District Court New South Wales Medium Neutral Citation: R v Jake Lewis Andrew [No. 2] [2018] NSWDC 382 Hearing dates: 24 September 2018 Date of orders: 24 September 2018 Decision date: 24 September 2018 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: A finding of guilt, without conviction. Catchwords: SENTENCING – Firearms offences – Intellectually disabled offender - 47 XYY syndrome – not toys-firearms – Public must know the potential consequences for use and possession of "toy guns" – Nerf and gel pellet air guns are not legally toys – ignorance of the law – plea of guilty after fitness hearing – firearms on bus – multiple firearms – "toy" collection not an arsenal – risk to community – an exceptional case – mercy required – no conviction – appropriateness of Conditional Release Order. Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1987 Crimes (Sentencing Procedure Act) 1999 Firearms Act 1987 Mental Health (Forensic Provisions) Act 1900 Cases Cited: Anderson v R [1981] VR 155 Attorney General's Application No 3 [2002] NSWCCA 303 Blackman and Walters v R [2001] NSWCCA 121. DPP v De La Rosa [2010] NSWCCA 194 Engert v R [1995] 84 A Crim R 67 Guden v R [2010] VSCA 196 JP v R [2015] NSWCCA 267 Kwon v R [2004] NSWCCA 256 Markarian v The Queen (2005) 228 CLR 357 Muldrock v The Queen [2011] 244 CLR 120 R v Andrew No. 1 [2018] NSWDC 381 R v Chi Sun Tsui (1985) 1 NSWLR 308 Shrestha v The Queen (1991) 143 CLR 78 Tepania v R [2018] NSWCCA 247 Weininger v The Queen (2003) 212 CLR 629 Yardley and Betts v R (1979) 22 SASR 108 Category: Sentence 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 Publication restriction: Nil Judgment 1. At about 9.45am on Tuesday, 10 October 2017, there was a disturbing incident on a public bus on the Windang Road, Windang. A man on the bus produced what appeared to be a large gun. CCTV from the bus shows the man firing that gun into a padded seat screen. The CCTV also shows another firearm being taken from a bag, racked and fired. 2. Police were alerted. The bus was stopped. The police asked the man, Jake Lewis Andrew, to get off the bus. He complied. He cooperated with the police. He had a backpack with him. It was taken from him. Andrew told the police that if they opened the backpack they would find guns. 3. Although Andrew is physically a large man, it is obvious to anyone who speaks with him that he has an intellectual disability. He is now 24 years old. He was born with a congenital chromosomal condition known as 47 XYY syndrome. XYY syndrome sufferers have an extra Y chromosome that is, 47 chromosomes instead of the usual 46. Those born with 47 XYY syndrome often exhibit some physical differences to the norm; they can be bigger but with weaker muscles. The 47 XYY syndrome can, and here does, cause sufferers significant cognitive deficits and learning problems. 4. In the back pack was a black .32 calibre Chinese manufactured repeating air pistol. It looked like a real pistol superficially except for a bright red trigger mechanism and a red extended barrel tip. It was loaded with hydrated gel pellets. Also in the bag was a bottle. Inside it were 20 hydrated gel pellets (hydrolysed super-absorbent polymers). Those pellets are "ammunition" within the meaning of the Firearms Act. 5. The second item in the back pack was a .35 calibre fully automatic air gun. It too fires gel pellets, but it looks like a large black machine-gun. It had no red or orange distinguishing markings. 6. Appearances can be deceptive; on handling, both items are light weight plastic and do not feel like 'real' firearms. That said our Firearm's laws are concerned with appearances. Both items, on expert analysis, are "firearms" within the meaning of the Firearms Act 1987. They are not legally toys. 7. Andrew told the police that he had got the air pellet guns from a friend in Port Macquarie when he had been on a camping trip. He also told the police that there were similar items at his home. He said "they're fun to play with, you can buy them online". Andrew did not hold a firearm's licence or permit. 8. Police then went to Andrew's home unit in Warilla. As they arrived, three unknown men left his bedroom. 9. In the bedroom were a further seven air guns. They are all deemed to be prohibited firearms or pistols. Six were in working order. All were air operated and capable of firing either a gel pellet, a "Nerf" pellet (a foam projectile) or in one case a foam pellet with a suction cap. Also found were a large quantity of hydrated gel pellets and the packages containing the material from which pellets can be made up by adding water. None of the firearms were stored safely in accordance with the requirements of the Firearms Act. 10. Earlier today I dealt with a hearing pursuant to the Mental Health (Forensic Provisions) Act 1900. A question whether Mr Andrew was fit to be tried had been raised properly by the parties. At the conclusion of that fitness hearing, I found, that, despite his obvious intellectual and other disabilities, Andrew was fit and able to enter the guilty pleas which bring him for sentence today: see separate judgment: R v Andrew No. 1 [2018] NSWDC 381. 