District Court New South Wales Medium Neutral Citation: R v Kember [2020] NSWDC 101 Hearing dates: 27 May 2019, 14 February 2020 Decision date: 14 February 2020 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Aggregate sentence of two years and nine months imprisonment. Non-parole period of 1 year 5 months. Catchwords: SENTENCING – disputed facts – fact finding - applicable principle applied – defence version rejected - prosecution version proved beyond reasonable doubt – facilitated supply of Ruger pistol. SENTENCING – relevant factors on sentencing – firearms and prohibited weapon offences - late guilty plea – Form 1 matters – parity - maximum penalty and standard non-parole period considered - Intensive Corrections Order not appropriate. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995 Firearms Act 1996 Weapons Prohibition Act 1998 Cases Cited: Abas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 Attorney General's Application No. 1: (2002) 56 NSWLR 146 Fox v Percy (2003) 214 CLR 118 Grube v R [2005] NSWCCA 140 Howard v R [2004] NSWCCA 348 Markarian v The Queen (2005) 228 CLR 357 Muldrock v The Queen (2011) 244 CLR 120 Olbrich v The Queen (1999) 199 CLR 270 Pullen v R [2018] NSWCCA 26 R v Mohamad [2005] NSWCCA 204 R v Storey [1998] 1 VR 359 R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 Tripodi v. The Queen (1961) 104 CLR 1 Category: Sentence Parties: Shane Kember (Offender) Director of Public Prosecutions Representation: Counsel: Mr B Murray (for the offender - 27 May 2019) Mr J Glissan QC (for the offender- 14 February 2020) Mr D Scully, Deputy Senior Crown Prosecutor (for the Director of Public Prosecutions) Solicitors: Clowry & Associates Lawyers (for the offender) File Number(s): 2016/00263947 SENTENCE Introduction 1. On 1 September 2016, Shane Kember was arrested and charged with a number of offences pursuant to the Firearms Act 1996 and Weapons Prohibition Act 1998. He was also charged with other serious offences which were later discontinued. He said he was not guilty to all matters. 2. The trial was listed at Wollongong District Court on 20 May 2019. The parties properly continued to discuss and negotiate the matters pending trial. 3. On 14 May 2019, the prosecution sought leave to present a fresh Indictment. Leave was not opposed. Kember then said he was guilty of two offences - 1. Count 1: supply a (Ruger) pistol to person unauthorised to possess it : s51(1A) (c) Firearms Act – maximum penalty 20 years imprisonment- standard non-parole period 10 years, and 2. Count 2: possess a prohibited weapon (a silencer) without a permit- maximum penalty 14 years imprisonment: 7(1) Weapon's Prohibition Act. 1. Kember also admitted his guilt to and asked that; seven (7) Possess unauthorised firearm offences and one (1) Possess ammunition without holding a licence, permit or authority offences, be taken into account when I sentence for the supply firearm offence, on a ss 32 & 33 Crimes (Sentencing Procedure) Act 1999, Form 1. It is appropriate in all the circumstances I do so. 2. The facts relating to count 2 and the matters on the Form 1 are agreed. 3. The facts relating to count 1, the supply of the Ruger pistol, could not be agreed. Only the elements of that offence were admitted by the guilty plea. 4. On 27 May 2019 evidence was presented on the factual dispute. That dispute included a number of aspects relating to Kember's role in the supply of the Ruger. Those issues were initially wide ranging, they have today been narrowed by Mr Glissan of Senior Counsel, who now appears for the offender. During submissions I summarised them as follows: 1. Was the Ruger test fired at Kember's property? And if so, was Kember present when that occurred? 2. Was Kember present when Lawrence and the prospective purchaser 'the third man' discussed the transaction? Implicit in this is what conclusion I should draw as to Kember's knowledge about the lawfulness or otherwise of the transaction. 3. Was the Ruger delivered by Lawrence to the third man who left with it? That is, was the exchange complete? 1. It is accepted that the resolution of these issues will have an impact on the objective seriousness of the offence and on my assessment of Kember's personal culpability. It is also accepted that the issues, having been narrowed, I do not have to be as expansive in my reasons for the conclusions I reach as I had initially intended. Hearing 27 May 2019 1. On 27 May 2019, I heard from Stephen Lawrence, an admitted co-offender, who told me how he came to bring the Ruger with him to this property at Kembla Grange and how it was given to a friend of Kember's in apparent exchange for an old 0.38 pistol. 2. Darryl Austin, a friend of Kember's, gave a different version of what occurred. He said he had been at Kembla Grange and discussed the pistol with Lawrence. He said he did not purchase the Ruger pistol from Lawrence nor did he take it from the property. 