District Court New South Wales Medium Neutral Citation: R v HAMILTON [2012] NSWDC 102 Hearing dates: 3 February 2012 Decision date: 03 February 2012 Before: Berman SC DCJ Decision: For each offence taking into account matters on a Form 1, sentenced to imprisonment consisting of a non-parole period of 2 years and a head sentence of 4 years Catchwords: CRIMINAL LAW - Sentence - Form1 - Possess prohibited firearm - Use prohibited firearm - Possess ammunition - Not keep safel Category: Sentence Parties: The Crown John Evan Hamilton Representation: Director of Public Prosecutions Legal Aid Commission - The offender File Number(s): 2011/14286 SENTENCE 1HIS HONOUR: The community is rightfully concerned about the possession and use of firearms. So concerned is Parliament that one of the offences that carries with it a standard non parole period is possessing a prohibited firearm and another is using a prohibited firearm. Not only are members of the community constantly learning of the dangers that the use and possession of firearms present but, Parliament has responded to those concerns by creating offences and providing maximum penalties and standard non parole period suggesting the seriousness with which the court should treat these offences. 2The offender, John Evan Hamilton, came into possession of a shortened single barrel 12 gauge shotgun. At the time he was renting a room from a Lin Young, who also resided in the house with her family. Another young man, Brannon Shirley, who was seventeen years of age, rented another room as well. The offender maintains that he obtained possession of this shortened shotgun so that it could be used on rural premises. There is no legitimate reason that a person would obtain a shortened shotgun to use on rural premises. The shortening of a shotgun provides no advantage unless the shotgun is to be concealed. If the offender was telling the truth and wanted to use a shotgun on rural premises, it would not have been a shortened one. So I reject completely his fanciful suggestion that he had a legitimate purpose in possessing the shotgun. 3We do not know when he came into the possession of it but he was certainly in possession of it on 14 January 2011. He went into the house where he was renting a room and was seen by the owner. He was carrying not only the shotgun but a plastic bag containing ammunition. Not surprisingly the owner of the house expressed some concern. She told him that she did not want a firearm in the house and he should get rid of it. Mr Hamilton agreed, but instead of doing what he had just been requested to do, he walked into the rear yard with the young man named David Young and fired the shotgun two or three times aiming at a tree. The owner, Lin Young, went into the backyard, she told him not to shoot anymore and to give her the gun. The offender refused, he said he would hide it and he put it in his room. He did not put it anywhere securely, he simply put it in a bag under his bed. 4That evening an event occurred which would later lead to an argument between other members of the household not involving the offender. The argument escalated. It had nothing to do with the offender but for reasons which are difficult to understand he not only got involved, he got involved whilst armed with the shotgun. 5Ms Young and her daughter Leanne had previously recovered the shotgun from underneath the offender's bed and hid it in the lounge room. After the argument that I spoke about began the offender approached Leanne and said aggressively "give it to me". She told him where it was and he went and retrieved it. He came back to the front yard where the argument was being carried on. Ms Young heard a click and saw the offender with the shotgun in his hands. She yelled out "he has a gun". The offender then briefly pointed the firearm directly at Mr Shirley. Not surprisingly Mr Shirley believed that the offender was going to shoot him. Mr Shirley's brother, who had arrived earlier, got a screwdriver and ran screaming at the offender saying "point the gun at me you fucking cunt, I'll get you, you gutless dog". The offender then pointed the firearm at Mr Robin who turned and ran back to the car. Mr Shirley started running away. People were pleading with the offender to put the gun away. He went inside the house and a gunshot was heard. Police were then called. When they went inside the house they discovered the shotgun concealed in a manhole in the roof of the house. There was also a bag containing eight unused cartridges and four used cartridges, two more spent cartridges were located in a bin in the offender's bedroom. 6It is apparent that the offender had discharged the shotgun whilst standing at the window in his bedroom. A spray pattern of pellets was located beneath the windowsill, the pellets appeared to have fallen into the wall cavity without penetrating the outer wall of the house. The police also discovered of course evidence that the shotgun had been fired at the tree in the backyard. The offender was given the opportunity of explaining to the police what really happened, and he told them a pack of lies, although by the time the matter came to Court he did plead guilty at the earliest opportunity available to him, thus entitling him to a sentence which is 25% less than it would otherwise have been. 7The offender is now twenty-nine years of age. He has spent a great deal of his adult life and some part of his life as a child in custody. He has priors on his criminal history including some for very serious offences indeed. In 2002 he was dealt with for an offence of assault with intent to rob whilst armed with an offensive weapon and wounding and received a sentence of imprisonment for six years with a non-parole period of three and a half years. There are offences of robbery committed by the offender as a child as well and so the circumstance that this man was armed with a shortened sawn-off firearm is very concerning indeed. 