Director of Public Prosecutions v Tuiono
[2023] ACTSC 251
•11 September 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Tuiono |
Citation: | [2023] ACTSC 251 |
Hearing Date: | 28 August 2023 |
Decision Date: | 11 September 2023 |
Before: | Taylor J |
Decision: | See [63]-[64]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – unauthorised possession of a firearm – traffic in a controlled drug – possess ammunition – where offender was on conditional liberty – limited utility of an ICO or SSO where NSW parole order revoked |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 6, 7(1), 10, 33(1), 35, 37, 63, 65, 78(6) Criminal Code 2002 (ACT), s 603(7) Firearms Act 1996 (ACT), ss 43(1)(a)(iii), 249(1) Magistrates Court Act 1930 (ACT), s 90A |
Cases Cited: | Bui v The Queen [2015] ACTCA 5 Director of Public Prosecutions v Dalgliesh(a pseudonym) [2017] HCA 41; 262 CLR 428 Hili v The Queen [2010] HCA 45; 242 CLR 520 Hillier v DPP(NSW) [2009] NSWCCA 312; 198 A Crim R 565 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Kajevic v Noble [2021] ACTSC 67 Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 Mack v R [2009] NSWCCA 216 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen [1988] HCA 70; 166 CLR 59 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Forrest (No 2) [2021] ACTSC 259 R v French [2020] ACTSC 133 R v Guy [2022] ACTSC 373 R v Harmouche [2020] ACTSC 194 R v Kilic [2016] HCA 48; 259 CLR 256 R v Knight [2005] NSWCCA 253; 155 A Crim R 252 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v Mackinder [2021] ACTSC 176 R v Massey [2018] ACTSC 221 R v McCallum [2020] ACTSC 15 R v McConnell-Imbriotis [2019] ACTSC 267 R v Mitchell [2016] ACTSC 85 R v Nikro [2015] ACTSC 231 R v O’Brien [2014] ACTSC 156 R v Okwechime [2015] ACTSC 129 R v Peter [2019] ACTSC 22 R v Pham [2015] HCA 39; 256 CLR 550 R v Rosewarne [2021] ACTSC 217 R v Seefeldt [2020] ACTSC 361 R v Sharp [2019] ACTSC 175 R v Thompson [2017] ACTSC 141 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 R v Tran [1999] NSWCCA 109 R v Van Rysewyk [2008] NSWCCA 130 R v Way [2004] NSWCCA 131; 60 NSWLR 168 R v Zdravkovic(No 3) [2020] ACTSC 258 Smith v R [2011] NSWCCA 163 Smith-Roberts v Alexander [2014] ACTSC 239 Taylor v The Queen [2014] ACTCA 9 |
Parties: | Director of Public Prosecutions Jason Pakalani Tuiono ( Offender) |
Representation: | Counsel S Bargwanna ( DPP) T O’Rourke ( Offender) |
| Solicitors ACT Director of Public Prosecutions Aulich ( Offender) | |
File Numbers: | SCC 173 of 2023 SCC 174 of 2023 |
TAYLOR J:
Introduction
1․The offender, Mr Tuiono, has been committed to this Court to be sentenced in relation to three offences:
(i) CC2023/7134 – Unauthorised possession of a firearm contrary to s 43(1)(a)(iii) of the Firearms Act 1996 (ACT) (Firearms Act) which carries a maximum penalty of five years imprisonment; and
(ii) CC2023/2249 – Traffic in controlled drug other than cannabis contrary to s 603(7) of the Criminal Code 2002 (ACT) which carries a maximum penalty of 10 years imprisonment, 1000 penalty units ($160,000) or both.
2․A third charge was transferred to this court pursuant to s 90A of the Magistrates Court Act 1930 (ACT):
(iii) CC2023/2248 – Possess ammunition contrary to s 249(1) of the Firearms Act which carries a maximum penalty of 10 penalty units ($1600).
3․The offender entered pleas of guilty to all three offences on 19 July 2023 when the matter was before the ACT Magistrates Court.
Facts
4․On 2 March 2023 the offender attended Bridgestone Tyres Service Centre in Belconnen, Australian Capital Territory (ACT) to have the brakes in his silver BMW replaced.
