SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: R v Mitchell

Citation: [2016] ACTSC 85

Hearing Dates: 6 and 7 April 2016

Decision Date: 15 April 2016

Before: Refshauge J

Decision: 1. John Edward Mitchell is convicted of unauthorised

possession of 11 firearms on 27 May 2015 (CC15/05598)

2. John Edward Mitchell is sentenced to 3 years and 6 months imprisonment, to commence on 14 April 2016;

3. John Edward Mitchell is convicted of failing to store a Browning BLR Centre Fire Rifle securely on 27 May 2015 (CC 15/5201);

4. John Edward Mitchell is sentenced to 4 months imprisonment, to commence on 14 July 2019, to be cumulative as to 1 month on the sentence for unauthorised possession of 11 firearms;

5. John Edward Mitchell is convicted of failing to store a CZ Rimfire Rifle securely on 27 May 2015 (CC 15/5505);

6. John Edward Mitchell is sentenced to 4 months imprisonment, to commence on 14 August 2019, to be cumulative as to 1 month on the sentence for failing to store a Browning BLR Centre Fire Rifle securely;

7. John Edward Mitchell is convicted of failing to store a Classic Rimfire Rifle securely on 27 May 2015 (CC 15/5506);

8. John Edward Mitchell is sentenced to 4 months imprisonment, to commence on 14 September 2019, to be cumulative as to 1 month on the sentence for failing to store a CZ Rimfire Rifle securely on 27 May 2015;

9. John Edward Mitchell is convicted of failing to store a Mugica of Spain Shotgun securely on 27 May 2015 (CC 15/5507);

10. John Edward Mitchell is sentenced to 4 months imprisonment, to commence on 14 October 2019, to be cumulative as to 1 month on the sentence for failing to store a Classic Rimfire Rifle securely on 27 May 2015;

11. John Edward Mitchell is convicted of failing to store an Sako Varmit Centre Fire Rifle securely on 27 May 2015 (CC 15/5508);

12. John Edward Mitchell is sentenced to 4 months imprisonment, to commence on 14 November 2019, to be cumulative as to 1 month on the sentence for failing to store a Mugica of Spain Shotgun securely on 27 May 2015;

13. John Edward Mitchell is convicted of failing to store a Sako Quad Rimfire Rifle securely on 27 May 2015 (CC 15/5509);

14. John Edward Mitchell is sentenced to 4 months imprisonment, to commence on 14 December 2019, to be cumulative as to 1 month on the sentence for failing to store an Sako Varmit Centre Fire Rifle securely on 27 May 2015;

15. John Edward Mitchell is convicted of failing to store Browning Rimfire Rifle securely on 27 May 2015 (CC 15/5510);

16. John Edward Mitchell is sentenced to 4 months imprisonment, to commence on 14 December 2019, to be wholly concurrent on the sentence for failing to store a Sako Quad Rimfire Rifle securely on 27 May 2015;

17. John Edward Mitchell is convicted of failing to store a Tikka Centre Fire Rifle securely on 27 May 2015 (CC 15/5511);

18. John Edward Mitchell is sentenced to 4 months imprisonment, to commence on 14 December 2019, to be wholly concurrent on the sentence for failing to store a Sako Quad Rimfire Rifle securely on 27 May 2015;

19. John Edward Mitchell is convicted of failing to store a Smith and Wesson revolver securely on 27 May 2015 (CC 15/5512);

20. John Edward Mitchell is sentenced to 4 months imprisonment, to commence on 14 December 2019, to be wholly concurrent on the sentence for failing to store a Sako Quad Rimfire Rifle securely on 27 May 2015;

21. John Edward Mitchell is convicted of failing to store a Browning pistol securely on 27 May 2015 (CC 15/5513);

22. John Edward Mitchell is sentenced to 4 months imprisonment, to commence on 14 December 2019, to be wholly concurrent on the sentence for failing to store a Sako Quad Rimfire Rifle securely on 27 May 2015;

23. John Edward Mitchell is convicted of failing to store a Gecado Air Rifle securely on 27 May 2015 (CC 15/5597);

24. John Edward Mitchell is sentenced to 4 months imprisonment, to commence on 14 December 2019, to be

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wholly concurrent on the sentence for failing to store a Sako Quad Rimfire Rifle securely on 27 May 2015;

25. John Edward Mitchell is convicted of unauthorised possession of ammunition on 27 May 2015 (CC 15/5203);

26. John Edward Mitchell is fined $1,200;

27. That is a total period of imprisonment of 4 years, from 14 April 2016;

28. The sentence of imprisonment be suspended today, 15 April 2016;

29. John Edward Mitchell is required to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 4 years with a probation condition that he be under the probation supervision of the Director-General or her delegate for a period of 4 years or such lesser period as the person supervising him deems appropriate and obey all reasonable directions of the person supervision him, including as to psychological or psychiatric treatment for the hoarding disorder and associated mental health issues;

