STATE OF TASMANIA v SEAN PATRICK SHEARER 3 MARCH 2022
COMMENTS ON PASSING SENTENCE WOOD J
Sean Patrick Shearer has pleaded guilty to an indictable offence contrary to the Firearms Act of possess a prohibited firearm to which a firearms licence may not be issued. He has also pleaded guilty to a number of related summary offences: possess ammunition when not the holder of the appropriate firearm licence, two offences of possess controlled plant or its products, one offence of cultivated controlled plant and one offence of unlawful possession of property reasonably believed by a police officer to have been stolen or unlawfully obtained.
On 17 November 2021 police searched the defendant’s address at Magra and found 5 replica firearms: a replica BCM-KMR –A13 rifle, a replica AR 15 rifle, two replica Glock handguns and a replica handgun. The first one mentioned was in the kitchen and the others were in the shed. They were not concealed. In relation to the summary offences the police found:
- Two cannabis seedlings both in the kitchen
- .22 calibre ammunition and
- a large quantity of .177 calibre air rifle pellets
- a hedge trimmer and a 1.2 kw generator
- Various small amounts of cannabis amounting to a total of 35 grams
Police identified the generator as one that had been stolen from a property at Ranelagh in September 2021. The hedge trimmer and a large quantity of the air rifle pellets had been stolen from a burglary of a property at Castle Forbes Bay in September 2021.
Relevant to the possession of ammunition offence, the defendant does not hold a firearms licence.
The defendant was arrested a few days later and participated in an interview with police. He stated that the cannabis was his and he was growing the two seedlings. He told police he had purchased the replica firearms on the internet. The .177 and .22 air rifle pellets were his and he found them in his shed at the time he purchased his property about 9 months before his interview. He purchased the hedge trimmer from an unknown person for a couple of hundred dollars and the generator from an unknown person for no more than $100. He denied knowledge of the burglaries and it is noted that the defendant is not charged with them.
He was bailed to appear in court on 19 January 2022. On his first appearance he pleaded guilty to the indictable offence.
The defendant is 29 years of age. He has prior convictions for minor drug offences involving possess controlled plant or products in 2015 and 2016 and two prior offences of driving with an illicit drug in his blood in 2015. He has an offence of resist a police officer in 2019 and common assault in 2020. He has a prior offence of possess a firearm when not the holder of a firearm licence of the appropriate category involving a gel blaster and one of possess ammunition when not the holder of the appropriate firearm licence involving gel blaster pellets both committed in 2019. Convictions were recorded for those offences. He received a probation order in 2017 for the drugs offences. He has received low level penalties for his past offending, and has not received sanctions such as gaol, community service or a community correction order.
It should be noted that the replica firearms here were also gel blasters. That is not relevant to why they were prohibited. They fall into the class of prohibited firearms because they were replicas of a certain type of firearm in schedule 1 of the Firearms Act involving “any machine gun, submachine gun or other firearm capable of propelling projectiles in rapid succession during one pressure of the trigger”. The fact that they were also gel blasters makes it somewhat worse than if they were mere replicas with no functionality.
Possession or use of prohibited firearms is an indictable crime attracting a maximum of two years’ imprisonment. The charge covers a range of prohibited firearms including firearms for which a firearms licence may not be issued such as ex-military firearms, pistols of reduced length, pump action shotguns and the real version of, as well as replica, rapid propulsion firearms. The prohibited status of these firearms reflects the danger such possession represents to the community. In the case of prohibited replicas, the reason why they are prohibited is obvious. They are replicas of automatic firearms associated with sinister crime. Their existence in the community would likely cause alarm and concern. I have seen photographs of the replicas and they could easily be mistaken for the real thing. If they were to fall into the wrong hands they could be used in the course of criminal activity.
Mr Shearer in your case, I accept that possession of a replica firearm is less serious than possession of the real version. Your purpose was foolhardy rather than criminal. You purchased the replicas on the internet for a friend who is a rap artist and who wanted to use them as props in a music video. It is concerning that an element of the music industry would want to promote and normalise firearms. It goes without saying that it is also troubling that prohibited replicas can be purchased on the internet.
You are in a stable relationship with two young children. You are self-employed and the primary income earner for your family. You have informed the Court during your plea in mitigation that you are no longer using drugs. It seems that, regardless, you would benefit from intervention to assist your efforts in that regard. I take into account your very early plea of guilty.
I expect a conviction for an indictable crime of possession of prohibited firearms is a disincentive but it’s not enough. A fine is also not an adequate penalty in my view. The sentence must be effective as a general deterrent. In an appropriate case, an actual gaol sentence may be imposed for possession of replica firearms. In your case though, I am satisfied that is not needed. Community Corrections have assessed you and you are considered suitable for community based supervision. I am satisfied that the appropriate sentence is a community correction order with a condition requiring supervision.
Mr Shearer, the sentencing orders I impose are as follows. I record a conviction on the charge of possession or use of firearms and impose a community correction order for a period of 18 months from today. If not for this sentencing option a wholly or partly suspended sentence of imprisonment would have been imposed. The statutory core conditions of a community correction order are imposed. These include that:
- you must not during that period of 18 months from today, commit an offence punishable by imprisonment;
- you must report to a probation officer or supervisor at 114 Bathurst Street, Hobart no later than 5pm tomorrow;
- you must report to a probation officer as required by a probation officer and comply with the reasonable and lawful directions of a probation officer or a supervisor.
I also impose the following special conditions. During the operational period of the order, being 18 months from today:
- you must submit to the supervision of a probation officer as required by the probation officer;
- you must comply with directions regarding compliance and engagement with Alcohol and Drug Service and mental health services;
- you must undergo assessment and treatment for drug dependency as directed by a probation officer;
- you must submit to testing for drug use as directed by a probation officer;
- you must, for the duration of the operational period of the order, submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer.
Convictions are recorded on the summary offences. I impose a fine of $350 for the offence of possess ammunition. In light of the community correction order, the length of time that that will be in place for and the nature of those conditions, and the obligation that you not commit any offence punishable by imprisonment for 18 months from today, no further penalty is required.
A forfeiture and destruction order is made with respect to the various items of cannabis (property seizure record at page 11 of the Crown Papers, items 8,9,10,11, 12 and 15).