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Local Court 22 December 2022

Police v Tabbaa (No.2)

[2022] NSWLC 22

Firearms & weapons
TWO LOADED PISTOLS IN A PUBLIC PLACE FURTHER FORM 1 PREPARED RETRIBUTION AND PERSONAL DETERRENCE GENERAL DETERRENCE PROTECTION OF COMMUNITY JURISDICTIONAL LIMIT

Citation: Police v Tabbaa (No.2) [2022] NSWLC 22
Court: Local Court of NSW
Date: 22 December 2022
Judge: Stewart LCM

Background

Police stopped a vehicle in Hurstville in February 2022 and encountered the offender nearby, apparently waiting to be picked up. A search revealed that he was carrying two loaded pistols concealed on his person: a 9mm semi-automatic pistol and a .22 calibre pistol. Both were unauthorised, both were loaded, and the offender was in a public place.

The offender was charged with multiple firearms and related offences, including two counts each of possessing an unauthorised pistol, possessing a loaded firearm in a public place, and not keeping a firearm safely, as well as possessing ammunition without a permit and a goods in custody charge. The matters remained in the Local Court after the Director of Public Prosecutions declined to elect to proceed on indictment.

The procedural history of the sentencing was unusual. The offender initially pleaded guilty to the unauthorised possession counts, with the more serious loaded firearm offences proposed for a Form 1 (a process by which offences are acknowledged and taken into account at sentencing without recording a separate conviction). The Magistrate refused that arrangement, published reasons in a companion decision (Police v Tabbaa [2022] NSWLC 21), and the parties subsequently renegotiated the plea structure.

  • Whether the court could properly permit the withdrawal of earlier guilty pleas entered before conviction was formally recorded
  • Whether a second, restructured Form 1 was appropriate after the first was refused
  • How the Local Court's jurisdictional sentencing limit interacts with the prescribed maximum penalty for the principal offences
  • Whether the offending was serious enough to require full-time custody, or whether an Intensive Correction Order (ICO) was available
  • What discount applied to the guilty pleas for their utilitarian value, and whether special circumstances justified a reduction in the ratio of non-parole period to total sentence

Decision

Withdrawal of earlier pleas: The Magistrate allowed the offender to withdraw his guilty pleas to the unauthorised pistol charges and to the ammunition count. Applying White v R [2022] NSWCCA 241, the court noted that where no conviction has yet been formally recorded, withdrawal of a plea remains open in the interests of justice. The Magistrate was satisfied that the circumstances of the plea, the reasons for the application, and the absence of prejudice to the prosecution (which supported the application) all justified the traversal.

Restructured pleas and Form 1: Fresh guilty pleas were entered to both counts of possessing a loaded firearm in a public place. The unauthorised pistol counts were then withdrawn by consent. A new Form 1 was prepared listing the two unsafe storage offences and the ammunition offence, and the Magistrate accepted that Form 1 as appropriate under section 33(2)(b) of the Crimes (Sentencing Procedure) Act 1999.

Sentencing approach and jurisdictional limit: Following Park v The Queen (2021) 273 CLR 303 and Greaves v R [2020] NSWCCA 140, the Magistrate confirmed that the Local Court must first assess the appropriate sentence by reference to the statutory maximum of 10 years for each loaded firearm offence. The jurisdictional limit of 2 years per offence becomes relevant only if that assessment produces a sentence exceeding the limit. A 15% discount was applied for the utilitarian value of the guilty pleas.

Full-time custody and special circumstances: The Magistrate rejected any suggestion that an ICO was appropriate. The possession of two loaded pistols in a public place was found to be too serious, given the genuine concerns for public safety and the need to emphasise general deterrence and community protection. The Magistrate found special circumstances, having regard to the offender's age, his first time in custody, the more onerous conditions of custody during the COVID-19 period, and the need to promote rehabilitation. This produced a non-parole period of two years out of a total aggregate sentence of three years, representing 66.6% of the total term rather than the standard 75%.

Orders Made

  • The offender was convicted of both counts of possessing a loaded firearm in a public place (sequences 3 and 7).
  • An aggregate sentence of 3 years was imposed, running from 15 September 2022 to 14 September 2025.
  • A non-parole period of 2 years was set, running from 15 September 2022 to 14 September 2024.
  • The balance of term on parole commences 15 September 2024 and expires 14 September 2025.
  • The Magistrate recommended the offender's release at the expiration of the non-parole period.
  • The two firearms were forfeited to the Crown.
  • The offences listed on the Form 1 were taken into account in determining the sentence.

Key Takeaways

  • A guilty plea entered before formal conviction and sentence is not final: the court retains a discretion to permit its withdrawal in the interests of justice, applying the factors identified in White v R [2022] NSWCCA 241, including the circumstances of the original plea and any absence of prejudice to the prosecution.
  • Under Park v The Queen (2021) 273 CLR 303 and Greaves v R [2020] NSWCCA 140, a Local Court magistrate must assess the appropriate sentence by reference to the full statutory maximum penalty, not the Local Court's jurisdictional limit. The limit only operates as a cap once that assessment is complete.
  • The court's supervisory role under section 33(2)(b) of the Crimes (Sentencing Procedure) Act 1999 permits a magistrate to refuse a Form 1 as inappropriate, and this can trigger renegotiation of the entire plea arrangement between the parties.
  • Possessing two loaded pistols in a public place was held, on the facts of this case, to be too serious for an ICO. The sentencing purposes of general deterrence, retribution, specific deterrence, and community protection required full-time custody.
  • A finding of special circumstances can reduce the non-parole period below the standard statutory ratio of 75%, where factors such as the offender's youth, first-time custody status, the conditions of COVID-era imprisonment, and rehabilitation needs are present.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 93G
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 24, 33, 47, 53A
- Criminal Procedure Act 1986 (NSW), s 207
- Firearms Act 1996 (NSW), ss 7, 39, 65

Cases
- Park v The Queen (2021) 273 CLR 303; [2021] HCA 37
- Greaves v R [2020] NSWCCA 140
- White v R [2022] NSWCCA 241
- R v Fangaloka [2019] NSWCCA 173; Fangaloka v The Queen [2020] HCASL 12
- Karout v R [2019] NSWCCA 253; Karout v The Queen [2020] HCASL 56
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
- Police v Tabbaa [2022] NSWLC 21 (companion decision)
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of 2002 (2002) 56 NSWLR 146
- Cahyadi v R [2007] NSWCCA 1; Nguyen v The Queen (2016) 256 CLR 656; Quinn v Director of Public Prosecutions (Cwlth) (2021) 106 NSWLR 154