R v Schneider [2019] NSWDC 483

District Court New South Wales

Medium Neutral Citation: R v Schneider [2019] NSWDC 483 Hearing dates: 12 July 2019 Decision date: 12 July 2019 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Aggregate term of imprisonment of 2 years 9 months with a non parole period 1 year 9 months. Catchwords: CRIME - SENTENCE - possess prohibited firearm - assault occasioning actual bodily harm Legislation Cited: Firearms Act 1996 (NSW), s7(1), Crimes Act 1900 (NSW), s59(1) Category: Sentence Parties: Regina (Crown)

Andrew Schneider (Offender) Representation: Ms Brown (ODPP)

Mr Jauncey (Counsel for the offender) File Number(s): 2016/4711; 2018/216581 Publication restriction: Nil

Judgment 1. Andrew Schneider, you appear for sentence today principally in relation to one offence, that is, possessing a prohibited firearm. This involves a contravention of s 7(1) of the Firearms Act. The maximum penalty for that offence is 14 years' imprisonment. There is a standard non-parole period of four years' imprisonment. 2. I shall turn to the facts surrounding that offence shortly, but, at the time you committed that offence on 10 July 2018, you were on a suspended sentence for the offence of assault occasioning actual bodily harm in company, which another Judge of this Court imposed on you and your relevant three co-offenders on 7 September 2017. 3. The suspended sentence which you received was for a period of 2 years. At the conclusion of his Honour's remarks, his Honour said to you: "If you breach any of those conditions and you do not turn up, you will be breached on your s 12. You will come back here and you will probably have to go to gaol. It is as simple as that." 4. As your counsel has correctly submitted today, the breach of that bond by the firearm offence could not be regarded as trivial; nor are there good reasons for excusing your failure to comply with the bond. Accordingly, on the call up, that bond is revoked. 5. Nine months into the s 12 bond, police executed a search warrant at a series of premises. One of those premises were premises where your partner (Ms Swan) lived. You and your cousin, Brent, were frequently at those premises. 6. When the police executed the warrant, they found a sawn-off, semi-automatic, 22 calibre rifle in a bedroom behind a television. That rifle had been purchased two months beforehand. You were present when it was purchased. You contributed 50% of the purchase price; the other purchaser was your cousin, Brent. After it was purchased, it was shortened, but the Crown does not allege that it was you who caused the rifle to be shortened. It was in working order. There is no evidence before the Court, however, that it was loaded or that there was access to any ammunition. By your plea, you have accepted that you were relevantly in possession of that firearm. 7. This constitutes the possession offence for which you are also to be sentenced today. 8. In terms of its objective seriousness for an offence of this kind, in my opinion, it is somewhere equidistant between the middle and the bottom of the range. 9. There is one additional aggravating factor and that is that you committed this offence whilst you were on conditional liberty. 10. You are now 26 years of age. 11. Much of your subjective circumstances were set out by the earlier sentencing Judge in his Honour's remarks on sentence, which I have read and which I incorporate by reference into these remarks. There is no need for me to repeat them. 12. There is, however, some additional material which is of some concern to the Court. Specifically, in the sentencing assessment report you provided an explanation as to why you had that weapon. You told the author of the report that, at the time of the offence, you believe your actions were justified because you held fears for your safety. I do not read that passage as meaning that, as at the date of the interview with the assessment writer, you still held that view. I have understood it to be that that is your explanation as to why you had it at the time. 13. That is quite disturbing because, at the time you had those fears for your safety, you were suffering paranoid thoughts. The idea of a man suffering from paranoia being in possession of a firearm is a disturbing matter. 14. As the earlier sentencing Judge noted, and as is reported in the sentencing assessment report, you have had a long history of involvement with illegal drugs. Considerable focus in the submissions was on the drug, methylamphetamine. That was an unfortunate focus because attention has not been given to the fact that you have been regularly using cannabis since you were 13 years of age. This court, and the Local Court, on a daily basis sees the consequences of young adolescents using cannabis. Anyone who says, Mr Schneider, that cannabis is a harmless drug, particularly when consumed by adolescents, has no idea what they are talking about. It is commonly seen by the Local Court magistrates, and by the judges of this Court, that persons who use cannabis as a teenagers end up with serious mental health issues, such as schizophrenia and schizoaffective disorder. It may well be that the paranoid thoughts that you were having in July 2018 have their genesis in some form of mental illness flowing on from your long‑term use of cannabis since you were a teenager. Now, I am unable to form any firm view about that because there is no evidence from any expert to that effect - even though, on the last occasion, I gave a direction that if there were to be any experts' reports they should be served. However, no‑one took the opportunity of getting an expert report, so I do not know why you were having those paranoid thoughts. 