5․An employee of Bridgestone Tyres drove the car to the workshop and whilst doing so, reached under the driver’s seat to move it forward. He took hold of what he thought was the lever to adjust the seat, however it came loose and stayed in his hand. He looked down and saw the metal barrel of a 3D printed firearm. This is the firearm relevant to the unauthorised possession of a firearm offence.
6․The same employee alerted the police who attended, declared Bridgestone Tyres a crime scene and arrested the offender when he returned.
7․At the time of arrest, the offender was in possession of a dark-coloured satchel containing seven clip seal bags containing a total of 18.212 grams and methylamphetamine was detected in the substance. The satchel also contained $2,543.50 in Australian coins and bank notes, a .22 calibre hollow point round of ammunition and a poker machine receipt from the Canberra Labour Club in the amount of about $2,000.
8․At about 4:54pm on 2 March 2023, the offender participated in a record of interview with police. During the interview the offender stated:
(a)He bought the car two days before;
(b)The clip seal bags in the car contained “ice” and it was all his and for his personal use; and
(c)He made “no comment” about several other things put to him.
9․On 3 March 2023, a search warrant was executed in relation to the BMW. Police found the following items, some of which constitute indicia of trafficking:
(a)A set of digital scales;
(b)A teaspoon;
(c)Several disposable latex gloves;
(d)Approximately 20 rubber bands;
(e)A large quantity of new clip seal bags;
(f)3 knotted plastic bags containing 83.803 grams of a crystalline substance and methylamphetamine at 80.3 per cent as the base was detected in the substance;
(g)A bottle of “health shampoo” with Chinese text on the front which was later tested and 1,4-Butanediol was detected in the liquid (1,4-Butanediol is a controlled precursor, but it is not unlawful to possess it);
(h)The firearm as described by the Bridgestone Tyres employee. The offender’s DNA was found on the grip of the firearm;
(i)A .22 calibre round of ammunition located in the barrel of the firearm; and
(j)A .22 calibre round of ammunition located in the coin container near the gearstick.
10․The two rounds of ammunition constitute the possess ammunition offence.
11․Police examined one of the mobile phones seized from the offender. The phone contained photographs of the offender holding bags containing white crystalline substances, photographs of the offender weighing bags on a set of scales and photographs of the offender holding bags of money.
12․The phone also contained messages on an application called Signal to a person under the name “AK”. The messages reference the sale of the “thing”. On 13 February 2023, the offender and AK arranged to meet, sending a message saying, “[c]an you bring some rounds to bro [sic]”. On 17 February 2023, the offender sent a message saying, “[h]ey my bro. You know that thing I bought off you. You need to clock it forward every time you wanna use it aye?”.
13․At the time of the offending, the offender was on conditional liberty, being subject to a parole order in New South Wales (NSW).
14․An Australian Federal Police (AFP) firearms examiner later examined the firearm and ammunition. The firearm meets the definition of a "firearm” but not a prohibited “firearm”, as defined in the Firearms Act and was deemed capable of discharging a projectile through explosive force. It also meets the definition of a “pistol” for the Firearms Act. The two rounds of ammunition seized by police meet the definition of “ammunition” for the Firearms Act and are compatible for use in the firearm seized from the BMW.
Subjective circumstances
15․The offender is 35 years of age. He usually resides in NSW. The offender relies on the report of forensic psychologist Ms Leesa Morris dated 22 August 2023.
16․Ms Morris conducted a psychological assessment with the offender on 20 August 2023. The offender provided a history to her, which included the following information:
(a)That he had a good upbringing and that in Year Eight or Nine his father was deported which resulted in him “acting up” and being sent to Tonga to reside with his father. Upon his return to Australia, he began to use drugs;
(b)That he currently has a good relationship with his family including his mother and siblings, is currently in a supportive relationship and that his father passed away last year;
(c)That he completed Year Eleven and had no learning issues aside from behavioural problems shortly after his father’s deportation; and
(d)That he has been regularly employed in the construction and concreting industry.
17․Ms Morris considered that the offender had developed an “Adjustment Disorder with disturbance of conduct” due to unprocessed grief stemming from his father being deported at a young age. This, she opines, has resulted in substance abuse which in turn has contributed to him engaging in criminal behaviour.
18․Ms Morris considered that the offender presented as being a low to moderate risk of reoffending and that psychological intervention to address his drug use and conduct would significantly reduce that risk.