11. An indictment with three counts was presented. Andrew accepted his guilt in relation to each of them. Counts one and two were offences pursuant to s 93G(1) Firearms Act. They relate to the firing of the firearms on the bus. The third count was offences pursuant to s 51(d)(2) Firearms Act. They relate to his possession of all the firearms seized. Andrew also accepted his guilt in relation to ten further breaches of the Firearms Act which had been placed on a s 166 Criminal Procedure Act 1987 certificate. Objective seriousness 1. Firing a firearm in a public place carries a maximum penalty of ten years imprisonment: s 93G(1)(b) Crimes Act 1900. Possession of more than three firearms, one of which is a prohibited firearm or pistol, carries a maximum penalty of 20 years imprisonment with a standard non-parole period of ten years: s 51(d)(2) Firearms Act. Judges are required to pay careful attention to maximum penalties and standard non-parole periods where applicable. They invite a comparison between the instant case and other cases. However, Judges do not look first to the maximum or the standard non-parole period and then make proportional deductions from it: Markarian v The Queen (2005) 228 CLR 357. 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, is in the middle of the range of seriousness. 2. I am required to give content to the standard non-parole period. In doing so I am required to assess objective seriousness without reference to matters personal to the offender and wholly by reference to the nature of the offending: Muldrock v The Queen [2011] 244 CLR 120 at [27]. 3. However, as the joint judgement in Muldrock made clear, neither can I engage in a staged approach to sentencing. Accordingly, my finding about the range does not compel any one result: see also Tepania v R [2018] NSWCCA 247 at [110]. Here the standard non-parole period assessment, the causal connection between the offender's intellectual disability, his youth and immaturity and all the factors relating to the crime, which is count 3 on the indictment, must be synthesised along with other relevant factors. 4. Not every matter has to be or can be fitted into categories. Human behaviour and characteristics are too varied. The sentencing exercise involves "a synthesis of competing features which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment": Weininger v The Queen (2003) 212 CLR 629. 5. There are, as will be obvious, significant reasons for an extraordinary variation from the standard non-parole period here. In fact, it is agreed by both defence and prosecution that no custodial penalty is warranted for any of the three matters for sentence. Ultimately, I have to identify all relevant factors. 6. The Firearms Act makes it clear that firearm possession is a privilege that is conditional on the overriding need to ensure public safety. There was no legal justification here for the possession of the firearms. It is not enough to say the items were available on line or even from toy shops; at law, there is no distinction drawn between replica and real, or capacity to fire a pellet or hard ammunition. 7. The weapons were not licensed nor registered. The firearms that were produced on the bus were not obviously toys although one of them did have orange markings. They were not toys. The policy of Parliament, as reflected in the maximum penalties, is meant to deter and punish possession of any firearm. Firearms, even items such as the ones produced on the bus, if possessed, are liable to be used, and if used cause concern or danger because of their apparent appearance. 8. Their possession, particularly their possession and use on the bus, did pose a significant risk for the safety of the community: Not because anyone could have been hurt by the weapons, but by the fact that they could have been mistaken for real weapons. The consequences of producing such items in public do not need too much amplification. In the modern world, if members of the public police think that someone is carrying a firearm, it can provoke a reaction that could have quite disastrous consequences. People seeking to flee could place themselves at risk. Police or members of the public may respond as if it is a real weapon – a misunderstanding could lead to tragedy. 9. When it comes to the first two matters, the use of a firearm on a public bus is a key factor in assessing their seriousness. So far as the other matters are concerned, I take into account the number of firearms, their nature and the purpose for possession. Where an offender possesses firearms, as defined in the Firearms Act, knowing that this is illegal to do so, then that knowledge increases the objective seriousness of the offence. The converse, while it does not strictly reduce objective seriousness, remains here a factor in my overall synthesis of relevant matters. 