R v Allen

[2024] NSWDC 463

District Court

New South Wales

Medium Neutral Citation:

R v Allen [2024] NSWDC 463

Hearing dates:

29 August 2024

Date of orders:

29 August 2024

Decision date:

29 August 2024

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of imprisonment of 4 years with a non-parole period of 2 years

Catchwords:

CRIME — Drug offences — Supply prohibited drug — < Indictable quantity

CRIME — Firearms offences — Possess prohibited firearm — Acquire pistol — Firearms prohibition orders — Use prohibited weapon — Contravene firearms prohibition order — Goods suspected of being stolen

CRIMINAL PROCEDURE — Back up and related offences

SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions — Contravene firearms prohibition order — avoiding double counting

SENTENCING — Guidelines for sentencing — Role of guidelines

SENTENCING — Mitigating factors — Plea of guilty

SENTENCING — Penalties — Imprisonment

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Firearms Act1996 (NSW)

Weapons Prohibition Act 1998 (NSW)

Crimes Act 1900 (NSW)

Cases Cited:

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

Category:

Sentence

Parties:

Bailey George Allen (the accused)
Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
D Shridhar (for the accused)

Solicitors:
Meridan Legal (for the accused)
L McGonigal solicitor for Public Prosecutions (NSW) (Crown)

File Number(s):

2022/257768; 2022/292423

JUDGMENT – ex tempore revised

Introduction

1. Bailey Allen is sentenced today for firearms, weapons, and drug offences. He accepted his guilt in the Local Court. As a consequence, each of the sentences I intend to indicate will be reduced by 25% to reflect the utilitarian value of those guilty pleas.

2. Born in 1997, he has spent over 60% of his adult life in gaol. He must spend more time in gaol. He was last released to parole in May 2022 for offences which have some similarity to the current matters.

3. In May 2022 he had his sister’s home available to him as a place to stay. He could have been supported there and had some stability. The evidence before me today is that he chose to return to crime and drug use. He chose to be with his criminal associates rather than stable family members. That choice was, in part, informed by his personal history, going back to when he was very young. That history involved; neglect, trauma, and an acquired brain injury suffered following an accident when he was a teenager.

4. The impacts of such varied traumas do not diminish over time. They did, as the material before me indicates, interfere with Allen’s capacity to make rational choices. They require me to treat him in a manner different to an offender who did not have those disadvantages. That is only fair and just. But at the same time, Allen has continued to offend against the community and as a consequence, he must also be removed from the community for a period.

5. A sentence of imprisonment should not destroy his motivation or hope for the future. But matters in mitigation of sentence can only go so far. He has to be appropriately punished for what he did. That punishment must exact some retribution on him. It should also bring home to others who are tempted to offend as he did, the consequence of so acting.

6. When he was sentenced last time, the judge structured the sentence to take into account his history (based upon a report of Ms Harwick). He was subject to parole supervision, but his response to that supervision was poor. He did not engage in the programs made available to him. He failed to keep in touch with his parole officer, and he committed the offences for sentence.

7. He was arrested on 30 September 2022. He has been in custody ever since. He served the full balance of parole of that earlier sentence until November 2023.

Agreed Facts

8. The matters for sentence are set out in Agreed Facts. On 17 August 2022 police attended a property in Southern Wollongong in relation to an unrelated matter. They noticed the offender as he was trying to dispose of a black ‘manbag’. Police found keys and gloves in the bag. The offender however was not arrested.

9. Later, a search warrant was executed at the property. Inside a safe in the garage of the property they found a Smith and Wesson firearm gel blaster and a large amount of ammunition for it. Ball bearing type ammunition and more ammunition for a gel blaster were found in another part of the garage.

10. On 18 August 2022, police went to another home where Allen had been staying. They found; an expandable baton, nine rounds of ammunition, four opals and a flick knife.

11. On 30 September 2022 police spoke to and arrested the offender. He told them that he had “some rocks” in his pocket. The “rocks” were seized and analysed. They were found to be 43 grams of methylamphetamine. Allen told police the drug was for his personal use. He denied supplying it, but indicia of supply were found at the premises.

