District Court New South Wales Medium Neutral Citation: R v Jones (a pseudonym) [2019] NSWDC 40 Hearing dates: 11 December 2018 and 7 February 2019 Decision date: 07 February 2019 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Offender sentenced to an aggregate term of imprisonment of 8 years with a non parole period of 5 years. Catchwords: CRIMINAL LAW – supply prohibited firearms – possess firearm part – manufacture prohibited firearm – stalk or intimidate – dealing with proceeds of crime. Legislation Cited: Firearms Act 1996 (NSW): s51(1A)(a), s74(2), and s50A(2) Category: Sentence Parties: Crown Mr Jones (a pseudonym) (The offender) Representation: Crown: Ms Anderson (Solicitor) Counsel: Mr Crawford –Fish (Offender) File Number(s): 2017/30846 Publication restriction: Nil Judgment 1. Mr Jones (a pseudonym), you appear for sentence today in relation to three principal offences. 2. The first principal offence is knowingly take part in the supply of prohibited firearms to a person unauthorised to possess them. This involves a contravention of s 51(1A)(a) of the Firearms Act. The maximum penalty for that offence is 20 years imprisonment and there is a standard non parole period of 10 years imprisonment. 3. The second principal offence is possessing a firearm part while subject to a firearms prohibition order. This involves a contravention of s 74(2) of the Firearms Act. The maximum penalty for that offence is 14 years imprisonment and there is no standard non parole period. 4. The third principal offence is that of manufacturing a prohibited firearm without a licence or a permit. This involves a contravention of s 50A(2) of the Firearms Act. The maximum penalty for that offence is 20 years in prison and, again, there is no standard non parole period. 5. In addition to those three principal offences, you have asked me to take into account, in relation to the third offence, two matters on a Form 1 which I have certified. Those two matters are: stalk or intimidate intending to cause fear or physical or mental harm; and dealing with property, being the proceeds of crime, with a value of less than $100,000. 6. The facts surrounding your offending are, to a large extent, contained in a comprehensive statement of agreed facts. They have been supplemented, to an extent, by the oral evidence which you have given, and by documentary evidence tendered, in the sentence proceedings. 7. Briefly summarised, the facts are as follows. 8. As at October 2016 you were approximately 41 years of age. 9. On 13 October 2016, at about 11.30pm, police were conducting patrols in the Sydney suburb of Homebush having obtained intelligence that there was a drug house operating in that vicinity. Whilst the police were observing those premises, a motor vehicle in which you were a passenger was seen to leave the premises. The police caused the vehicle to pull over and to be searched. As a result of that matter, on 8 December 2016, you were served with a Firearms Prohibition Order. 10. A little over three months later (on 16 March 2017) police detectives intended executing a Firearms Prohibition Order on your premises where you were living. However, when they went to those premises, the police were informed that you were at work. They then went to where you were working in rural New South Wales. Whilst at those work premises, your motor vehicle was searched because you were behaving suspiciously. The police also inspected your iPhone as a result of which they found a number of text messages which contained references to prohibited firearms. 11. You and the police then travelled from your work premises back to where you were living and the execution of the search warrant was continued there. 12. In the course of that search, they found hand sketches of firearm parts. The police then (again) examined your phone and on it was revealed a series of SMS messages passing between you and various other men, the substance of which was for the negotiation of the sale of six firearms for the price of $60,000. Those firearms included four 45 calibre pistols, one AK 47 assault rifle, and one Uzi with a suppressor. 13. Your role in the negotiations was that of a broker for which you were to receive the sum of $20,000. 14. Of concern to the Court - over and above the inherent nature of the transaction - is the fact that one of the persons involved in the deal was a member of an outlaw motorcycle gang - and you knew that. 15. Fortunately for the community of New South Wales, the deal was not completed, but that was not down to you. 16. The agreed facts unhelpfully do not say whether the firearms were real or imitation; or whether they functioned or not. 17. Those facts constitute the first principal offence of knowingly take part in the supply of prohibited weapons. In terms of its objective seriousness for an offence of its kind, it is slightly below the middle of the range. 