19․The offender provided her with a history of his drug use, which included methylamphetamine use from 20-21 years of age, with a period of abstinence that lasted until 2015, when he began using again. Ms Morris considered he met the criteria for “Stimulant Use Disorder, amphetamine-type substance, moderate, in early remission, in a controlled environment”.
20․Ms Morris considered that the offender presented with a low to moderate need for intervention to reduce his risk of reoffending. She did not consider that custody would be “more onerous” on him than another person despite his mental health concerns.
21․The material tendered on behalf of the offender also included character references from his mother and two sisters. They spoke of the offender as a loving, caring and family-oriented person, detailing his involvement in the community and his hard-working nature. They also spoke of his previous struggles with drug use, the remorse he has expressed regarding the offending and his desire to fix his past mistakes.
22․The offender denied having “a bad temper or losing control in fights”, an assertion that is somewhat at odds with some of the offending contained in his criminal history.
23․The offender provided an explanation for why he committed the offences. He stated that he missed his father’s funeral due to being in custody, and he wanted to pay for costs associated with his father’s death which were approximately $13,000. The offender turned to selling drugs as a way to make this money. He also stated that the possession of the gun was due to his fear of being robbed and because it was dangerous selling drugs.
24․A Pre-Sentence Report (PSR) dated 25 August 2023 was provided to the Court.
25․The author detailed the offender’s self-reported history of a supportive family and relationship, stable employment, some pro-social friends through involvement with a church and a rugby union club, and no physical or mental health issues.
26․In terms of the offender’s attitude towards the offences, he acknowledged the potential harm to the community and identified untreated substance abuse as a contributing factor to his offending.
27․The offender detailed his drug use throughout his late teenage years and early mid-twenties. Canberra Health Services confirmed he had begun receiving pharmacotherapy while in custody.
28․The author identified drug use as a primary risk factor and concluded that with appropriate interventions such as the pharmacotherapy and supervision, the offender’s risk of general reoffending could reduce over time.
29․The offender was assessed as unsuitable for an Intensive Correction Order (ICO). The author of the report considered his employment and personal circumstances, as well an inability to assess his proposed accommodation, in coming to the conclusion that he would not be able to comply with the conditions of an ICO.
Criminal history
30․The offender has what can only be described as an extensive NSW criminal history containing numerous violent and driving offences. A careful review of that history reveals that despite being extensive, he has no prior entries in relation to drug supply or trafficking or firearms offences.
Sentencing considerations
Objective seriousness
31․As is the case for every sentencing exercise, careful attention must be paid to the maximum penalty as it provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31]. An assessment of objective seriousness and where offending conduct sits on the spectrum of offending is an important consideration: R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. The prosecution submitted the firearms offence was at the “mid-range” of seriousness for this kind of offence, while counsel for the offender submitted it was at the “lower end of the middle range”. There was no contest about the features of the offending relevant to the assessment of objective seriousness. The prosecution did not make any submission on this issue in relation to the drug offence. Counsel for the offender submitted it was “toward the lower end”.
32․I have approached this task consistent with the Court of Appeal in R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24] where it was observed:
[T]hat references to low-range, mid-range and high-range objective seriousness are unlikely to be helpful in this jurisdiction. It is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case.
33․The parties identified the same key features of the offences that they submitted as being relevant to the assessment of their objective seriousness. I have accepted those features.
Traffic in controlled drug other than cannabis
34․The principles that apply to sentencing drug traffickers are described in Bui v The Queen [2015] ACTCA 5 at [41] and include:
(a) The role of the accused is an important consideration, those whose level in the operation is at a higher level of the hierarchy being more culpable: R vMacDonnell (2002) 128 A Crim R 44 at 50; [33].
(b) While, as decided in Wong v The Queen [2001] HCA 64; 207 CLR 584 at 609; [67]-[70], the weight of the amount of drug is not of chief importance in determining the appropriate sentence, it remains a relevant factor, particularly in the context of the harm from its distribution effects: R v Bezan (2004) 147 A Crim R 430 at 438; [34].
(c) The motivation for the offence is highly relevant, the purpose of profit being a more serious matter: R v Speechly (2002) 133 A Crim R 26 at 30; [20]; R v Day (1998) 100 A Crim R 275 at 277.