3. I also had the benefit of reading transcripts of lawful telephone intercepts between Kember and another co-accused Warren Ayre and other calls between Ayre and Lawrence: exhibit 1. Some portions of the recordings were also played in court. 4. After submissions I adjourned to 13 August 2019, intending on that date to advise the parties of the findings of fact that would inform the sentence hearing and the reasons for that determination. Prior to that date I was advised that the offender had instructed new and senior counsel and that further evidence needed to be called. 5. Although conscious of the need for finality in proceedings, both I and the Crown agreed that procedural fairness to the offender required a further date to be fixed to allow for that further evidence. Unfortunately diaries could not be coordinated until today. Today, 14 February 2020, Mr Glissan appeared to represent the offender. Legal principles 1. Neither party has requested a direction that the Evidence Act applies to the specific dispute about the facts relating to count 1. On 27 May 2019 it was accepted that the Evidence Act would guide my determination. 2. Even when the Evidence Act does not apply, a judge does not ignore the rules policy and rationale underlying those rules. Where a matter that is put forward in sentencing proceedings is contested, notwithstanding that the Evidence Act does not apply, it may not be acted on unless it is established. The proof of such a fact must occur in the context of the proceedings concerned. I am obliged to make my own assessment of the evidence as part of my overall synthesis of the relevant factors. As the High Court made clear in Olbrich v The Queen (1999) 199 CLR 270, matters in mitigation must be established on the balance of probabilities, matters of an aggravation of penalty must be established beyond a reasonable doubt 3. The High Court also recognised that sometimes a sentencing court must sentence according to what is known or agreed. The Court also noted the judge who is not satisfied of some matter urged in plea on behalf of the offender does not have to sentence the offender on the basis of that contention unless the prosecution prove to the contrary beyond reasonable doubt. Evidentiary matters 1. The prosecution relied on conversations in the telephone intercepts between Lawrence and Ayres, to which Kember was not a direct party. Generally for third party conversations to be used against Kember it must be reasonably open to me to find here, that Lawrence and Ayres were making representations, arrangements or statements in furtherance for common purpose with Kember: Tripodi v. The Queen (1961) 104 CLR 1. 2. Similarly, where a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings, such as Lawrence, gives evidence and that witness has received a reduction in sentence conditional on their giving such evidence, there is a need for caution in determining whether to accept that evidence and the weight to be given to it. 3. Further, I do not jump to conclusions based solely on how a witness gives evidence. There are many variables. The manner in which a witness gives evidence should not be the only or even the most important factor in my decision. Facts not in serious dispute - Count 1 1. While many of the telephone conversations were in code, the prosecution's version of them corresponds with known facts. The code was not hard to crack. My main focus is on the calls where Kember is a party. The following can be discerned from the calls in exhibit 1. 2. In July 2016 Kember gave Ayre the parts of a .38 calibre pistol (with some parts missing) for it to be re blued and restored. Re-blueing is a process by which the exterior metal parts are cleaned and a protective layer is added to them. 3. Kember told Ayre the .38 belonged to an associate, who he did not name. His associate wanted the .38 back and in working order on or prior to 3 September 2019. Ayre asked Lawrence to do the re-blueing. Lawrence took the .38 parts but did not have either the skill or equipment to do the job 4. In August 2016 Lawrence met another man at his workshop near Newcastle. That man said he was interested in acquiring the .38 pistol frame and parts. This person said he would swap the .38 pistol for a .22 calibre semi‑automatic Ruger pistol. 5. On 28 August 2016 at 22:00, Ayre called Kember. They speak in code but it is obvious that they are discussing the 0.38 pistol. Ayre tells Kember about a guy who is interested in swapping it for a Ruger. Ayre says "Um, they're legit, as far as legit goes." Kember also asked if there were any of bigger calibre. Ayre indicates he can get Lawrence to come and show it to Kember. 6. On Wednesday 31 August 2016 at 6.31, Ayre called Kember to discuss the swap. Kember reiterates that his associate is going away Friday: "I've got today and tomorrow to work this out. I've got to get it fucking done. This bloke's done a lot of stuff for me, you know, and he never asks me for anything and the one thing I fucking try to do for him I can't fucking pull it off. Like, hello dickhead." 