STATE OF TASMANIA v JOSEPH ANDREW TONNER 24 SEPTEMBER 2024
COMMENTS ON PASSING SENTENCE PEARCE J
Joseph Tonner, you plead guilty to unlawful trafficking in firearms and possessing firearms while subject to a firearm prohibition order. On 14 October 2020 the police went to your property at Stonehenge with a warrant to search for firearms and stolen property. Stonehenge is a remote bush area in the central east of Tasmania. Although your principal residence was in Hobart you spent time at this property and, at the time, it was a condition of your bail that you live there. There were two residences, a recently habitable newer construction, and another smaller secondary building nearby which had been there longer, and which had shipping containers nearby used for various purposes. You were at the property when the police arrived. Initially you told them that there was nothing you wished to produce. However you then led them to an area away from the main house where a wheelie bin was buried in the ground under a mound of rocks and wood. The bin contained six firearms, a Stirling .22 magnum rifle, a Stevens 12 gauge shotgun, a Ruger .22 calibre rifle, a Ruger .223 Remington bolt action rifle with three round capacity, a Sako .308 calibre rifle and a Marlin model 982 .22 WMR calibre rifle.
You told the police that you were not aware of any other firearms at the property. However, shortly afterwards, a large box was found buried in the ground close to your home. It contained seven more firearms, a loaded Winchester .22 calibre rifle, a Sako .222 calibre rifle, a Lanber 12 gauge shotgun, a CBC 410 gauge shotgun, a SKB 12 gauge shotgun, a Bentley Pointer 12 gauge semi-automatic shotgun and a Baikal 12 gauge shotgun.
You were arrested and the search continued in your absence. A further container was found buried in the ground underneath a large tow truck. It contained two other firearms, a Ruger mini 14 .223 automatic rifle with 30 round magazine capacity and a Howa model 1500 .223 REM calibre rifle.
Of the firearms found on that day the Bentley Pointer semi-automatic shotgun and the Ruger automatic rifle were prohibited firearms under the Firearms Act. Analysis of swabs taken from the Lanber and CBC shotguns found amongst the seven firearms in the second large container disclosed DNA with a high grade match to you. Both were stolen firearms. Apart from the Bentley Pointer shotgun, which was in a leather case, all of the firearms were either wrapped in plastic or encased in cryovac packaging. A cryovac machine and spare packaging was found behind a bar in the second residence.
Following the search you were taken into custody. The police returned to the property with another search warrant just over a week later on 22 October 2020. You accompanied them and directed them to locations where more firearms were found. A loaded Harrington and Richardson 7 shot .22 calibre revolver was concealed inside a video arcade machine in the house. A Winchester semi-automatic shotgun was behind a cupboard in a shipping container. Both were prohibited firearms. Three other containers were found buried in the ground. The first contained a Ruger .338 calibre bolt action rifle, a Miroku double barrel break action shotgun, a Winchester lever action rifle, a Stirling semi-automatic .22 calibre long range rifle and a Cashmore 12 gauge double barrel break action shotgun. The second contained a Liege sawn off double barrel break action shotgun. The third contained an Adler lever action shotgun, a Bruno .22 magnum long range bolt action rifle and a Stirling .22 long range bolt action rifle. The Stirling semi-automatic rifle and the shortened shotgun were both prohibited firearms. All the firearms found on that day, except the Winchester shotgun, were in cryovac packaging.
Altogether twenty six firearms were found. All were in working condition and capable of firing a projectile. Twenty of the firearms were registered in Tasmania, but not to you. Nineteen had been stolen from their owners, in some cases up to almost a decade earlier and others more recently. The remaining seven were lost or stolen in other States. One was lost in Tasmania and others were never registered. I have no information of the value of the firearms except that the Ruger Mini 14 was particularly valuable and worth somewhere between $35,000 and $45,000.
In October 2020 you were 38. You are now aged 42. Your early family life was marred by alcohol abuse and some violence. Your parents separated when you were 9 or 10. You remained in the care of your father but you were largely brought up by an aunt. You began offending when you were 15 which coincided with use of drugs, amphetamine and then methylamphetamine. As your counsel correctly points out your early offending is reflective of an unstable lifestyle and a need to fund illicit drug use.