18. When the police were executing the search at your residential premises on 16 March 2017 they found a black bag inside a shed on the property; and inside that bag were two metal firearm parts - they being the barrel of a .22 calibre pistol and a relevant frame assembly. In the course of your evidence on 11 December 2018 you admitted that it was your intention to assemble such a gun. 19. Those are the facts concerning the second principal offence of acquiring a pistol part whilst subject to a Firearms Prohibition Order. In terms of the objective seriousness of that offence for an offence of its kind, it is towards but not at the bottom of the range. 20. Also during the search the police found the hand drawn sketches that I earlier referred to. Those hand drawn sketches related to a MAC 10 style machine pistol. Not only were there those sketches, but it is agreed that, in fact, you manufactured such a weapon. The police, however, were unable to find it. In your interview with police you admitted that the firearm would have worked. There is no evidence to suggest otherwise, and I find as a fact that it did. 21. Your evidence in relation to this object was of concern to me and remains of concern. When you gave evidence on 11 December 2018 you could not provide the Court with an explanation as to why you manufactured that weapon. And this is your evidence from 11 December 2018 which is of concern to me: "His Honour: Q. Mr Jones according to the agreed facts, Mr Justin James was a long term associate of yours? A. I've known Justin for a while your Honour. Q. And Mr James works with The Rebels outlaw motor cycle gang? A. Mr James I was sure he was associated with them yes. Q. So you have a long term association with a person who is involved with The Rebels Motor Cycle gang? A. Yes I did your Honour. Q. And you've negotiated the purchase of guns? A. Can you repeat that please. Q. You have participated in the negotiation for illegal firearms? A. Yes your Honour, yes. Q. In part, with the assistance of this man who is a member of an outlaw motor cycle gang? A. Yes. Q. And for the purpose of making money? A. I did your Honour, yes. Q. And you've asked me to take into account that you sought to intimidate a man by sending a photograph of a gun? A. Yes your Honour. Q. But you can't help me with why it was that you engaged in the conduct of manufacturing the prohibited firearm, you just can't remember why you did that? A. I just don't really have any excuses for doing that. His Honour: Mr Jones, I find it difficult to believe that that was truthful." 1. It is the manufacturing of that machine pistol which constitutes the third principal offence. In terms of its objective seriousness for an offence of its kind it is a mid-range offence. 2. In relation to that last offence, you have asked me to take into account the two matters on the Form 1, which I earlier referred to. 3. The first matter was that of intimidation. The facts surrounding that matter are that when the police examined your mobile phone, they observed that you had sent a message to a man which contained an image depicting a hand (whose hand was not identified) which was holding a Smith & Wesson .45 calibre pistol. That image was accompanied by a message from you saying, "I wish you didn't fuck me over [then the name of the man is included]". There is no further explanation or elucidation in the facts as to what that meant, or why you sent it, but as a matter of common sense, anybody in our community who received a text message of a pistol, and that message, would no doubt have felt intimidated. 4. The second matter on the Form 1 is dealing with property being the proceeds of crime. The agreed facts contain the usual obscure (if not incomprehensible) repetition of text messages between people dealing with the acquisition of drugs. I shall not waste my time setting out in detail those words but the long and the short of it, Mr Jones, was that you had $3,100 in a bank account, reasonably suspected of being the proceeds of crime - and that crime being the dealing in illicit drugs. 5. By reference to the nature of the Form 1 matters, there will be a slight increase in the penalty for the third offence. 6. You are now 43 years of age. 7. You were born in the central west of New South Wales and you are the middle of three children to your parents. You were brought up in a loving and supportive family, where your parents worked hard to provide for you and your brother and your sister. It was a harmonious and loving household. 8. You remained in the home until you were 16 when you moved out to live with your grandparents for a short period of time and then, when you were 17, you began to live on your own. 9. You worked hard in various legitimate activities as a young man. 10. It is a mark of your hard work that you were able to purchase your own home when you were just 21. 11. You married at a young age and, regrettably, that marriage failed. As a result of the marriage, you had a 17 year old son at the time of your offending and you are principally responsible for his upbringing – a responsibility you share with your parents and your new partner. 12. You had a good life until you had a serious industrial accident in 2011 which caused severe injury to your back. It is an indication of the degree of injury that you subsequently received almost $590,000 in damages. Such was the nature of your injury that the pain was ongoing and the legitimate medication that you were receiving was not relieving the pain. You supplemented the legitimate pain relief medication by sourcing OxyContin from street dealers. 