District Court New South Wales Medium Neutral Citation: R v Simpson [2020] NSWDC 569 Hearing dates: 18 June 2020, 10 July 2020 Decision date: 13 July 2020 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Aggregate sentence of 13 years with a non parole period of 8 years 6 months Catchwords: CRIME – Firearms Act - firearms offences - unauthorised supply of pistols by Firearms' dealer - 276 pistols supplied - seven offences LICENSING — Firearms licensing — fraudulent disposal transactions - registration of firearms breaches — Dealers SENTENCING — Relevant factors on sentence — two hundred and seventy six (276) pistols supplied - seven offences over seven years - Form 1 matters - early guilty plea - firearms dealer - breach of trust - duress claimed - family hardship claimed - application of principle - special circumstances – COVID-19 Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995 Firearms Act 1996 Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 Attorney General's Application No. 1 (2002) 56 NSWLR 1 Barbaro v The Queen (2014) 253 CLR 58 Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41 Devaney v R [2012] NSWCCA 285 Dionys v R [2011] NSWCCA 272 Fox v Percy (2003) 214 CLR 118 Giang v R [2017] NSWCCA 25 Hili v The Queen (2010) 242 CLR 250 Hoskins v R [2016] NSWCCA 154 Howard v R [2004] NSWCCA 348 Ibrahim v R [2019] NSWCCA 188 Markarian v The Queen (2005) 228 CLR 357 MP v R [2009] NSWCCA Muldrock (2011) 244 CLR 120 Olbrich v The Queen (1999) 199 CLR 270 Pearce v The Queen(1988) 194 CLR 610 Postiglone v The Queen (1997) 189 CLR 295 R v Ceissman [2004] NSWCCA 466 R v Edwards (1996) 90 A Crim R 510 R v Herring (1956) 73 WN (NSW) 203 R v Howard [2004] NSWCCA 348 R v Knight (2005) 155 A Crim R 252 R v Lawrence [2019] NSWDC 816 R v MAK, R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 R v Z (2005) 2 AC 467 Tepania v R [2018] NSWCCA 247 The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 Tiknius v R [2011] NSWCCA 215; (2011) 221 A Crim R 365 Wieninger v The Queen [2003] HCA 14; (2003) 212 CLR 629 Category: Sentence Parties: Shane James Simpson (the offender) Director of Public Prosecutions Representation: Counsel: Mr W Terracini SC and Mr D Grippi (for the offender) Ms G Steedman, Crown Prosecutor Solicitors: Mc Aneny Lawyers (for the offender) File Number(s): 2019/00112563 SENTENCE Firearms Act 1996 offences 1. The purpose of the Firearms Act 1996 is clear; firearm possession is a privilege that is conditional on the overriding need to ensure public safety: s 3(1)(a). Any breach of the Firearms Act is regarded as serious. That seriousness must be reflected in the sentences imposed for major breaches of the Act: Howard v R [2004] NSWCCA 348 at [66]. 2. Firearm possession is strictly regulated, as firearms can cause great danger, damage or harm. Firearm use is strictly controlled. If firearms are used in an unregulated fashion their danger is even more pronounced. The danger is exacerbated if the type of firearms illicitly possessed or used is specifically designed to cause harm to people, such as a pistol. If the firearms are used in connection with other criminal activities any harm or potential for harm is compounded. 3. Anyone involved in the lawful supply and use of firearms is trusted to do so, on the basis they understand and will comply with the regulatory regime designed to protect the community. It is expected that firearms dealers will assist those privileged to possess and use firearms to do so safely and without danger to the community. Anyone involved in the lawful supply of firearms that knowingly and persistently breaches those obligations must expect significant and proportionate punishment. Facts 1. Until his arrest on 10 April 2019 Shane Simpson was a licensed firearm dealer operating from "Simpson's Sports" in Port Kembla. Between February 2013 and April 2019 Simpson supplied 276 pistols to an unknown person or persons who were not authorised to possess those firearms. Those transactions have been charged as seven offences: s 51B(1) Firearms Act 1996: 1. Between 12 February 2013 and 17 December 2013 the offender supplied a total of 23 pistols. 2. Between 2 January 2014 and 8 December 2014 the offender supplied 57 pistols. 3. Between 7 January and 18 December 2015 the offender supplied 20 pistols. 4. Between 5 January 2016 and 23 December 2016 the offender supplied 57 pistols. 5. Between 10 January and 18 December 2017 the offender supplied 71 pistols. 6. Between January 2018 and December 2018 the offender supplied 28 pistols. 7. Between January 2019 and April 2019 the offender supplied 20 pistols. 1. Simpson has admitted his guilt in relation to another sixteen Firearms Act offences. He has asked that I take those matters into account when I sentence him for the seventh s 51B(1) offence. In all the circumstances it is appropriate that I do so. The Form 1 offences relate to his failure to keep appropriate labels and records; not keeping four firearms safely and his possession of an unregistered pistol. 2. The New South Wales Firearms Registry uses an electronic database to record firearms licensing information in this State. Simpson intentionally deceived that Registry by submitting 267 interstate firearm disposal transactions using their Firearms Link system. The firearms were never received by the persons in the other states nominated to receive them. Simpson prepared and submitted fraudulent disposal transactions in order to remove the firearms in Simpson Sports' possession from the system and to conceal the supply of those firearms to persons unauthorised to possess them: an offence pursuant to s 72(1) Firearms Act. 3. Ten of the firearms illegally supplied have been recovered by police. They have been linked to criminal activity. Some of that activity was very serious, including one homicide. The Crown does not suggest, nor is there any evidence that the offender had any knowledge that the recovered firearms would be used in those specific offences or any other specific offence. 