STATE OF TASMANIA v MATTHEW DAVID GILLIES 27 SEPTEMBER 2019
COMMENTS ON PASSING SENTENCE BRETT J
Mr Gillies, you have pleaded guilty to one count of recklessly discharging a firearm. You have also pleaded guilty to the associated summary charges of failing to comply with prescribed storage requirements in respect of the firearm concerned and some ammunition.
You committed this crime on 13 October 2018. In order to describe the context in which you did so, it is necessary to commence with your general background and character. You are 37 years of age. You have no criminal history apart from some minor traffic infringements. You have been in employment since leaving school and have resided in a settled relationship since 2011. You have been a member of various organisations, including the SES and a local Bowls club. Since 2007, you have held a firearms licence and have possessed firearms. I accept that prior to the commission of these offences you had taken your responsibilities as a registered firearm owner seriously, and had been compliant with all relevant legal and regulatory requirements. An example of this is that you upgraded the quality of your gun safe when a change in the relevant regulations required you to do so.
The house at which the crime was committed was the residence of your partner and her mother. You were staying there at the time, although you lived elsewhere. For approximately two months before 13 October, the residential street in which the house was located had been experiencing a problem with motor vehicle hooning. You believed that the male occupants of a nearby house were responsible and had made a number of calls to police requesting assistance. Your counsel asserts, without dispute, that the police response was extremely limited, and often there was no response at all. You complained to some local politicians. Subsequently, police did attend the neighbourhood and clamped one of the neighbour’s cars. However, it was also disclosed to the neighbour concerned that you had been the source of the complaint.
The night before the commission of the crime, you retrieved a .22 gauge rifle and a box of ammunition from your gun safe, and took these items to your partner’s house. You stored them on the floor in the bedroom. This conduct constitutes the commission of the summary offences. I was not told with precision why you did this, but I infer that it was due to apprehension arising from the conduct of your neighbours.
On the afternoon of the following day, you arrived home after playing lawn bowls. The two men whom you believe had been responsible for the hooning behaviour and other abuse, were drinking alcohol with others at their house. There was a brief verbal exchange between you and them, following which one of the males began walking toward your house. You had your partner retrieve the firearm and give it to you. By this time, the man had been joined by others, and the group was approaching your house. You fired a shot in the general direction of their house, which I infer was also in the direction of the approaching people. It is accepted that you aimed the weapon on a trajectory which was well above their heads. You fired the shot in an attempt to scare them off. However, this was unsuccessful. They were joined by many others and the enlarged group attacked your motor vehicle and the house. They smashed a number of windows and struck at the front security door. It seems that these people only withdrew when they learned that police were approaching.
To your credit, you had your partner immediately telephone police to report that you had fired a shot. You also spoke to police yourself. You complied with instructions to unload and render the vehicle safe before the arrival of police.
There is no suggestion of actual victim impact or damage from the discharge of the weapon. The only property damage was to the property of your partner and you. This resulted from the reaction of the group who were approaching the house when you fired the shot.
I accept that you discharged the firearm as a defensive measure, and in circumstances of emergency, as you perceived them to be at the time. However, I do not accept that your actions were completely spontaneous nor lacking in premeditation. The fact that you had brought the weapon and the ammunition to the house the night before, in clear breach of storage requirements that you knew well and had always complied with, suggests the clear possibility that you had contemplated the use of the firearm, albeit as a defensive reaction to circumstances such as those which actually took place the following day. Further, you made no attempt on the day of the crime to deal with the perceived threat arising from the approach of the group by first contacting police. I accept that you felt that police had let you down in the past, but it is reasonable to assume that they would have responded differently to the threat of a direct attack on your home, as opposed to the acts of nuisance caused by the traffic hooning.
This case demonstrates why the display and use of firearms in residential areas has no place. Your action in firing the shot, notwithstanding that you did so defensively, was extremely reckless. A firearm by design has only one purpose and that is to inflict injury, including lethal injury, on other living beings, including humans. The discharge of a firearm in any circumstances carries with it the real risk that such injury will be inflicted. When the discharge takes place in a populated area or in the proximity of other people, there is a commensurate increase in that risk. Bullets do not always go where they are intended, and there is always a risk of accidental discharge. In this case, notwithstanding that you lifted the trajectory of the shot above the heads of the approaching people, it is beyond doubt that the projectile fired by you would still have had to come to earth at some place. You made no allowance for this. A further risk inherent in the use of a firearm in circumstances such as these, is that of sparking a violent reaction or setting in motion a chain of circumstances that can lead to injury or worse. The reaction of the approaching group in this case is an actual example of such a consequence, but it is not difficult to think of even more serious outcomes, including the use of firearms in response. Finally, there is the impact on the wider community, including on people not connected with the relevant events in the immediate area. The use of a weapon in a residential area is likely to cause fear and apprehension, and indeed it would seem that this is what actually occurred in this case. A woman driving by with her three children in the car saw you holding a firearm in the street. A number of people telephoned police in response to the firing of the shot. In summary, as I said in my sentencing comments in another case, to which I have been referred by counsel, the use of a firearm in a residential area is repugnant to the peaceful quality of our society.
It follows from all of this that general deterrence and denunciation are significant sentencing considerations. I accept that your actions were provoked and that some mitigation arises from this, but the weight to be attributed to this mitigation is reduced by the premeditation I have already discussed. I accept that you are remorseful and have entered a plea of guilty at the earliest possible opportunity, given that it was done as soon as the prosecution agreed not to proceed with other serious charges contained in the indictment. I have considered whether, in view of your prior good character and the mitigating circumstances, it is appropriate to impose a sentence which does not involve imprisonment. However, I have come to the conclusion that this is a relatively serious example of this crime. The seriousness arises principally from the fact that you discharged the firearm in a public way in a residential area, and in circumstances in which the risk of injury was heightened because of the proximity and close engagement of a number of people. I think, though, that it is appropriate to wholly suspend the sentence to take account of the mitigating circumstances, your early plea of guilty and your prior good character.
A further issue which arises concerns the application of s 149(3) of the Firearms Act. That section confers a discretion to order the forfeiture of the seized firearm and ammunition. The discretion responds to your commission of the summary offences, not to the criminal offence, although if you had been charged with the corresponding summary offence under the Firearms Act, forfeiture would be automatic. Your counsel has asked on your behalf that I not make this order. The order seems to me to be intended to be part of the penalty for the offending behaviour. In this case, I think that such an order is justified. While I acknowledge that up to this point you have demonstrated responsibility as a firearms owner, you clearly acted irresponsibly on this occasion. This included your conduct in removing the weapon and the ammunition from the gun safe and leaving them overnight in the house. This conduct is closely related to your overall culpability. Accordingly, it is appropriate in my view to make the relevant orders as part of the punishment arising from your actions.
Matthew Gillies, you are convicted of the crime and the offences to which you have pleaded guilty. You are sentenced to a global term of 4 months’ imprisonment. The whole of the sentence is suspended for a period of 12 months on the condition that you are not to commit another offence punishable by imprisonment during that period. The firearm and ammunition seized by police is forfeited to the Crown.