1. On Wednesday 31 August 2016 at 13.01, Ayre called Kember about the swap. Kember says, "Yeah, tell him not to worry about bringing the old one." I interpolate that to mean - the .38 pistol parts. He then says "Just bring the fucking other one." I interpolate that to mean the .22 Ruger. Ayre asked him if he is sure. Kember says, "Yeah." Arrangements are made for Kember to meet Lawrence near his home in Kembla Grange. 2. On Wednesday 31 August 2016 at 13.04, Ayre called Lawrence to tell him, "That deal's done." Lawrence says, "We'll bring it down, let him have a look." I accept this means the done 'deal' is to take the .22 Ruger in exchange for the .38 pistol. 3. On the evening of Wednesday 31 August 2016 Lawrence, in his car, met up with Kember in Dapto. Lawrence then followed him to his property at Kembla Grange. Lawrence had brought with him the .22 Ruger semi-automatic pistol for Kember's associate. 4. On 1 September 2016 at 07.36, Ayre rang Kember. He asked, "Did you see old mate yesterday?" Kember said, "Yeah." Ayre said, "Oh cool, so is he happy?" Kember said, "Yeah, it's all sorted." Disputed evidence - Prosecution version 1. Lawrence gave evidence by video link from the gaol where he is serving his sentence. He told me he and Kember test fired the Ruger with some "sub-sonic" type 0.22 ammunition he had brought with him. The Ruger misfired. They then test fired it successfully with automatic .22 ammunition belonging to Kember. 2. A third man arrived. Lawrence described him as; "big, with very big hands, balding and aged in his sixties or seventies." He said Kember's associate fired the Ruger while Kember was present. Kember's associate took the Ruger away with him. No money was exchanged; rather in accordance with the deal arranged between Kember and Ayre there was a swap - the Ruger for Kember's associate's 0.38 pistol parts. 3. That the swap was intended and completed, is, the prosecution submit, the only rational interpretation of the phone conversations. And that deal had been done, is the only rational version of the conversation of 1 September at 7.36. Disputed evidence - Kember's version 1. Mr Austin gave evidence. He said he was a friend and associate of Kember's, who he had known for many years. He and Kember had once owned a racehorse together. Mr Austin is a large bald man in his sixties. His hands, while not huge were not small. Mr Austin is a person of good character. He was advised of his right not to incriminate himself and of the procedures provided for by s 128 Evidence Act. A certificate was granted to him for portions of his evidence. 2. Mr Austin told me that he had inherited an old pistol. He was aware that Kember had knowledge of firearms so he gave him the pistol in pieces and asked him to find someone to restore it. He told me he was planning an around Australia trip and the idea had come to him that, if he was properly licenced, he could visit gun clubs and ranges, as a way of meeting like‑minded people. He said he had asked for a gun licence application form but had not filled it in. 3. He said he asked Kember to keep an eye out for a pistol for him to take with him. He said he understood Kember knew a lot of licenced gun dealers. He said he was told by Kember that the friend of his could get him a pistol for $1,000. He said he was not told of any swap arrangement. Rather, he said he thought he was inspecting a pistol held by a licenced dealer. He said his intention, if he liked it, was to put down a deposit and pay the balance; only collecting the pistol when he got his gun licence. 4. He said he went to Kember's property in early September as Kember had told him a licenced gun dealer was coming down from up north and had a pistol for about $1,000. He said he drove to Kember's property look to at it. There he was introduced to a man he presumed was the licenced gun dealer. Kember, he said, left them to talk and went into his home to be with his family. Mr Austin did not recognise Lawrence when he saw him on screen in court on 27 May 2019. 5. He said when he was alone with the man he was shown a pistol. He asked about papers for it but he was told there were none. He told me that, doubting the man was a bona fide dealer, he left after first yelling a brief "good bye" to Kember. The man still had the pistol. The man with the Ruger did not stay but followed him directly out of Kember's property. A contested version of events 1. The telephone intercepts provide a reliable and objectively verifiable background to what occurred and in what order. While my focus is on the conversations where Kember is directly involved and what he says to Ayre, I note that that those conversations correspond with what Ayre says to Lawrence. Of particular importance is Kember's insistence that only the Ruger be delivered to Kembla Grange, "Don't worry about the one, just bring the other fucking one" and his confirmation on 1 September that "it's all sorted." 