STATE OF TASMANIA v WADE WILLIAM ALAN KELP 16 MARCH 2022
COMMENTS ON PASSING SENTENCE JAGO J
Mr Kelp has pleaded guilty on indictment 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 unlawful possession of property, four counts of possessing a firearm when not the holder of a firearm licence of the appropriate category, two counts of possessing ammunition when not the holder of a licence, possessing a controlled drug (amphetamine), possessing a controlled plant (cannabis), and two counts of possessing a thing used for the administration of a controlled drug, being two glass Ice pipes.
All of these charges arose out of a search of the defendant’s residence which was conducted by Tasmania Police, pursuant to a search warrant, on 11 November 2020. During that search, a number of firearms, firearm parts and ammunition were located. Amongst the items found was a black and gold machine gun gel blaster firearm marked “Rungi”. This is the subject matter of the indictable charge. A further four gel blaster firearms were also located. These were: a black revolver gel blaster firearm marked “Smith and Wesson” (count 2 complaint); two green revolver gel blaster firearms also marked” Smith and Wesson” (counts 3 and 4 complaint); a green revolver gel blaster firearm marked “Pyke 357” (count 5 complaint); 4 x .22 ammunition rounds (count 8 complaint); two boxes of .410 ammunition (count 9 complaint). A quantity of gel blaster cartridges, a gel blaster magazine, a black firearm stock, and a small firearm handle were also located but these items are not the subject of any charge.
Also located during the search were a number of items of property which were subsequently identified by police as stolen property. Those items were: a blue Yamaha YZFR6 motorbike parts, a red Kilter nail box, a Stihl leaf blower, a Milwaukee portable radio, a Milwaukee fit out nail gun, a Stihl chainsaw, a Lone Avenue street sign and Milwaukee circular saw. During the search police also found two glass smoking devices, a zip lock bag containing .63 grams of cannabis and a zip lock bag containing 8.69 grams of methylamphetamine.
The indictable charge faced by the defendant is created by s 9(1A) of the Firearms Act 1966 which specifically relates to the possession or use of prohibited firearms. The firearm was a black and gold machine gun gel blaster and as such was a prohibited firearm by virtue of Schedule 1, Item 6 of the Firearms Act in that it was a firearm that substantially duplicated in appearance a submachine gun. Being an air rifle it was a Category A firearm for licensing purposes. The defendant did not hold any form of firearm licence.
The defendant does not have any prior convictions of particular relevance. He has a number of convictions under the Road Safety (Alcohol and Drugs) Act 1970, but has no prior convictions under the Firearms Act, he has no prior convictions under the Misuse of Drugs Act (although I note three of the prior convictions under the Road Safety (Alcohol and Drugs) Act relate to driving a motor vehicle whilst a prescribed illicit drug is present in blood), and he has no prior convictions for matters of dishonesty.
I am told the defendant has no dependents and he lives with his father. Up until early 2020 he was employed as a labourer but lost that employment due to the COVID-19 pandemic. He has suffered from anxiety for a number of years and is somewhat reluctant to use prescribed medication because it results in him feeling lethargic. I am told that over the years he has socially used illicit drugs but is not a regular user of such substances and does not consider himself addicted. Whilst employed he was able to purchase such drugs, but upon losing his employment incurred a debt with his drug dealer. The items which were found in his possession, and which were stolen, he was apparently storing in return for having his drug debt settled. I am told the drugs that were found in his possession were for personal use. I must say I have a degree of scepticism about the defendant’s claim to be only an occasional user of illicit substances given he had incurred a sufficient drug debt that he felt compelled to engage in criminal activity in order to settle it, but the quantity of drugs found is consistent with personal use and of course the defendant is to be sentenced on that basis. I am told the firearms in the defendant’s possession were, with the exception of the black and gold machine gun gel blaster firearm, all obtained from an online store known as TAC Toys in Queensland. When he purchased the gel blaster firearms the defendant enquired as to whether they were legal in Tasmania. He was told that they were legal in Queensland and therefore should also be legal in Tasmania. He made no further enquiries as to their status in this jurisdiction. I note there is no suggestion the firearms were in any way used for illegal or criminal activity. The appearance of the firearms, being quite colourful, minimised the risk that they may be mistaken as genuine firearms.
In sentencing for any firearms offences general deterrence is an important sentencing consideration. Parliament has put in place a strict regime in respect to the possession and use of firearms. Its purpose is directed at providing community protection through the licensing and regulation of firearms and to endeavour to ensure that only responsible persons with appropriate licences have access to firearms. Care must be taken to ensure that firearms and ammunition do not fall into the wrong hands, and that the regulatory regime is strictly adhered to. I note here the firearms involved were all gel blasters. Generally, gel blasters are not capable of causing significant physical harm, although, of course, there is always potential for injury if there is impact to certain areas of the body such as the eye. More concerning is the fact they replicate real firearms which may result in them being used in the course of criminal activity, or to intimidate innocent members of the community if they fall into the wrong hands. To this end I note the appearance of the firearms involved here and particularly their colouration, lessened this risk.
The defendant has served 21 days in custody in respect to these matters. I take this into account in considering the appropriate disposition of the matter. Given the nature of the firearms, the reduced risk of injury and potential for misuse they presented, and the defendant’s personal circumstances, including the absence of relevant prior convictions, I am satisfied I can appropriately deal with these matters by the imposition of a fine.
The defendant is convicted of all matters to which he has entered pleas of guilty. I will impose one sentence. He is fined the sum of $2,000, payable within 28 days. I order the forfeiture of the following items:
- Two glass smoking devices (items 4 and 13 on Property Seizure Record Receipt 196204).
- Black revolver gel blaster firearm (item 11 on Property Seizure Record Receipt 196204).
- Two green revolver gel blaster firearms (item 22 on Property Seizure Record Receipt 196205).
- Green revolver gel blaster firearm (item 11 on Property Seizure Record Receipt 196204).
- Black and gold gel machine gun gel blaster firearm (item 3 on Property Seizure Record Receipt 196204).
I make a further forfeiture order for the disposal of all ammunition and firearm parts seized during the search on 11 November 2020.