30. John Edward Mitchell is fined $3,000;

31. John Edward Mitchell is granted 12 months to pay the fines.

Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentencing – possession of ten or more firearms not authorised by a licence, permit or otherwise under the Firearms Act – failure to properly store firearm – possession of ammunition when not authorised by a licence, permit or otherwise under the Firearms Act – NSW firearms licence – licence revoked – firearms to be surrendered – residential premises – unsanitary conditions – abatement order – firearms and ammunition not concealed – firearms and ammunition not securely stored – multiple offences – totality

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentencing – mental health conditions – severe hoarding – anxiety – mental impairment reduces moral culpability – physical health problems – imprisonment significantly more onerous given mental and physical health

Legislation Cited: Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), ss 7, 33 Firearms Act 1996 (ACT), ss 5, 43(1)(a)(i), 180(1)(a)(ii), 249(1)Magistrates Court Act 1930 (ACT), s 90BPublic Health Act 1997 (ACT), s 73Supreme Court Act 1933 (ACT), Pt 8

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Cases Cited: Muldrock v The Queen (2011) 244 CLR 120 Qutami (2001) 127 A Crim R 369R v Ashman [2010] ACTSC 45 R v Collins [2004] ACTSC 73 R v Mack [2009] NSWCCA 216R v Okwechime [2015] ACTSC 129R v Taylor [2015] ACTSC 122R v Verdins (2007) 16 VR 269 Smith-Roberts v Alexander [2014] ACTSC 239Smith (1987) 27 A Crim R 315 Yammine v R [2010] NSWCCA 123

Texts Cited: American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013)

Parties: The Queen (Crown)

John Edward Mitchell (Defendant)

Representation: CounselMs A Jamieson-Williams (Crown)

Ms T Warwick (Defendant)

SolicitorsACT Director of Public Prosecutions (Crown)

Ms T Warwick (Defendant)

File Numbers: SCC 166 of 2015

SCC 167 of 2015

REFSHAUGE J:

1. The 20th anniversary of the Port Arthur massacre in Tasmania will soon occur. As a result of those events, there was a national reform of gun laws and, in the Territory, the Firearms Act 1996 (ACT) was enacted. Section 5 of that Act sets out the principles and objects of the Act. Relevantly, it provides:

(1) The underlying principles of this Act are –

(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety; and

(b) to improve public safety –

(i) by imposing strict controls on the possession and use of firearms; and

(ii) by promoting the safe and responsible storage and use of firearms; and

(c) to facilitate a national approach to the control of firearms.

2. It is clear that a most important consideration in the regulation of firearms is safety and their proper storage.

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3. While this context is important for an understanding of the offences created by the Act, and is relevant to sentencing, it is important to recognise that sentencing for offences, even under the Firearms Act, should be conducted with regard to standard sentencing principles.

4. John Edward Mitchell has been charged with possession of ten or more firearms, namely eleven firearms, not authorised by a licence, permit or otherwise under the Firearms Act. This is an offence contrary to s 43(1)(a)(i), for which is provided a maximum penalty of imprisonment for twenty years.

5. It is, thus, to be regarded as a serious offence relative to other statutory offences by virtue of the statutory maximum. See Muldrock v The Queen (2011) 244 CLR 120 at 133; [31]. Mr Mitchell has pleaded guilty to that offence.

6. In addition, Mr Mitchell has been charged with, and pleaded guilty to, twelve other summary offences which have been transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT), to be dealt with under Pt 8 of the Supreme Court Act 1933 (ACT).

7. These offences are:

Eleven offences of possessing a firearm and failing to take reasonable steps to ensure that the firearms were stored safely, an offence contrary to s 180(1)(a)(ii) of the Firearms Act, which attracts a maximum penalty of imprisonment for one year.

One offence of possession of ammunition for a firearm, consisting of both live ammunition and ammunition components when not authorised by a licence, permit or otherwise under the Firearms Act, an offence under s 249(1) of the Firearms Act , which provides for a maximum of ten penalty units (being, at the time, a fine of $1500).

8. These latter offences are, of course, much less serious by virtue of the maximum penalties provided, although by no means trivial. They arise out of the same circumstances as those out of which the principal offence arose.