10. Possession of a weapon that can never be used to cause actual harm is also a relevant factor. Similarly, the nature of the projective that can be fired is relevant: This point is of particular relevance for firearms which can fire a projectile that could not cause any harm (foam) or no serious harm (gel pellets). An exceptional case 1. Ordinarily, an objective assessment of these offences, individually and collectively, would lead to consideration of some form of custodial sentence. This is not an ordinary case. In some cases, wholly exceptional circumstances may arise which require a judge as a matter of both logic and mercy to impose a lesser sentence on an offender than would otherwise be justified. Justice will not be seen to be administered even-handedly if exceptions are made in cases which are not truly exceptional. The evidence here establishes that this is such an exceptional case. Andrew should not to be made an example of 1. A very significant reason for this being an exceptional case is Mr Andrew himself. The mere fact that a fitness hearing had to be held indicates that there are matters in Andrew's background that mean he is and could never be regarded as a person who should be subject to the full impact of our sentencing laws. Here his various disabilities and immaturity mean that: "Human sympathy would say well you would not expect him to get the same sentence as someone else": Engert [1995] 84 A Crim R 67, Allen J at [72]. 2. Andrew was aware he possessed the firearms he had been given or had purchased them. He was aware of how to fire them. He knew how to, and he had the capacity to, load and operate the firearms. He admitted to police he had them and that he had fired them on previous occasions. He is shown on CCTV from the bus doing so. While he had very limited intellectual capacity he must have been aware that to fire anything on the bus was the wrong thing to do. 3. The evidence in the reports of both Dr Martin: Exhibit B and Mr Macintosh: Exhibit A, that I summarised in my earlier judgment, indicates that Mr Andrew has what both experts regard as an intellectual disability. According to Mr Macintosh's testing on the scale of intellectual disabilities, it is in the mild to borderline range. Mr McIntosh's report draws my attention, however, to his test results which show Andrew's overall ability cannot be assessed by reference to where in the general range of disability he falls. He cannot and should not be labelled. He has to be considered with proper regard to his various functioning levels. 4. So far as functioning in the community is concerned, it means that on all levels, such as, caring for himself (on the practical domain scale); conceptual capacities; adaptive capacities and practical living capacities, he falls in the extremely low range. This means that he is in the bottom 0.1% of individuals of the same age in the community. 5. While he is capable of doing good things and caring for himself, to a degree, he requires assistance at all levels. He requires direction at all levels. Dr Martin's review reaches similar conclusions. 6. His mother's affidavit which is before me indicates, in quite considerable detail, his background and history. There are also personal references before the Court which indicate that Andrew is capable of living in and contributing to the community despite his intellectual disability. 7. His mother's affidavit also sets out the ease with which he was able to obtain what are legally firearms. She has no intellectual disability, but she had absolutely no idea that these items were not toys. That belief is shared by many in the community as the Officer in Charge Sergeant Keever's evidence makes clear: see below. 8. Andrew is a young man who has had, because of his 47 XYY syndrome, considerable difficulties to overcome as he has grown older. With assistance of many in the community, his mother in particular, he has been able to lead a law abiding life in the community. His possession of the firearms, I accept, was committed in complete ignorance of the seriousness of the offence and complete ignorance of the strict requirements of the Firearms Act. Public awareness required 1. I have also heard today from Sergeant Keevers. He showed me in court the seized firearms and ammunition. All when handled are obviously not real firearms. Some, to look at, are apparently, although not legally, toys. Others could and are designed to mimic real military style weapons. None are capable of firing other than a foam pellet, which has a stick on attachment, the gel pellets or Nerf (foam) pellets. They are not, if used, a danger in the sense that they could cause anyone injury. They do, however, because of the air compression and the firing of a projectile, fall within the definitions, which are carefully set out in the exhibited Ballistics report: exhibit C. All on handling appear to be toys. Ordinary members of the public would regard them as toys. 2. The evidence before me confirms what was said by the offender on arrest, that items such as this are readily able to be bought in our community. There are toy stores in the local area which sell them. They can be obtained on the internet. They are also available from market stalls and the like. They are able to be imported into Australia and the provisions of the most relevant regulation did not prevent their importation. In 2017 the Federal Department of Home Affairs thought it necessary in 2017 to put out a notice about the treatment of what are called "gel ball blasters and similar low powered devices": Notice 2017/43 - MFI 3. 3. General public ignorance of the type of items criminalised by the Firearms Act, is a matter of considerable concern. Sergeant Keepers on behalf of the New South Wales Police, gave evidence of that concern. The fact is that that such items are available for sale and customers and retailers of them could be liable as is Andrew to very serious punishment. The most important aspect of this case, so far as the public is concerned, is to fully understand that just because items appear in shops or online does not mean that their purchase and possession is legal. Those who retail such items should also be made aware of the consequences of doing so and the potential maximum penalties that could be imposed. Applying Sentencing principle 1. I am acutely conscious that the protection of the community is contributed to by the successful rehabilitation of offenders. This is an aspect of sentencing which should never be lost sight of. It assumes particular importance in the case of first offenders and others who have not developed settled criminal habits such as Andrew: Yardley and Betts (1979) 22 SASR 108; Blackman and Walters [2001] NSWCCA 121. 2. I also have to have regard to need to apply in consistent manner all the principles set out by McClelland J pointed out in DPP v De La Rosa [2010] NSWCCA 194. Those principles apply both to offenders with a mental illness and an intellectual disability: see Anderson [1981] VLR 155. Omitting citations they are: * Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence. * It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed. * It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced. * It may reduce or eliminate the significance of specific deterrence. Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence. Submissions 1. Mr James QC, who appears on Andrew's behalf, submits that the only just and responsible conclusion, after a proper analysis of all relevant matters, is that I not proceed to conviction on any count or s 166 certificate charge. In this exceptional situation, he suggests, that neither the maximum penalties or standard non‑parole period, where it applies, offer any guidance. He accepts that the offences are not trivial, but submits they do not warrant punishment. He notes that Andrew was bail refused for few days. His mother described that period of arrest and custody as "extremely traumatic" for him. In all the circumstances Mr James suggests, there is no utility in imposing convictions. 2. New provisions in the Crimes (Sentencing Procedure Act) 1999 started today. They allow for a Court to make a conditional community release order without proceeding to conviction. Mr James suggests that conditions could be imposed that allow monitoring and assistance to be given Andrew without burdening him with a Firearms Act conviction, a conviction that of itself might hamper his future 3. In response to my suggestion that the firing of the items on the bus were too serious not to record a conviction, even though the maximum penalty is less than count 3, Mr James responded that there may be some Migration Act 1958 consequences where a more severe penalty can be imposed. The proper application of the s 10 cannot be broadened simply because a court does not agree with Parliament's view of the seriousness of a particular offence or believes that the statutory or administrative consequences of a conviction are unduly harsh or unpalatable: Attorney General's Application No 3 [2002] NSWCCA 303 at [132] & [133]. 4. The prospect of possible deportation is often said to be irrelevant to sentencing: R v Chi Sun Tsui (1985) 1 NSWLR 308; Shrestha v The Queen (1991) 143 CLR 78. However, as the Victorian Court of appeal noted in Guden v R [2010] VSCA 196, those authorities relate specifically to the fixing of a non-parole period for a custodial sentence: see also Kwon [2004] NSWCCA 256. Accordingly, while the prospect of the offender being deported because of a sentence imposed can be relied on in mitigation of sentence, there would need to be some basis for that finding. Here, no material to support the submission was offered. 