R v Tomkins, John [2009] NSWDC 95

New South Wales District Court

CITATION: R v Tomkins, John [2009] NSWDC 95

HEARING DATE(S): 09/03/2009 and 10/03/2009

JUDGMENT DATE: 16 March 2009

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Discharged pursuant to s.10 Crimes (Sentencing Procedure) Act 1999 conditional upon entering into bonds to be of good behaviour.

CATCHWORDS: Criminal Law - Sentencing - Firearm offences- possessing four unregistetred firearms including prohibited firearm - regional NSW - one firearm unlawfully taken as consequence of insecure storaage - unsafe storage of ammunition - explanation for sawn-off barrell - objectives of firearm legislation - assessing objective criminality against purpose of Act - very strong subjective case

Firearms Act 1996 LEGISLATION CITED: Crimes (Sentencing Procedure) Act Criminal Procedure Act

R v Rushby (1977) NSWLR 597 R v Hayes [1984] 1 NSWLR 740 R v Cuthbert (1967) 2 NSWR 329 Regina v Cromarty (2004) 144 A Crim R 515 referred to CASES CITED: Regina v Brown (2006) NSWCCA 249 referred to R v Paris [2001] NSWCCA 83 R v Piccin (No. 2) [2001] NSWCCA 323 Walden v Hensler (1987) 163 CLR 561 referred to. Attorney General's application under section 37 of the Crimes (Sentencing Procedure) Act (2004) 61 NSWLR 305.

