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District Court 2 September 2022

R v Noud

[2022] NSWDC 395

Assault & violenceFirearms & weaponsDomestic & family violence
CRIME SENTENCE POSSESS UNAUTHORISED PROHIBITED FIREARM POSSESS UNAUTHORISED PROHIBITED WEAPON ASSAULT

Citation: R v Noud [2022] NSWDC 395
Court: District Court of New South Wales
Date: 2 September 2022
Judge: Bourke SC DCJ

Background

The offender was tried by jury on a seven-count indictment arising from events at a residential property he shared with the complainant. He pleaded guilty before trial to two counts of possessing prohibited weapons (an extendable baton and a set of nunchakus). The jury then convicted him of possessing a shortened 12-gauge shotgun (count 4) but acquitted him on the remaining counts, which included intimidation and possession of three other firearms found under the bed in the main bedroom.

At the sentencing hearing, the Crown also sought to have the court take into account three additional matters under a section 166 certificate (a mechanism under the Criminal Procedure Act 1986 that allows offences within Local Court jurisdiction to be formally acknowledged at sentencing without separate prosecution). Those matters were intentional property damage to a motor vehicle, possession of an unregistered 12-gauge shotgun, and assault of the complainant.

The offender's case at trial had been that he had no knowledge of any firearms at the premises and that the complainant had planted them. The jury's guilty verdict on count 4 rejected that account in relation to the shortened shotgun.

  • What facts could the sentencing judge find in relation to count 4, consistently with the jury's verdicts on all counts?
  • Whether the not-guilty verdicts indicated that the jury found the complainant generally unreliable, such that her evidence about the shotgun should be discounted.
  • Whether it was appropriate to treat the alleged shortening of the shotgun as an aggravating factor in sentencing.
  • How the sentences for the multiple offences should be structured, including questions of accumulation, concurrency, and totality.
  • Whether a finding of special circumstances (justifying a longer-than-standard supervision period on parole) was warranted.

Decision

Factual findings on count 4. The judge found the complainant's evidence about the shortened shotgun credible and reliable, accepting it beyond reasonable doubt. The offender had possessed the weapon for at least weeks or months, keeping it in non-secure locations including the kitchen and the garage. On the morning of the relevant events, during an argument, the offender unwrapped the shotgun so it was visible before taking it to the garage where police later found it wrapped in a Bandidos T-shirt.

Reconciling the acquittals. The judge carefully addressed whether the not-guilty verdicts undermined the complainant's credibility generally. On count 1 (intimidation), the acquittal was explicable by uncertainty in the complainant's own evidence about a specific particular. On counts 2, 3, and 5 (the bedroom firearms), the acquittal could be explained by a mixed DNA profile, the offender's physical difficulty in kneeling, and the heavy, low-set bed requiring four officers to move. The judge concluded that these verdicts did not require a general finding that the complainant was dishonest or unreliable.

Aggravation and the De Simoni principle. Although there was evidence suggesting the offender had shortened the shotgun himself, the judge declined to treat this as an aggravating factor. Shortening a firearm is a discrete charged offence, and using it in aggravation without a charge would risk what is known as De Simoni error: increasing a sentence by reference to a more serious uncharged offence. The judge applied this restraint even though the two offences carry the same maximum penalty.

Special circumstances and totality. The judge found special circumstances, warranting a non-parole period shorter than the standard ratio, on the basis that this was the offender's first time in full-time custody, combined with his mental health issues, physical disabilities, and the need for extended post-release supervision. Applying totality principles to avoid a crushing aggregate sentence, the judge ordered the sentence for the unregistered firearm (sequence 4) to run concurrently with count 4, as both concerned the same weapon, while other offences attracted a degree of notional accumulation.

Orders Made

  • Convicted on counts 4, 6, and 7 on the indictment, and on sequences 1, 4, and 5 on the section 166 certificate.
  • Indicative sentence for count 4 (possession of shortened shotgun): 3 years imprisonment.
  • Indicative sentence for count 6 (extendable baton): 7 months, with a non-parole period of 3.5 months (after 25% discount for early guilty plea).
  • Indicative sentence for count 7 (nunchakus): 7 months, with a non-parole period of 3.5 months (after 25% discount).
  • Indicative sentence for sequence 1 (property damage): 15 months.
  • Indicative sentence for sequence 4 (unregistered shotgun): 2 years.
  • Indicative sentence for sequence 5 (assault): 2 months.
  • Aggregate head sentence: 3 years and 4 months.
  • Non-parole period: 1 year and 8 months.
  • Sentence commenced 15 June 2022; head sentence to expire 14 October 2025; non-parole period to expire 14 February 2024 (reflecting 79 days of pre-sentence custody).
  • Application for an Apprehended Domestic Violence Order declined.

Key Takeaways

  • A sentencing judge may make independent factual findings about a convicted count, provided those findings are consistent with the entirety of the jury's verdicts, including acquittals on related counts.
  • Jury acquittals on some counts do not automatically render a complainant's evidence on other counts unreliable: the sentencing court scrutinised each acquittal separately and found rational, evidence-based explanations that did not require a general credibility rejection.
  • Under the principle in The Queen v De Simoni (1981) 147 CLR 383, a sentencing court must not increase a sentence by treating an uncharged act as an aggravating circumstance, even where the uncharged act and the convicted offence carry the same maximum penalty.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 were established here by the combination of a first period of full-time custody, diagnosed mental health conditions, physical disability, and the need for extended parole supervision.
  • Where multiple offences involve the same physical item (here, the one shotgun underlying both count 4 and sequence 4), the sentencing court treated the penalties as concurrent rather than accumulated, as part of its totality analysis.

Legislation and Cases Referenced

Legislation
- Firearms Act 1996 (NSW)
- Weapons Prohibition Act 1998 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- The Queen v De Simoni (1981) 147 CLR 383
- Bugmy v The Queen [2013] HCA 37
- R v Lachlan [2015] NSWCCA 178