4. The offender took steps to disguise his involvement by removing the serial numbers of each firearm supplied using an angle grinder. The offender's version 1. On arrest the offender told police he was solely responsible for the crimes. During a video recorded interview at the scene the offender told police that he had been "pushed and pushed for a long time." He said he wasn't "doing it because he wanted to do it" and that he "just wanted to make sure my family is going to be okay". He further stated, "I don't know if this is wrong to say or not, but I'm relieved and kind of half happy that it is over, not that I have done it at all, that's for sure, but that it's finished". The offender told police that he had been illegally supplying automatic pistols for a few years and that he was paid in cash for the firearms. The offender told police that he never physically saw the person or persons to whom the firearms were sold. 2. On 18 June 2020 Simpson, in evidence, told me how he came to supply the pistols. He said that in 2012 he fixed the bolt of an unusual 0.22 rim fire rifle. He did not then, as required, sight the owner's firearm licence. He never saw the customer again but shortly after another customer took him aside and showed him on a mobile phone a video of rifle with the same type of bolt being apparently used to execute someone. That second customer left saying "we'll be in touch", leaving Simpson with the impression that it was his fault that the bolt he had prepared had been so used. 3. Shortly after he received a phone call to the store's phone; he was told he was to hand over two automatic pistols and given instructions to leave them at a derelict shop around the corner from his store. He did as he was directed, but before delivery, of his own volition, he used an angle grinder to remove the serial numbers from each pistol. He said he supplied the pistols because he "panicked." His wife was due to give birth at that time and he did not want to compromise his or his family's safety. He then took steps to falsify the records relating to the pistols. 4. A few weeks later he received another phone call demanding two more pistols. He was told that when they were delivered cash would be waiting for him. Although money or reward had never been discussed, that cash, he said, covered the cost price of the pistols. A new automatic pistol retails for about $1,200. 5. A pattern then developed: demand - removal of serial numbers - falsification of records - delivery to the derelict shop - collection of cash. On occasions the money left did not cover his costs. On occasions he would have trouble meeting the demand from his stock on hand and would have to order pistols from other dealers. On occasions, if he did not supply, he would receive a phone call at the shop and be told "you know what we can do." On occasions he only had second hand pistols available. Generally two pistols were demanded, although at times more would be asked for and be delivered by him. 6. He said he told no one what was happening; not his wife, employees, the licensing police who regularly inspected his store nor police officers he knew as friends or relatives. He said he had no confidence in the police, and while he knew in his heart that what he was doing was unlawful and that the pistols could be used to commit crimes, he felt pushed and compelled to continue. He said he wished he would be caught and at times deliberately left serial numbers on the pistols hoping this would occur. 7. He acknowledged that although his store was closed in 2015 because of unrelated licence breaches, he resumed his supply as soon as it reopened. He claimed his business suffered and he suffered because of the stress placed on himself and his fears for himself and his family. Duress 1. Duress is relevant to the assessment of objective gravity if an offence is committed because of threats of fear and harm to one's self or others rather than financial profit or greed: Giang v R [2017] NSWCCA 25 at [33]; R v Z (2005) 2 AC 467 at [22]. 2. Duress implies forceful restraint and or compulsion. Duress that does not excuse the offending or exculpate the offender is still capable of being a mitigating factor at sentence: s21A(3)(d) Crimes (Sentencing Procedure) Act 1999. Such non‑exculpatory duress may affect the degree of the offender's subjective or moral culpability and prospects of rehabilitation: Tiknius v R [2011] NSWCCA 215; (2011) 221 A Crim R 365 at [41]. The weight given to it depends on the form and duration of the offender's criminal conduct, the nature of the threats made, and the opportunities available to the offender to report the matters to the relevant authorities: Tiknius at [49]. In Tiknius, Johnson J said at [51]: "Courts should be astute not to permit general deterrence to be diluted by the claim of some threats or intimidation. Of course, every case must be examined on its own particular facts and the evidence led." Citing Lindsay v R [2012] NSWCCA 124 1. Economic duress and continued association with career criminals does not of itself mitigate an offender's criminality: R v Ceissman [2004] NSWCCA 466 at [24]. Resolution of factual matters 1. Simpson's reasons for his offending and his assertions this supply was not a profit making enterprise are not accepted by the Crown. Notwithstanding that the Evidence Act 1995 does not apply to sentencing proceedings, no assertion may be acted unless it is agreed or established. I am obliged to make my own assessment of the evidence as part of my overall synthesis of relevant factors. As the High Court made clear in Olbrich v The Queen (1999) 199 CLR 270. Matters in mitigation must be established on the balance of probabilities; matters in aggravation of penalty must be established beyond reasonable doubt. Sometimes a sentencing Court must sentence according to what is known or agreed. The High Court made the point specifically that a judge who is not satisfied of some matter urged in plea on behalf of the offender, does not have to sentence the offender on the basis of that contention unless the prosecution prove the contrary beyond reasonable doubt: Olbrich at [24]. 