STATE OF TASMANIA v JAI CRAIG NICHOLS 15 OCTOBER 2024
COMMENTS ON PASSING SENTENCE ESTCOURT J
The defendant, Jai Craig Nichols, now aged 43 years, has pleaded guilty to one count of possessing a prohibited firearm, when not the holder of a firearms licence of the appropriate category.
At the time of this offending, there were two Interim Family Violence Orders in place. Each required that the defendant not possess any firearm, part of a firearm or ammunition, and that he must immediately surrender any firearm in his possession to a police station or a police officer. Charges in relation to breaches of that order are not before me and while that fact is an aggravating feature of the offending that I am dealing with, it must be seen in the context of what follows. Likewise the fact that on 2 June 2023, the defendant was remanded on bail from the Magistrates Court with a condition that he comply with the terms of the Interim Family Violence Orders.
At the relevant time, the defendant did not have a firearms licence.
At approximately 1:30pm on 8 June 2023, Tasmania Police received information that a person protected by an Interim Family Violence Order was present at the defendant’s address. Police attended the defendant’s address at approximately 2:00pm. They spoke to the defendant and asked him if that protected person was present. The defendant stated that she was not present, and invited officers inside. That person was not present, however police searched the property and during the search, they observed a man hole to the roof space, which appeared to have been recently accessed. They checked it and located a firearm.
The defendant was placed under arrest and conveyed to the Sorrell Police Station. He participated in a video recorded interview, and made the following statements:
(a) That he had gotten out of custody a week or so ago, and when he returned home his alarm system was not working. After a few days, he went into the roof of the house to check the alarm box. At this time, he saw the firearm in the roof cavity.
- He picked it up and looked at it, before putting it back down.
- That this was approximately three–four days before police had searched the property and found the firearm.
- That it did look like a machine gun to him.
- When he picked it up he could see it had no magazine, and that the inside of the firearm was orange, so he thought it was a toy gun.
- He knew there were Family Violence Orders in place, and that his bail condition required him to abide by the conditions of those Orders.
- He does not have a firearms licence.
- That he did not do anything with the firearm when he found it because it was a very stressful time.
- He stated that if it were a real firearm, he would have done something about it, but because he knew it was plastic, he knew it was not real.
- That someone else had put the firearm there.
None of those things are challenged by the State.
The firearm is a “Gel Blaster” imitation of an AK-47 select-fire rifle, which is an imitation firearm for the purpose of the Firearms Act 1996, section 3. The firearm is also an air rifle. Thus it is classified as a prohibited firearm for the purpose of Schedule 1 of the Firearms Act. It could easily be mistaken for a genuine AK-47 rifle.
I have already made a forfeiture order in respect of the firearm.
The defendant has spent no time in custody in relation to this matter and has no relevant prior convictions.
While I accept that possessing an imitation firearm is a serious offence, as are all offences against the Firearms Act in respect of illegal firearms, this offence involves unusual circumstances and is further complicated by the fact that the defendant had in the past possessed an imitation firearm and had been charged with a similar offence to the present, and the charge was not proceeded with. The defendant’s state of mind needs to be assessed against that background. The defendant also suspected, not unreasonably in my view, given the false report to police about the presence of the protected person at his house, that he was “set up” by a third party in relation to the offending. The State accepts that the defendant did not put the firearm in the ceiling.
The defendant is convicted and sentenced to a period of 4 weeks’ imprisonment, which sentence I wholly suspend on condition that he commit no offence punishable by imprisonment for a period of six months.