12. He was asked if he had anything else to declare. He said, “Yes, there is. There is a gun in there”. Inside the premises police found a .32 snub nose revolver with four active rounds. On arrest Allen was handcuffed. The handcuffs were removed, and he was warned not to do anything stupid. He responded, “I’m not going to fuck around, you got me fair and square”.

Matters for sentence

13. This matter was subject to discussion in the Local Court. It took some time getting to this Court. The various offences were separated out into five matters and were committed for sentence. Six related offences were sent to this Court for sentence pursuant to s 166 Criminal Procedure Act 1986 (NSW).

14. One matter, the possession of the flick knife, which was placed on a Form 1, attached to the supply prohibited drug offence. I do not sentence for the matter on the Form 1.

15. As I trust will be clear, I have to be careful in this sentencing exercise not to double-count when matters in common to multiple offences are before the Court.

Matters committed for sentence

1. Sequence 2 – Possess unauthorised prohibited firearm: Firearms Act1996 (NSW), s 7(1). This, the most serious offence, related to the possession of the snub nose revolver. It has a maximum penalty of 14 years imprisonment, and for an offence, taking into account the objective factors, there is a standard non-parole period of 4 years.

2. Sequence 6 – Acquiring a pistol, while being subject to a Firearms Prohibition Order: Firearms Act, s 74(1). This charge relates to the snub nose revolver. The maximum penalty is 14 years imprisonment. The Agreed Facts do not set out when he was placed on that Firearms Prohibition Order, but it is admitted he was, and it would have been a natural consequence of his earlier offending, which contains weapons and firearm matters.

3. Sequence 5 – Supply prohibited drug: Drug Misuse and Trafficking Act 1985 (NSW), s 25(1). This relates to the 43 grams of methylamphetamine. It has a maximum penalty of 15 years imprisonment.

4. Sequence 11 – Possess pistol subject to Firearms Prohibition Order. It is also charged pursuant to s 74(1) Firearms Act. It relates to the possession of the gel blaster pistol.

5. Sequence 15 – Use prohibited weapon, contrary to a Weapons Prohibition Order: Weapons Prohibition Act 1998 (NSW), s 34. It relates to the extendable baton. It has a maximum penalty 10 years imprisonment.

Matters on the 166 certificate

16. The following matters came to the Court on s 166 certificates. All are subject to maximum penalties that apply if they were sentenced in the Local Court:

1. Sequence 7 – Possession of a prohibited weapon: Weapons Prohibition Act, 7(1). This count relates to the flick knife, which is also the subject of Sequence 14 (Form 1).

2. Sequence 8 – Possession of a prohibited weapon: Weapons Prohibition Act, 7(1). This count relates to the same extendable baton, which is the subject of Sequence 15.

3. Sequence 10 – Goods in custody: Crimes Act 1900 (NSW), s 527C(1)(c). This charge relates to the four opals that were found.

4. Sequence 12 – Possession of an unauthorised prohibited firearm: Firearms Act, s7(1). This count relates to the same gel blaster, which is the subject of Sequence 11.

5. Sequence 4 – Not keeping a firearm safely: Firearms Act, s 39(1)(a). This relates to the snub nose revolver.

6. Sequence 13 – Possession of 9 rounds of ammunition subject to a Prohibition Order: Firearms Act, s 74(3). It is not specified what weapon that ammunition was for.

Matter on Form 1

17. Sequence 14 – Possession of a prohibited weapon in contravention of a weapons prohibition order: Weapons Prohibition Act, s 7(1). This relates to the flick knife found on 18 August 2022. The Form 1 attaches to the supply methylamphetamine count – Sequence 5.

18. Generally, taking into account a matter on a Form 1 can lead increase a sentence but because there is another sentence relating to the flick knife this count seems to be here to ‘clear the books’. I have not added anything for the Form 1.

Maximum penalties

19. In sentencing, close attention is paid to maximum penalties. They are one indication of the seriousness of the offence and an important guide to the exercise of my sentencing discretion. Where a standard non-parole period applies, content has to be given to it.

Objective seriousness

20. There is an absolute prohibition on possession of firearms, except where a person proves that they are entitled to the privilege and possessing and owning them. The objective seriousness of the possess snub nose revolver offence was high.

