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District Court 4 October 2024

R v Gordon

[2024] NSWDC 519

Firearms & weapons

Citation: R v Gordon [2024] NSWDC 519
Court: District Court of New South Wales
Date: 4 October 2024
Judge: Montgomery DCJ

Background

The offender, a man aged 43 at the time of the offending, pleaded guilty to two counts of possessing a shortened firearm (other than a pistol) without authority, contrary to s 62(1)(b) of the Firearms Act 1996 (NSW). The offending occurred on 16 to 17 April 2023 at a Liverpool apartment complex, where police found two shortened firearms in a bag inside a truck parked in the complex's car park. The firearms were a loaded shortened Winchester lever-action rifle and an unloaded shortened BOITO shotgun. The offender admitted to handling the firearms and placing them in the truck.

The offending occurred while the offender was on parole for a 2020 firearms offence (discharging a firearm with disregard for the safety of others), and while also subject to two Intensive Corrections Orders for assault and two Community Corrections Orders for driving offences. Videos and photographs on the offender's phone showed him handling one of the firearms on multiple occasions in the weeks before his arrest.

The offender had a significant criminal history including assaults, stalk and intimidate, breaches of AVO conditions, and prior firearm-related offending. His risk of reoffending had been assessed as increasing from Medium to Medium-High since his earlier sentencing in 2022.

  • What sentence was appropriate for two counts of possessing shortened firearms without authority, carrying a maximum of 14 years' imprisonment each?
  • How should the court weigh the aggravating factors, particularly the breach of multiple forms of conditional liberty and an antecedent record of similar offending?
  • What weight should be given to the mitigating and subjective factors, including an early guilty plea, a deprived background, mental health conditions (PTSD, depression, anxiety, hypervigilance, Substance Abuse Disorder), and an assault suffered while in custody?
  • Whether special circumstances existed justifying a longer parole period relative to the non-parole period (that is, a shorter non-parole period than the statutory ratio would ordinarily produce)?
  • How should the sentence be backdated to account for pre-sentence custody during a period when, but for the index offences, the offender would have been at liberty?

Decision

Montgomery DCJ found the possession of shortened firearms to be objectively serious. Shortened firearms are inherently dangerous due to their concealability, making them suited to serious criminal activity, and there is no legitimate purpose for their possession. The loaded state of the Winchester firearm heightened the objective seriousness. The offender's duration of possession was not so brief as to reduce that seriousness.

The breach of parole and multiple other conditional liberty orders was a statutory aggravating factor under s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 (NSW). His increased recidivism risk assessment and the fact that this was further firearm-related offending within three years of his earlier firearm offence made community safety a weighty consideration. The court noted, however, that the offending itself appeared to involve "stupid showing off and irresponsibility" rather than conduct connected to planned or organised criminal activity.

On the subjective side, the offender received the full 25% discount for his early guilty plea, with both the Crown and Defence agreeing this was appropriate. The court considered his deprived background (applying the principles in Bugmy v The Queen), his diagnosed mental health conditions and Substance Abuse Disorder, and the fact that he suffered a serious assault while incarcerated at Bathurst Correctional Centre in February 2024. His prospects of rehabilitation were described as guarded, but the court found special circumstances existed, warranting a departure from the standard statutory ratio between the non-parole period and the balance of the sentence, in order to give rehabilitation practical effect.

The court exercised its discretion under s 47(2)(a) of the Crimes (Sentencing Procedure) Act to backdate the sentence commencement to 14 June 2023, reflecting that some of the pre-sentence custody was referable to the revocation of parole rather than solely to the index offences. No action was taken on the Community Corrections Order breaches, on the Crown's concession.

Orders Made

  • The offender was convicted on both counts.
  • No action was taken on the breaches of the Community Corrections Orders.
  • The offender was sentenced to a total term of imprisonment of 2 years and 6 months, with a non-parole period of 1 year and 6 months.
  • The sentence commenced on 14 June 2023 and expires on 13 December 2025; the non-parole period expires on 13 December 2024.
  • The offender was directed to accept the supervision and guidance of Community Corrective Services.
  • Recommendations were made to Community Corrective Services that the offender: undergo regular review for management of PTSD, anxiety, hypervigilance, Substance Abuse Disorder, and related issues; be assisted with education and training; undergo residential drug rehabilitation for at least eight weeks; and attend Odyssey House, Narcotics Anonymous, and comply with any mental health treatment plan.

Key Takeaways

  • Possession of shortened firearms under s 62(1)(b) of the Firearms Act 1996 (NSW) carries a maximum of 14 years' imprisonment and is treated as objectively serious given the inherent danger and concealability of such weapons, regardless of whether the possession was connected to a specific criminal plan.
  • Breaching parole and multiple other conditional liberty orders simultaneously constitutes a significant statutory aggravating factor that the sentencing court must expressly weigh against the full range of subjective considerations.
  • Under Bugmy v The Queen, the ongoing relevance of a deprived background to moral culpability does not diminish with repeat offending, and the District Court applied this principle in mitigation alongside the offender's diagnosed mental health conditions.
  • Special circumstances justifying an extended parole period (and therefore a shorter non-parole period relative to the total sentence) can be established where genuine rehabilitation needs exist, particularly where the offender has experienced hardship during incarceration such as a serious assault while in custody.
  • Where pre-sentence custody includes time served due to parole revocation caused by the index offences, the court has a discretion under s 47(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to backdate the sentence commencement beyond the date strictly attributable to the new offending.

Legislation and Cases Referenced

Legislation
- Firearms Act 1996 (NSW), s 62(1)(b)
- Crimes Act 1900 (NSW), s 93G(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(5AA), 44, 47(2)(a), 53A

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Crane v R [2024] NSWCCA 112
- El Jamal v The Queen [2017] NSWCCA 243
- R v Brown [2006] NSWCCA 249
- R v Lizano [2021] NSWDC 54
- R v Najem [2008] NSWCCA 32
- R v Struik [2023] NSWSC 1548
- R v Tanti [2021] NSWDC 381