STATE OF TASMANIA v STEVEN CRAIG FIELDING 7 DECEMBER 2020
COMMENTS ON PASSING SENTENCE PORTER AJ
The defendant, Mr Fielding, has pleaded guilty to one count of possessing a prohibited firearm when not the holder of a firearm licence of the appropriate category. By way of s 385A of the Criminal Code, I am also dealing with his pleas of guilty to summary offences of possessing an unregistered firearm, possessing a firearm when not the holder of a firearm licence of the appropriate category, possessing ammunition when not the holder of a licence, possessing a loaded firearm in public when not the holder of a licence, and failing to take all precautions to ensure the safekeeping of a firearm and ammunition. All of these charges arose out of the interception of the defendant by a police officer in company with a wildlife ranger at about 10pm on 8 February 2020 on a bush track south of Ouse. When intercepted, having driven through Ouse, the defendant told the officers there was a firearm behind the driver’s seat. A search revealed a .22 Stirling semi-automatic rifle in a gun bag. The ranger removed the magazine and found one round in it. The magazine had a capacity of 15 rounds. When asked about the items, the defendant admitted he did not have a firearm licence, and said he found the firearm in the bush and was not aware if it was registered, that he had had it for that day and he was going to hand it in. As to the magazine, he explained that it was as he had found it, saying he had opened the bag, looked at the rifle, put it back in the bag and put the bag behind the seat. He also said that there was some ammunition in the side of the gun bag. In total, the following ammunition was located in the defendant’s vehicle: 84 rounds of .22 ammunition, including the one found in the magazine, one .270 round which was in a pocket of the gun bag, and 17 .243 rounds, 16 of which were found in a different gun bag which was in the passenger side floor-well, with the remaining one on the seat. The indictable offence faced by the defendant is created by s 9(1A) of the Firearms Act 1996 which specifically relates to the possession or use of prohibited firearms The rifle was a self-loading rim-fire rifle and as such was a prohibited rifle by virtue of Schedule 1 to the Firearms Act. Being a self-loading rim-fire rifle with a magazine capacity of more than 10 rounds, it was a Category D firearm for licensing purposes.
The defendant is 33 years old. He does not have any prior convictions of significance, the only matter in this State are convictions in June 2018 for using and possessing a controlled plant. In the period March 2008 to September 2009 in two separate court appearances in Western Australia, he was convicted firstly of minor traffic offences, but secondly of four drug offences including possession of drugs with intent to supply, for which he was imprisoned. As to the present and these offences, I was told that he lives at Victoria Valley Road and is in a long-term relationship. He is in receipt of benefits. He was born in Hobart but completed secondary education on the north west coast before working in the forestry area for about two years. In 2007 he went to Western Australia and worked in the mines. After a relationship ended, he returned to Tasmania in 2017 and moved to Ouse to be close to an elderly uncle. He has no savings and supplements his income by working for his brother two days a week building fences, and by selling firewood he collects. Earlier in the day in question, he went “wood hooking” on a property off Victoria Valley Road. He had loaded about half the vehicle with wood. It was getting dark. When he went to move the vehicle it became bogged. He went to look for branches to put under the bogged wheels. As he was doing this he saw the butt end of the gun bag in a hollow log nearby. He inspected it and saw what it was. He put it behind the seat with the intention of taking it to the police station the following day. He was able to move on and had driven a couple of kilometres down the road on his way home when he encountered the police officers; eventually being stopped by them south of Ouse, as I have said. I was told that the 17 rounds of .243 ammunition were left in the defendant’s vehicle by a friend.
The Crown is not able to dispute the assertion that the defendant intended to deliver the firearm to police at least at a time convenient to him, but points to s 109 of the Firearms Act. That section provides that a person who comes into possession of a firearm which they are not authorised to have must immediately surrender the firearm to a police officer or licensed dealer. The Crown says the nearest police station was at Hamilton which is 15 kilometres away, and although not manned at all times, the officer is on call. I was told that phone service was non-existent at the place where the rifle was found, fine in Ouse, but patchy outside the town. Section 109 of the Act clearly indicates the seriousness with which Parliament regards the possession of firearms by people without lawful authority. The issue is particularly acute with prohibited firearms. As I have said, the Crown does not dispute the defendant’s intention to hand in the firearm at a more convenient time, and I am not able to reject the defendant’s explanation as inherently improbable. The firearm remains though, a prohibited one, and one that was loaded. In relation to the ammunition, s 84 of the Firearms Act requires a person in possession of ammunition to take all reasonable precautions to ensure that it is kept safely. The defendant seems to have been quite careless in relation to the centre fire rounds of ammunition left in his vehicle by his friend. General deterrence is a very important sentencing consideration when dealing with firearms offences. This case is somewhat unusual but as I have noted, Parliament has put in place a strict regime. That is for good reason. Great care needs to be taken to ensure that firearms and ammunition do not fall into the wrong hands and that the regulatory regime is strictly adhered to. Of course, the defendant had no authority by way of any licence to be in possession of any of the items, regardless of the prohibited nature of the rifle. I take into account the defendant’s personal and financial circumstances and the pleas of guilty, that to the indictable offence having been entered at an early stage. The other matters were adjourned sine die in the Magistrates Court until being put before this Court.
Mr Fielding, I have explained the facts as I find them to be, and what I see to be the relevant circumstances in your case. Most of the conduct for which you are to be sentenced arises out of the finding of the firearm and accompanying ammunition, but Parliament has taken a strict stance. Having given the matter careful consideration I think a fine is the appropriate penalty. You are convicted of the indictable offence and of the first, third, fourth and fifth summary offences as earlier outlined, being charges numbered 5, 7, 8, 9 and 10 on the complaint. You are fined the sum of $750 which the law says has to be paid within 28 days. I order the forfeiture of the rifle and all the ammunition seized on 8 February 2020. I take the view that the remaining summary charge no 6, that of possessing a firearm when not the holder of a firearm licence, is subsumed within the indictable offence and will be dismissed in accordance with the principles discussed in Wood v Major (1993) 3 Tas R 249. I