2. I do not jump to conclusions based solely on how a witness gives evidence or their appearance. This case makes that point. Simpson gave evidence from gaol via video link. Assessment of credibility based on mainly on demeanour in such circumstances would not be appropriate or just. Further, he was being asked to recall snap shots from offending over a seven year period. He had trouble at times explaining why he did what he did and the why he made decisions when other options should have occurred to him. There are so many variables that the manner in which he gave evidence should not be an important factor in any assessment of his veracity. Rather, I assess his evidence "as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events": Fox v Percy (2003) 214 CLR 118. 3. An offender must satisfy the court that the commission of the offence was affected by duress. A court is entitled to approach such claims with a significant degree of circumspection as such claims may be easily made: Tiknius at [45]. 4. Simpson's rationale for his initial offending was hard to accept. It was harder to accept his rationale for his continued offending. He could not explain, even I suspect to himself, why he surrendered completely in the face of the crude threat in the video. And, why he failed to act responsibly by taking the threat directly to the police. 5. Simpson also told his Corrective Services officer how he hoped he would be arrested so that his offending would end: Sentence Assessment Report Exhibit B. He told me he deliberately left some of the serial numbers on some pistols with that end in mind: an example being Exhibit 3. There is an incongruity here. While I accept logical thinking is not always present in such situations, Simpson was in regular contact with Licencing Police. He had many opportunities to arrange to "get caught" or seek police assistance, instead even on his own version, he allowed his crimes to continue and escalate knowing the consequences to the community and to himself if caught. 6. The Crown accept that they have no direct evidence to refute Simpson's claims: given the time that has elapsed and Simpson's successful efforts to disguise his offending that is not surprising. 7. There seems no other explanation why an otherwise law abiding professional would do what was done. Accordingly, I am prepared to accept on balance there was an implied threat and that initially Simpson acted out of fear for himself and family but this excuse fails to fully explain his continued offending or his failure to confide in others in an attempt to stop what was occurring. 8. It is clear Simpson put his personal fears ahead of his obligations to the community as a firearms dealer. Duress principles recognise some of us are weaker, more susceptible and more gullible than others. But the criminal law also places some responsibility on all citizens, particularly those who engage in trades that carry with them dangers to the community if the trust placed in them is abused 9. Simpson was aware of the consequences to the community of his crimes. He could have ended his offending. If he had really wanted to get caught he could have arranged it. Instead he made considerable efforts not to get caught. He failed to take any opportunity to disengage from this trade. His subsequent efforts to avoid detection were themselves crimes and showed some sophistication, even though he exploited rules based on trust. 10. His evidence did not and could not dispel a conclusion that whatever his initial motivation he continued an illicit business arrangement with his criminal contacts. In the absence of any evidence to support a conclusion that he was exploited financially or suffered a business loss as a result of this activity I can only conclude he did so both out of fear and knowing he would receive some cash in recompense. 11. Reviewing the established evidence what I am left with is; that in response to a barely articulated threat Simpson beached his obligations as a firearms dealer in a through, systematic and seriously criminal way. While I am prepared to accept that some sort of threat was made, his response by suppling even one pistol was disproportionate to that threat. 12. Simpson knows firearms. He well knew the legal consequences and the risk the pistols posed to the community. He was aware that if supplied others could be harmed as a result. He confided in no one. He took active steps to conceal his involvement. He took no steps to stop what he was doing. He continued to supply despite there being no more threats other than the occasional implied threat in phone calls when he did not comply directly with requests. Even after his business closed for a period on reopening he recommenced supplying pistols. 13. While it is possible that some of the firearms, where he had not successfully removed all trace of registration numbers stamped on them, may have been seized by police and not referred back to those supplied by him, I can be satisfied beyond reasonable doubt, given the police are aware of type and make of each pistol, that a significant number of the pistols supplied are still in our community. Objective seriousness 1. Although similar, each supply pistol offence requires individual consideration. Relevant matters include: 1. The offending commenced after threats to, and fear of harm felt by, the offender and implied threats to his family. 2. The impact of that duress was on occasions reinforced by further threats. But the absence of any effort to enforce those threats over time and the offender's failure to take opportunities to end those activities means that the impact of duress on objective seriousness diminished over time. This is similar to my consideration of subjective matters to which reference will be made later 3. It cannot be established beyond reasonable doubt that the offending commenced because of financial profit or greed: Giang at [33]; R v Z at [22]. 4. The offender continued to illicitly supply pistols for cash under the guise of a legitimate firearms supply business. 