The proceedings

9. Mr Mitchell was arrested on 27 May 2015 and bailed by the police to appear in the Magistrates Court on 12 June 2015. On that day, he appeared in court and the proceedings were adjourned to 26 June 2015. Mr Mitchell was granted further bail, apparently with a condition that he report to Woden Police Station.

10. On 26 June 2015, he pleaded guilty to the principal offence and was committed for sentence to this Court.

11. Bail was continued but he failed to report to the Woden Police Station on 1 July 2015 and he was again arrested. His bail was continued when he appeared in court the next day but it appears that the condition for reporting was deleted. Mr Mitchell spent one day in custody as a result of the breach of bail.

12. The proceedings were initially listed for hearing in this Court on 18 October 2015 but, on that day, the requested Pre-Sentence Report was not available and the proceedings were subsequently listed before me on 6 April 2016.

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The Facts

13. Mr Mitchell has been a long time shooter. He has been a member of gun clubs and owned firearms for many years. He said that he took the guns, the subject of the principal charge, home to practise what I understood to be techniques, but never fired guns outside a proper gun range.

14. For a time he lived in New South Wales and then returned to the ACT and, on 6 February 2015, the New South Wales Police Firearms Registry wrote to him revoking his licence to possess the firearms because he had become a permanent resident of this territory and therefore was no longer eligible to hold a New South Wales firearms licence.

15. He was directed, in the letter, to surrender to police his New South Wales licence and any firearms registered to him under that licence. The firearms, the subject of the principal charge, were, with one exception to which I will refer later, firearms which he had been licensed to own under the New South Wales licence.

16. In May 2015, an abatement order was made by the ACT Magistrates Court, apparently under s 73 of the Public Health Act 1997 (ACT), requiring Mr Mitchell to abate the unsanitary conditions caused by an accumulation of material in his house. In the event of non-compliance with such an order, an authorised officer may implement the order.

17. Accordingly, officers of the Environmental Health section of ACT Health arranged to attend at Mr Mitchell's premises to implement the order.

18. Because of his former firearms licence, Australian Federal Police accompanied the officers to check on any firearms that may be on the premises.

19. When they arrived, police spoke to Mr Mitchell and he consented to police entering the premises and inspecting a secure firearms safe that was in the house. Police noted that the safe did not contain any ammunition or firearms.

20. Mr Mitchell initially told police that there were no firearms at the address and that the firearms, the subject of the New South Wales revoked licence, were secure in an address in New South Wales. Accordingly, the police left the premises.

21. Later, the officers from Environmental Health, who had entered the premises to implement the abatement order, advised police that they had located several firearms in the premises and police returned and secured the residence as a crime scene.

22. After obtaining a search warrant, police searched the premises and located seven rifles, a shotgun, a revolver, a pistol and an air rifle.

23. In 1999, Mr Mitchell had, in fact, reported the revolver and the pistol, along with other firearms, as having been stolen.

24. A substantial amount of live ammunition, ammunition components, such as projectiles, caps, primers and gun powder, as well as loading tools and magazines of various calibres, were also located in various places in the house.

25. I had a series of photographs which showed the premises. They showed the premises in a significant state of disarray and hoarding, with what can only reasonably be described as junk all over the place. It also, however, showed some of the rifles clearly visible and not hidden, as well as a significant amount of ammunition and ammunition components in the premises.

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26. As was apparent from the photographs, the firearms and ammunition were located in a number of rooms throughout the house and in the shed in the backyard. They were not stored in any appropriate way and were certainly not stored securely, as required under the Firearms Act.

27. Mr Mitchell was interviewed by police and admitted to owning the firearms and ammunition and that he was not authorised to possess the handguns.

28. He did express a view that his New South Wales firearms licence was current, although police located the letter from the New South Wales Firearms Registry of 6 February 2015, which was on the premises. It was not in a sealed envelope, but open. Mr Mitchell acknowledged that it was possible that he had read the letter but he maintained that he was not aware that his licence had been revoked.

29. Mr Mitchell had previously also held an ACT firearms licence, which was cancelled in March 2000.

The Offence

30. The principal offence is a very serious one, not only because of the maximum penalty, but also because the failure to licence excludes the owner from the regulatory regime which allows proper management of what are, of course, dangerous instruments. Thus, the context provided by the principles of the Firearms Act becomes important. While the offence does not become objectively more serious as a result, that consideration is relevant.

31. Curiously, the offences of failing to store the firearms safely are, in that context, arguably more serious, because of the risks they create for the community, but the maximum penalty is significantly less. Nevertheless, it is an aggravating feature of the circumstances of those offences that previously, in 1999, a number of weapons had been stolen from Mr Mitchell's house. This is, of course, one of the very circumstances which the offences are designed to prevent, namely, the theft of weapons with the risk that they will be misused and the misuse will put other members of the community at risk.

