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District Court 21 February 2025

R v Weate

[2025] NSWDC 580

Assault & violenceFirearms & weaponsPublic order & justice offences

Citation: [2025] NSWDC 580
Court: District Court of New South Wales
Date: 21 February 2025
Judge(s): Priestley J SC DCJ

Background

The offender, a 45-year-old man, pleaded guilty to two indictable offences and four summary offences arising from events on 23 February 2024 at a residential property in Nimbin, NSW. He arrived at the premises carrying a loaded shotgun, ammunition, and other items in bags, and proceeded to point the firearm at multiple occupants of the house in separate incidents of intimidation.

After the confrontations inside the home, the offender directed a third victim (the mother of a friend) to drive him away from the scene. Although she had initially agreed to give him a ride, she felt she had no real choice given he was armed. The encounter in the car lasted approximately 11 minutes before police arrested him at a service station. A search revealed extensive ammunition, including live shotgun rounds, ammunition belts, and a night vision scope.

The two indictable charges were using an offensive weapon with intent to commit an indictable offence (intimidation) under s 33B(1)(a) of the Crimes Act 1900, and taking or detaining a person with intent to gain an advantage under s 86(1)(b). The four summary matters included two counts of intimidation, unauthorised possession of a firearm, and possessing ammunition without a licence.

  • What was the objective seriousness of each offence, particularly the indictable charges?
  • Whether the fact that the shotgun was loaded increased the objective seriousness of the offences involving the firearm
  • Whether the offender's criminal history, including prior serious personal violence offences, constituted an aggravating factor under s 21A(2)(d) of the Criminal Procedure Act 1986
  • The appropriate discount for the plea of guilty and the weight to be given to the offender's subjective circumstances, including a background of significant disadvantage

Decision

The court rejected the offender's submission that a loaded firearm was no more serious than an unloaded one. Priestley J SC DCJ reasoned that the distinction between a stick and a firearm lies in the firearm's inherently more dangerous capacity, and the same logic applies to a loaded versus unloaded firearm. The objective seriousness of the s 33B offence (armed intimidation) was assessed as being in the mid-range. The detention offence was assessed as below the mid-range, given its short duration and the fact that the victim had initially agreed to drive the offender.

On the question of the offender's criminal history as an aggravating factor, the court applied the framework in Meis v R. While the offending was not an uncharacteristic aberration (given prior convictions for assault occasioning actual bodily harm and reckless wounding), the court drew a distinction between a lengthy criminal record and an entrenched attitude of ongoing disregard for the law. The court was not satisfied the history rose to the level of demonstrating a continuing attitude of disobedience, particularly in light of the offender's subjective circumstances.

The court took into account the offender's significant personal disadvantage, including a background involving childhood trauma, substance abuse from a young age, and mental health issues. Applying the principles from Bugmy v The Queen, the court accepted that these circumstances bore on the offender's moral culpability. The offender had been in custody since the date of arrest, 23 February 2024, and any sentence was to commence from that date.

A discount of 25% was applied for the plea of guilty, entered at committal stage. The court ultimately imposed an aggregate sentence across all six offences.

Orders Made

  • The offender was sentenced to an aggregate term of imprisonment (the specific quantum was contained in the full, untruncated judgment).
  • The sentence was backdated to commence on 23 February 2024, the date of arrest.
  • The four summary matters were dealt with on a s 166 certificate as part of the sentencing proceedings.

Key Takeaways

  • A loaded firearm was found to be objectively more serious than an unloaded one when used to commit intimidation offences, on the basis that its inherently greater dangerous capacity mirrors the very distinction between a firearm and a lesser weapon.
  • Under s 21A(2)(d) of the Criminal Procedure Act, a lengthy criminal history does not automatically equate to an "entrenched attitude of disobedience" sufficient to aggravate sentencing; the court distinguished between repeat offending and a settled philosophy of living outside the law.
  • The framework in Meis v R requires consideration of whether the offending was an uncharacteristic aberration and whether it manifests a continuing attitude of disobedience, informed by Veen (No 2) and McNaughton.
  • Principles from Bugmy v The Queen concerning background of significant disadvantage remained relevant to the assessment of moral culpability, even where the offender had prior convictions for serious personal violence offences.
  • The detention offence was assessed as below the mid-range where the victim had initially agreed to drive the offender, the duration was short, and the offender's purpose was limited to leaving the scene.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B(1)(a), 86(1)(b)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Criminal Procedure Act 1986 (NSW), ss 21A(2)(d), 166
- Firearms Act 1996 (NSW), ss 7A, 65

Cases:
- Bugmy v The Queen [2013] HCA 27
- Meis v R [2022] NSWCCA 118
- R v McNaughton (2006) 66 NSWLR 566
- R v Millwood [2012] NSWCCA 2
- Veen v The Queen (No 2) (1988) 164 CLR 465