21. The policy of Parliament set out in the Firearms Act must be respected. The maximum penalty and standard non-parole period are meant to deter and punish possession of firearms per se. Here, the offence was aggravated by the offender’s free admission about his reason for having the firearm. He told his parole officer his possession of the firearms was “reassuring” whilst trading illicit drugs.

22. There could be no reassurance to anyone in the community that a man using, in possession of, and supplying illicit drugs was also in possession of a loaded firearm. Possession of a firearm as part of a person’s involvement in other crimes, makes the criminality of the firearms offence more serious. Accordingly, this is a particularly serious example of this type of offence.

23. It needs to be stated and restated – if firearms are possessed, they are liable to be used, and if used, are liable to be the source of great danger. Their possession, particularly when loaded, creates a high risk to the safety of the public. As the offender was acutely aware because, to his credit, he did take the proactive step for the safety of arresting police officers of telling them where it was kept.

24. There are, and as Mr Shridhar, counsel who appears for the offender, submitted, more serious firearms offences. It is hard to fix this particular offence on any notional scale. It was not submitted that it is a low-range offence, to the contrary, it requires a substantial custodial sentence, which is one indicator of its seriousness.

25. So far as the possession of the gel pistol is concerned, as I said, every firearms offence is treated seriously. There was no legal justification for the possession of the gel pistol. These are not toys. The pellets used make them a projectile weapon. They are not allowed to be held or possessed by anyone in the community without a licence. That privilege is strictly enforced.

26. At law there is no distinction between a replica and a real pistol. I do not have a picture of the pistol, but I am aware of the type from previous matters, and these pistols can sometimes be mistaken for real weapons. In the modern world, anyone who has a firearm that looks real can provoke a reaction in members of the public and law enforcement officers that can have disastrous consequences. In sentencing for such matters, context is everything, and here the context was the offender’s other criminal behaviour; making it a serious example of its type.

27. The baton and the flick knife, similarly, could only be possessed for protection, and if used, could have inflicted serious harm. There is no excuse for their possession. Here, again, are serious examples of their type, which in the context of this matter require custodial sentences.

28. The supply of illicit drugs even if, and as is clear here, a user needs to supply to support their own habit, is still a serious offence. This was a relatively small-scale user / dealer situation. Allen was at the bottom of the heap. He was not intending to make any significant profit other than the drugs which he would ingest. At the same time, as a drug user, he is acutely aware of the harm drugs cause others, and he was perpetuating that harm to others in the community. Again, a custodial sentence of some length is required to reflect the seriousness of this offence.

29. Turing to the breach offences. Weapons and Firearms Prohibition Orders are put in place to signal to the offender that if they engage in possession of such items, it will be treated seriously. Additional punishment is required, not for the possession of the item, but for the breach of the Order. Allen has already been punished for the possession of the item. Again, the community and the offender have to understand the seriousness of breaching such orders and custodial sentences have to be imposed.

30. The other matters for sentence involve not keeping the firearms safe and goods in custody. The law is very clear, I cannot double punish where there are elements or factors in common: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [40].

31. Generally, there is a reduction in the otherwise appropriate sentence to avoid any risk of double counting. That will be reflected in the indicated sentences and how I formulate the aggregates sentence. There must be some accumulation between the sentences, but I do not simply add up the punishments I will indicate. I have to synthesise and fix an overall sentence that reflects the criminality of all the matters before the Court and the case for the offender.

32. In fixing the appropriate sentences, I also have to take into account that he was on parole, and that he has a criminal record that is of no assistance to him. He has served all of his parole. He should serve some of that parole independently of this matter. I will start this sentence six months after he was arrested. That then has an impact on the structure of the sentence because the accumulation requires adjustment of his non-parole period, as a special circumstance.

33. There is also, as was forcefully submitted by Mr Shridhar, a reason for this offender being given longer on parole so that he can prove himself in the community and engage in rehabilitation in the community.

34. But care is required. The evidence before me indicates that he has not taken opportunities given him before. I am as, Mr McGonigal for the Director submits, entitled to exercise appropriate cynicism when promises are made time and time again and then broken. I will give the offender one last chance, but it is unlikely that any judge or magistrate will do so again.