32. While the number of weapons is substantial, that is an element of the principal offence itself and, while it is a large number, it is only one more than the minimum to bring the offending within the category of the charged offence itself.

33. Indeed, one of the weapons is one that had never been licensed to Mr Mitchell and he said that he had no idea where it came from. It was in a poor condition, not able to be fired and quite different from the other guns. In a sense, that is worrying in that it appears that the circumstances of his house, to which I will refer later, has meant that he may not have had a clear picture of the weapons he possessed.

34. That is relevant, also, because two of the weapons, the pistol and the revolver, were weapons that he had reported being stolen. Presumably, because of the state of his house, they were never stolen but he simply did not know where they were.

35. Thus, the offence is a serious version of the offence itself.

Subjective Circumstances

36. Mr Mitchell is now 71 years old. He was educated to tertiary level in the fields of Geology and Chemistry and had commenced employment with the Commonwealth

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Public Service in 1968. He remained within the field of mineral resources until the mid-1980s when the department in which he was employed ceased to exist. He then commenced teaching secondary school science until he retired in 1998.

37. He was married in about 1969 but the marriage ended in about 1989. He and his wife live apart but he has a cordial relationship with her and he sees her socially when the family gets together, about once a week.

38. He has two children and they each have two children. He has provided assistance, particularly to one of his grand-daughters, who has some behavioural challenges.

39. In 1995, Mr Mitchell's brother, Paul, committed suicide.

40. As Mr Mitchell's parents aged, their health deteriorated and they came to need his care. In about 1997 he commenced to do so by regularly visiting them where they lived in Sydney and, after his retirement, he lived in Sydney for about two years as his mother become progressively more unwell and later died in a nursing home. His father survived her by about six months.

41. It was when Mr Mitchell was in Sydney that the firearms were stolen from his home, as I referred to earlier (at [23]).

42. Mr Mitchell's interest in guns started early when he was an Army Cadet in school. As a result, he was exposed to the use of firearms from about the age of 14 and became instantly attracted to them. He joined the Army Reserve, in which he served for about 25 years as a non-commissioned officer.

43. He joined the Sporting Shooters' Association of Australia in 1970 and has continued his membership.

44. I had a reference from the President of the Sporting Shooters' Association ACT Inc in which he indicated that he was aware of the general outline of the offences with which Mr Mitchell had been charged. He was aware of the charges against Mr Mitchell and also that he had previous similar convictions.

45. He was aware of Mr Mitchell's health problems, in particular that he was a compulsive hoarder which, he said, had "not helped him in his sporting recreational interests or compliance". He noted that Mr Mitchell had purchased a gun safe to store his firearms in an appropriate manner but that his health issues have prevented him from giving effect to this requirement.

46. He noted that he had known Mr Mitchell for some thirty years personally and always found him to be "of an upstanding nature and [an] all-round good person". He said that Mr Mitchell "has always displayed a very good attitude regarding firearms and their safe use and showed a great interest in the sporting properties of the sport".

47. Mr Mitchell's physical health is serious. He is morbidly obese and suffers from sleep apnoea, which requires the use of particular equipment at night. He is an insulin dependent diabetic and suffers from hypertension, anaemia and a spinal canal stenosis which causes lower back and neck pain. His left knee is also problematic, requiring surgery for a total knee replacement in the near future. He has problems with his gastrointestinal tract, which requires endoscopies. He has been prescribed a total of 13 medications for hypertension, stomach acids, gout, cholesterol and his other ailments, and is said to have difficulties with self-care. I had letters from his general practitioners confirming these matters.

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48. He has also undergone treatment in 2015 for prostate cancer. It left him with fatigue and exhaustion, pain and an inability to do much physically.

49. Clearly, these problems would pose difficulties for him in a prison environment.

50. His general practitioners referred also to an "unclassified mental condition characterised by severe hoarding and anxiety". I shall refer to that later.

51. Mr Mitchell has a short, but not irrelevant, criminal record, dating back to 1965. Apart from some traffic offences, he was found guilty of two offences of shoplifting, but they were dealt with prior to 1979 and, in both cases, a non-conviction bond was made, indicating the lack of seriousness of that offending. Those offences, prior to the ones I must mention below (at [53]-[55]), are, in my view, irrelevant, to the sentencing exercise in which I must engage.

52. The most troubling offences, however, are that he has twice appeared before the courts for failures to comply with storage requirements for firearms.

53. In 2002, he was convicted of twelve charges of failing to store a firearm in an approved container, offences of failing to store ammunition in an approved container and possession of ammunition not being a person authorised to do so. He was, on that occasion, convicted and fined $350 on each charge.