5. Ms Steedman for the Director of Public Prosecutions submits that while no additional punishment is required, there is a need for a conviction here. To reflect the seriousness of firing any weapon on a public bus and to signal to the offender and the community the potential consequences of his offending. Synthesis 1. The firing of both weapons on the bus is, to my mind, the more serious offending. When one looks at the firearms seized, so far as count 3 is concerned, it is their number that is disturbing, but they are, and viewed in the context of this case, clearly not an arsenal associated with some sort of outlaw motorcycle gang but an immature intellectually disabled young man's collection of toys. No matter what the law says, it is entirely understandable in all the circumstances that he regarded them as toys. 2. The question about the firing of the weapons, however, was that, toys as he saw them or not, it was a particularly serious thing to do. Even gel pellets should not be fired on a public bus. Mr James says, well he is effectively despite his size and age, a child and a child with his similar intellectual capacity would not even come before a Children's Court. I accept that, but it is the sad reality of our justice system that people with moderate intellectual disabilities who commit serious crimes are punished, sometimes severely. A person because of an intellectual disability is not for that reason alone to be excused punishment as the Court of Criminal Appeal pointed out in JP [2015] NSWCCA 267. Even custodial sentences, where appropriate, should be applied to, if warranted by the objective circumstances of the offence, even though the sentences can be significantly moderated because of the principles set out by McClelland CJ at CL in De La Rosa. 3. The question that has occupied my mind in this matter is: what utility would a criminal conviction have? It might signal to Andrew that what he did was wrong. It might cause him to think before he did something similar that alarmed the public. 4. On the other hand there is no utility here in using him as a vehicle for general deterrence. This judgment, I hope, and I will have it taken out as soon as I can, will attract enough publicity to alert the members of the public to the dangers of possessing what they might think are toys for which could make them subject to very severe maximum penalties. 5. Andrew spent five days in custody. He has had to come to the Local Court and this Court. He has had to discuss these matters with his friends and family. He has had to endure conferences with solicitors and counsel and appearing before me. All of this has, as is obvious from his demeanour in court, distressed him. If the lessons meant to be learnt by appearing in Court have not been learnt, they never will. 6. Were I to deal with the matter by way of conviction, the only just and appropriate sentence in all the circumstances here would be to deal with the matter pursuant s 10A Crimes (Sentencing Procedure) Act 1999 as it wouldn't be inexpedient to impose any further penalty. Were I to use the provisions now available to me, I can, without proceeding to conviction, ensure that the community is protected by having Jake supervised for as long as Probation and Parole deem necessary. In all the circumstances, and given the guilty pleas entered at the first opportunity he was able to do so, I can see no utility in recording convictions. Orders 1. I deal with Counts 1, 2 and 3 on the Indictment pursuant to s 10(1)(b) of Crimes (Sentencing Procedure) Act 1999, making a finding of guilt but without proceeding to conviction. There will be an order pursuant to 10(1)(b) and s 9: There will be a Conditional Release Order for a period of one year and three months from today's date in relation to each count on the Indictment. 2. It is a condition of the order that Jake Andrew: 1. Be of good behaviour; 2. Obey all reasonable directions of Community Corrections Service for as long as they deem necessary; 3. Report within seven days to the Community Corrections office at Wollongong. 1. So far as the matters on the 166 certificate are concerned, fines are the only penalties available. Given his financial situation, as set out in his mother's affidavit, fines would cause him too much hardship. I deal with each of the matters pursuant s 10(1)(a) of Crimes (Sentencing Procedure) Act 1999. There will be no conviction and a Conditional Release Order. 2. I make a Firearms Destruction order for all the firearms and ammunition seized. 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: 11 December 2018