2. Lawrence received a benefit for his promise to give evidence, his sentence was reduced. In his version of events, however, he did not seek to minimise or excuse his own actions or his own criminality. He was not obviously dissembling, nor did he appear to be parroting a line fed to him by others, as was suggested in cross-examination. His account ties in with the telephone calls. 3. Mr Austin's version of events does not tie in with any of the calls or the swap arranged between Lawrence and Kember, nor does it make logical sense. His version is that he gave a valued .38 pistol (in parts) to Kember for restoration but made no further inquiry about it, even to the day he gave evidence. Mr Austin says he asked Kember to source a legitimate pistol for him and that Kember told him he had done so and nominated a price of $1,000. That price does not accord with what is discussed in the calls. 4. He says he did not take the pistol brought to Kembla Range by Lawrence away with him and that he said he had no interest in the purchase. He said he went to Kember for advice about firearms but said that Kember left and was not there to advise him while he and Lawrence discussed the purchase of the Ruger. Mr Austin said neither he nor Lawrence spoke to Kember after the purchase arrangement fell through, despite Lawrence having driven down from Newcastle to deliver the Ruger. Again, this does not accord with Lawrence's version, the swap deal or the 1 September call. If Mr Austin was the third man at Kembla Grange that afternoon, he was not telling me the truth about what occurred. Determination - Count 1 1. Based on the findings noted above in the telephone intercepts, Kember's calls in particular and, in particular, the evidence of Lawrence, I find beyond reasonable doubt: 1. In August 2016 Kember arranged with Ayre for a friend's .38 pistol parts to be re-blued. 2. Ayre could not get the job done in time. 3. Through Ayer's contact, Lawrence, an opportunity arose to swap the non-operational .38 for a working .22 Ruger. 4. Kember agreed to the swap on his friend's behalf. 5. Lawrence delivered the Ruger to Kembla Grange on 31 August 2016. 6. There it was tested fired in Kember's presence. I note Kember has a pistol range at his house: Mr Austin's statement, Exhibit 1 paragraph 11. 7. The Ruger was given to a third party. 8. Kember was present while this transaction occurred 9. That third party left the property with the Ruger. Agreed Facts Count 2 and Form 1 1. There are agreed facts in relation to count 2, the possess prohibited weapon matter. They relate to the execution of the search warrant and what was found. The police were shown a safe in the lounge room of Kember's home. Kember provided them a key to it. In that safe police found seven rifles, which are described in the facts. 2. The firearms were registered in the name of the offender's estranged partner. She was the holder of a New South Wales firearms licence. She did not use any of the firearms that were in the safe. She did not arrange to acquire any of those firearms; their purchase was arranged by the offender. They were registered in her name but she did not live at the premises, having moved out in May 2016. The offender, it is agreed, was not authorised to possess firearms, weapons or ammunition in the state of New South Wales. His firearms licence in New South Wales was revoked on 11 April 1996. 3. Police found ammunition at various locations at the property, including in a safe in the garage, on the top of the safe in the lounge room, a table in the house and a beanbag on the lounge room floor. Agreed Facts Count 2 1. In a small shed towards the rear of the premises police located one homemade silencer which was painted in camouflage pattern. It is accepted that a silencer is a prohibited weapon. Assessing seriousness of Count 2 1. The silencer was not secured. Of itself it is not a dangerous item but it has potential to be dangerous. It was not a toy. It was made to be used. There is no suggestion that it was made to be used for anything other than as a tool in the hunting of wild animals. 2. Had this matter been the only matter charged, I accept it would, in all likelihood, have been dealt with in the Local Court and, in all likelihood, a full-time custodial sentence would not have been imposed. But I note that it was sent to this Court and that it carries a maximum penalty of 14 years imprisonment and a standard non-parole period of 5 years. Assessing seriousness of the supply pistol offence 1. Involvement in the supply of any firearm involves a significant breach of the Firearms Act. That Act makes it clear that firearm use, possession, sale in our community is strictly regulated and a privilege that is conditional on the overriding need to ensure public safety. There was no legal justification here for Kember's involvement in this matter or the arrangements that he made and facilitated. Its possession posed a significant risk to the safety of the community. There is nothing other than Austin's evidence and his recent assertions to suggest Kember thought he was arranging the supply of a registered pistol from a licensed dealer. I did not accept Kember thought he was arranging the supply for a registered pistol from a licenced dealer. 