54. Those offences, I was told, arose out of the theft of his firearms in 1999 which he reported to the police and, as noted above (at [34]), included two weapons which, ultimately, were found in the more recent raid. The investigation of the theft apparently showed the failure to store the weapons securely.

55. In 2015, he was convicted and fined $1200 for failing to comply with storage requirements.

56. He has, however, not been previously convicted of possessing guns without a licence. Indeed, it appears that, apart from the decade-long prohibition following the 2002 convictions, he has always, relevantly, been licensed.

Mental Health

57. As I have noted above (at [50]), Mr Mitchell's general practitioners diagnosed him with an unclassified mental health condition and referred him to Mr Leigh Nomchong for treatment.

58. Mr Nomchong is a registered psychologist who has practised in this jurisdiction for many years and prepared reports for the courts on many occasions, including appearing as an expert witness. He is, and has been for many years, a fellow of the Australian College of Psychologists.

59. He diagnosed Mr Mitchell as having a hoarding disorder, as defined in the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed 2013) 247-51.

60. Mr Nomchong prepared a detailed report, which was tendered and admitted into evidence and which I have read.

61. In it, he gave details of what he learned in his consultation with Mr Mitchell.

62. He went further, however, and particularly he was able to observe the car in which Mr Mitchell arrived for the consultation. He observed the roof rack, which was

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"festooned" with various food items, all left sitting on the roof rack, not tied down or covered, apparently only kept on the roof rack “by gravity". The interior of the vehicle was fully stacked with items of paper, cardboard boxes and so on, and the dashboard of the vehicle was littered with various pieces of paper with various pieces of writing and notes upon them.

63. He also spoke to Mr Mitchell's neighbour, who had known him since 1978. His neighbour had, indeed, been a psychologist himself and, prior to retirement, worked for ACT Corrective Services for five years in medico-legal work.

64. The neighbour said that, after Mr Mitchell's wife left him, it became obvious that his behaviour and mental state slowly deteriorated. He described Mr Mitchell's father, whom he had met several times, as "a very dominant character" who "gave his kids no free hand at all".

65. He also described Mr Mitchell as "not a dangerous man". He had never seen him angry. Indeed, he thought he was a coward, with a grand-daughter who bullies him for money. He is also forgetful and has started to lose cohesive thought.

66. He described Mr Mitchell as "a genuine and caring man" but suffering from a protracted mental health problem. He described him as "more obsessed about purchasing and acquiring objects, but had no interest in looking after them once he had acquired them".

67. Several concerned neighbours had made attempts to assist Mr Mitchell but he refused assistance and no steps were taken until representations were made to the government and abatement orders were made. The neighbour reported that the house had been cleaned on three separate occasions, once by a charity organisation and the other two times by government.

68. Mr Mitchell said to me in evidence that he had told Mr Nomchong the truth in his consultations. Mr Nomchong reported that Mr Mitchell had told him that he was tidy as a child because of the management by his parents. When he married, his wife brought organisation and structure into their daily lives and, while he remained married, he lived by her rules and the house was tidy and structured.

69. Her departure, as noted by the neighbour, had led to a deterioration because of Mr Mitchell's condition.

70. Further confirmation of Mr Mitchell's condition was to be found in the fact that the government had applied for two abatement orders in the Magistrates Court and they had been made. Indeed, a further application was pending.

71. I had, in evidence, the invoices provided by ACT Health for the costs of the implementation of the two orders on previous occasions.

72. Mr Nomchong was subject to a searching and probing examination, which carefully tested and challenged his evidence. I have carefully considered this questioning, but am satisfied that Mr Nomchong's opinion is sound and supported by the evidence.

73. While much of a report by an expert such as this is self-report, this is not a situation of the kind referred to in Qutami (2001) 127 A Crim R 369. Apart from the modification to the principles in that case, so far as those principles relate to this territory, to which I referred in R v Ashman [2010] ACTSC 45 at [27], the situation here was quite different, for Mr Mitchell did give evidence and Mr Nomchong also relied on his own observations

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of Mr Mitchell's car, to which I have referred above (at [62]), and the information given by a qualified neighbour, as I have also referred to (at [64]-[66]). In addition, I had the evidence of the enforcement of the abatement orders which had occurred in 2014 and 2015, as I have already mentioned.

74. I note here that Mr Mitchell's description to me, in evidence, of the effect of the implementation of the abatement orders and the way the officers cleaned out his house had on him was a stark confirmation of the psychological condition he had.

