Citation: R v Shinner [2024] NSWDC 62
Court: District Court of New South Wales
Date: 8 March 2024
Judge: Anderson SC DCJ
Background
The offender attended a Chinese takeaway restaurant in Branxton on 30 October 2022, dissatisfied with a meal of sweet and sour pork he had purchased. He returned to his caravan, retrieved a loaded shortened firearm from a drawer, and went back to the restaurant to demand a replacement meal.
Once inside, the offender waited for other customers to leave, closed the door, and confronted the owners. He removed the firearm from a bag and pointed it at the male victim, who was in the kitchen area approximately six feet away. The confrontation ended when the male victim physically subdued the offender. The offender fled the scene and was arrested the following day, at which point he made admissions to police.
The firearm was later identified as a shortened .22 Hornet calibre Thompson Centre single-shot pistol, modified with a shortened forearm and barrel. Contrary to the offender's initial claim to police that it did not work, the weapon was loaded and in working order.
Legal Issues
- Whether the Crown could prove beyond a reasonable doubt that the offender had pushed through internal bifold doors and held the firearm within inches of the male victim's head (disputed fact).
- Whether the offender could establish that the male victim had taken the firearm from the counter (disputed fact raised by the defence).
- What sentence was appropriate, taking into account the offender's plea of guilty, personal circumstances, and the objective seriousness of the two offences.
- Whether special circumstances existed to justify a non-parole period below the statutory default proportion.
Decision
Disputed facts: The Court resolved three factual disputes before sentencing. The defence contention that the male victim had taken the firearm from the counter was conceded by defence counsel to be unsupported by evidence and was not taken into account. On the Crown's disputed facts, the Court heard evidence from both victims and an independent witness, Mr Tetuanui, and made findings about whether the offender had crossed into the kitchen area and held the firearm close to the male victim's head.
Objective seriousness: The Court assessed both offences as falling in the mid-range of objective seriousness. The standard non-parole period for the firearms offence under s 7(1) of the Firearms Act 1996 is four years, against a maximum of 14 years. The offence of using a weapon to commit a serious indictable offence (intimidation) under s 33B(1)(a) of the Crimes Act 1900 carries a maximum of 12 years.
Plea and subjective factors: A 25% discount was applied to the sentences that would otherwise have been imposed, reflecting the early guilty pleas entered at Newcastle Local Court on 27 September 2023. The Court identified several mitigating factors in the offender's personal circumstances, including his age, mental and physical health issues, and approximately 30 years of otherwise law-abiding conduct. The Court noted that the offending may have been linked to non-compliance with medication, and treated the episode as an aberration. Without those mitigating factors, the Court indicated the sentence would have been significantly longer.
Special circumstances: The Court found special circumstances under the Crimes (Sentencing Procedure) Act 1999, reducing the non-parole period to 60% of the aggregate head sentence rather than the default 75%. An aggregate sentence was imposed under s 53A of that Act, reflecting that both offences occurred simultaneously, involved the same victims, and arose from the same circumstances.
Orders Made
- Conviction recorded for the firearms offence under s 7(1) of the Firearms Act 1996 (indicative sentence: 3 years, with a non-parole period of 2 years).
- Conviction recorded for using a weapon with intent to commit a serious indictable offence (intimidation) under s 33B(1)(a) of the Crimes Act 1900 (indicative sentence: 2 years).
- A Form 1 offence of possessing ammunition without a licence (s 55(3) of the Firearms Act 1996) taken into account in relation to the firearms offence.
- Aggregate sentence of 3 years and 6 months imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999, commencing 31 October 2022 and expiring 30 April 2026.
- Non-parole period of 2 years and 1 month, expiring 30 November 2024, reflecting a finding of special circumstances (non-parole period set at 60% of the head sentence).
- Eligibility for release to parole at the expiration of the non-parole period, with release subject to the Parole Authority's determination.
Key Takeaways
- The District Court confirmed that aggravating facts relied upon for sentencing must be proved beyond reasonable doubt, while mitigating facts need only be established on the balance of probabilities.
- A 25% discount applied where guilty pleas were entered at an early stage in the Local Court, consistent with established sentencing principles.
- Where disputed facts are raised at a sentence hearing, the court must resolve them before assessing the offender's moral culpability and the objective seriousness of the offending.
- Special circumstances were found to exist, reducing the non-parole period to 60% of the head sentence. The Court pointed to the offender's age, health, lengthy prior good character, and the likelihood that medication non-compliance contributed to the offending.
- An aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 was appropriate where two distinct offences were committed simultaneously, against the same victims, in the same incident.
Legislation and Cases Referenced
Legislation:
- Firearms Act 1996 (NSW), ss 7(1), 55(3)
- Crimes Act 1900 (NSW), s 33B(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
Cases:
- No cases were cited in the judgment.