2. The possession of that pistol at all times posed a significant risk to the safety of the community and Kember was dealing at all times with people who had possession of that item. I cannot find beyond a reasonable doubt it was ever in his personal possession, however. 3. If firearms are unlawfully obtained; their possession cannot be regulated, their safekeeping cannot be regulated, they are liable to be used and, if used, are liable to be a source of great danger or damage. Their supply in such circumstance creates a high risk to the safety of the public. Kember assisted and facilitated the transfer of this pistol. 4. An intermediary who arranges the unauthorised purchase or sale of firearms may not be substantially less culpable than the principal: R v Mohamad [2005] NSWCCA 204. Where an offender acts as an agent for others engaged this will have a variant on the determination of the objective seriousness of the offence. That said, involvement in any distribution as an intermediary while it might make the offender less culpable than the seller or purchaser, it does not mean that that culpability is markedly less. The relevant matters here include that: 1. The transaction involved on pistol, the pistol being an element of the offence. 2. The amount of time and effort put into the transaction by Kember. 3. That the expected reward was not financial. Given that his calls were recorded, I can accept on balance that he was intending to do a favour for a mate and that any that expected reward cannot be determined. 4. There was a lack of security inherent in the circumstances by which the firearm was traded. 5. Kember was not directly in possession of the pistol and it was only at his premises for a short time. The actual transaction was between Lawrence, Ayre's agent, and the third man, presumably, for the moment, Austin, whose agent was Mr Kember. 1. I will address questions of parity later but there are submissions as to relativity between roles made by both parties. It is also important to note that in assessing the seriousness of Lawrence's crime and Ayre's offending it is clear that the seriousness of their offending was exacerbated by their firearms offences being associated with their drug offences. 2. Ultimately I look to what I find Kember did. He chose to involve himself in a transaction. He was central to the transfer from one unlawful possession via the agency of Lawrence to another unlawful possessor, a third man who left Kembla Grange with the pistol. The suggestion about the possession of the Ruger came from Lawrence via Ayre and Lawrence had the pistol in his possession for longer than, I suspect, any of the others. The offender's role was integral to the transaction. 3. Because different fact findings were made by different judges who sentenced Ayre and Lawrence, I did not have any regard to the labels associated therein except for parity purposes. What the offender did was a serious breach of the Firearms Act. In the scale of such matters it is still, as Judge Ellis found in relation to Ayre, falls at the bottom of the range of objective seriousness for offences of this type. 4. That said, content has to be given to the non-parole period here which is ten years but all of the material, including the plea of guilty and the subjective case, require that this sentence involves a significant departure from the guidance offered by the standard non-parole period and it is recognised that in some cases, as Mr Glissan properly submits, caught in the exercise of its independent discretion, can impose a sentence that does not involve a non‑parole period. Maximum penalty and Standard non-parole period 1. I have to return, at least as a guide, to the maximum penalties. Here; 20 years with a 10 years standard non-parole period. And, 14 years with a 5 years standard non‑parole period. Attention to maximum penalties and any standard non‑parole period fixed by Parliament is always required. They are sentencing measures that must be balanced with all other relevant factors. 2. A standard non‑parole period or a maximum can invite comparisons between this case and others but it is not appropriate to first look at the maximum or the standard non-parole period and then make some sort of proportional deductions from them. Nor is it necessary to compare and contrast the actual offence with some abstract offence. Even after a plea of guilty some content must be given to the standard non-parole period. That principle fell from the High Court in Muldrock v The Queen (2011) 244 CLR 120. Other Guidance 1. Every offence and every offender requires individualised treatment and the Court's in their undoubted discretion take guidance from a number of sources. They include, as I have indicated, the maximum penalty, the standard non‑parole period, the decisions of other courts, particularly those designed to give guidance and, of course, the purposes of sentencing which here importantly include the deterrence of this offender and others from committing similar crimes. 