75. As an aside, I note, too, that Mr Mitchell is now receiving assistance from social workers from Woden Community Service to address the issues and, hopefully, with a view to avoiding a further abatement order or its enforcement. He seems to be able to relate to their assistance without the resistance that offers of help from his neighbours, and indeed his family, had triggered.

76. I also note, as a further confirmation of the diagnosis, that the eight rifles, which Mr Mitchell acknowledges knowing about, where all new; they had never been fired since purchase, a significant support for the diagnosis of hoarding.

77. In addition, the opinion of Mr Mitchell's medical practitioner is a basis for the finding of Mr Nomchong that his physical condition is a contributor to his mental condition.

78. Accordingly, I am satisfied that I should accept Mr Nomchong's diagnosis and his opinion that the medical condition of Mr Mitchell was a significant and substantial cause of his offending.

79. Thus, while the Crown criticised the fact that Mr Mitchell had purchased a gun safe and then not used it, showing, it was submitted, that he knew of his obligations and just flouted them, I accept Mr Nomchong's explanation.

80. That Mr Mitchell did know of his obligations is not inconsistent with a mental incapacity to confront the physical steps that he had to take in order to have the guns safely stored.

81. While Mr Mitchell is aware of his problem, it is also a cause of shame to him, which has prevented him from seeking the assistance of his neighbours, to which I have already referred (at [67]), but also to that of his family.

82. It was also clear that the inevitable loss of any hope of holding a gun licence, at least for 10 years, which, given his condition, may mean that he will never again have such a licence, will deprive Mr Mitchell of the major part of his recreational life and passion.

Comparable Cases

83. I was provided with some comparable decisions that were said to show principles on which I should rely.

84. Yammine v R [2010] NSWCCA 123 was a decision on appeal by an accused against a prison sentence of six years and nine months imprisonment for an offence of possessing three unregistered firearms but with twenty-three offences being taken into account. The offences arose out of a serious incident involving malicious wounding of a person by the accused which caused police to commence surveillance of the accused and the execution of a search warrant at his house. There they found the three guns and also the matters that the offences take into account involved. These were several counts of not keeping a firearm safely, possessing an unregistered

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firearm, possessing a prohibited weapon, several counts of possessing ammunition and one count of goods in custody. It was, in many ways, quite a different situation to that involved here. The accused was 25 years old with a very limited record of offending.

85. What is helpful, however, in this case, is that the court, at [35], relying on an earlier decision of R v Mack [2009] NSWCCA 216, listed the following matters by which to assess the objective seriousness of the offence of possessing unlicensed firearms. They were:

(a) the number of firearms;

(b) the number of firearms that were prohibited or were pistols;

(c) the nature and type of the firearms;

(d) the purpose of the possession of the firearms;

(e) the location of the property and the security under which the firearms were kept;

(f) the length of time during which the firearms were in the applicant's possession; and

(g) the circumstances in which they came into his possession.

86. Three ACT decisions were also referred to me for assistance. The first was Smith-Roberts v Alexander [2014] ACTSC 239, which was an appeal against a sentence for, amongst other offences, two offences of possessing unauthorised firearms, for which the defendant had been sentenced to six months and 18 months imprisonment respectively. He had also been convicted of possessing ammunition, for which he was fined $500. The defendant was twenty-one years old and had a long history of serious dishonesty offences. In this case, the weapon, the subject of the second charge, was hidden and loaded with live ammunition and the offences were committed when the defendant was serving a partially suspended sentence for the same offence.

87. Apart from noting the seriousness of the offence, the decision does not afford much assistance as there are significant differences.

88. The second ACT decision is R v Taylor [2015] ACTSC 122, where, amongst other offences, the defendant was convicted of possession of an unlicensed firearm. The accused had a long criminal history involving 13 prior burglary convictions and 14 convictions for theft. He was, at the time of the offences, on parole as a result of an earlier conviction for dishonesty offences, including burglary. The accused had also committed offences of possessing other weapons: a knife and a knuckleduster. He was thirty-four at the time of the offences. He was, on the firearms charge, sentenced to eighteen months imprisonment.

89. Again, the court held that the offences were serious but otherwise the circumstances are significantly different from this offending.

90. The final matter was R v Okwechime [2015] ACTSC 129, where the accused was charged with an offence of possessing a prohibited firearm, an offence of possessing an unlicensed firearm and three offences of possessing prohibited weapons. The weapons were found upon execution of a search warrant at his home. He had an extensive criminal history, including offences of violence and similar offences, although not, it appears, relating to firearms. He was also subject to a suspended sentence at

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the time of the offending. He was sentenced to eight months imprisonment for possession of the unlicensed firearm.