5. No records reveal the extent of any profit, gain or loss, but he was recompensed. 6. The number of firearms supplied. 7. That the firearms were pistols which are inherently dangerous as they are easily concealed and have as their only purpose if used illicitly to cause fear and or harm to others. 8. Simpson could have been in no doubt that they were being purchased for an unlawful purpose. 9. And, while he was not actually aware of what happened to them, there is evidence showing a relationship between the firearms supplied and other crimes. 10. This was an organised criminal activity. 11. The offender sold the firearms knowing that it is illegal to do so and concealed those illegal sales in breach of his professional and legal obligations as a firearms dealer, noting that this is also a separate offence. 12. That the offender's concerns were for his own and his family's safety, not what would be done with the pistols. 13. The offences were committed without regard for public safety. 1. Those factors apply to each of the 54B(1) offences. Differentiation between each of them because of the number of pistols involved and the reducing impact of duress to which I have already referred. 2. In addition, when considering the totality of the offending I must consider: 1. That there was persistence, that is, the seven year period of time over which the offending occurred. 2. The planning that was involved, noting that this required alteration of records, although this is a separate offence and double punishment must be avoided. 3. The extent of the deception required to allow the offending to continue undetected; noting again that this is a separate offence and elements and factors in common cannot be doubly punished: Pearce v The Queen (1988) 194 CLR 610 at [40]. 4. The scale and extent of the crimes: 279 weapons were placed into national circulation with only 10 of them being recorded as being recovered. The Crown submits this means over 260 remain in circulation. The defence submit that some may have been recovered by not traced back to Simpson because the serial numbers were removed. This appears at odds with the submissions some numbers were left on in the hope he would be discovered and forced to stop his activity. 5. While s 21A(2) Crimes (Sentencing Procedure) Act must be considered in any sentencing exercise, great care must be taken as a number of what would otherwise be aggravating factors are inherent to what was done and my assessment of objective seriousness of each offence and the totality of the offending and should not be double counted. 1. If firearms are unlawfully obtained; their possession cannot be regulated, their safekeeping cannot be regulated. They are liable to be used and, if used, are liable to be a source of great danger or damage. Their supply in such circumstance creates a high risk to the safety of the public. Simpson was enlisted into an organised criminal supply operation. The purposes of sentencing so far as Firearms Act matters have been summarised and repeated in many cases. Superior courts have highlighted time and time again that it is necessary to repeat, and keep repeating, how serious the community views such matters and to reinforce what is said by the imposition of custodial sentences. Substantial weight needs to be given to both general and personal deterrence, even in cases involving duress. 2. The false record/deception offence was extensive and took advantage of the offender's presumed good character and his knowledge of the weaknesses and apparent absences of checks and balances in the Firearms registration system. The offending accordingly while it required inside knowledge involved no great complexity. But the volume and detail of deception and the falsification of details, including creation of fictitious identities and the use of the names of others is relevant. The deception was integral to the other offences as it enabled the supply offences to continue for many years. Maximum penalty and standard non-parole period 1. Section 51B(1) Firearms Act carries a maximum penalty of 20 years imprisonment and a standard non-parole period of ten years imprisonment. Section 72(1) Firearms Act carries a maximum penalty of 14 years imprisonment. 2. Careful attention to the maximum penalties and standard non‑parole periods when they apply is required. Both provide sentencing measures to be balanced with all other factors. They also invite a comparison between this case and other cases. That said, it is not appropriate here to look first to the maximum penalty or where it applies the standard non‑parole period, and then proceed by way of making proportional deductions from it; Markarian v The Queen (2005) 228 CLR 357 at [30] and [31]. 3. The standard non-parole period represents the non-parole period for an offence taking into account only the objective factors affecting the relative seriousness of that offence which is in the middle of the range of seriousness. A process of comparing and contrasting the actual offence with the abstract one is not necessary, nor is it necessary to identify features of the offence which were or were not taken into account when considering the role of the standard non‑parole period: s 54B(6); Tepania v R [2018] NSWCCA 247 at [103] to [120]. 4. I am however required to give content to the standard non‑parole period. However, as the High Court in Muldrock v The Queen (2011) 244 CLR 120, made clear neither can I engage in a staged approach to sentencing. Accordingly, any finding about objective seriousness does not compel any one result. There are reasons here in the pleas, the findings of duress and the subjective case for the offender and the need to structure multiple sentences departure and significant departure from those standard non-parole periods. Form 1 1. There are 16 matters to be dealt with on the Form 1. Eleven involve failing to keep labels or records. The maximum penalty for those offences is a fine of 50 penalty units. Four offences on the Form 1 involve not keeping a firearm safely, an offence that carries a maximum penalty of 12 months imprisonment or a fine, and one of possessing an unregistered pistol, which carries a maximum penalty of five years imprisonment. 