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District Court 19 March 2025

R v Van Huisstede

[2025] NSWDC 169

Assault & violenceTheft & propertyFirearms & weaponsDomestic & family violence

Citation: R v Van Huisstede [2025] NSWDC 169
Court: District Court of New South Wales
Date: 19 March 2025
Judge: Haesler SC DCJ

Background

The offender appeared before the District Court on two related matters. First, he pursued a severity appeal against sentences imposed by a Local Court magistrate arising from an incident on 1 December 2023, when police found him in possession of a loaded, modified 12-gauge shotgun in the Cooranbong area, along with multiple knives, a slingshot, and ammunition. He fled from police before being located by a police dog.

Second, the offender faced fresh sentencing in the District Court on a separate set of offences committed in February 2024, while he was on the run after failing to appear at his Local Court return date. During that period, he broke into a residential property in the Blue Mountains, threatened the elderly owner with what appeared to be a piece of pipe, stole items, and drove away in the owner's car without consent. The intimidation of the homeowner constituted a domestic violence offence under the Crimes (Domestic and Personal Violence) Act 2007.

The fresh charges covered possessing a loaded firearm in a public place, possessing an unregistered and unauthorised prohibited firearm, using or possessing a defaced firearm, break and enter and steal, take and drive a conveyance without consent, and intimidation. Additional related matters were placed on Form 1 schedules (that is, taken into account at sentencing without separate convictions being recorded).

  • Whether the magistrate's aggregate sentence of 2 years with a 12-month non-parole period was manifestly excessive, warranting intervention by the District Court on appeal
  • What aggregate sentence was appropriate for the fresh offences, accounting for the utilitarian value of guilty pleas, the objective seriousness of each offence, totality, special circumstances, and the offender's subjective circumstances
  • How to treat the Form 1 matters, particularly whether the ammunition and unsafe-storage offences should increase the head sentences
  • How to apply the principles in Bugmy v The Queen regarding the relevance of the offender's background, including Indigenous identity, childhood trauma, and drug dependency, to moral culpability

Decision

Severity appeal. His Honour dismissed the appeal and confirmed the Local Court orders. Reviewing the matter afresh and in light of additional subjective evidence presented on the day, Haesler SC DCJ concluded he would not himself have imposed any lesser sentence. The court emphasised that possession of a firearm under the Firearms Act 1996 is a privilege, not a right, and that the weapon in question was modified, loaded, and carried in circumstances that admitted no lawful excuse. The offender's claim that he used it for hunting was rejected as no justification.

Fresh sentencing: objective seriousness. The February 2024 offences were committed while the offender was on bail, actively evading police, and in a state of significant drug-induced agitation and paranoia. The court found that this state of mind made the offender objectively more dangerous, and expressly noted that drug use cannot mitigate the seriousness of offending. The break and enter targeted a home that was only temporarily unoccupied, and the confrontation with its elderly owner involved a direct threat to shoot him.

Guilty plea discount and Form 1 matters. A 25% reduction was applied to each indicated sentence to reflect guilty pleas entered in the Local Court. The court was careful to ensure the discount was not eroded by the process of accumulation. On the Form 1 matters, the court declined to increase any sentence for the ammunition offences (which had attracted fines only at the Local Court level) or for the unsafe-storage offence, finding it was already intrinsic to the assessment of seriousness of the firearm possession charges. The court explicitly guarded against double-counting.

Subjective factors. The court acknowledged the offender's Indigenous background, significant childhood trauma including childhood sexual assault, mental health conditions, and long-standing drug dependency. These matters were considered in mitigation of moral culpability, consistent with Bugmy. A finding of special circumstances was made to extend the parole period beyond the statutory proportion, reflecting the accumulation of sentences and the offender's rehabilitative needs. The court also noted genuine expressions of remorse and a stated determination to rehabilitate, but balanced these against the need for specific and general deterrence and the community interest in denunciation.

Orders Made

  • Severity appeal dismissed; all Local Court orders confirmed
  • Break and enter: indicated sentence of 2 years and 7 months
  • Take and drive: indicated sentence of 1 year and 10 months
  • Intimidation (domestic violence): indicated sentence of 9 months
  • Possess unregistered firearm (with Form 1): indicated sentence of 1 year and 6 months
  • Possess unregistered unauthorised prohibited firearm (with Form 1): indicated sentence of 1 year and 10 months
  • Possess loaded firearm in a public place: indicated sentence of 2 years and 1 month
  • Aggregate sentence: non-parole period of 2 years and 10 months, commencing 4 October 2024; eligible for parole consideration from 3 August 2027
  • Parole period of 2 years and 2 months, commencing 4 August 2027 and expiring 3 October 2029
  • Total effective sentence: 5 years and 6 months (minimum 2 years and 4 months accounting for time in custody)
  • Firearm destruction order made in relation to all matters

Key Takeaways

  • In dismissing the severity appeal, the District Court confirmed that possession of a loaded, modified firearm without a licence admits no mitigation based on a claimed hunting purpose, and that the Firearms Act treats all such possession as a privilege subject to strict regulation.
  • Under the Bugmy principle, an offender's Indigenous background, childhood trauma, and entrenched drug dependency remain relevant to moral culpability at sentencing, even where the objective seriousness of the offences is high.
  • Form 1 matters will not automatically increase a head sentence: where an offence is already intrinsic to the assessment of seriousness of the principal charge, incorporating it separately would constitute impermissible double-counting.
  • A 25% utilitarian discount for a guilty plea entered in the Local Court applies in the District Court on resentencing, and the sentencing court must ensure that discount is not practically eroded when accumulating multiple sentences.
  • Offending committed while on bail, in a state of drug-induced paranoia, and while actively evading police is treated as objectively aggravating, with the court finding that such a mental state rendered the offender more dangerous rather than less culpable.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 93G(1), 93(1)(ii), 112(1)(a), 154A(1)(a)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Firearms Act 1996 (NSW), ss 66(1)(b)

Cases
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Windle [2012] NSWCCA 222
- R v Herring (1956) 73 WN (NSW) 203
- Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Ponfield v R (1999) 48 NSWLR 327; [1999] NSWCCA 435
- Mack v R [2009] NSWCCA 216
- Mapp v R [2010] NSWCCA 269
- R v AZ (2011) 205 A Crim R 222
- R v Krstic [2005] NSWCCA 391
- R v Geddes