91. Again, the circumstances were quite different, although the seriousness of the offending is relevant.

Consideration:

92. I have regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). There is no doubt that general deterrence plays a part in this exercise.

93. I was urged to give specific deterrence a significant role too by the prosecution but am not satisfied that this should be so. Mr Mitchell will not have a licence to own guns for at least 10 years, if ever. While this offence shows that he is willing, subject to his mental condition, to own guns unlicensed, the guns that he owned were, until revocation, in fact, licensed and he has never acquired an unlicensed gun, save possibly for the air rifle for which he is unable to account.

94. The previous convictions are not for possession of unlicensed guns, thus the need for specific deterrence, in my view, is not high.

95. On the other hand, especially with the summary offences, repetition does demand that punishment plays a more significant role.

96. I have regard to Mr Mitchell's plea of guilty, which came at an early stage and is both evidence of remorse and an indication of his willingness to facilitate the course of justice, though the case against him has to be described as a strong one.

97. I have regard to the objective seriousness of the offences, as I have described above (at [30]-[31]). While the number of guns was significant, it was at the lowest end of the range for which the maximum penalty is applicable. None of the weapons were prohibited, though two were pistols which, of course, are easier weapons to use and conceal.

98. I have regard to the nature of the other weapons, rifles and the like, though all were unused and new and were obviously to be used for recreational shooting and there is no suggestion for any other purpose.

99. The guns were located in residential premises and, on the whole, some of them were relatively easily seen around the house, though the amount of junk in the house would not make all of them easy to locate and readily noticeable to persons who might be inclined to enter the house as trespassers. I take into account that Mr Mitchell has made some efforts to secure them by purchasing a safe, but the fact that he had not managed to use it reduces the mitigation to rather less significance.

100. The firearms were in Mr Mitchell's possession and, other than the pistols, since about 2012, so not for a long time. Importantly, they came to his possession under licence, with the possible exception of the air rifle. It was only the revocation of the licence, which, of course, he did nothing about, that rendered him liable for the offending.

101. As indicated, the other offences were more serious because of the repetition.

102. I have regard to the matters set out in s 33 of the Crimes (Sentencing) Act. So far as I know them they are set out earlier in these reasons.

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103. The two matters of major significance are the mental health of Mr Mitchell and his physical health.

104. In R v Verdins (2007) 16 VR 269 at 276; [32], the Court of Appeal in Victoria indicated ways in which mental health may impact on a sentence to be imposed on a person with a mental impairment. As I have indicated, I am satisfied that Mr Mitchell is in that category. The diagnosis and the effect on his offending are both clear to me.

105. That, under these principles, is relevant, for the influence on the offending of his mental impairment reduces his moral culpability for the offending as opposed to his legal culpability, thus the need for denunciation is reduced.

106. It seems to me, also, that while general deterrence cannot be eliminated, its contribution to the sentence must be reduced, having regard to the nature and severity of the symptoms of Mr Mitchell's hoarding since the structure provided by his wife had been removed.

107. His mental health is also of concern and relevant to the sentence to be imposed. See Smith (1987) 27 A Crim R 315 at 317. As the High Court has acknowledged in Muldrock v The Queen at [19], and as I am satisfied applies here, the offender's health will make imprisonment significantly more onerous than for persons not afflicted. That may mitigate the punishment to be imposed.

108. I can accept that the prison authorities are required to provide proper treatment for a prisoner equal to that available in the community. See R v Collins [2004] ACTSC 73 at [16].

109. The fact is that this is not always reasonably possible, and the High Court has recognised that this is often a reality.

110. I note that Mr Mitchell has been assessed as unsuitable to perform a community service work condition to a Good Behaviour Order.

111. In my view, only a sentence of imprisonment is appropriate in all the circumstances for those offences for which imprisonment is appropriate. The question of how it is to be served must bear in mind all the issues that I have referred to above.

112. As there are multiple offences, I must consider the length of each of the sentences to ensure that, where there are overlapping common elements between any of the offences, Mr Mitchell is not punished twice. That is only minimally relevant here.

113. I have also considered whether the sentences should be partly or wholly concurrent because, for example, they are part of the same enterprise or otherwise. It is, of course, the fact that all of the offences were part of the same recreational pursuit of Mr Mitchell and were effectively committed together at the same time and in the same circumstances.

114. I have then reviewed the length of the term of imprisonment arrived at and ensured that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences committed, but not more than that, and that the total sentence is not crushing and leaves open the realistic prospect of reform and hope for the achievement of Mr Mitchell's goals. Where necessary to achieve this, I have adjusted the cumulation or concurrency of the individual sentences.

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115. Mr Mitchell, please stand.