2. I take these matters into account when determining the appropriate penalty for the offence which they relate, that is the seventh s 51B count: Attorney General's Application No. 1 (2002) 56 NSWLR 146 and Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, Bathurst CJ at [22]. The Court does not "in any sense" impose sentences for those offences: Attorney General's Application No. 1 at [68]. 3. The eleven record deception offences, given the other sentences to be imposed, are of little consequence, but the other five matters are themselves serious. Those five matters do operate to increase the sentence that would otherwise be appropriate. The Court does so as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian v The Queen (2005) 228 CLR 357 at [51] – [54]. Such an increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General's Application No. 1 at [39] - [42]. Subjective case 1. Simpson gave evidence on 18 June 2020. Now 47, Simpson was until he commenced this unlawful activity a person of good character. A small businessman, respected in our community and trusted and licensed to deal in firearms. He has a supportive wife who provided two affidavits to the Court and she was not challenged in relation to them. They have been married for 19 years. They have three children. They built their home together. It was, and remains, heavily mortgaged. The loss of the husband and breadwinner has placed the family finances under considerable strain. Their home could be lost, although they own another rural property. 2. Simpson's family life and schooling were unremarkable, except that he suffers from a disability resulting from arrested growth on his right side (mild right hemiparesis) and says he was abused by an older boy at school. He also claims to have been bullied, which is unfortunate but not surprising given his disability. 3. Simpson has worked all his adult life, as a chef, in hospitality and as a firearms dealer and he has also run until his arrest a rural services business. In gaol he works as the head buy up clerk, a position of some responsibility, for which he is valued: Exhibit B at p 3. In custody he is subject to an association alert and has one discipline matter of no consequence: Exhibit C. 4. He reports a history of heavy alcohol abuse and had sought psychological treatment for anxiety and stress. He was prescribed antidepressants. He reports considering suicide in the period prior to his arrest. 5. The Sentence Assessment Report sets out, in summary form, Simpson's personal and work history and his claim he did what he did out of duress: Exhibit B. He told the Corrective Services officer he knew what he did was wrong and that he lived in fear one of his weapons would be used in crime. He told her how he hoped he would be arrested so that his offending would end. He is assessed as having a low risk of reoffending. 6. Dr Jones, a psychologist, provided the history summarised above: Exhibit 1, tab 1. He set out the offender's developmental history and complaints of anxiety and depression. He noted however that Simpson's offending was not as a result of any mental condition. He concluded after review and testing that Simpson had an Alcohol Use Disorder, severe but in remission. He proposed a treatment plan involving Cognitive Behaviour Therapy (CBT), alcohol relapse prevention, counselling and monitoring, each if implemented would reduce any risk of reoffending. 7. The focus of Mr Jones' report was on subjective matters, with the exception of the history of the duress event. That event however was the subject of sworn evidence by the offender. The background material relied upon by Mr Jones was also in accord with other material before me. Mr Jones' professional opinion based on an uncontroversial history supported by other material. It can be accepted: Devaney v R [2012] NSWCCA 285 at [88]. His opinions are relevant to the offender's mental state, prospects and future risk. The material also allows for some understanding of the man for sentence. 8. Simpson's wife provided two detailed affidavits dated 4 June 2020 and 1 July 2020. She was not required for cross-examination. She wrote of the emotional and financial strain placed on her family by his imprisonment and arrest. She set out her fears of his associates but said there had never been a specific threat, only a mention by police of the possible danger. She said they did not lead a lavish lifestyle. She did not mention the rural property but there is no evidence that it was purchased with illicitly obtained funds. She said the firearms business was never that successful. She said they had trouble making ends meet. Her continued support of the offender was promised. 9. On 10 July 2020 I received her second and supplementary affidavit annexing financial records: Exhibit 2. These business records show Simpson Sports was not too profitable. Texts also show that Simpson was seeing someone for anxiety and stress and that its source appeared to be the shop. But while the source was the shop, the financial evidence tells me nothing about whether it was simply a bad business or if the business was suffering from the pressure on the owner of being compelled to sell these pistols illegally. At no stage did the offender confide in his wife or those who prepared his accounts (Exhibit 2). 10. Relevant factors arising from the offender's case include: 1. Rehabilitation is demonstrated, with some progress since he went into custody. 2. Remorse has been shown by the early plea of guilty and cooperation with the court process. Simpson said nothing about remorse when he gave evidence, but he did tell Mr Jones he was "horrified" by the thought that people might be hurt by the pistols he supplied. But the nature of this crime points to one critical matter that is missing, reparation. Simpson is not to be punished for doing nothing to help recover the pistols, but nor does he gain anything by saying in effect "Oh, I was worried about the consequences for others", and then doing nothing for six years. The offences were concealed by him and he profited to some extent from the sales. He did not stop or make more than a perfunctory effort to engineer his own arrest. His crimes only stopped with his arrest. I accept that he did express remorse; on arrest, to the Community Corrections officer and to Mr Jones and I am prepared to accept that being otherwise law abiding that is still his position. 