35․It was accepted that the offender was using drugs at the time of the offending and that the role of the offender was that of a street level dealer/user. In the hierarchy of a drug distribution chain, this is a role at a relatively low level. Nonetheless it is an indispensable link in the chain that facilitates accessibility to methylamphetamine by individuals and cohorts of users. The impact of methylamphetamine on individual users and the community more broadly is plainly destructive. The quantity of the drug involved was 83 grams being considerably less than a commercial quantity and some 13 times greater than the minimum trafficable quantity of 6 grams. There was some indicia of trafficking as detailed in the agreed facts.
36․The offender’s motivation was financial gain, coming to Canberra from Sydney to sell drugs and “make some fast money”. The offender expressed that he was specifically motivated by the pressure he felt to assist his family with costs associated with his father’s death and funeral. The offender reported to Ms Morris that he had assumed some significant responsibility in relation to these costs because he was unable to attend his father’s funeral as he was in custody in NSW.
37․The maximum penalty for this offence speaks to the seriousness of this kind of offending. That said, I do not consider this to be a particularly serious example of trafficking noting the features as I have.
Unauthorised possession of a firearm
38․The offence contained at s 43(1) of the Firearms Act is concerned with possession or use. The prosecutor identified the factors relevant to the assessment of the objective seriousness of the firearms offences after highlighting at the outset the uncontroversial proposition that the intention of the legislation in relation to firearms is safety, proper storage, and the need for regulation of what are “dangerous instruments”: per Refshauge J in R v Mitchell [2016] ACTSC 85 at [2], [30].
39․In R v Guy [2022] ACTSC 373 at [53] Refshauge AJ (with reference to Mack v R [2009] NSWCCA 216, Smith-Roberts v Alexander [2014] ACTSC 239, R v Okwechime [2015] ACTSC 129, R v McConnell-Imbriotis [2019] ACTSC 267, R v Zradkovic (No 3) [2020] ACTSC 258, Kajevic v Noble [2021] ACTSC 67, R v Forrest (No 2) [2021] ACTSC 259, R v Rosewarne [2021] ACTSC 217, R v Sharp [2019] ACTSC 175, R v Peter [2019] ACTSC 22 and R v Seefeldt [2020] ACTSC 361) helpfully distilled the following factors as relevant to the assessment of the objective seriousness of firearms offences:
(a) the number of firearms noting that more serious penalties apply for various numbers of firearms possessed;
(b) nature and type of the firearm;
(c) the capacity of the firearm to be discharged, especially whether it is loaded;
(d) whether it is easy to conceal the firearm;
(e) where the firearm was located and, especially, whether it was properly stored or easily accessible to others;
(f) the length of time for which the offender had had possession of the firearm;
(g) the circumstances in which the firearm came into the offender’s possession;
(h) the reason why the offender had it in his possession.
40․Against the background of those factors, I identify the following features of this offence:
(a)The offending on this occasion was limited to possession and relates to one firearm;
(b)The firearm as described in the expert report part of the prosecution tender bundle in these proceedings was black and white in colour with the external appearance of a firearm constructed mostly out of plastic with some metal components. In the opinion of the expert, it was 3D printed and conforms to the definition of “pistol” and “firearm” as defined in the Firearms Act. The nature of the firearm makes it unable to be tracked or registered;
(c)The firing mechanism was initially unreliable when tested and after some adjustments by the expert the reliability improved but was still “intermittent”. The expert opined that it was nonetheless capable of causing death or serious injury. The firearm was loaded when it was discovered in the offenders vehicle;
(d)The firearm was not properly stored. As evidenced by the discovery of it under the drivers seat in the offenders vehicle it was easily concealed and easily located;
(e)The period of possession was 18 days;
(f)The firearm came into the offender’s possession after he purchased it from an associate; and
(g)There was no challenge to the explanation that the offender provided for possessing the firearm. That is, because he was drug dealing, perceived that to be a dangerous activity and wanted the firearm as a form of defence or protection. The offender told the author of the report that he had not had recourse to use the firearm.
41․Having identified those features this is, in my view a moderately serious example of the offence.
Possess ammunition
42․The transferred possess ammunition offence relates to only two rounds of ammunition consisting of a .22 calibre round located in the barrel of the firearm and a .22 calibre round of ammunition located in the vehicle near the gearstick.
Conditional liberty
43․The offender committed these offences while subject to a parole order in NSW.