2. There must also be proper recognition of the harm done to the community by Firearms Act offences. Appropriate recognition also has to be given to the individual circumstances of the offender. Form 1 1. There are seven matters before me on a Form 1. The facts, as Mr Glissan submits, could not be regarded as "possession of a large quantity of illicit firearms." That is not the offence on the Form 1. What is on the Form 1 is "possession of a firearm without being authorised to do so by a licence." It is accepted that the offender has not been licenced to hold firearms in New South Wales since 1996 when his licence was revoked. 2. The guns were owned and registered in the name of the offender's partner. She was licenced. The guns were registered to the address at Kembla Grange. They were legally stored, although, some of the ammunition was not. The offender had access to them. He does not accept the prosecution suggestion that he had arranged their purchase. 3. Whether or not their possession by his wife involved a total shame cannot be found beyond a reasonable doubt but it is uncontroversial that guns and hunting were the offender's hobby. He had access to the guns that were registered and stored at the address. 4. This is more than a technical breach. All the circumstances allowed him to have access to and possess at his will firearms which he was not licenced to possess. 5. Matters on a Form 1 generally do operate to increase the sentence that would otherwise be appropriate. So much was made clear by the High Court in Markarian v The Queen (2005) 228 CLR 357. The increase operates to recognise the need for personal deterrence and retribution for the crime for sentence. The guideline judgment of 2002. A Court does not, however, impose a separate penalty for the Form 1 offences. Rather, in determining the appropriate penalty for the offence for which the offender is to be sentenced, these matters are taken into account as required by the statute as part of the instinctive synthesis approach to sentencing as explained by McHugh J in Markarian. 6. A Form 1 can be, but is not here, a device simply for clearing up minor matters. Sometimes any increase in the sentence can be substantial, that was made clear in Attorney General's Application No. 1: (2002) 56 NSWLR 146 at [18]; Grube v R [2005] NSWCCA 140 7. The offender has a criminal record. Those offences in New South Wales deny him the leniency often given to first offenders. There is a firearms matter from Victoria; however, it was a long time ago. It is important to note, however, that he was born in 1971 and that his last recorded offences were in 2004 and involved the imposition of small fines, indicating that they were relatively minor matters. The offender's subjective case 1. A sentence assessment report was provided on 19 September last year. Because of the delay an update report was provided, 1 February 2020: both are in exhibit B. References were provided from Wollongong City Council relating to the quality of work performed and from a sports organisation, noting his works with "Kids off the streets." They indicate the offender's good qualities and community engagements. 2. Now 48, Kember lives on a semi-rural property with his mother. He has children but they do not live with him. He has worked in a variety of occupations and now runs his own building business. He has been seeing a psychologist for a variety of problems to do with anxiety and depression and post-traumatic stress disorder. 3. He was a recreational hunter, although, he cannot possess firearms which, accordingly, would restrict that activity. He fears that if gaoled, that a previous occupation, if known, may make him vulnerable to retribution. He has never before faced a real prospect of a custodial sentence, as I understand it. He is assessed as suitable for supervision, community service and an intensive corrections order. 4. The report from Mr Backen, his treating clinical psychologist, of 12 February 2020, exhibit 2, indicates that he has been in treatment since 2017; when he represented with a long-term pattern of anxiety, low mood and some vulnerabilities and difficulties associated with his previous career. Despite a number of sessions and hard work, Kember still struggles with ongoing difficulties. The report accepted that if this matter is resolved with a non‑custodial disposition there would be reduced stress levels, which in turn would assist in his recovery. 5. These proceedings have gone on for a long time, too long. I accept that the lived experience of prolonged court proceedings, where gaol is a real possibility, must have an impact on the person's mental health. I accept that Kember's anxiety and depression will increase again if he is gaoled and as a consequence his recovery will be delayed. It is an unfortunate fact that most normal people suffer such conditions in the situation he has found himself in when facing a gaol sentence. Parity 1. This sentence must be determined by having regard to the circumstances of both co-offenders and their respective degrees of culpability. Like must be compared with like. However, different personal and criminal histories may justify a real difference in the time each will serve. This principle is known as "parity" and is a classic example of the need, so far as possible, to ensure equal justice. 