1. His moral culpability was not reduced because he hoped he would be caught as he did not stop offending. He did nothing at all to prevent or moderate the harm, even on his own second hand account except to claim, again without any corroboration, that he was not too careful when excising serial numbers, and again without corroboration, that this was a deliberate act. It may be the case but I cannot make a finding one way or the other on the material provided to me. I do note that only ten of the pistols have been identified as being recovered. Either they are still in circulation or they have been found and, because the serial numbers cannot be matched, not linked back to him. 2. His mental condition is relevant and must be taken into account. He has and had a longstanding alcohol abuse disorder and a sad history of abuse and bullying as a child, which he had to cope with, as he had to cope with his physical disability. 3. Duress. The non-exculpatory duress here does operate and affect the degree of the offender's subjective or moral culpability. It also stands as a matter that can be taken into account as he is no longer operating a business as to his prospects of rehabilitation: Tiknius at [41]. But as I said earlier, the operating effect of duress diminished over the time period the offender committed these crimes. The longer he did nothing to stop his offending behaviour the less it operates even making allowances for the later threat "you know what we can do". 4. Family hardship – see below. Family hardship 1. Hardship to family and dependents is an unavoidable consequence of a custodial sentence and is not a mitigating consideration unless such hardship is "wholly", "highly" or "truly" exceptional: R v Edwards (1996) 90 A Crim R 510, Gleeson CJ at [515]; Hoskins v R [2016] NSWCCA 154 at [63]. But as every sentence requires individual consideration the nature and degree of the impact of the sentence upon others must be considered. So too must the seriousness of the crimes committed. The general principle is said to be of particular importance where there is a need for personal and general deterrence. The time may soon come when Edwards is formally overturned but until then it binds me but this is not the sort of case that might lead to a challenge to the Edwards' principle. The sort of case I had in mind was discussed in argument, such as one where the gaoling of a mother who may see her children taken into care: see my judgment R v Lawrence [2019] NSWDC 816 at [28] – [35]. 2. That said, while consistency is one mark of a fair sentencing process, and compliance with authority is one measure of consistency, no other case or judgment can prescribe or determine how an individual judge's sentencing discretion should be expressed. I am required to synthesise and take into account all relevant matters. It is not submitted here by Mr Terracini SC, who appears with Mr Grippi for the offender, that hardship to family is so exceptional that the proper sentence can be moderated because of it. Nor does Ms Steedman for the Crown submit that the impact on the offender's family should be ignored. Rather, as I understand the supplementary submissions provided on 10 July 2020, MFI 3, any impact from a long custodial sentence upon the family must be synthesised along with all other factors when I formulate the individual indicated sentences and the aggregate sentence and determine in particular the minimum period that must be spent in custody. 3. I am aware Simpson's wife and children will be without a breadwinner and father, and that the family home is at risk. Further, he is not there to protect and provide for them. He said he committed these offences because he feared he could not protect them or that the police could not protect them. Accepting that that fear exists, he will be unable to offer any protection while in gaol. He says that he does not want to expose his children to gaol and has thus before the COVID-19 emergency refused visits. He may have to change that attitude if contact is to be maintained. Although since COVID-19 Corrective Services have made innovations which allow for video visits. 4. I accept that this sentence will impact on his family and it will have an impact on him, and that they will all feel a loss every day he spends in gaol. It was submitted that I could also add as a mitigating circumstance that must be synthesised the nexus between family hardship and duress. Mr Terracini expanded on that submission in oral submission on Friday, noting Mr Jones had said that Simpson's continuing anxiety and worry leading to depression may have had its genesis in the stressors resulting from him being forced to offend over such a long period. I have had regard to those submissions. 5. Although Simpson said that he committed these crimes out of fear for himself and his family, and a police officer told Mrs Simpson she might be in danger, there is nothing before me to indicate, let alone establish on balance, that any threat has been made in recent times or that they are in fact in danger. 6. Further, the offender's evidence that the firearms business was damaged and effectively ruined by the illicit supply of the pistols cannot be accepted. Nothing in the financial or other records indicates this. His evidence about cash payments and the amount received was unconvincing. He told me nothing of substance about what he did with or how he accounted for whatever cash he received. He must, as a firearms dealer, have been aware of the potential profit someone was making from these transactions. His assertions that he made no money from the sales and did not make any return cannot be established beyond reasonable doubt. I do not have to sentence the offender on the basis of his contention unless the Crown prove the contrary: Olbrich at [24]. All I am left with is that as inevitable with many matters that must be taken into account the proper characterisation may lie somewhere along the line between two extremes: Wieninger v The Queen [2003] HCA 14; (2003) 212 CLR 629 at [20]. 