1. I convict you of the unauthorised possession of 11 firearms on 27 May 2015.

2. I sentence you to three years and six months imprisonment, to commence on 14 April 2015. Had you not pleaded guilty I would have sentenced you to five years and three months imprisonment.

3. I convict you of failing to store a Browning BLR Centre Fire Rifle securely on 27 May 2015.

4. I sentence you to four months imprisonment, to commence on 14 July 2019, to be cumulative as to one month on the sentence for unauthorised possession of 11 firearms. Had you not pleaded guilty I would have sentenced you to six months imprisonment.

5. I convict you of failing to store a CZ Rimfire Rifle securely on 27 May 2015.

6. I sentence you to four months imprisonment, to commence on 14 August 2019, to be cumulative as to one month on the sentence for the failure to store the Browning BLR Centre Fire Rifle. Had you not pleaded guilty I would have sentenced you to six months imprisonment.

7. I convict you of failing to store a Classic Rimfire Rifle securely on 27 May 2015.

8. I sentence you to four months imprisonment, to commence on 14 September 2019, to be cumulative as to one month on the sentence for the failure to store the CZ Rimfire Rifle securely. Had you not pleaded guilty I would have sentenced you to six months imprisonment.

9. I convict you of failing to store a Mugica of Spain Shotgun securely on 27 May 2015.

10. I sentence you to four months imprisonment, to commence on 14 October 2019, to be cumulative as to one month on the sentence for failing to store the Classic Rimfire Rifle securely. Had you not pleaded guilty I would have sentenced you to six months imprisonment.

11. I convict you of failing to store a Sako Varmint Centre Fire Rifle securely on 27 May 2015.

12. I sentence you to four months imprisonment, to commence on 14 November 2019, to be cumulative as to one month on the sentence for failing to store the Mugica of Spain shotgun securely. Had you not pleaded guilty I would have sentenced you to six months imprisonment.

13. I convict you of failing to store a Sako Quad Rimfire Rifle securely on 27 May 2015.

14. I sentence you to four months imprisonment, to commence on 14 December 2019, to be cumulative as to one month on the sentence for failing to store the Sako Varmint Centre Fire Rifle securely. Had you not pleaded guilty I would have sentenced you to six months imprisonment.

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15. I convict you of failing to store the Browning Rimfire Rifle securely on 27 May 2015.

16. I sentence you to four months imprisonment, to commence on 14 December 2019, to be wholly concurrent with the sentence on the failing to store the Sako Varmint Centre Fire Rifle securely. Had you not pleaded guilty I would have sentenced you to six months imprisonment.

17. I convict you of failing to secure a Tikka Centre Fire Rifle securely on 27 May 2015.

18. I sentence you to four months imprisonment, to commence on 14 December 2019, to be wholly concurrent with the sentence for failing to store the Sako Quad Rimfire Rifle securely. Had you not pleaded guilty I would have sentenced you to six months imprisonment.

19. I sentence you for failing to secure a Smith and Wesson revolver safely on 27 May 2015.

20. I sentence you to four months imprisonment, to commence on 14 December 2019, to be wholly concurrent with the sentence for failing to secure the Sako Quad Rimfire Rifle securely. Had you not pleaded guilty I would have sentenced you to six months imprisonment.

21. I convict you of failing to secure a Browning pistol securely on 27 May 2015.

22. I sentence you to four months imprisonment, to commence on 14 December 2019, to be wholly concurrent with the sentence for failing to store the Sako Quad Rimfire Rifle securely. Had you not pleaded guilty I would have sentenced you to six months imprisonment.

23. I convict you of failing to store a Gecado Air Rifle securely on 27 May 2015.

24. I sentence you to four months imprisonment, to commence on 14 December 2019, to be wholly concurrent with the sentence for failing to store the Sako Quad Rimfire Rifle securely. Had you not pleaded guilty I would have sentenced you to six months imprisonment.

25. I convict you of unauthorised possession of ammunition on 27 May 2015.

26. I fine you $1200.

27. That is a total period of imprisonment of four years from 14 April 2016.

28. I suspend that sentence today for four years.

29. I require you to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentencing) Act 2005 (ACT) for a period of four years, with a probation condition that you be under probation, subject to the supervision of the Director-General or her delegate, for a period of four years or such lesser period as the person supervising you deems appropriate, and obey all reasonable directions of the person supervising you as to psychological or psychiatric treatment for the hoarding disorder and associated mental health issues.

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30. I fine you also $3000.

31. I grant you 12 months to pay both of those fines.

I certify that the preceding one hundred and thirteen [113] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.

Associate:

Date: 9 May 2016

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