STATE OF TASMANIA v PETER GLENN HOWLETT 15 JUNE 2022
COMMENTS ON PASSING SENTENCE BLOW CJ
Mr Howlett has pleaded guilty to the indictable offence of possessing or using a prohibited firearm when not the holder of a firearm licence of the appropriate category. He has also pleaded guilty to six related summary offences that I will deal with under s 385A of the Criminal Code.
The charges all relate to an incident on 5 August 2021 when police officers conducted a search of Mr Howlett’s home in accordance with a search warrant. When the search started, Mr Howlett was in his lounge room, but he subsequently told Detective Sergeant Bobrowski that he was going to have a cigarette, walked into the kitchen, picked up a rifle that was hidden behind the refrigerator, ran through a doorway, and tried to shut the door behind himself. The Detective Sergeant saw the weapon, jammed something in the doorway to prevent Mr Howlett from fully closing the door, and called to other officers, saying, “In here guys now. He’s got a firearm.” Two officers arrived to assist him. However Mr Howlett opened the door and returned to the kitchen empty handed. He was arrested. The firearm was found close to the door. It was a 7.62 mm x 39 mm calibre Chinese Factory 386 self-loading rifle, model AK Hunter. It was loaded, with nine bullets in a magazine, but none in the chamber. It was a firearm in relation to which a firearm licence was able to be issued, but Mr Howlett did not have any sort of firearm licence.
The indictment alleges that Mr Howlett “possessed and used” the rifle. His counsel informed me that he admitted that he possessed it, but denied that he “used” it, and that he had pleaded guilty only on that basis. The Crown prosecutor relied on the extended definition of the word “use” in s 3 of the Firearms Act 1996. That definition reads as follows:
“use, in relation to a firearm, means –
(a) fire the firearm; or
(b) hold it so as to cause a reasonable belief that it will be fired, whether or not it is capable of being fired.”
The prosecutor contended that when Mr Howlett picked up the firearm and hurried out of the kitchen, he held it so as to cause a reasonable belief that it would be fired, and thus “used” the weapon within the meaning of the relevant definition.
The prosecutor and defence counsel agreed that there was no need for sworn evidence to resolve the dispute as to whether Mr Howlett “used” the rifle. It was agreed that I should determine whether it should be inferred from the undisputed stated facts that Mr Howlett’s conduct amounted to the “use” of the weapon. I was not told whether the weapon was capable of being fired, but that is beside the point.
There is no suggestion that Mr Howlett pointed the weapon at anyone, nor that he pointed it in the direction of any police officer or officers. There is no suggestion that he made any sort of threatening gesture. I was told nothing about the manner in which he held the weapon at any stage. I infer that Mr Howlett’s conduct in picking up the weapon during the police search and hurrying out of the room with it must have caused the Detective Sergeant to fear that he might shoot someone with it, and that such a fear was reasonable. However there is a distinction between a reasonable belief that a firearm might be fired and a reasonable belief that it will be fired. I have to decide whether I am satisfied beyond reasonable doubt that Mr Howlett held the weapon in such a manner as to cause a reasonable belief that he was going to fire it, as distinct from a reasonable fear that he might fire it. On the facts as stated, I am not satisfied beyond reasonable doubt of that.
However Mr Howlett has pleaded guilty to the crime charged, and I am satisfied that at least three officers reasonably believed that there was a danger that he might shoot someone. That is a very serious aggravating factor.
The summary offences to which Mr Howlett pleaded guilty are as follows:
- Obstructing the search of warrant premises by running away from the Detective Sergeant, obtaining the hidden firearm and preventing police access to that firearm.
- Possessing nine 7.62 mm calibre bullets when not the holder of an appropriate firearm licence.
- Failing to take all precautions to ensure the safekeeping of the firearm.
- Failing to take all precautions to ensure the safekeeping of ammunition, namely the nine bullets.
- Possessing a controlled drug found during the search, namely Trenbolone Enanthate 200, which is a potent anabolic androgenic steroid.
- Possessing a quantity of cannabis found in a cigarette butt during the search.
Mr Howlett was 28 years old on the day in question and is now 29. By offending on that day he breached the conditions of two suspended sentences. The first of those related to a conviction for causing grievous bodily harm in 2016. In 2019 Mr Howlett was sentenced for that crime to 3 years’ imprisonment with 12 months thereof suspended on condition that he commit no offence punishable by imprisonment within two years after his release from prison. That sentence related to an incident when Mr Howlett had become angry with another man whilst waiting in a queue outside a nightclub. After Mr Howlett was refused entry to the nightclub he followed that man and punched him once to the face, so hard that he broke the man’s jaw in two places, requiring surgery, the insertion of two titanium plates, and the removal of a wisdom tooth. Mr Howlett had been out of prison for roughly 14 months when he committed the offences that I am concerned with.
