STATE OF TASMANIA v ANDREW CLINT WHILEY 4 OCTOBER 2023
COMMENTS ON PASSING SENTENCE JAGO J
Mr Whiley, you have pleaded guilty to one count of possessing a prohibited firearm when not the holder of a firearm’s licence of the appropriate category, one count of recklessly discharging a firearm and one count of possessing a stolen firearm. These crimes occurred on 17 September 2021.
On that day, you and another unknown person drove past an address in Truganini Street, Burnie. It was the address of an associate of yours. You had possession of a self-loading, 12 gauge, sawn off shotgun. You were laying in the backseat of the vehicle. You told the driver to slow down and fired two shots from the shotgun towards the residence at Truganini Street. The first round of pellets destroyed the metal letter box at the neighbouring property. The second round hit the external wall of the residence at Truganini Street.
Police later received information suggesting your involvement in these crimes. That information included video footage of you with the 12 gauge, sawn off shotgun used in the shooting. It also showed you in possession of another .22 rifle. You were subsequently interviewed. You admitted to police that you had used the shotgun to fire at the residence in Truganini Street. You said you were sending a message to its occupant to pay an outstanding drug debt. You also admitted being in possession of the .22 rifle and said that you knew it was stolen at the time you had possession of it. The shotgun used by you in this incident was later recovered by police during a separate investigation.
On 8 June 2023, I sentenced you in respect to a large number of matters, including five counts of assault, one count of recklessly discharging a firearm, one count of conspiracy to commit a crime and dangerous driving. You were sentenced to six years’ imprisonment. It is unfortunate that these matters were not before the Court at the time that sentence was imposed. The crimes for which you were sentenced in June, occurred throughout September 2021, the same period of time that these crimes occurred. The circumstances that influenced your commission of those crimes are also relevant to your commission of these crimes. It seems, however, these matters were delayed before being committed to this jurisdiction.
In my sentencing comments of 8 June 2023, I set out at length, your personal circumstances, background and antecedents. There is no need to repeat them here. I take all that material into account. I also have reference to the psychological report, authored by Dr Georgina O’Donnell, again referred to in my June sentencing comments.
Obviously, you are serving a lengthy sentence. It is necessary in sentencing you for these crimes, to bear in mind principles of totality, and to be mindful of the cumulative effect of the sentence so as to avoid a penalty which is crushing and defeats any sense of hope. That said, the sentence must still reflect that these were separate acts of serious criminal conduct, with potential to cause significant harm to persons in the immediate area. The risk you posed to the community generally, and particularly to the occupants of the house and nearby houses is obvious. You were shooting from a moving vehicle. Clearly, your aim was far from perfect given you were aiming at one house but, in fact, struck the letterbox of the neighbouring residence. There was a very real chance that your criminal behaviour may have led to somebody in the immediate vicinity being shot. The act of firing a shotgun in a residential area, for the purpose of sending a message to a drug associate, must be condemned. Such appalling and reckless criminal behaviour has no place within our community.
I do not overlook the other charges. You were not licenced to possess any firearm. The unlicensed possession of firearms, particularly firearms of this nature, is a matter to be taken seriously. You were also in possession a stolen firearm at one point. That too, is a very serious matter. The unlawful presence of firearms within the community, and their availability to, and use by, criminals, such as yourself, is understandably a matter of great concern to the public. Generally, there is no innocent reason for the possession of firearms of this nature. The fact the charge of possessing stolen firearms is now indictable reflects a legislative intent that those found in possession of such firearms should face serious consequences.
Principles of general deterrence and denunciation are important sentencing considerations in respect to all these matters. Your long history of criminal offending evidences the fact personal deterrence is also. Taking all of these considerations into account, including your pleas of guilty to these charges, I make the following orders. You are convicted on each of the charges to which you have pleaded guilty. I will impose a single sentence. You are sentenced to 18 months’ imprisonment. Twelve months of that sentence will operate concurrently with the sentence imposed on 8 June 2023. The balance six months will operate cumulatively to that sentence. I order that you not be eligible for parole until you have served one half of the cumulative component of that term of imprisonment.
I make a compensation order in favour of the named complainant in the sum of $300.00.