7. While I do take into account the evidence of family hardship here, no particular diminution in sentence should be accorded for the consequence of imprisonment, which will, in a general sense, be common to all offenders subject to custodial sentence. It is not generally appropriate that those who are wealthier should receive lesser sentences because they have more to lose: Cargnello v Director of Public Prosecutions (Commonwealth) [2012] NSWCCA 162 at [60]. Submissions 1. Mr Terracini, with Mr Grippi and Ms Steedman, Crown Prosecutor, have provided helpful oral and written submissions. I have considered and addressed them in coming to my determinations as to the appropriate individual sentences to be indicated and the aggregate sentence. I hope this judgment does justice to them. 2. Ms Steedman draws my attention to authorities that make clear the need for severe penalties designed to have a deterrent effect on others who might be minded to offend against Firearms Act, particularly licensed dealers. She submits each 51B(1) offence is at the upper range of seriousness. She urges scepticism before accepting any evidence that Simpson gave. 3. Mr Terracini, for the offender, asks I factor into both my assessment of objective circumstances and generally the constant fear that led Simpson to offend and which Dr Jones opines has impacted negatively on his mental health and the other evidence that says that it impacted potentially his finances and his relationship with his wife and family since he was first compelled to offend in 2012. All other factors, he submits, require findings that justify only the minimum period the law requires he spend in custody as Simpson will not reoffend on release. He will suffer each day he is kept from his family. Other cases 1. I have had regard to such statistics as are available and to other cases to which I have been referred. Some were summarised in written submissions. The consistent application of principle must always be considered. The guidance offered by appellate courts and other decisions is always welcome. Other sentences can provide yardsticks or ranges, but there is insufficient number of cases for anything other than the need for deterrent sentences to be imposed. There are insufficient cases to form a measure as to how I should view each of the individual offences here, let alone their totality. That is not unusual. Each case and every offender is individual "...sentencing is a discretionary judgment and that the mix of factors that must be weighed in determining the appropriate sentence will be never precisely the same as in a past case or cases." The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550, per Bell and Gaegler JJ at [47]; Hili v The Queen (2010) 242 CLR 250; Barbaro v The Queen (2014) 253 CLR 58 at [74]. 2. Every authority I have considered stress the need for deterrent penalties. While the theory of deterrence is questionable it remains a purpose of sentencing that as a matter of settled law must be given considerable weight in this case. Questioning of the value of deterrence usually relate to offences which are not premeditated or planned. Whatever may have occurred in 2012 to 2013 that is not this case. I am confident he will not reoffend. But the principle of general deterrence must be understood by all those, and particularly firearms dealers, who may be threatened as this offender says he was, and they must learn the consequence of succumbing to those threats and not taking appropriate action to stop their reoffending or bring to the notice of the relevant authorities the threats that are being made to them. A proper sentence marks the Court's view of the seriousness of the crime and should let other potential wrongdoers the retribution that will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203 at 205. Structure 1. Each count involved discrete acts of criminality. However each count had some common features. The purposes of sentencing apply to each count for sentence and those purposes overlap. The supply offences should be partly cumulative to reflect the continuing criminality of this offending. One sentence could not fully comprehend the others. Importantly, the aggregation of all the sentences must ultimately be just and appropriate measure of the total criminality: Postiglone v The Queen (1997) 189 CLR 295 per McHugh J at 307‑308; Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41. 2. The individual sentences must be partially accumulated to reflect the total harm inherent in the number of pistols supplied and the lengthy period over which all the offending took place. While there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively, the matters relating to the falsification of records which allowed Simpson to successfully avoid detection and allowed the offending to continue have been taken into account when I assess the degree of planning and degree of sophistication of the sentences for the 51B Firearms Act matters (Counts 1- 7). Accordingly, the s 72(1) Firearms Act offence (Count 8) should be made concurrent with the others. 3. Simpson has no other criminal history. Despite the seriousness of his crimes his prospects for rehabilitation are good. The severity of the combined sentences should not operate to destroy his prospects of rehabilitation and reform. It is recognised that the severity of a sentence increases at a greater rate than the increase in the length of the sentence. That is, a sentence of two years is more severe than a sentence of one year proportionally: R v MAK, R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159. It is recognised that also the public confidence in the administration of justice requires the Court avoiding any suggestion that there is some sort of discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]. 