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District Court 14 October 2024

R v RYAN

[2024] NSWDC 476

Firearms & weaponsPublic order & justice offences
SENTENCING FIREARMS OFFENCES POSSESS PROHIBITED FIREARM SOVEREIGN CITIZEN IMPRISONMENT

Citation: R v Ryan [2024] NSWDC 476
Court: District Court of New South Wales
Date: 14 October 2024
Judge(s): Noman SC DCJ

Background

The offender, a self-described sovereign citizen, faced sentencing following guilty pleas to two offences arising from a twelve-hour siege at his rural Binnaway property on 2 November 2022. Police had attended to arrest him in relation to an intimidation matter. He refused to leave, declared his property "sovereign land," and warned officers they would be "neutralised" if they tried to take him.

After hours of negotiations involving specialist police negotiators, four officers approached the offender's home and cut the power. The offender fired a single shot from inside the house, striking a ballistic shield held by one of the officers. The shot knocked the officer backwards and created a visible hole and dent in the shield. The offender surrendered approximately ninety minutes later.

Police searching the home found three firearms and ammunition. All had been rendered safe by the offender, who held no licence or permit to possess any of them. The firearm used in the shooting was a .303 bolt-action rifle. A .22 calibre self-loading rifle (a prohibited firearm) supported the possession offence, and two further unauthorised firearms were dealt with on a Form 1 (a formal mechanism allowing additional offences to be taken into account without separate convictions being recorded).

  • The appropriate objective seriousness of the discharge firearm offence under s 33A(2)(a) of the Crimes Act 1900 (NSW)
  • Whether various factual findings urged by the defence (including impaired vision, belief the ammunition would not penetrate the shield, and immediate remorse) should be accepted in mitigation
  • Whether the offender's "sovereign citizen" threat to "neutralise" police constituted an operating intent to kill at the time of the shot
  • How the principle of totality should apply when accumulating sentences for the two distinct offences
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio

Decision

Objective seriousness. The District Court assessed the discharge firearm offence as falling within the mid-range of seriousness. The offender was not acting impulsively: he had been negotiating with police for hours and already had a loaded firearm in hand when officers approached. He fired directly at the shield rather than a warning shot, and the proximity of neighbouring properties added to the risk posed by discharging a live round.

Contested factual findings. The court declined to accept several mitigating findings urged by the defence. It rejected the suggestion the offender believed his ammunition would not pierce the shield, finding that claim inconsistent with other irrational and unreliable statements he had made. The court also declined to find he immediately regretted his actions, characterising his post-event comments as deflecting responsibility rather than expressing genuine remorse. While accepting he had prepared his will during the siege (indicating he contemplated dying), the court refused to infer he believed police would act unlawfully toward him.

Intent at the time of firing. The court accepted that the earlier "neutralise" threat, which would have supported an intent to kill, was not an operating intent at the moment of discharge. It found instead that the offender fired with an intent to cause some harm so as to force police to desist from arresting him. The court did find that four officers' safety was imperilled by the single shot, even if the offender may not have been specifically aware all four were present at the instant he fired.

Totality and special circumstances. Although the offences arose from a single incident, the court held that some accumulation of the individual sentences was necessary because the criminality of one offence did not entirely encompass the other. Special circumstances were found to exist, justifying a reduction in the non-parole period ratio to 50 percent, on account of the offender's first time in custody coinciding with COVID-related restrictions, deteriorating health, and the generally more arduous conditions that resulted.

Orders Made

  • Conviction recorded on both offences
  • Aggregate sentence of 6 years and 6 months imprisonment
  • Non-parole period of 3 years and 3 months, backdated to 2 November 2022
  • Eligibility for release to parole from 1 February 2026
  • Two further offences of possessing an unauthorised firearm taken into account on a Form 1

Key Takeaways

  • A single discharge of a firearm directly at a ballistic shield held by police, during a prolonged siege following hours of negotiation, was assessed as a mid-range example of the offence of discharging a firearm with intent to resist arrest under s 33A(2)(a) of the Crimes Act 1900 (NSW).
  • Factual findings offered in mitigation must be supported by reliable evidence; the District Court declined to accept self-serving or internally inconsistent statements by the offender as a basis for mitigating findings on issues such as ammunition capability or remorse.
  • Where a siege offence and a separate firearms possession offence arise from the same incident, some accumulation of sentences is still required when the criminality of one does not wholly encompass the other.
  • Special circumstances justifying a reduced non-parole period ratio can be established by a combination of factors including a first custodial term, deteriorating health in custody, and conditions made more onerous by external restrictions such as those imposed during the COVID-19 pandemic.
  • Sovereign citizen beliefs and rhetoric did not provide any mitigating basis for sentence, and the court treated the offender's post-incident statements deflecting responsibility onto police as inconsistent with genuine remorse.

Legislation and Cases Referenced

Legislation
- s 33A(2)(a) Crimes Act 1900 (NSW): Discharge firearm with intent to resist arrest (maximum 25 years; standard non-parole period 9 years)
- s 7(1) Firearms Act 1996 (NSW): Possess prohibited firearm (maximum 14 years; standard non-parole period 4 years)
- s 7A(1) Firearms Act 1996 (NSW): Possess unauthorised firearm (maximum 5 years)

Cases
- DPP (Cth) v De La Rosa [2010] NSWCCA 194