2. I have been provided with the judgments of; Judge McLennan who sentenced Ayre on 2 November 2018 and Judge Ellis SC who sentenced Lawrence on 26 November 2019. Both men were also sentenced for other serious offences. Each related count had a Form 1 attached. Both co‑offenders had different subjective cases to Kember and each other. Both co-offenders had their sentences reduced by 25% because of the early guilty pleas. Lawrence's sentence was further reduced by another 15% in part because of his undertakings to give evidence in these proceedings. 3. The factual circumstances outlined in each of the judgments were, in short form, similar to that advanced by the Crown against Kember in these proceedings. The judgments were, however, not put before me to assist in the determination of the facts in this sentence but to provide a point of comparison for sentencing parity purposes. 4. Judge McLennan found that while Ayre's crime was in the low range a custodial sentence was required to deter others from frustrating the scheme of the Firearms Act. For a s 51(1A)(c) firearms offence involving the Ruger pistol he indicated a sentence of two years. 5. When dealing with Lawrence for his role in the supply of the Ruger pistol, Judge Ellis started with a three year sentence before discounts of 40%. Lawrence was charged with a s 33(1) firearms offence; which had a maximum of 14 years and no standard non-parole period. 6. The sentences indicated by Judge McLennan and Judge Ellis were another guide to the exercise of my sentencing discretion. No co-offender should be left with a justifiable sense of grievance from disproportionate sentences being imposed on others unless there is a discernible reason for that difference. One aspect raised in discussion with the parties was that in both other co-offenders' cases the issue of whether an Intensive Correction Order could be an option was not raised, because it was not an option given the other sentences that were imposed upon them. 7. While an Intensive Correction Order is the more lenient option, the focus at this stage, so far as comparison is concerned, must be on the length of the sentence, taking the starting points discernible from their Honours' judgments because here the reductions for plea or other assistance vary. Submissions 1. Mr Glissan, QC and Mr Scully, Deputy Crown Prosecutor, have provided helpful oral and written submissions. I have considered and addressed them in my discussion with the parties and trust I have done justice to them in the course of this judgment. 2. Mr Glissan's major point, clearly made at the outset, was that serious though these matters may be, when one viewed all of the material before the Court and made a proper objective assessment as to the seriousness of what Kember did, his role in this transaction was not one that would call for a significant period of imprisonment. Significantly less, he suggested, than that imposed on the co-offenders. 3. Further, he said a custodial sentence, while warranted, could and should be served by intensive correction in the community. He submitted this conclusion was compelled after proper consideration of; Kember's plea of guilty, the reports, the references, the fact he had provided community service, the availability of community service, his limited criminality, his prospects for rehabilitation, the length of time since he had last offended, the fact that he had been on remand since his arrest without coming under further notice and the stress and anxiety and the positive reports in the sentence assessment reports. 4. The position of the Crown is equally stark. That they say that the seriousness of the offences in total call for custodial sentences and do not allow, in all of the circumstances, for the leniency inherent in be served subject to intensive corrections orders. 5. It is accepted by all that the count 2 is perhaps the least of Mr Kember's concerns and that while a custodial sentence is warranted, it may not have led to full-time custody. If a full time custodial sentence is warranted, while an appropriate sentence has to be fixed, any accumulation should be modest. Late Guilty Pleas 1. There evidence before me is that at no stage until a few weeks before trial, was there a suggestion that Kember would plead guilty. His guilty plea would have been saved little prosecution preparation time and did not assist with the listing arrangements of the Court. He had the advantage of having matters discontinued and he will have the full benefit of that advantage. 