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District Court 6 May 2024

Rex v HOLLAND

[2024] NSWDC 139

Firearms & weaponsPublic order & justice offences
CRIME PLEA OF GUILTY FORM 1 S166 CERTIFICATE THREAT OF SELF HARM THREAT TO HARM OTHERS

Citation: Rex v Holland [2024] NSWDC 139
Court: District Court of New South Wales
Date: 6 May 2024
Judge: Lerve DCJ

Background

The offender was a 28-year-old serving member of the Royal Australian Air Force (RAAF) who, in December 2022, left a child's birthday party after becoming upset and drove to a location on the RAAF base at Forest Hill near Wagga Wagga. He had three registered rifles with him, which he had taken to clean ahead of a planned hunting trip. The firearms were not loaded.

Later that evening, the offender sent a voice message to a group chat that included his wife and two friends, threatening to shoot three named colleagues and blaming his wife for his deteriorating mental state. Police were alerted, triangulated his location to the base, and located him after a search involving aerial support. At one point, the offender exited his vehicle carrying a rifle (without a bolt and unloaded) and concealed himself from police. Officers did not know the weapon was unloaded or missing its bolt.

The offender ultimately surrendered. He entered a plea of guilty to threatening to use an offensive weapon with intent to commit the indictable offence of intimidation, contrary to section 33B(1)(a) of the Crimes Act 1900. Two further charges were dealt with at sentencing: not keeping a firearm safely (under the Firearms Act 1996) and driving an unregistered vehicle (under the Road Transport Act 2013), both attached to a section 166 Certificate. A charge of intimidation under the Crimes (Domestic and Personal Violence) Act 2007 was taken into account on a Form 1 document.

  • What was the appropriate sentence for the primary offence of threatening to use an offensive weapon with intent to intimidate, carrying a maximum penalty of 12 years imprisonment?
  • How should the Form 1 intimidation matter affect the ultimate sentence?
  • What weight should be given to the offender's mental health conditions, drug use at the time, and background as a long-serving RAAF member?
  • Whether an Intensive Correction Order (ICO) was appropriate in place of full-time custody, given the offender's rehabilitation prospects and the protection of the community.
  • What penalties were appropriate for the section 166 Certificate offences?

Decision

The court accepted that the offending was serious. The voice message contained explicit threats to kill three named individuals, and the offender was in possession of multiple firearms when police searched for him. The fact that the rifles were unloaded and one lacked a bolt was unknown to police at the time, which heightened the danger the situation posed. The offender also hid from police during the search. The Form 1 intimidation matter, directed at his wife, also had to have some impact on the final sentence.

In mitigation, the court gave weight to the offender's genuine remorse, his mental health conditions (including ADHD and other diagnosed conditions), and the role that drug use played in his conduct on the night. The court applied the principle from Bugmy v the Queen that the effects of social disadvantage and mental health on moral culpability must be properly considered. The court also noted the offender had no prior criminal history, had served nine years in the RAAF, and had taken meaningful steps toward rehabilitation and treatment with both a psychologist and a psychiatrist.

The court applied a 25% discount to reflect the utilitarian value of the guilty plea to the principal charge, which had been entered at the first available opportunity. After working through the appropriate sentencing range and relevant guideline principles, the court determined that an ICO of two years was appropriate for the principal offence. The court found that full-time custody would be counterproductive to the offender's rehabilitation and that an ICO would adequately protect the community, including the named victims.

For the firearm safety offence, the court imposed a two-year Community Corrections Order. No further penalty was imposed for the unregistered vehicle offence.

Orders Made

  • Principal offence (s 33B(1)(a) Crimes Act 1900): Convicted and sentenced to 2 years imprisonment, to be served by way of Intensive Correction Order, with conditions including: no further offences; supervision by the Department of Community Corrections; abstinence from alcohol and non-prescribed substances; continuation of psychological treatment; continuation of psychiatric treatment; compliance with prescribed medication; and strict compliance with any Apprehended Domestic Violence Order.
  • Not Keep Firearm Safely (s 166 Certificate): Convicted and released on a 2-year Community Corrections Order, with conditions including: no further offences; supervision by Community Corrections; abstinence from alcohol and non-prescribed substances; and obligation to appear for sentence on any breach.
  • Drive Unregistered Vehicle (s 166 Certificate): Convicted; no further penalty imposed pursuant to s 10A of the Crimes (Sentencing Procedure) Act.
  • All firearms forfeited to the Crown for destruction.
  • Sentencing reasons and a named report to be forwarded to the Department of Community Corrections.

Key Takeaways

  • An ICO was available and imposed for a serious firearms-related threat offence carrying a maximum of 12 years imprisonment, where the court found strong rehabilitation prospects and concluded full-time custody would be counterproductive.
  • Under the Form 1 guideline (Attorney General's Application No. 1 of 2002), a matter attached to a Form 1 document must have some impact on the ultimate sentence, even where the primary offence already reflects the seriousness of the conduct.
  • The principle from Bugmy v the Queen (2013) 237 CLR 1 was applied: the effects of mental health conditions and background on an offender's moral culpability remain relevant at sentencing and do not diminish with repeat offending.
  • Where a firearm used in threatening conduct was in fact unloaded and missing a bolt, the court treated the threat as still serious because police did not know those facts at the time, meaning the objective danger remained high.
  • A 25% discount for the utilitarian value of a guilty plea was available where the plea was entered at the first available opportunity, including where that opportunity arose at the sentence hearing itself rather than at an earlier stage of proceedings.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 33B(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 8, 10A, 37
- Criminal Procedure Act 1986 (NSW), s 166
- Firearms Act 1996 (NSW), s 39(1)(a)
- Road Transport Act 2013 (NSW), s 68(1)

Cases:
- Bugmy v the Queen [2013] HCA 37
- The Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146 (Form 1 Guideline Judgment)
- DG (No. 1) v R [2023] NSWCCA 320
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Khanat v R [2024] NSWCCA 41
- R v Mostyn (2004) 145 A Crim R 304
- Stanley v DPP [2023] HCA 3
- Tepania v R [2018] NSWCCA 289
- Tonga, Samuel [2023] NSWCCA 120
- Zheng v R [2023] NSWCCA 64