44․At the time of his arrest for these offences the offender was on parole for an offence of robbery armed with an offensive weapon, driving whilst disqualified and re-sentencing of two suspended sentences for driving offences. A total term of six years and three months was imposed upon him in August 2019 with a non-parole period that ended in June 2022. The offender’s parole has been revoked in NSW and a warrant issued for his apprehension. He has a total of two years and three months left to serve in relation to that sentence.
45․The prosecution submitted that this circumstance was an aggravating feature, the offender having betrayed the opportunity to be in the community and pursue rehabilitation: R v Tran [1999] NSWCCA 109 at [15]. The fact that an offender was on conditional liberty is relevant to the determination of the appropriate punishment for an offence and does not influence the objective seriousness of an offence: Smith v The Queen [2011] NSWCCA 163 at [26]. See also R v Way (2004) 60 NSWLR 168 at [90]-[92], Hillier v DPP (NSW) [2009] NSWCCA 312; 198 A Crim R 565 at [30] and R v Van Rysewyk [2008] NSWCCA 130 at [25].
46․I bear in mind that I must approach this feature of the offending with care so as to avoid double punishment: Kelly v Ashby [2015] ACTSC 346; 73 MVR 360 at [61].
Pleas of guilty
47․The offender is entitled to a discount reflecting the significant utilitarian value of his guilty pleas pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Crimes (Sentencing) Act).
48․It was accepted by the prosecution that the pleas were entered “at a very early opportunity” prior to the matters being committed to this Court.
49․Section 37 of the Crimes (Sentencing) Act requires that I state the penalty that I would otherwise have imposed. I have afforded a 25 per cent discount for the offender’s guilty pleas to each offence.
Time in custody
50․The offender was arrested on 2 March 2023 and refused bail that day in relation to these offences. He has remained in custody since that time. The sentences I impose will be backdated to reflect the time he has spent on remand per s 63 of the Crimes (Sentencing) Act.
Comparative sentence decisions
51․The use of sentencing statistics and comparable sentences must be put in its proper place. They illustrate, not define, the possible range of sentences available: R v Pham [2015] HCA 39; 256 CLR 550 at 560; [29]. I bear in mind that current sentencing practice does not cap the upper nor lower ranges of a possible sentence: Director of Public Prosecutions v Dalgliesh(a pseudonym) [2017] HCA 41; 262 CLR 428 at [51]-[53].
52․The prosecutor provided a table of comparative cases for the offence of trafficking in a drug other than cannabis (R v Nikro [2015] ACTSC 231, R v O’Brien [2014] ACTSC 156, R v Harmouche [2020] ACTSC 194, R v French [2020] ACTSC 133, R v McCallum [2020] ACTSC 15 and R v Mackinder [2021] ACTSC 176) and for the s 43 offence of possessing an unauthorised firearm (R v Mitchell [2016] ACTSC 85, Smith-Roberts v Alexander [2014] ACTSC 239, R vOkwechime [2015] ACTSC 129, R v Thompson [2017] ACTSC 141 and R v Massey [2018] ACTSC 221). I have had regard the facts and circumstances of those cases as well as the outcomes.
53․The provision of comparative cases is not to give effect to strict mathematical equivalence as between sentencing outcomes for offences but rather consistency in the application of relevant principles: Hili v The Queen [2010] HCA 45; 242 CLR 520 at [49]. A review of the cases provided in the table reveals that while a sentence of imprisonment was imposed for both trafficking and firearms offences, the method by which the sentence was served, and the length of the term imposed, differed according to and consistent with, the variation in the individual background, circumstances and features of each case.
Determination
54․I sentence the offender in the context of the objects of the Crimes (Sentencing) Act contained in s 6. I have considered the purposes of sentencing articulated in s 7(1) of the Crimes (Sentencing) Act. Of particular significance in this matter is the need for general deterrence, denunciation, accountability and punishment given the serious nature of the offences. There is a need to protect the community from this kind of offending. Trafficking in methylamphetamine directly facilitates the misery visited upon our communities through addiction to methylamphetamine. The possession of firearms without authorisation risks community safety by the circumnavigation of the rules and regulations necessary to strictly control dangerous weapons. There must also be a strong element of specific deterrence in light of the offender’s conduct and his persistent engagement with the criminal justice system.