2. Admittedly there is the cost of a trial saved and witnesses did not have to attend but, to be realistic, we still occupied quite a bit of time resolving the matters in dispute. The sentences should be reduced by approximately 10% for the utilitarian value of the guilty pleas. I will round down so that may mean a slightly better mathematical advantage than that initial assessment. Intensive Corrections Order? 1. The real issue is the length of the sentence. I am prepared to indicate, as I did at the beginning, that questions of parity and objective seriousness mean that a sentence of less than three years could be imposed. An Intensive Correction Order is not prevented by the operation of s 67 of Crimes (Sentencing Procedure) Act 1999. That section focuses on the elements of the offence and there is no element of an offence before me that relates to the discharge of a firearm. 2. I must consider community safety. That obligation does not derogate from the general purposes of sentencing outlined in s 3A of the Sentencing Act or other relevant matters. It is not limited to the risk of re-offending. It can operate differently in different circumstances. It is a broad concept. Community safety, as Harrison J pointed out in Pullen v R [2018] NSWCCA 26, is not achieved simply by locking someone up. Many studies have shown that in such cases incarceration can have the opposite effect. 3. I have given close consideration to Mr Glissan's submission. It is accepted that serving a sentence subject to an Intensive Correction Order, while it does involve a degree of leniency, still involves substantial punishment. It is not a light sentence. An Intensive Correction Order is intended to be burdensome and onerous. An Intensive Correction Order can be accompanied by conditions, such as community service which allow a person to give something back to the community. It is particularly appropriate where recognition is given for persons non-obligated community service as demonstrated by the references here. Synthesis 1. I return, without repeating the objective seriousness of the offence and my findings in relation to it, to the factual dispute. It has been resolved primarily in favour of the version advanced by the Crown. The offender chose to involve himself knowingly in the supply of a Ruger pistol. He was an active participant in that supply and he was present and facilitated the supply at his premises. 2. The purposes of sentencing so far as Firearms Act matters have been summarised and repeated in many cases. Superior courts have highlighted time and time again that it is necessary to repeat and keep repeating how serious the community views such matters and to reinforce what is said by the imposition of custodial sentences. Substantial weight needs to be given to both general and personal deterrence. 3. I am satisfied that the long delay in resolving these matters and having had it hanging over him the matter for sentence has had a personal deterrent effect but Kember chose to act in complete defiance of his legal obligations, which he, as a firearm enthusiast must have known well. 4. The community has determined that trade in firearms must be strictly regulated. Any breach of the law is regarded as a very serious offence that must be reflected in the sentences imposed: Howard v R [2004] NSWCCA 348, at [66]. A Court, by the severity of the sentences imposed, has to give proper weight to the guidance to which I have earlier referred. 5. Mitigating factors will and should be taken into account but they can only go so far. Here there is a strong and powerful case for a finding, and a significant one, of special circumstances. Here there is a case for a total sentence of less than three years but I cannot do justice to how objectively serious this offence was by imposing a sentence other than a full‑time custodial sentence. Orders 1. In relation to the Form 1: By consent I will allow leave to file in court the indictment for a matter on the Form 1. 2. For Count 1: Taking into account the plea of guilty, taking into account my finding of special circumstances and the Form 1, as it carries a standard non parole period I indicate a sentence of 2 years 8 months with a non parole period of 1 year 4 months.. 3. For Count 2: As it carries a standard non parole period I indicate a sentence of 11 months with a non parole period of 1 month. 4. Having considered accumulation, concurrency, totality and special circumstances, there should be an aggregate sentence of two years and nine months imprisonment. There will be a non-parole period of 1 year 5 months commencing 14/02/2020 and expiring 13/07/2021. The balance of the sentence of 1 year 4 months is to commence upon the expiration of the non-parole period on 14/07/2021 and expiring on 13/11/22. 5. I make a firearm forfeiture for the silencer (Count 2) only. 6. Liberty to restore for a firearms order after notice is given to registered owner. ********** Amendments 28 April 2020 - {80] Amendment to Counsel's name only 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: 28 April 2020