STATE OF TASMANIA v DYLAN TRENT SHEPPERD 1 JULY 2022
COMMENTS ON PASSING SENTENCE JAGO J
Mr Shepperd you have been found guilty by a jury on a charge of possess a prohibited firearm when not the holder of a firearms licence of the appropriate category. On 12 June 2020 police attended at your residence in respect to a matter which was unrelated to you. They observed a firearm in your bedroom. It was leaning up against a wall. The trigger mechanism had been padlocked but beyond that, it was not secured in any way. The firearm replicated an M4 rifle and was a prohibited firearm because it operated automatically. It was also an air rifle as it fired small plastic balls by means of compressed air. The firearm is colloquially referred to as a gel-blaster, but is more correctly described as an air soft rifle. It fires plastic projectiles at high velocity. The velocity is enough to perforate skin and cause serious eye injury if the eye area is impacted. The firearm was described by Sergeant Dutton, a ballistics expert who gave evidence on the trial, as being a very faithful replica of an M4 rifle and was capable of propelling projectiles in rapid succession during one pressure of the trigger. When interviewed by police, you described the firearm as a gel-blaster firearm and agreed it was designed to mimic an M4 rifle. You said you had purchased a gel-blaster off eBay but then upgraded each individual component until you were satisfied with it. You estimated you had spent probably 120 hours and approximately $1,000 turning it into a precise replica. You told police you used it for target shooting. You agreed with police you would not remove it from your property because if you were observed in public with it you would “probably be shot.”
It was apparent from comments made by you during the record of interview that you were of the view that firearms of this nature should be legal and able to be utilised for entertainment purposes. Of course, the danger associated with the possession of firearms of this nature is that they look very real and can easily be misused for sinister purposes. Having observed this firearm, I have no doubt it could easily be mistaken for a real firearm if used in an inappropriate manner. Whilst you may not have done that, your possession of it introduces the possibility it might be stolen and used for unlawful purposes within the community. This potential for misuse is obviously concerning and directly impacts upon the issue of community safety.
I note your possession of the firearm only came to an end by chance. Police were there for reasons that were entirely unrelated to you. This is not a case whereby you have voluntarily desisted from your possession of the firearm.
You have a number of relevant prior convictions. In December 2008 you were found guilty and sentenced on a charge of aggravated assault. You assaulted another man by making a threatening gesture towards him using a sawn-off shotgun. More particularly, under the Firearms Act in 2011 you were convicted of possessing a shortened firearm (a Boito shotgun), possessing a firearm when not the holder of a firearms licence of the appropriate category and possessing ammunition when not the holder of a firearms licence of the appropriate category. You were also convicted of handling a firearm whilst under the influence of alcohol or drugs and possessing a second firearm when not the holder of a firearms licence, this time a .22 self-loading rifle. In 2014, you were again convicted of handling a firearm whilst under the influence of alcohol or drugs, and possessing a firearm when not the holder of a firearms licence of the appropriate category. This charge related to a .22 calibre Sterling self-loading firearm. You were also convicted of possessing an unregistered firearm and possessing ammunition when not the holder of an appropriate firearms licence. In 2019, you were again convicted of possessing a firearm when not the holder of an appropriate firearms licence. This related to an imitation Glock pistol. In addition to the offences I have mentioned you have a poor record generally, suggesting an attitude of disregard for the law and your obligation to comply with it.
You are now 40 years of age. You live on a rural property, having moved there after your father passed. You lead a quiet lifestyle and are not currently employed. I am told that you have an interest in building items and it was this interest that led to you purchasing a gel-blaster firearm and rebuilding it into the replica firearm that it now is. You used it for target shooting. There is no suggestion that you intended to use it for any sinister purpose, but as I have already commented, the risk is that someone else may steal it and use the firearm for an illegal purpose.
I note that in the past you have grappled with an alcohol addiction. I am told that difficulty was the cause of much of the offending that is reflected in your prior convictions. To your credit, for the past five years you have not consumed alcohol. That accords with what appears to be a substantial abatement in the regularity of your offending. Since this matter, you have not been before the Courts or convicted of any matters.
In sentencing for any firearm 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 licencing 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 do not fall into the wrong hands and that the regulatory regime is strictly adhered to. Possession of prohibited firearms is an indictable crime. The charge covers a range of prohibited firearms, including firearms of this nature, namely replica rapid propulsion firearms. The prohibited status of the firearms reflects the danger possession of them represents to the community. Their existence in the community has the capacity to cause alarm and concern. As noted, having seen this firearm, I have no doubt it could readily be mistaken for the real thing. Of course I accept that possession of a replica is less serious than possession of the real version. I also accept there is no evidence to suggest that you intended to use the item in any inappropriate manner. Given your comments in your record of interview, however, I am also satisfied you were well aware it was illegal to possess the firearm, but nevertheless chose to keep it for your own entertainment purposes.
The sentence here must be effective as both a general and personal deterrent. I am of the view that a gaol sentence must be imposed for your possession of this replica firearm. Given however your personal circumstances, the fact you have addressed your alcohol difficulties and the obvious abatement in your offending over the last several years, I am satisfied it is appropriate to suspend the period of imprisonment I intend to impose.
I make the following orders. Mr Shepperd you are convicted and I sentence you to imprisonment for a period of 3 months. The execution of that period of imprisonment is wholly suspended on condition that for a period of 18 months you commit no offence punishable by imprisonment. I make an order pursuant to the Crime (Confiscation of Profits) Act, that the firearm be forfeited to the State of Tasmania.