • Possess shortened firearm, not a pistol, without authority (s 62(1) Firearms Act 1996): sentence of 1 year 1 month.
  • Possess unauthorised firearm (s 7A(1) Firearms Act 1996): sentence of 2 years 3 months.
  • Aggregate sentence: 4 years total.
  • Non-parole period: 2 years, commencing 4 December 2020 and expiring 3 December 2022.
  • Balance of term: 2 years, commencing 4 December 2022 and expiring 3 December 2024.
  • Possess ammunition without licence/permit/authority (s 63(3) Firearms Act 1996): convicted; proceedings disposed of without further penalty pursuant to s 10A Crimes (Sentencing Procedure) Act 1999.
  • Firearms destruction order made.

Key Takeaways

  • The District Court confirmed that childhood deprivation and exposure to trauma can reduce an offender's moral culpability, consistent with Bugmy v The Queen, even where the offences are objectively serious and custodial sentences are unavoidable.
  • An ICO was unavailable not only because the aggregate sentence exceeded the statutory threshold, but also because the court found that the cumulative seriousness of a reckless wounding combined with functional firearm possession made full-time custody necessary for community protection.
  • A substantial finding of special circumstances was available where the offender's background indicated a significant need for supervision on parole, and where COVID-19 had prevented access to rehabilitation programs during the custodial period.
  • Two distinct types of offending arising from the same day can and should be assessed separately for objective seriousness, even when sentenced together as part of an aggregate term.
  • Under s 10A of the Crimes (Sentencing Procedure) Act 1999, a court may record a conviction for an offence while refraining from imposing any further penalty where it is inexpedient to do so, as occurred here with the ammunition possession charge.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 35(4) (reckless wounding)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Firearms Act 1996 (NSW), ss 7A(1), 62(1), 63(3)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37