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District Court 13 October 2023

R v Donje

[2023] NSWDC 502

Firearms & weapons
CRIME SENTENCE POSSESS UNREGISTERED FIREARMS POSSESS AMMUNITION WITHOUT A LICENCE PERMIT OR AUTHORITY NOT KEEP FIREARM SAFELY

Citation: R v Donje [2023] NSWDC 502
Court: District Court of New South Wales
Date: 13 October 2023
Judge(s): Colefax SC DCJ

Background

The offender, a young man born in March 2001, appeared for sentencing on a principal charge of possessing more than three unregistered firearms, one of which was a prohibited pistol. The offence carries a maximum penalty of 20 years' imprisonment and a standard non-parole period of 10 years. Three additional matters were placed on a Form 1 (a procedural device allowing related offences to be taken into account without separate convictions): possessing ammunition without a licence, failing to keep a firearm safely, and failing to keep a prohibited firearm safely.

The firearms and ammunition were found in the offender's bedroom during a police search on 26 July 2022. Five firearms in total were seized, four of which were in working order, along with a substantial quantity of ammunition. The offender shared the unit with his parents and brother, who had no knowledge of the weapons.

The offender had a prior criminal history beginning at age 17 and had been released on parole in February 2022. Shortly after his release, he was the victim of a serious and unprovoked stabbing, which left him hospitalised for nearly two months and resulted in post-traumatic stress disorder. The firearms came into his possession through a former prison associate, a man of known violence, who pressed the offender on two separate occasions to store the weapons.

  • Whether the offender's claim of non-exculpatory duress (fear of a violent associate) was established on the balance of probabilities, and what weight it should receive in mitigation of sentence.
  • What discount applied for an early plea of guilty.
  • Whether special circumstances existed to justify reducing the non-parole period below the standard 75% of the head sentence.
  • What head sentence was proportionate given the objective seriousness of the offence, the offender's personal circumstances, and the mitigating factors.

Decision

Colefax SC DCJ accepted the offender's oral evidence, finding on the balance of probabilities that his possession of the firearms arose from a genuinely and reasonably held fear for his own safety and that of his family. No explicit threat had been made by the former prison associate, but the associate was a known violent man who was aware of the offender's address. The court applied the principle of non-exculpatory duress as discussed in Tiknius v R [2011] NSWCCA 215, finding that this duress did not excuse the offending but did reduce the offender's moral culpability. The offender's PTSD amplified his perception of the threat.

The court noted the objective seriousness of the offence. Five unregistered prohibited firearms, most in working order, together with a significant quantity of ammunition, were stored in a residential dwelling. General deterrence was substantially engaged. However, the offender's youth, his particular personal history including a brutal stabbing, and the coercive circumstances of the offending were all relevant mitigating factors.

A 25% discount was applied for the early plea of guilty, reducing what would otherwise have been a five-year head sentence to three years and nine months, backdated to commence on 26 July 2022. Special circumstances were found to exist on two grounds: the offender's youth and his enhanced prospects of rehabilitation through a longer supervised parole period. The non-parole period was set at 18 months rather than the standard 75% of the head sentence, with the offender becoming eligible for parole on 25 January 2024 and a substantial parole tail extending to 25 April 2026.

Orders Made

  • Head sentence of three years and nine months' imprisonment, commencing 26 July 2022.
  • Non-parole period of 18 months, with parole eligibility from 25 January 2024.
  • Balance of sentence of two years and three months, commencing 26 January 2024 and expiring 25 April 2026.
  • Sequences 3, 5, 6, 7, and 14 withdrawn and dismissed.
  • Exhibit 1 directed to go with the warrant.

Key Takeaways

  • Non-exculpatory duress (fear that does not legally excuse an offence but reduces moral culpability) was accepted as a mitigating factor in sentencing where the offender reasonably feared a violent associate, even absent an explicit threat, because the associate's known history and knowledge of the offender's address made the fear objectively reasonable.
  • Post-traumatic stress disorder arising from a prior violent incident was treated as a further mitigating factor because it amplified the offender's perception of the threat and reduced his moral culpability.
  • Under the standard sentencing framework for this offence, the non-parole period ordinarily must be 75% of the head sentence; the District Court reduced this to approximately 40% on the basis of special circumstances, specifically the offender's youth and the finding that a longer parole period would better serve rehabilitation.
  • A 25% guilty plea discount was applied on the basis of an early plea, reducing the pre-discount head sentence of five years to three years and nine months.
  • Sufficient weight was given to general deterrence given the number and nature of the weapons involved, despite the strong mitigating circumstances present.

Legislation and Cases Referenced

Legislation
- Firearms Act 1996 (NSW), s 51D(2)

Cases
- Tiknius v R [2011] NSWCCA 215 (per Johnson J, with whom Tobias AJA and Hall J agreed, at [41] to [54]) (non-exculpatory duress in sentencing)