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District Court 5 August 2022

R v Mitchell

[2022] NSWDC 766

Firearms & weaponsDomestic & family violence

Citation: R v Mitchell [2022] NSWDC 766
Court: District Court of New South Wales
Date: 5 August 2022
Judge: Haesler SC DCJ

Background

The offender, a repeat offender with an extensive criminal history, was sentenced for four offences arising from conduct in late 2015 and early 2016. He had been released from custody in October 2015 and served with a Firearms Prohibition Order (FPO) in November 2015. Shortly after that, he acquired a .22 calibre rifle for $200, shortened its barrel using a grinder, and obtained ammunition for it.

The offending escalated into serious domestic violence conduct involving two separate partners. In one incident, the offender pointed the loaded firearm at one partner's head and pulled the trigger, which did not discharge. In a second incident involving another partner, he fired the shortened rifle twice in a public street in Fairy Meadow as she fled towards a highway, causing her to run across the highway and hide in a warehouse. Charges were not laid until July 2020, some four to five years after the conduct occurred.

At the time of sentencing, the offender was already serving sentences imposed on two earlier occasions by Haesler SC DCJ and Acting Judge Latham. The new sentences were required to be partially accumulated upon those existing terms.

  • What was the appropriate sentence for each of the four counts, accounting for their objective seriousness, the offender's subjective circumstances, and the late guilty pleas?
  • How should the new sentences be accumulated upon the offender's existing custodial terms, including whether the principle against a crushing sentence applied?
  • What weight should be given to the significant sentencing delay between the offending (2015 to 2016) and the charges being laid (2020)?
  • What relevance did the offender's Aboriginal background, deprived childhood, drug addiction, and institutionalisation have to the sentencing exercise?
  • How should the Form 1 offence (entering enclosed lands) and the s 166 ammunition matter be dealt with procedurally?

Decision

Haesler SC DCJ assessed each offence as involving a high degree of objective seriousness. All four counts occurred after the FPO was served, which he treated as a significant aggravating feature (except for the ammunition matter, which may have pre-dated service). The Court emphasised that firearms possessed without authorisation, and in breach of an FPO, represent a significant risk to public safety even when unloaded. The modified firearm had no lawful use whatsoever.

Counts 3 and 4 were treated with particular gravity because both offences occurred in a domestic violence context and involved deliberate targeting of intimate partners. The Court characterised the conduct as an exercise of coercive control, reflecting a pattern of the offender asserting power over vulnerable victims. Haesler SC DCJ applied the principles in The Queen v Kilic and R v Burton, which recognise the serious harm domestic violence inflicts on victims and the community.

On subjective matters, the Court acknowledged the offender's tragic personal history, including a deprived childhood, drug addiction, and significant institutionalisation (applying Bugmy v The Queen). His guilty pleas, though late, warranted a 10% discount for utilitarian value. Some evidence of rehabilitative effort during the remand period was noted favourably, though the Court observed that his remand status had impeded access to formal rehabilitation programs.

The Court applied the principle of instinctive synthesis, structuring the sentences so as not to erode the plea discount through the accumulation process. Care was taken to avoid a sentence that would engender hopelessness, maintaining a ratio between the parole and non-parole period consistent with the earlier sentences. The aggregate sentence extended the offender's total time in custody by one year and two months.

Orders Made

  • Count 1 (Shortened Firearm, not pistol, unless authorised by permit): 11 months imprisonment
  • Count 2 (Acquire firearm subject to Firearms Prohibition Order): 1 year and 4 months imprisonment
  • Count 3 (Use offensive weapon with intent to commit indictable offence of intimidation): 3 years and 7 months imprisonment (Form 1 offence taken into account)
  • Count 4 (Fire a firearm without regard to public safety): 2 years and 8 months imprisonment
  • Aggregate sentence: 5 years and 10 months imprisonment, commencing 1 August 2022
  • Non-parole period: 2 years and 2 months; eligible for parole 30 September 2024
  • Balance of sentence: 3 years and 8 months, commencing 1 October 2024 and expiring 31 May 2028
  • Ammunition possession (s 166 certificate): dealt with under s 10A Crimes (Sentencing Procedure) Act 1999 (NSW); conviction recorded, no further penalty imposed
  • The sentences were partially accumulated upon the offender's existing sentences, extending total custody by 1 year and 2 months

Key Takeaways

  • Firearms offences committed in breach of a Firearms Prohibition Order attract a high level of objective seriousness, with the Court emphasising that even unloaded prohibited firearms pose a significant community safety risk.
  • Where firearms offences intersect with domestic violence, courts treat the conduct with heightened gravity, particularly where it reflects patterns of coercive control and the deliberate targeting of intimate partners.
  • Under Bugmy v The Queen, an offender's Aboriginal background, deprived childhood, and history of drug dependency remain relevant to the sentencing exercise and are not diminished by an extensive prior criminal record; institutionalisation is likewise a factor the sentencing court weighs.
  • A late guilty plea may still attract a utilitarian discount, but the reduction (here 10%) must be preserved through careful structuring of accumulated sentences so that the accumulation process does not effectively cancel out the benefit.
  • Significant unexplained delay between the offending and the laying of charges is a relevant sentencing consideration, particularly where the offender is serving existing terms and the delay affects classification and access to rehabilitation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B(1)(a), 93G(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Criminal Procedure Act 1986 (NSW), s 166
- Firearms Act 1996 (NSW), ss 61(1)(a), 74(1)

Cases
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- Jackson v R [2010] NSWCCA 162
- Jinette v R [2012] NSWCCA 217
- Postiglione v The Queen (1997) 189 CLR 295
- R v AZ (2011) 205 A Crim R 222
- R v Burton [2008] NSWCCA 128
- R v Krstic [2005] NSWCCA 391
- R v Millwood [2012] NSWCCA 2
- The Queen v Kilic [2016] HCA 48; (2016) 259 CLR 256