15. I do know you were still using cannabis whilst you were on the s 12 bond. 16. You have said on oath that you have not used drugs whilst you have been on remand for the last 12 months. I do not know whether you meant all illegal drugs or whether you just meant ice, which was the drug which both advocates seem to be focusing their attention on. Whether or not you have been clean of all drugs in the last 12 months, you would be misguided if you thought that, on your release, you require no assistance. I have looked with some concern in the sentencing assessment report to that section where you said you did not wish to attend a residential rehabilitation program … "claiming that [your] time in custody had provided [you] with an opportunity for detoxification." When you are released from custody, you would be well advised, Mr Schneider, to reconsider that attitude. 17. In your case, both specific and general deterrence considerations are fully engaged: that is, the sentence imposed must be one that discourages you from re-offending and must discourage others from committing the same type of offence. The protection of the community is also fully engaged, as is the need to encourage your rehabilitation. 18. It is difficult for me to form a clear assessment of your prospects of rehabilitation. The fact that you so blatantly breached the sentence imposed upon you by the earlier sentencing Judge is a matter of concern. The fact that you have continued to use drugs whilst on that bond is also a matter of concern. If you have been able to stay off drugs whilst in gaol (and you were not in challenged in cross-examination about that; I am prepared to accept that that is the fact) in circumstances where it is notorious that drugs are available in custodial setting, that is a positive thing towards your rehabilitation. So is your age and your limited criminal history - because, apart from the very serious assault matter that came before the earlier sentencing judge, you had no prior criminal history. On balance, I regard your prospects for rehabilitation as being guarded. 19. I intend imposing an aggregate sentence on you. I am therefore required to state the indicative sentences underpinning the ultimate aggregate sentence. 20. The indicative sentence for the assault occasioning actual bodily harm is, of course, 2 years' imprisonment. The indicative sentence for possessing the prohibited firearm is 18 months imprisonment. In fixing that indicative sentence, but for the early plea and the discount of 25%, the indicative sentence would have been 2 years imprisonment, but, because of the plea, the indicative sentence is 18 months. The indicative non parole period is 11 months imprisonment. 21. The 2 indicative sentences would not have been totally concurrent. There would been significant accumulation. 22. The aggregate sentence which I impose, therefore, is 2 years and nine months. It will be backdated to 13 July 2018. 23. Ordinarily, Mr Schneider, the non-parole period of any sentence should be 75% of the head sentence, unless the sentencing judge is persuaded that there are special circumstances to vary that ratio downwards. In this regard, the Court of Criminal Appeal has, on a number of occasions, said that judges of this court too frequently make findings of special circumstances - R v GWM [2012] NSWCCA 240 is but one example of such a pronouncement. 24. In this case, the Crown has expressly submitted that this would be an appropriate case for a finding of special circumstances and, in those circumstances, I am going to make such a finding. I do so because I think your prospects of rehabilitation would be enhanced by a longer period on parole. 25. Accordingly, the non-parole period which I fix is 1 year and nine months to date from 13 July 2018 and which will expire on 12 April 2020. 26. I fix a balance of 1 year to date from 13 April 2020 and which will expire on 12 April 2021. 27. Whether you are admitted to parole, Mr Schneider, is not a matter for this court. That is a matter for the Parole Authority and it will largely depend on how you behave during the term of the non-parole period as to whether you received parole. 28. I make a firearm destruction order in that last matter as well. 29. You will now go with the officers, thank you.