A “child in an adult’s body” who spent five days in jail for firing two “toy” guns on a Windang bus has been spared a conviction, in a case that has highlighted the dicey legal ground being trod by owners of replica weapons.
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Nine days after the October, 2017 mass shooting in Las Vegas, 24-year-old Jake Lewis Andrew took a seat on a local bus, pulled a large black replica machine gun from his backpack and fired.
The gun was lightweight and fired gel pellets, not bullets, as did the black pistol (inscribed Air Sport Gun and SOLEIL) he also let off.
But for a frightened fellow passenger, who overhead Andrew say he’d brought the larger firearm from a friend for $300, the weapons looked all too serious.
The woman alerted a colleague, who phoned police, who intercepted the bus on Windang Road and seized Andrew’s backpack. They found numerous other “toy” guns and 300 hydrated gel pellets during a search of his Warilla home. He was jailed for five days before he was bailed.
On Monday Andrew pleaded guilty to three charges stemming from the day, including two counts of discharging the weapons – both of them “substantially duplicating” real guns and therefore firearms under the legal definition.
The court heard Andrew suffered an intellectual impairment that made him, his QC successfully argued, a poor example to be made of.
Judge Andrew Haesler considered evidence of Lake Illawarra Police District licensing sergeant Gary Keevers, who told the court some imitation or replica firearms could be legally imported into Australia. The legal issue awaited those who then sold or bought them in NSW.
“It may be the case that they can be sold in some states,” Sgt Keevers said. “But usually in NSW they fall foul of the firearms act.”
Judge Haesler noted replica firearms posed a risk to public safety because they could be mistaken for “real weapons”. The guns Andrew produced were”not obviously toys”, he said.
But the judge ultimately found Andrew’s was “not an ordinary case”. “[The number of guns] is disturbing, but they are viewed in the context of this case – clearly not [someone] associated with a motorcycle gang, but an intellectually delayed young man’s collection of items, which he understandably regarded as his toys,” he said.
Andrew was placed on a Community Correction Order. The judge did not record a conviction but ordered all firearms be destroyed.
Greg James AM QC welcomed the outcome.
“Mr Andrew was placed in a very difficult position in that because of his personal difficulties he’s effectively a child in an adult’s body,” said Mr James, a former Supreme Court judge and president of the Mental Health Review Tribunal, said outside court.
“He was playing with what everybody would think to be toys, which were being sold in the community as toys.
“He didn’t know, and most of the community wouldn’t know, that under the firearms act they’re treated largely as if they’re guns. Because of his personal difficulties and because of the community attitudes, the judge applied the law which allowed him [Andrew] not to have the sort of criminal record a bikie or a mafioso would have.”
Sgt Keevers said the court’s decision “was admirable in all the circumstances that needed to be weighed up”.
He said the case showed the perils of bringing air soft and imitation firearms into public places.
“People need to consider the impact on members of the public and/or police officers who must rush to these incidents when the first report comes in,” he said.
“At the time, police are not to know if this is an ‘active shooter incident’ or not. The potential for psychological harm … is concerning.
“For these reasons alone, there is no place in public for these air soft firearms or imitation firearms that substantially duplicate in appearance handguns or military-style assault rifles or machine guns.”