The Impact of Self Defence on the Sentence of an Accused

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I recently copied a Canadian article dealing with a decision facing a Court there, to my Firearms Lawyer Australia Facebook page and it generated some interest.  The case dealt with whether a sentence imposed on a home invader should be reduced because the perpetrator was shot by the home owner.

My view, for what it is worth is that, as a matter of public policy the sentence should not be reduced for this reason, after all, what do you expect if you break into a farm house at night?

However, my personal view has as little weight as yours on in respect to this type of matter.

However, what is the law in Australia?

Extra curial or extra judicial punishment is a loss or damage suffered by an offender as a result of the commission of the offence. 

To be considered it generally has to be a ‘serious loss or detriment’ and the weight given to it depends very much upon its circumstances.

Here are two examples:

in the case of R v Shane Thomas Davidson, a man who perpetrated a low-level indecent assault upon a ten-year-old received a severe beating from the boy’s father, and injuries resulted in significant facial reconstruction, deformity, cognitive issues and post traumatic headaches.  The Court placed significant weight on extra curial punishment, and the delivery of a much lighter sentence resulted.

This can be contrasted to this can be contrasted to Sharpe v R, where a security guard shot an intruder in the leg.  The intruder spent four days in hospital, a passing physical injury and a claim of PTSD unsupported by psych evidence. The Court found that even if the principle of extra curial punishment was attracted, the evidence would not assist the applicant.

So clearly, from a legal point of view, in Australia, it is a matter of degree.

Of course, even if it is not considered by a Court in delivering sentence against a perpetrator, you may yourself be at risk criminal charges in respect to an assault, action by the Firearms Registry in respect to your use of a firearm for a purpose not supported by your licence conditions, and even the accused suing you in a civil Court for damages for personal injury.

Having said this, in a situation like country Australia, where Police stations are often unmanned out of hours, or under manned when they are open, and where great distances often exist between the Police and the situation at hand.  People from time to time have to take the law into their own hands.

I note the Hon John Barillaro has made statements in acknowledging this, however real support in this regard for reform from the NSW Lib / Nat Government is something that I shall believe when I see.

In the meantime, I note I have written a couple of articles on ‘Assault and Self Defence’ (Loose Cannon 14 March 2017) and ‘When Police want to cancel your licence for self-defence’ (Loose Cannon, 26 September 2017) that you may like to read in conjunction with this article.

If you find yourself in a position where you do find yourself facing an intruder to your property and avail yourself of a firearm, stay in the house, lock the doors and call the Police. Do not go outside with the firearm, and retreat to the safest point, and advise Police where you are, and ask that they contact you upon approach.  Use the firearm to the minimum extent that you have to, in a defensive, and not offensive role.

When Police approach home I would open the action of the firearm, place it on the ground in front of me, kneel and place my hands on my head, so that there is less risk of me being shot in error.

Do not engage the home invader any more than you have too. Citizens arrests sound all very good in principle, but where a firearm is involved, in a situation where both home owner and perpetrator are adrenalin charged and nervous, and where the home owner has had no training in dealing with this type of event, it become a disaster.

If the Perpetrator shows signs of leaving, let him.  fingerprints, tracks and DNA together with your description can enable him to be quickly identified and charged.

In other words, do not try to be a hero and leave the Police work to the Police.

I know many of you will write, but in the US, they have concealed carry, and this has stopped crimes!  I agree it has, and I am a supporter of concealed carry laws.  I also acknowledge that the presence of concealed carry laws is a factor in discouraging crime and that the attitudes of the authorities toward self-defence are largely different in the US to Australia.

I also note that people holding concealed carry licences have had to undergo specific training, and, even in that situation, there are often nasty consequences for the shooter.

Dealing with home invaders is a bit like situations where people try to catch snakes- there is a big risk of being bitten. Here, the risk of being bitten comes not only from the perpetrator, but also the Police.  You have been warned.

Simon Munslow

National Firearms Lawyer
P: (02) 6299 9690
M: 0427 280 962
E: solicitor@bigpond.com
W: firearmslawyer.com.au

Simon Munslow is a lawyer who has a lifelong interest in shooting, having acquired his first firearm at the age of nine, and has had an active interest in firearms law since writing a thesis on the topic over thirty years ago at University.
Simon Munslow practices extensively in Firearms Law matters throughout Australia.

He is a regular contributor to the Australian Sporting Shooter magazine’s website on Firearms law matters, has published articles on firearms reviews and firearms law, and occasionally is asked to comment in the broader media on firearms matters.

This article is written for general information only and does not constitute advice. 
He can assist you with:

Criminal law & Administrative law and in particular that related to Firearms

• All firearms, weapons and game charges
• Avoiding & setting aside Apprehended Violence Orders
• Possession of unregistered firearms
• Unsafe transportation & storage matters
• Applications for prohibited weapons
• License Appeals
• Freedom of Information / Government Public Access matters
• Importation & Customs problems
• Advices & opinions related to Firearms law matters

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