You have a long record and have served many terms of imprisonment. Your record is mostly for dishonesty and driving offences, some alcohol and drug related. But there are some exceptions. In 2004 you pursued a vehicle being driven by your estranged girlfriend. As she sought to escape you produced a pistol, aimed it towards her vehicle, and fired five or six shots with other traffic and onlookers nearby. You were sentenced to imprisonment for 12 months for creating a nuisance. On 8 December 2005 you were sentenced to imprisonment for four years for assault and causing grievous bodily harm, crimes committed when you were 23. There are only a few convictions under the Firearms Act. In 2003 you were convicted of possessing ammunition without a licence. In 2017 you were convicted of possessing an unregistered firearm and some ammunition. In 2019 you were charged with possessing two Tasers. That charge was not dealt with until 2022 when you were fined by a magistrate.
Following your release from prison after the 2005 sentence you were abstinent from drugs and formed a relationship which resulted in the birth of two children who are now aged 18 and 15. The property at Stonehenge was purchased in 2012. Around that time you were working cutting wood and as a landscaper. You have a daughter from another relationship now 13. However your life took a turn for the worse when your brother died in 2016. Your drug use resumed. The change in your life circumstances is reflected in your record of offending. You have a child who is only seven weeks old with your current partner. The impact on family members of imprisonment is, in general, part of the price to be paid for serious offending. Since you were remanded in custody your youngest child underwent urgent surgery for an abdominal condition. Your absence has been, and will continue to be, distressing for your partner, even more than usual and likely making imprisonment weigh more heavily on you. I take those things into account.
A firearms prohibition order was made on 14 July 2017 and served on you on 17 July 2017. Firearms prohibition orders are made if the Commissioner of Police forms the opinion that a person is unfit, in the public interest, to possess or use a firearm. In your case the order was made not only as a result of your record of convictions but also other information available to the police. The order prohibited you from possessing or using a firearm. As a result your possession of a firearm of any nature while the order was in force was a crime.
Your plea of guilty is in your favour. However it was not entered until the day your trial was due to commence and was in the face of what appears to me to be overwhelming evidence of your guilt. It is also a case in which, for reasons which will become apparent, the plea of guilty carries no indication of remorse or acceptance of responsibility. It is also in your favour that you co-operated with the police in the location of at least some of the firearms, although you were not completely frank. I take into account everything I have been told about your co-operation with the authorities.
The quantity and nature of the firearms involved make these crimes very serious. For possession of stolen firearms the Firearms Act provides for imposition of terms of imprisonment for up to five years. By contrast, the Act provides that trafficking in firearms is an indictable offence, thus raising the maximum penalty to imprisonment for 21 years and giving some indication of the seriousness with which the crime is considered by Parliament. Similarly possessing prohibited firearms is an indictable offence and four of the firearms in your possession fell into that category. The only conclusion reasonably open is that these firearms were part of a commercial enterprise of considerable scale in the trade of illegal firearms. There is a very strong link between illicit firearms and serious crimes involving violence, dishonesty and drug trafficking, although in this case there is no evidence of any direct association with drug trafficking.
In the course of the sentencing hearing two areas of dispute arose. The first concerned the extent of your connection with these firearms. You claimed that they were brought to your property and hidden by others at times unknown to you and without your participation, and although you knew in general terms of the presence and the location of some of them, you had no concept of who brought them to the property, when they were brought there or how many there were. You said that you were surprised when told the total number of firearms found. You also claimed that you were not the person who would have taken them away. The second area of dispute concerned the firearm prohibition order. It was asserted on your behalf that you believed that the order was no longer in place, although you accepted that there were no reasonable grounds for your belief. The prosecution disputed these assertions and, in any event, I indicated that I was not prepared to accept the propositions advanced on your behalf in the absence of evidence.
In resolving disputed facts for sentencing purposes, facts adverse to you must be proved to my satisfaction beyond reasonable doubt. Facts in your favour must be proved by you on the balance of probabilities.
It is first necessary to note what follows from your plea of guilty. By your plea you admit that these were firearms you should not have had unless they were registered and that they were either not registered at all or not registered to you. A plea of guilty also carries an admission of one or more of the following elements: that on one or more occasions, you either sold or otherwise disposed of the firearms to another person, received or delivered the firearms from or to any other person, modified, prepared or packed the firearms for sale or delivery to another person, conveyed the firearms from one place to another or had possession of, or concealed, the firearms for or in connection with one or more of those activities. Here, there is no direct evidence of any sale or delivery of any firearm. There is no direct evidence that you would have been the person responsible for selling, removing or disposing of them from the property. However, for the reasons I will state, I am satisfied that you knowingly received these firearms to be hidden on your property before being delivered to another or disposed of by someone known to you as part of the commercial circulation of illicit firearms.