13. After a time, you decided that you would discontinue with the legitimate medications, in part because you felt that they were becoming too addictive. 14. The sad irony is that, having concluded that the legitimate medications were too addictive, you decided to self medicate with methylamphetamine and, from 2013, your life, without descending into the particularity of it, has been bound up with your involvement with people associated with methylamphetamine - and, as I have already indicated, those associations have included such unsavoury characters as Mr James – the member of the outlaw motorcycle gang. 15. You have gone through the $590,000 at a tremendous rate. A great deal of it has been spent on drugs. 16. Unsurprisingly you do have a criminal history but, surprisingly, considering the people you have been mixing with and the things that you have been doing, the criminal history is relatively innocuous. These offences are the most serious offending that you have done by a long shot. You have not previously served any term of imprisonment. 17. You have expressed remorse to the psychologist and in the witness box. There was a certain point in the proceedings, Mr Jones, where I was prepared to accept almost everything you said. You struck me as a decent man, at first, but I cannot overlook my continuing unease about your reliability as a witness when you cannot provide me with any excuse as to why you manufactured that extremely dangerous weapon. I do not accept your evidence that you cannot remember why you spent one week doing that. Therefore, ultimately, I approach your expressions of remorse with considerable caution. If you had been frank with me it might have been different, but you were not. 18. Notwithstanding that I cannot be comfortable about your expressions of remorse, by having regard to your background and your life generally, I do think your prospects for rehabilitation are reasonable. I think they would be enhanced by a longer period on parole and the term of imprisonment which I shall soon impose upon you will adjust the non parole period by a finding of special circumstances. 19. Although for that reason specific deterrence (that is, passing a sentence on you which will discourage you from further offending) is somewhat reduced, considerations of general deterrence (that is, imposing a sentence that will discourage others from doing exactly what you did) is very fully engaged in the sentencing process. 20. You pleaded guilty late, close to the date for trial. I do not regard the factors advanced by your counsel as being a powerful reason for not pleading guilty earlier. But I have noted that you made full admissions at an early time. There will be a 15% deduction for your plea of guilty. 21. There will also be a further discount for the contents of exhibit B. That further discount relates to events in the past; there is no suggestion of future events. The discount for that will be 5%. 22. There will therefore be a total discount of 20% on the indicative sentences, which I shall soon state, because I am going to impose an aggregate sentence. 23. Insofar as that aggregate sentence is concerned, none of the individual sentences would have been totally concurrent with the other. If there had not been an aggregate sentence, each individual sentence would have been partially accumulated with the other. 24. You have been in custody for some time and the sentence will be backdated to 1 November 2017. 25. In relation to the first principal offence, before the discount of 20%, the indicative sentence is six and a half years imprisonment. After the discount of 20%, the indicative sentence is five years and two months. The indicative non parole period is three years and four months. 26. In relation to the second principal offence, the indicative sentence before the discount is two years imprisonment. After the discount it is one year, seven months. 27. In relation to the third principal offence, and taking into account the two matters on the Form 1, the indicative sentence before the discount is six years imprisonment. After the discount, it is four years, nine months. 28. Mr Jones, of the offences of knowingly take part in supply of prohibited firearms, possessing a firearm part while subject to a Firearms Prohibition Order, and manufacture a prohibited firearm without a licence I sentence you to an aggregate term of imprisonment of eight years. 29. I fix a non parole period of five years in prison to date from 1 November 2017 and which will expire on 31 October 2022. I fix a balance of three years to date from 1 November 2022 and which will expire on 31 October 2025. 30. I make a firearm destruction order. 31. I make an order forfeiting the sum of three thousand, one hundred dollars to the Crown in accordance with Short Minutes of Order signed by me and placed with the papers. Amendments 30 April 2021 - Name of the offender anonymised in accordance with directions from the CCA. 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 April 2021