35. I will give him that chance because there is material before me that indicates that as he has matured, he has taken the advice of his family and friends and has engaged, so far as he is able, with Community Corrections in order to change his behaviour. That task will not be easy. It is one thing to make promises while you are in custody, it is another to carry out those promises in the community.

Subjective case for the offender

36. The offender’s letter makes appropriate promises. He tells me, and there is no reason to doubt, that there were matters in his upbringing that put him at risk. His family were associated with crime. Family members spent time in gaol. Sadly, the fact that a parent ends up in gaol can have an impact on children.

37. Allen suffered a brain injury when he was a child. There is evidence that his memory and other aspects of his life were, and still are, affected by it.

38. Allen has lacked stability in his life. A large number of friends have died of overdoses, but that has not deterred him from using drugs or supplying drugs.

39. He told me, “I need to change now before it is too late before I lose my life to drugs, suicide or another motor vehicle accident. I don’t want to lose any more of my life to prison either”. He says he wants to give something back to the community because he says, “I have been a burden on it for so long”. His letter shows some insight as he has been a burden on the community for a very long time; he has taken and taken again. He says that he is now “clean” and he has taken every course available to him.

40. He said that he had the gun as a deterrent to make himself safe and that he had no intention of hurting anyone. As I said, that is no excuse as the possession of the snub nose revolver put others and himself at risk.

Synthesis

41. Allen’s background means that he does not have the same moral culpability as a person who did not suffer these multiple traumas. I will give it full weight despite his repeated offending.

42. There is no remorse stated here, but there is no one individual to apologise to. I accept Allen has shown insight into his offending. He has made promises. He has motivation and the sentence I impose should not destroy that motivation or crush his hopes for a normal life in the community, but there must be further punishment in this matter.

43. There must some retribution. Others in the community have to understand the consequences of behaving as Allen did. Allen has to understand that his actions have consequences. There must be proportionate punishment; mitigating factors can go only so far.

44. I will however, attempt a future-focused sentence. He will have an opportunity, subject to a decision of the State Parole Authority, for early release. If he takes that opportunity, we will not see him again. If we see him again, as I said, he cannot expect the leniency inherent in this sentence.

45. I have to indicate appropriate sentences for each offence. I then have to fix an appropriate aggregate sentence. Each indicated sentence takes into account the 25% reduction for the utilitarian value of the guilty pleas.

Orders

46. In relation to each matter:

• For H336943898, Sequence 2, possession of the snub nose revolver – I indicate a sentence of 2 years and 4 months imprisonment. As it carries a standard non-parole period, I indicate a non-parole period of 1 year and 2 months imprisonment.

• For the H336943898, Sequence 5, supply prohibited drug – a sentence of 1 year and 10 months. I note the Form 1 (Sequence 14) has been taken into account.

• For H336943898, Sequence 6, acquire a pistol, the snub nose revolver – a sentence of 9 months imprisonment.

• For H90148040, Sequence 11, possession of the gel blaster – I indicate a sentence of 1 year and 1 month.

• For H90148040, Sequence 15 – I indicate a sentence of 9 months.

• For H336943898, Sequence 4, not keep firearm safely, the gel blaster – I indicate a sentence of 3 months.

• For H90148040, Sequence 7, the flick knife – I indicate a sentence of 3 months.

• H90148040, Sequence 8, possession of the baton, noting that that is also the subject of another matter – I indicate a sentence of 3 months.

• H90148040, Sequence 12, for the possession of the unauthorised prohibited firearm, the gel blaster – I indicate a sentence of 3 months.

• H90148040, Sequence 13, for the possession of the ammunition – I indicate a sentence of 3 months.

47. Those matters will be subject of an aggregate sentence. That sentence will be 4 years imprisonment. It will commence after Allen has served 6 months of his balance of parole on 30 March 2023. To reflect my finding of special circumstances there will be a non-parole period of 2 years which means he will be eligible for consideration for release to parole on 29 March 2025. There will be a parole period of 2 years, meaning the sentence will expire on 29 March 2027.

47. In relation to the goods in custody, Sequence 10, it is inexpedient to impose any other penalty and I deal with it pursuant to s 10A Crimes (Sentencing Procedure) Act 1999 (NSW). For H90148040, Sequence 1 on the s 166 certificate I note is “withdrawn and dismissed”.

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Decision last updated: 04 October 2024