4. If at all possible courts should avoid a "crushing" sentence, but some cases involving multiple offences which carry maximum penalties of 20 years and the need for content needs to be given to a ten year standard non‑parole period mean that even with older first offenders that objective is subsidiary to the need for just and proportionate punishment. Special circumstances 1. The evidence relating to the offender's prior good character, prospects for rehabilitation, help adjusting to normal community life on release, evidence in relation to the his problems related to alcohol abuse, although in remission, may require some assistance in the community. I will make a finding of special circumstances and a substantial one. In so finding I am mindful of the requirement the minimum period for which the offender should be imprisoned must also properly reflect the gravity of his offences for the purposes of sentencing: R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 at [59]. 2. It is unlikely that extended supervision and monitoring will be required once the offender has adjusted to normal community life on release. 3. An aggregate sentence will be imposed. As guilty pleas were entered in the Local Court Simpson is entitled to and will receive a 25% reduction on each indicated sentence to reflect the utilitarian value of his guilty pleas: s 25D(2)(a) Crimes (Sentencing Procedure) Act. I have taken care to ensure that the process of accumulation does not erode that benefit. COVID-19 1. The present crisis will increase the apprehension by prisoners about infections in gaols as it does in the community general. Social visits have been suspended for an indefinite period and I have received evidence as early as today that access to visits, even video or telephone call visits and lockdowns are more and more prevalent. These concerns and considerations apply to every prisoner sentenced and for sentence. I have had reference to, as I must regularly, the current memos put out by Corrective Services New South Wales. If COVID‑19 enters gaols early parole may be given to some. The offender falls into a category that might be considered for early parole. 2. I cannot predict what will happen to this offender, but the lack of visits reducing any capacity to remain in contact with pro‑social friends and family and heightened anxiety are relevant factors that must be synthesised. Here no particular health concerns were raised. Synthesis 1. Simpson was trusted to trade in firearms. That trust was required because the potential harm from unregulated firearms use in our community is well recognised. He breached that trust. He breached that trust over a long period and in doing so by virtue of the number of pistols supplied put our community at considerable risk. As he accepts and knew the potential consequences could have been horrific. While he is not to be sentenced for the known crimes committed with his firearms, that fear was in fact realised. 2. While there are some within the community who refuse to accept that firearms offences are serious, the penalties fixed by Parliament indicate the contrary. In cases such as this the sentencing objective of general deterrence and appropriate punishment are significant. The community has determined that trade in pistols on anything other than a strictly regulated basis is to be regarded as a serious offence. Simpson's offences undermined repeatedly that trade. The availability of the pistols supplied posed, and may still pose, a major threat to the community. I have taken into account as I must mitigating circumstances, but they can go only so far. The objective facts I have found my must be reflected in the sentence impose: R v Howard [2004] NSWCCA 348; Dionys v R [2011] NSWCCA 272; MP v R [2009] NSWCCA; Ibrahim v R [2019] NSWCCA 188. Orders 1. In relation to each of the matters you are convicted. I take into account your early pleas of guilty and my finding of special circumstances. I have to indicate sentences: 1. In relation to Count 1 (Seq 149) as it carries a standard non‑parole period I indicate a sentence of 5 years 7 months with a non‑parole period of 3 years 8 months. 2. In relation to Count 2 (Seq 150) as it carries a standard non parole period I indicate a sentence of 6 years 9 months with a non parole period of 4 years 4 months. 3. In relation to Count 3 (Seq 151) as it carries a standard non parole period I indicate a sentence of 6 years with a non parole period of 3 years 10 months. 4. In relation to Count 4 (Seq 152) as it carries a standard non parole period I indicate a sentence of 7 years 6 months with a non parole period of 4 years 10 months. 5. In relation to Count 5 (Seq 153) as it carries a standard non parole period I indicate a sentence of 7 years 6 months with a non parole period of 4 years 10 months. 6. In relation to Count 6 (Seq 154) as it carries a standard non parole period I indicate a sentence of 6 years 9 months with a non parole period of 4 years 4 months. 7. In relation to Count 7 (Seq 155), taking into account the matters on the Form 1, as it carries a standard non parole period I indicate a sentence of 7 years 6 months with a non parole period of 4 years 10 months. 8. In relation to Count 8 (Seq 156) I indicate a sentence of 3 years 9 months. 1. There will be an aggregate sentence which takes into account the matters to which I have already referred. The term of the sentence is 13 years imprisonment. There will be a non-parole period of eight years and six months which will commence the date you went into custody, 10 April 2019. You will be eligible for consideration for parole on 9 October 2027. The balance of the term of four years and six months will commence on 9 October 2027 and expire on 9 April 2032. 2. You will be eligible for consideration for release to parole at the expiration of the non-parole period on 9 October 2027. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 September 2020