The second suspended sentence related to a conviction for breaching a police family violence order. Over a two month period from May to July in 2019 Mr Howlett breached such an order by phoning his former partner 214 times. On 22 April 2020 a magistrate sentenced him for that offence to 14 days’ imprisonment, wholly suspended on condition that he not commit another offence punishable by imprisonment in the following 18 months. That order had been in force for about 15 months when Mr Howlett committed the offences that I am concerned with. The Crown has applied for both of the suspended sentences to be activated.
On 5 January 2021, exactly 7 months before the offences I am concerned with, Mr Howlett committed a series of summary offences – possessing crystal methylamphetamine, possessing a smoking device, and obstructing the search of warrant premises. It appears that he was on bail in relation to those offences on the day in question. In November 2021 a magistrate sentenced him to 1 month’s imprisonment for those offences. After that sentence expired Mr Howlett spent 27 days in custody before being released on very strict bail conditions. He was required to live at an address in Richmond and not leave that address unless he was accompanied by his father or his brother. Mr Howlett was practically under house arrest from the time he was bailed on 6 January until I remanded him in custody last week on 8 June.
When Mr Howlett was paroled in relation to the grievous bodily harm charge he obtained employment and commenced a relationship with a new partner. He lost his job as a result of the COVID-19 pandemic. He then went into business with his father and brother. His counsel told me that the firearm in question was found when they were excavating in the vicinity of some army barracks, and that it was extremely old, damaged, worn and rusted. I was told that Mr Howlett took possession of it, was aware of a firearms amnesty, intended to turn it in to the police, hesitated because of his involvement with the police in the past, was thinking of asking a friend with a clean record to turn it in, and had had it for about a fortnight when the police searched his home and took possession of it. I was told that he panicked when the police arrived. The assertions as to the condition of the weapon were not disputed by the Crown. I was not given any explanation as to why Mr Howlett’s father or brother did not take on the role of surrendering the firearm to the police.
I find Mr Howlett’s explanation as to how he obtained possession of the weapon hard to believe, but I will sentence on the basis that it was a truthful explanation. Whatever the condition of the firearm, Mr Howlett should not have taken possession of it, and should have realised that he would be breaching the conditions of the suspended sentences if he did. There are a number of possibilities as to the condition of the firearm. It might have been in working order. It might have been operable but unsafe. It might have been inoperable but capable of repair. Significantly for present purposes, its production during the search, even if motivated by panic, was something that caused at least three police officers to fear that someone might get shot.
Unlicensed firearms pose a particular danger in the Tasmanian community. Criminals are able to buy them, steal them, and use them. Having regard to Mr Howlett’s prior convictions and the pending charge of obstructing a search of warrant premises, I have concluded that the only appropriate penalty in this case is a sentence of imprisonment.
I must activate each of the suspended sentences unless I consider that it would be unjust to do so. The possession of the firearm and its production as part of the obstruction of the police search were both very serious breaches of the conditions of the first suspended sentence, which related to a crime of violence. I am not persuaded that it would be unjust to activate the suspended 12 months of the relevant sentence, but I will impose the shortest possible non-parole period – 6 months – because conditional release under supervision may be desirable in Mr Howlett’s case. I think it would be unjust to activate the 14-day suspended sentence in relation to the police family violence order since an additional short period in custody would be unlikely to have any significant deterrent effect. However I will impose a cumulative prison sentence in relation to the charges before me, except for the charge of relating to the possession of ammunition, which is not punishable by imprisonment. Again, I will impose the shortest possible non-parole period, for the same reason as stated previously. I will backdate the operative sentences to take account of the 27 days in custody in December and January, as well as another 3 days that Mr Howlett spent on remand in relation to this matter after he was arrested.
Peter Glenn Howlett, in respect to the sentence of imprisonment imposed upon you on 6 May 2019, I activate the suspended component of 12 months, with effect from 9 May 2022. You will not be eligible for parole until you have served 6 months of that activated part of the sentence. In respect of the suspended sentence imposed upon you on 22 April 2020, I make no order. I convict you of the charges on the indictment and complaint 6104/21 and, on all of those charges except count 2 on the complaint, I sentence you to a cumulative term of 8 months’ imprisonment. You will not be eligible for parole until you have served 4 months of that sentence. I order that the rifle and the bullets be forfeited to the State of Tasmania.