PARTIES: Regina John Henry Tomkins

FILE NUMBER(S): 2009/00002822

COUNSEL: Defence: C Taylor

SOLICITORS: Crown: Ms K Healey

JUDGMENT 1. John Henry Tomkins has reached the sunset years of his life without a blemish on his record. He leaves in his wake community achievement after community achievement. For more than 55 years he has been a farmer and grazier on the lands his family tended since his ANZAC father was injured and returned to Pokataroo in 1916. 2. John Tomkins took over the property in 1952. Since 1960 he has been a Justice of the Peace. He fought his first rural fire in 1947 and thereafter was actively involved in the Rural Fire Service as a president and vice captain. In all, 61 years of service. 3. He has been president and held various other positions in the Collarenebri Tennis Club during the past 50 years. He was heavily involved in the Collarenebri Air Service, and instrumental in that community building an air landing strip to open Collarenebri to air traffic. He was a foundation member of the Scouts, and built a hall for the Red Cross. As he approaches his four score years all the honours, achievements and fulfilments to be savoured by one who has lived his life so well must taste like ashes in his mouth as he stands today accountable for possessing four unregistered firearms, including a prohibited firearm, on the thirtieth of August 2008 at his home at Pokataroo. 4. As sentencing judge it falls to me to resolve a number of competing contentions as I strive to determine the appropriate sentence outcome for the offence before the court committed by this offender in his community. 5. My initial task requires an assessment of the objective criminality of the offence before the court. I will also need to have regard to matters personal to him, that is, subjective matters. The starting point for such assessments requires a sentencing judge to make findings of fact from evidence before the court relating to the offence and offender. The offender's rehabilitation prospects will have to be assessed before any sentence can be made. There are likely to be technical questions relating to deterrence, discounts, whether special circumstances are to be found, back up charges brought from the Local Court to be finalised in this court, whether this offence attracts a standard non-parole period, and finally, of course, the ultimate sentencing disposition. None of these can be commenced until the primary facts are determined. What weight needs to be given to all of these matters against the imperative that all sentencing should have as the primary focus the protection of the community will also need to be determined. (R v Rushby (1977) NSWLR 597, R v Hayes [1984] 1 NSWLR 740, R v Cuthbert (1967) 2 NSWR 329). 6. I mentioned the back up charge from the Local Court. There is a s.166 certificate with reference to a charge that the accused did not take all reasonable precautions to ensure that a firearm was safely kept, the accused being the person who possessed the said firearm, between 4.30pm and 5.30pm on 30 August 2008 at Collarenebri. That is an additional charge. Facts 7. On 16 August 2008 police were searching a motor vehicle in Collarenebri. In that motor vehicle a firearm and ammunition were located. The driver, one Elijah Treloar, was charged in relation to possessing the firearm without a permit. When asked who owned the firearm Treloar nominated he had purchased the rifle from someone other than Tomkins. That was untrue. Police inquiries quickly established the firearm was registered to Tomkins. Indeed, as ultimately turned out, it was still owned by him. Two weeks after the arrest of Elijah Treloar police attended upon Mr Tomkins at his home Pokataroo. Pokataroo is some ten kilometres from the Collarenebri Township. Mr Tomkins told police that although Elijah Treloar was caught with the rifle he did not know how he came by it. 8. The rifle was taken from his house. He did not sell it to Treloar. Mr Tomkins was having some renovations done to his home in July and August of 2008. That work had been given to Barry Treloar, Elijah's father. My sense from the evidence is that Tomkins held Barry Treloar in some respect and with some regard. Barry Treloar was seriously unwell. Consequently Mr Tomkins did not bring to Barry Treloar's attention criminal indiscretions he, Mr Tomkins, attributed to Elijah Treloar about this time, who also had access during this time to his house. 9. As can often happen with the elderly, their memory becomes less certain with the passage of time. Mr Tomkins gave evidence and he appeared to me to answer all questions, favourably and unfavourably, with attention to honesty. 10. However, he appears now less certain as to whether he may, in fact, have lent Elijah Treloar the rifle. Given the account Elijah Treloar gave of the possession of rifle and Tomkins' first explanation to police, it is likely that the rifle was taken from a locked safe without Tomkins' knowledge. 11. During the renovations the keys to the gun safe had been moved from their regular secure spot onto his desk in the study. They were normally hanging behind a door in another part of the house. It is unclear to me whether this is the s. 166 summary matter of not keep firearm safe, or being kept in a locked safe where ammunition was also being kept. It appears the gun safe was in the same room as the desk. 12. In the gun safe there were seven firearms, all long arms, four of which were not registered, namely a bolt action rifle, a 410 Stirling shotgun, a 12 gauge shotgun, a Stirling .22 semi automatic with a sawn off barrel. 13. Mr Tomkins readily surrendered all firearms, including the unregistered ones. His licence was suspended. His ammunition was seized. It was located on the top self of the gun safe, which I am now told is the s. 166 matter. The ammunition should not have been stored there. 14. Mr Tomkins was arrested, taken to Collarenebri police station where he was interviewed. He told police he had collected the unregistered firearms over the years. The working firearms were only used for the destruction of vermin and for humane killing of animals when the need arose. He told police the barrel had been sawn off the .22 Stirling semi automatic in 1989-1990, (he said in evidence), to make is safer to carry over the property in the four-wheel drive. He was not challenged by either police or prosecution on this account. 15. The prosecution case is the .22 Stirling semi automatic with the sawn off barrel constitutes the prohibited firearm for the purposes of the charge. 288 millimetres, (11 inches), of the barrel had been removed. That weapon was found to be in working order. 16. Mr Tomkins thought that the bolt action rifle was his father's and had always been on the property. The Stirling 410 shotgun as used to frighten birds from the sorghum paddocks; last used by him in the 1990 wet season, which he thought was the early 1990s. That 410 shotgun was described by him as a "snake gun" that his late wife used. She died two years ago. As I understand his evidence, he has not used it personally since the 1990s. 17. Mr Tomkins described himself as, "not a shooter." He used firearms only when necessary for pest control and compassion in disposal of stock. He spoke of how gruelling and soul destroying it had been for him to slaughter a large number of Merino sheep in the wool/sheep crisis of the early 1990s. I understand he used the .22 Stirling automatic for that purpose. If my understanding is correct, the barrel had been sawn off it by that time. 18. He was unaware of the requirement that ammunition be kept separate from the weapons. He secured both separately, but in the same gun safe; ammunition on the top self, the weapons below. He accepted that possession of unregistered firearms constituted a serious offence. 19. He was aware there had been a number of amnesties for the purpose of permitting firearm owners to surrender weapons without penalty. He had taken advantage of one such amnesty to surrender a pistol. 20. He was aware, during his possession of these unregistered weapons, that it was unlawful for him to keep them while they were unregistered. In that sense his offending was a deliberate choice made by him at the time he selected which weapons would be registered and which would be not. Objective Criminality 21. From the facts as he finds them to be, a sentencing judge is required to assess the objective criminality of the offence as an essential step in a assessing the criminal behaviour of the offender. That is done by comparing objectively the criminality in the instant offence with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality offence can be evaluated. The objective criminality has an important impact upon the sentencing outcome. 22. In assessing the objective criminality of firearm offences, a useful starting point is to have regard to the principle objectives of the Firearms Act 1996 (The Act). They are to be found in s 3 of The Act as being: "To confirm firearm possession and use as being a privilege conditional upon the overriding issue of ensure public safety. Secondly to improve public safety by imposing strict control on possession and use of firearms".