R v Jake Lewis Andrew [No. 1] [2018] NSWDC 381

District Court New South Wales

Medium Neutral Citation: R v Jake Lewis Andrew [No. 1] [2018] NSWDC 381 Hearing dates: 24 September 2018 Date of orders: 24 September 2018 Decision date: 24 September 2018 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Jake Lewis Andrew found fit to enter guilty pleas on the charges set out in the proposed indictment. Catchwords: CRIMINAL MENTAL HEALTH – Fitness hearing - Firearms offences – Intellectually disabled offender – 47 XYY syndrome – Nerf and gel pellet air guns are not legally toys – firearms on bus – multiple firearms – mental impairment – capacity to acknowledge guilt – low range of cognitive ability – impaired ability to follow trial – difference between right and wrong – capacity to tell version of the facts. Legislation Cited: Firearms Act 1987 Mental Health (Forensic Provisions) Act 1990 Cases Cited: Kesavarajah v The Queen (1994) 181 CLR 230 Ngatayi v The Queen (1980) 147 CLR 1 R v Presser (1948) VR 45 R v Presser (1948) VR 45 Texts Cited: Diagnostic and Statistical Manual of Mental Disorder (5th Edition), American Psychiatric Association, Washington DC 2013 Category: Procedural and other rulings Parties: Jake Lewis Andrew (Offender) Director of Public Prosecutions Representation: Counsel: Mr G James QC Ms G Steedman (Solicitor Advocate for the Director of Public Prosecutions) File Number(s): 2017/00306015

Judgment

Brief overview of Facts 1. At about 9:45am on Tuesday, 10 October 2017 passengers on the bus in Windang Road, Windang saw another passenger with what appeared to be a large gun. That passenger was Jake Lewis Andrew. He was heard to say he had bought it for $300. CCTV from the bus shows the gun was fired twice in to a padded screen. CCTV also showed another pistol style firearm being racked. 2. Police were alerted. The bus was stopped. Police asked Mr Andrew to get off the bus. He complied. He had a backpack with him. It was taken from him. Mr Andrew told police that if they opened the backpack the guns would be visible. 3. In the bag was a black .32 calibre Chinese manufactured repeating air pistol. It looked similar to a real Glock pistol except for a red trigger mechanism and a red extended barrel tip. It was loaded with hydrated gel pellets. The second item in the bag was a .35 calibre fully automatic airgun. It looked like a large black machine-gun style firearm. There were no distinctive markings to distinguish it visually from a real firearm. Both items on expert analysis are firearms within the meaning of the Firearms Act 1987. Also in the bag was a bottle with 20 hydrated gel pellets (ammunition) inside. 4. Mr Andrew told police he got the guns from a friend in Port Macquarie and that he had used them on a camping trip to fire the gel pellets. He said that he had more such guns at home. He said "…they're fun to play with, you can buy them online." Mr Andrew did not hold a firearms license or permit. 5. Police then went to Mr Andrew's home in Warilla. As they arrived three unknown males left his bedroom. In the bedroom were a further seven air operated guns. All are deemed to be prohibited firearms or pistols firearms. All were air operated and capable of firing a projectile of some kind; six were in working order. Hydrated gel pellets suitable for use in air guns were found. None of the nine firearms were safely stored. 6. Mr Andrew was arrested and charged with Firearms Act offences. He spent some days in custody. He was committed for trial to this court. Three serious charges are now brought against him: They are set out in the indictment: MFI 1. * Count 1: On 10 October 2017 fired a firearm, namely a .35 calibre fully automatic firearm, in a public place, namely a bus. * Count 2: On 10 October 2017 fired a firearm, namely a .32 Chinese manufactured pistol, in a public place, namely a bus. * Count 3: On 10 October 2017 possessed more than 3 firearms, namely 9 firearms, at least one of which was a prohibited firearm or pistol, the firearms not being registered and he not being authorised by licence or permit to possess the firearms.