You gave evidence that until 2020, when you were required to reside in the property as a condition of bail, your common practice was to get to the property whenever you could. You never took firearms there but your associates were able to go there to drink and have parties without you necessarily being present. There was no locked gate. Many of your friends brought firearms to the property for target practice, clay bird shooting and vermin control, and you would spend time with them socialising. You sometimes used firearms for those purposes yourself. You thought that this may explain the presence of your DNA on two of the firearms. You said that others, particularly members of your family, left lots of property there. You claimed no knowledge of the cryovac machine found in the bar area of the secondary residence, and denied ever using it.
Your evidence was that you only knew about the first container of firearms found on 14 October because you had been told about it by a friend who said that he wanted to surrender the firearms to the police. When asked how the wheelie bin got into the ground you said that you did not know, and that someone else must have put it there. You said that you didn’t know how many firearms were in that container until the police pulled out the bag which was inside it. You did say however that you had, by chance on an earlier occasion, discovered another container in the ground when you were dragging wood out of the bush although you did not investigate it.
During the search on 14 October you said nothing about the container buried under the tow truck, but a statement you made to the police on the following day revealed that you knew about it and knew that there were two firearms inside. You gave evidence that you knew that there were two firearms, not one, in that container under the tow truck only because you had been told that by another person while you were on remand between 14 and 15 October 2020. You said that you knew of the existence and general whereabouts of the containers of firearms found on 22 October only because you had been told about them by associates while you were on remand. You said had not looked in those areas before and you had no idea how many firearms were there.
I reject your account as transparent lies. Given the nature of your attachment to the property and the location and number of the firearms eventually found, it is inherently implausible that any of the containers were buried, and firearms placed in them, without your knowledge and involvement. The implausibility of your account is added to by your assertion that you knew about some of them but not others and that you had found other containers before but done nothing to investigate. I find that your account of having been told about the number of firearms in the container found buried under the tow truck on 14 October and having been told of the locations you took the police to on 22 October is a fabricated attempt to explain your guilty knowledge. You were not prepared to name any person who had told you these things or who had any other knowledge of the firearms. Whilst you have no obligation to name anyone, and there may be reasons you may take that course, the failure to do so detracts even further from the credibility of your account. Nothing in your evidence provides any rational explanation for the presence of your DNA on wrapped firearms hidden in buried containers. Your DNA was present although you disclaimed any knowledge of that container or the firearms in it. The cryovac machine and packaging were in an obvious and well used place and your claim to have not known about them has a distinctly hollow ring in circumstances in which most of the firearms were found to have been vacuum packed. The suggestion that the firearms, wrapped and stored as they were, might have been brought to and left on your property by others for recreational or vermin control is a nonsense. Not only am I not persuaded on balance of these matters advanced by you or on your behalf in mitigation, I am satisfied beyond reasonable doubt that the contrary is true, that is that the only inference reasonably open in all the circumstances is that you were well aware of what firearms were there and where and why they were all hidden.
As to the firearms prohibition order, your evidence was that in 2017, after you were served with the order, you wrote a letter asking for an explanation of it. You thought that a court appearance later that year resulted in removal of the order. I do not believe you. No application for removal of the order was ever made. There was never any plausible reason for you to believe that it had been removed. After that court appearance you were prosecuted for possession of two Tasers in breach of the order. Those charges were dropped later, but that was not until after 2020. Even if the order was not in place, your possession of these firearms was objectively serious and involved a high level of criminal culpability. Further, given your involvement, I find that the existence or absence of the order played no part in your decision about whether or not to traffic in these firearms.
The scheme for regulation of firearms is designed to protect the safety of the community. One of the principle purposes of sentencing, as the Sentencing Act in this State expressly states, is to promote the protection of the community as a primary consideration. My duty is to advance that aim by imposing a sentence which not only punishes you and denounces your conduct, but makes clear to you and others that activities of this nature will attract punishment thereby, as far as a court can achieve, deterring future offences. It is an aggravating factor that you trafficked in firearms while subject to a firearm prohibition order, but you have been charged separately for possessing the firearms while subject to the order. Care must be taken that you are not punished twice for the same conduct. You were taken into custody on 6 September 2024 but I am informed that you previously served 181 days which are to be taken into account in sentencing.
Joseph Tonner, you are convicted on both counts on the indictment. I order that all of the firearms be forfeited to the State of Tasmania. I impose one sentence. You are sentenced to imprisonment for three years from 9 March 2024. I order that you not be eligible for parole until you have served half of that term.