STATE OF TASMANIA v STEVEN WAYNE BARTON 14 DECEMBER 2023
COMMENTS ON PASSING SENTENCE PORTER AJ
Steven Barton, the defendant, has pleaded guilty to one count of recklessly discharging a firearm, contrary to s 239B of the Criminal Code. I am also dealing with his pleas of guilty to eight summary firearms offences. They are, possessing a firearm to which a licence may not be issued, possessing ammunition when not the holder of a licence, discharging a firearm within 250 metres of a dwelling house, handling a firearm whilst under influence of alcohol, possessing an unsafe firearm, failing to ensure safe keeping of a firearm and of ammunition, and possessing an unregistered firearm. The facts are as follows. At about 1am on 27 May 2023, police responded to a complaint from a member of the public about noise. They went to an address in Herdsmans Cove. From their investigations it emerged that the defendant had fired one round from a homemade 12 gauge shotgun between about 7.00pm and midnight the night before. Hr had been drinking since 9.00am that day. An initial search revealed a box of 12 gauge shotgun cartridges and a device made of metal pipes in which a live shotgun cartridge was found. When spoken to, the defendant said that the ammunition was his, that he had previously been the holder of a firearms licence but was not currently, that he had fired a shot into the air out of the “pipe” firearm from outside his home about five or six hours previously. He said he did so because he was angry. A subsequent search of the defendant’s residence revealed 17 live 12 gauge cartridges, four discharged 12 gauge cartridges and 111 shotgun pellets all of these were located on a table in an under house storage space. The live cartridges were found on a chair next to the firearm. This under house area was where the defendant was staying, having been there for about six weeks. Ballistics examination showed that there were no trigger mechanisms or safety devices fitted to the rudimentary firearm, and that it operated in a slide or “trombone” type action. Firearms of this type are commonly called “slam-fire” guns. It was described as crudely constructed but capable of firing a 12 gauge shotgun shell. This is a firearm and not one to which a licence can be issued.
The defendant is now 56 years old. He has a recorded history of offending starting in 1994, but until recently the bulk of the record relates to traffic matters but they include two counts of driving under the influence in 2004 which attracted a total suspended term of ten weeks. On 16 November 2023 for breaches of an interim family violence order and breaches of bail, not involving any firearm offending, and for conduct post dating these present matters, the defendant was sentenced to imprisonment for three months, one month of which was suspended on conditions for two years. He will complete that sentence on 21 December 2023. Further relevant personal circumstances as advised by the defendant’s counsel are as follows. He has a reasonable industrial record having worked as a butcher baker and chef. Until relatively recently, he had been in a relationship for some 27 years with a woman with whom he has four children, three of whom are adults. They maintain a good relationship and he intends to live with her upon his release from prison. The family violence offending related to a woman with whom he had a more recent and violate and short term relationship. He suffers from a bone disease which has necessitated surgical intervention on parts of his spine and he is in receipt of a disability pension. He has been prescribed opioid medication for the pain but he prefers to avoid using those drugs. He does have a history of alcohol abuse but until the difficulties created by the recent short term relationship, he had been abstinent from some 15 years. As I understand it, the present offending took place during the breakup phase of that relationship. He had relapsed into drinking and was generally angry. Counsel put that his decision-making was impaired that the conduct amounted to a stupid prank that had gone wrong and that he regrets what he did. I was told that he is fully aware of the seriousness of the offending. I note that the defendant pleaded guilty to the indictable charge on the compliant on his first appearance in the Magistrates Court when he was unrepresented and has not sought to resile from that plea. That is of some significance and he is entitled to a discount accordingly. I also note that he spent one day in custody on these matters.
Most of the firearm offences created by Parliament are generally to be treated as serious; some are so serious that they almost invariably warrant a term of imprisonment. Although there are varying degrees of culpability within the crime, recklessly discharging a firearm is one of them. In this case however, there are features which put this case at the lower end of the scale. In particular, the shotgun shell that was placed in the firearm and fired did not have a projectile or pellets in it. The round was made up of the wad that would have separated the pellets from the gun powder, the gun powder and the primer cap and primer. Although injury can occur from the discharge of a shotgun round in that state, the person would have to be quite close and almost directly in front of the line of fire. I note the defendant fired the shot outside and into the air, with no suggestion that anybody was in close proximity but that of itself could cause alarm. What particularly troubles me about this case is the nature of the firearm involved; it was an unsafe and home-made one not capable of being registered. The summary offences that directly relate to having it are possessing a firearm to which a licence may not be issued, possessing an unsafe firearm and failing to secure it. The strict licencing regime of firearms exists for very good reasons. Firearms that are not capable of being registered or unregistered and exist outside the system, and stolen firearms, attract criminal elements to the potential great detriment of the community. This particular firearm could well have fallen into the wrong hands. Deterring others from similar offending, and condemning this sort of conduct, are important considerations. On the other side of things, I take into account the defendant’s very early plea of guilty and his willingness to dispose of the summary matters at the same time that as the indictable offence is dealt. I take into account his personal circumstances; in particular his medical condition. I accept that he is now of a much lesser risk of offending given the end of the problematic relationship, and that he proposes to live in a more stable environment. Additionally, he seems capable of staying away from excessive alcohol.
Mr Barton, I have set out the facts, your personal circumstances and what I see to be the relevant sentencing considerations. The combined nature of the various charges makes this a serious matter. Notwithstanding that the cartridge fired did not contain pellets or a projectile, firing it was a reckless thing to do. The possession and use of an unregistrable firearm of such a nature, combined with the failure to secure it, make it a matter that warrants imprisonment. However, the term will be moderated due to the early plea in particular and I am satisfied that it is appropriate to suspend the execution of it. You are convicted of all matters. First, on the charge of possessing ammunition when not the holder of a licence, a matter not punishable by imprisonment, you are fined the sum of $250 which will have to be paid within 28 days. On the remaining charges you are sentenced to five months’ imprisonment the execution of the whole of which is suspended on condition that you commit no offence punishable by imprisonment for a period of two years. I need to provide you with both an explanation and a warning. The condition of suspension means what it says. If you commit any offence punishable by imprisonment you can be brought back to this Court on an application to activate the sentence, and a judge must do that unless it is unjust. The warning is that there are many offences punishable by imprisonment. They include for instance, possession of cannabis and the more serious driving offences. I order the forfeiture of the firearm and all ammunition the subject of the complaints and seized by police on 27 May 2023.