8The offender comes from a good and stable family. His mother, who clearly loves and supports him, gave evidence on his behalf in Court today. She explained that as her son was growing up, difficulties in his behaviour became apparent and although he commenced at the local high school, teachers there suggested that he might do better at special schools. He went to a school which had significantly lower class sizes, he received counselling and eventually commenced school at Boys Town. He did a number of years there and as Mrs Hamilton says, he did well with the guidance of people who were teaching him there. He has been diagnosed on occasions with ADHD and then later Oppositional Defiance Disorder. 9No doubt part of Mr Hamilton's problems arise from his use of drugs. He has told a psychologist who interviewed him for the purposes of sentence that he commenced using alcohol and cannabis at around twelve or thirteen and at times has used cannabis greatly to excess. Although he may have reduced his cannabis consumption, he has also at times abused other drugs. In particular at about the time he committed these offences he was apparently taking prescription medication, prescribed to him for depression, to excess. 10The circumstances in which these offences occurred were that the offender had been asked to leave home by his parents. His behaviour was causing a great deal of stress in the family and his father was suffering from a number of medical conditions which were only exacerbated by the offender's behaviour. 11He has previously had a relationship with a young woman and indeed they have a child but this relationship began to break up in 2010 causing Mr Hamilton a great deal of heartache which led to him being prescribed antidepressant tablets which were the ones that he was abusing at about the time of this offence. Of course as is usually the case there is a cascading series of events which commence when a person abuses drugs. One of those involved the offender in this case losing his job which only added to the problems that he was facing. 12The offender has expressed his remorse to the psychologist and also to his mother. Both his mother and the psychologist suggest that the offender is growing up and finally recognising that he is simply wasting his life in gaol. The time will come, it is perhaps hoped that it has already come, where Mr Hamilton will realise the futility of spending time in gaol when there are many enjoyable opportunities waiting for him outside as a free man. His mother and father want him to return home upon his release from custody and both he and the family understand the need for him to be appropriately counselled, in particular as regards his alcohol and drug use both within custody and upon his release from it. 13These were terribly serious offences. The offender because of his conduct is to be sentenced for an offence of possessing the prohibited firearm, and using it, and when I sentence him for using the firearm he asks me to take into account another offence of using a prohibited firearm the day earlier and possessing ammunition for it and not keeping it safely. 14It is as well to record that the seriousness of the offender's conduct can be demonstrated by the various levels of misconduct in relation to firearms. The offender not only possessed this dangerous weapon, he had ammunition for it and indeed he loaded the firearm with that ammunition and pulled the trigger on a number of occasions, and on top of all that he actually pointed it at someone. The risk of injury is obvious, the risk that the firearm would be used on other occasions is obvious and it is fortunate indeed that no one was physically harmed by the offender's conduct, but for serious offending such as this, serious sentences are required. 15I have taken into account, as I think I have explained, both the standard non-parole period and the maximum penalty for these two offences for which the offender must be specifically sentenced. For reasons that I will not impose the standard non-parole period is to be found in these remarks on sentence. 16Although the offender went into custody on 15 January 2011 and has not been released since then, not all of his pre-sentence custody is referable only to these matters. He was sentenced for some driving matters in the local court and received a six months sentence to date from 15 January 2011. It would be wrong therefore for me to commence the sentences I am about to impose upon Mr Hamilton from that date. On the other hand the principle of totality applies and so I propose to date the sentences from 15 April 2011. I also propose to impose wholly concurrent sentences on these matters. That is, I fully accept, a lenient decision. Ordinarily the offender might expect that he would receive partially cumulative sentences for possessing a prohibited firearm and then using it particularly when the using offence has matters on the Form 1. But I repeat as a measure of leniency towards the offender, I will not impose a cumulative or even partially cumulative sentences in this case. 17The result is that for each of these offences the offender is sentenced to imprisonment. I set a non parole period in each case of two years to date from 15 April 2011 and a head sentence of four years. The offender will thus be eligible to be released to parole on 14 April 2013. ********** 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: 23 July 2012