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District Court 15 December 2023

R v Hall

[2023] NSWDC 587

Firearms & weapons
CRIME SENTENCE CALL UP COMMUNITY CORRECTIONS ORDER

Citation: R v Hall [2023] NSWDC 587
Court: District Court of NSW
Date: 15 December 2023
Judge: Colefax SC DCJ

Background

The offender was sentenced for unlawfully supplying firearms on three or more occasions within a 12-month period, contrary to s 51B(1) of the Firearms Act 1996 (NSW). The three transactions each involved the sale of a working firearm to an undercover police operative, occurring on 17 March, 31 March, and 3 May 2022. The offender acted alongside a co-accused as a negotiator, intermediary, or facilitator between the buyer and a vendor who was not the offender.

In addition to the principal firearms offence, the court called up an 18-month Community Corrections Order that had been imposed by the Local Court on 31 March 2022 for a vehicle burnout offence. The offender was also serving an intensive correction order for driving whilst disqualified at the time of the current offending.

A sentencing assessment report and a psychologist's report were tendered, revealing that the offender suffered from Major Depressive Disorder. His counsel conceded, however, that the disorder was not a cause of the offending; financial need was.

  • What was the appropriate objective seriousness of the principal offence, having regard to the offender's actual role across the three transactions?
  • How should the court treat paragraphs in the agreed statement of facts that were framed as "the prosecution position" rather than agreed facts, where the defence disputed some particulars and no contested facts hearing was requested?
  • Whether the s 5 threshold (that no sentence other than full-time imprisonment is appropriate) was crossed, and what the appropriate head sentence, non-parole period, and start date should be.
  • Whether special circumstances existed to vary the statutory ratio between the non-parole period and the head sentence.
  • What order to make on the called-up Community Corrections Order.

Decision

The court addressed a drafting problem in the agreed facts document before turning to the merits. Two paragraphs were framed as "the prosecution position on Hall's role" rather than as agreed facts. The defence's written submissions disputed specific particulars within those paragraphs, and the Crown neither objected nor sought a contested facts hearing. The court treated the disputed particulars as unproven and gave them no weight beyond their status as the prosecution's assertion.

Applying that finding to the three transactions, the court assessed the offender's role as materially significant only in the first transaction, where he delivered the firearm, received $12,000 from the undercover operative on behalf of the vendor, and was present throughout. His role in the second and third transactions was considerably more limited, confined largely to taking photographs of the firearms and, in the second transaction, offering (but not completing) delivery. On the facts as found, the court placed the objective seriousness of the principal offence towards, but not at, the bottom of the range for offences of its type. The presence of two aggravating factors, namely that the offender was on both a Community Corrections Order and an intensive correction order at the time, were noted.

The court accepted that the offender's expressions of remorse were genuine despite not being given under oath, and gave weight to his significant vocational qualifications, the steps he had taken to upskill while in custody, and his prospects for rehabilitation. A finding of special circumstances was made to extend the parole period, on account of his mental health conditions and the benefits a longer supervised period would provide.

A 25 per cent discount was applied for the early guilty plea, reducing a pre-discount term of 3 years 6 months to 2 years 7 months. The start date was set at 7 July 2022, the date of arrest, as a deliberate act of leniency reflecting totality, notwithstanding that the earlier intensive correction order did not expire until 19 November 2022. An intensive correction order for the current sentence was considered and rejected.

Orders Made

  • Convicted of unlawfully supplying firearms three or more times within a 12-month period.
  • Sentenced to imprisonment for 2 years 7 months, commencing 7 July 2022.
  • Non-parole period of 1 year 7 months, expiring 6 February 2024.
  • Balance of parole of 1 year, commencing 7 February 2024 and expiring 6 February 2025.
  • Community Corrections Order called up; pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), convicted of the burnout offence with no further penalty imposed.

Key Takeaways

  • The District Court declined to treat paragraphs framed as "the prosecution position" in an agreed facts document as establishing agreed facts, particularly where the defence had identified specific disputed particulars in written submissions and no contested facts hearing was sought. The court treated those particulars as unproven.
  • Colefax SC DCJ explicitly flagged that this drafting technique, using language such as "the prosecution position is that", is unhelpful in sentence proceedings that do not include a clearly articulated contested facts hearing, and that the problem is not limited to this case.
  • Where an offender's role across multiple transactions within a single charge varies in significance, the sentencing court will assess each transaction individually and weigh the totality of the offender's conduct accordingly, rather than treating the most serious involvement as representative of all.
  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) may be warranted where an offender's mental health conditions and rehabilitation prospects would benefit from a longer supervised parole period, even where the primary cause of offending was not that condition.
  • Totality principles allowed the court to backdate the sentence to the arrest date rather than the expiry of a pre-existing intensive correction order, reducing the combined custodial burden across the offender's sentencing history.

Legislation and Cases Referenced

Legislation:
- Firearms Act 1996 (NSW), s 51B(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5 and s 10A

Cases cited: None stated in the judgment.