55․It is clear that the offender’s family and current partner continue to offer him their support in the face of his ongoing engagement with the criminal justice system including periods spent in full time imprisonment for serious offending. Their support is a pro-social factor relevant to his prospects for rehabilitation. It is significant in my view that the offender does not have any mental health issues. The absence of mental ill-health leaves the offender able to devote real effort, should he be motivated to do so, to addressing his use of drugs as one of the main contributors to his offending behaviour.
56․The attitude the offender recorded in the PSR reflects some insight into the drivers of his offending behaviour and what is required of him in order to reform that behaviour. He has expressed remorse for his conduct and this is an important consideration in assessing his prospects of rehabilitation: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [41]. He was assessed as requiring a low level of supervision in light of his engagement with pharmacotherapy while in custody. This engagement in my view speaks to a genuine desire to address his drug use and further, to use the time he is custody to put himself in a position to return to the community with a record of sobriety.
57․Based on all of the material before me I consider the offender to have reasonable prospects of rehabilitation. Rehabilitation is in the public interest and if it can be achieved, promotes community safety: Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]. I have taken into account those factors pursuant to s 33(1) of the Crimes (Sentencing) Act that are known and relevant.
58․Having carefully considered the subjective circumstances of the offender, the objective seriousness of the offender and the relevant principles, I have formed that view that the only appropriate penalty for the offences, considering possible alternatives, is a period of imprisonment: s 10 of the Crimes (Sentencing) Act. This much was conceded by counsel for the offender. It was also conceded by counsel for the offender that the impact of the parole revocation that will be brought about immediately upon his release from custody in the ACT significantly limits any utility or benefit that might otherwise have emerged from the inclusion of a period of imprisonment served in the community, such as an ICO or a Suspended Sentence Order (SSO). As I have already observed the offender was found unsuitable for an ICO, though this finding does not prohibit the imposition of an ICO if it is determined to be the appropriate outcome by the Court: s 78(6) of the Crimes (Sentencing) Act.
59․In my view the impact of the parole revocation looming over the offender upon his release from custody in the ACT and the significant period of imprisonment he must complete in NSW precludes any meaningful consideration of an ICO or SSO as the offender would almost immediately be in breach of those orders. Any rehabilitative effect that an ICO or a SSO might have would be entirely frustrated by the revocation of parole awaiting the offender upon his release. In those circumstances the appropriate sentence for the drug trafficking offence and the unauthorised possession of firearm offence are periods of immediate full-time imprisonment.
60․I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, applying the principal of totality: Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [40]-[50]; 623-624. I must consider whether the sentence imposed is “just and appropriate” for all of the offences: Mill v The Queen [1998] HCA 70; 166 CLR 59 at [8]. While the offences are separate, they were committed within the same set of circumstances. I bear in mind that an offender should not benefit from committing more than one offence and any suggestion that a discount is offered for multiple offences must be avoided by a sentencing court: R v Knight [2005] NSWCCA 253; 155 A Crim R 252 at [112]. I have determined that there should be some accumulation as between the offences but only that which is necessary to give proper effect to the principles I have identified.
61․The sentence to be imposed for the drug trafficking offence has a starting point of 20 months reduced by 25 per cent to 15 months.
62․The sentence to be imposed for the unauthorised possession of a firearm has a starting point of 12 months reduced by 25 per cent to 9 months.
Orders
63․The orders of the Court are:
(1)On the charge of trafficking in a controlled drug other than cannabis (CC2023/2249) the offender is convicted and sentenced to imprisonment for 15 months to start on 2 March 2023 and end on 1 June 2024.
(2)On the charge of unauthorised possession of a firearm (CC2023/7231) the offender is convicted and sentenced to imprisonment for 9 months to start on 2 January 2024 and end on 1 October 2024.
(3)On the transferred charge of possessing ammunition (CC2023/2248) the offender is convicted and fined $650 and given no time to pay.
64․I have imposed sentences resulting in an aggregate sentence of 19 months. In accordance with s 65 of the Crimes (Sentencing) Act I am required to set a non-parole period. I do so bearing in mind the proper approach to fixing a non-parole period identified and summarised in Taylor v The Queen [2014] ACTCA 9 at [19], and taking into account all the relevant factors I have already identified. The non-parole period will start on 2 March 2023 and end on 1 March 2024.
| I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor. Associate: Date: 11 September 2023 |
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