R v Aquilina

[2022] NSWDC 515

District Court

New South Wales

Medium Neutral Citation:	R v Aquilina [2022] NSWDC 515
Hearing dates:	21 October 2022
Decision date:	04 November 2022
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 7 years with a non-parole period of 3 years and 6 months
Catchwords:	CRIME - SENTENCE - supply prohibited drug, possess unauthorised pistol.
Legislation Cited:	Drug Misuse and Trafficking Act 1985 (NSW), s25(2); Firearms Act 1996 (NSW), s7(1).
Category:	Sentence
Parties:	Rex (Crown) Mitchell John Wayne Aquilina (Offender)
Representation:	Mr Buckingham (Solicitor ODPP Parramatta) Mr Lloyd KC (Counsel for the offender)
File Number(s):	2021/00062590
Publication restriction:	Nil

1. Mitchell John Aquilina, you appear for sentence today in relation to three principal offences.

2. The first principal offence is supplying a prohibited drug greater than the commercial quantity for that drug. This is sequence 4. It involves a contravention of s25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for that offence is imprisonment for 20 years. There is a standard non-parole period of imprisonment for 10 years.

3. The second and third principal offences each involve possessing an unauthorised (but different) pistol. These are sequences 13 and 14. Each involves a contravention of s7(1) of the Firearms Act 1996 (NSW). The maximum penalty for each offence is imprisonment for 14 years. There is a standard non-parole period of imprisonment for 4 years.

4. In relation to each of the principal offences, there is one matter on a relevant Form 1.

5. In relation to sequence 4, the matter on the relevant Form 1 is dealing with the proceeds of crime in an amount less than $100,000.00. This is sequence 8.

6. In relation to sequence 13, the matter on the relevant Form 1 is possessing ammunition without holding a licence / permit / authority. This is sequence 12.

7. In relation to sequence 14, the matter on the relevant Form 1 is possessing ammunition without holding a licence / permit / authority. This is sequence 1.

8. The facts surrounding your offending conduct are, with one exception, agreed (and I shall return to that exception later in these remarks).

9. The agreed facts may be summarised as follows.

10. As at December 2020, you were 28 years of age.

11. Between mid-December 2020 and early March 2021, you engaged in 158 discrete transactions by which you supplied a total of 322.25 grams of cocaine to various purchasers. The purity of the cocaine supplied is not in evidence.

12. You personally and directly participated in the transactions by means of taking orders and delivering, or arranging for the delivery of, the drugs. You also were assisted in the conduct of this criminal activity by others (including your wife). But it was you who was at the apex of the enterprise which the Crown has correctly described as "a medium scale street level drug supply business.” Apart from “employing” others to assist you, you used multiple phone services; you encouraged the use of coded communications; and it was you who directly used to deal with customers when “disputes” arose. How you “dealt” with those disputes is not the subject of direct evidence. I have not speculated adversely to your interests as to whether, during the execution of the search warrant I shall soon refer to, the firearms which were found in the garage, or the knuckle dusters which were found in the main bedroom, were used by you in this context.

13. Many of the individual amounts supplied were 0.5 grams; the largest individual amount supplied was 10 grams; and the most common supplies were 0.5 to 2 grams.

14. For those 158 transactions over an 80 day period, you received approximately $113,400.00.

15. It is the supply of these amounts of cocaine which is sequence 4.

16. Your activities came under police attention. Your residential premises were under surveillance by police from 6 January 2021.

17. Ultimately, you were arrested on 4 March 2021.

18. At or about the time of your arrest, the police executed a search warrant at your residential premises.

19. In the garage of those premises, the police found $9,700.00 in Australian currency; and, in the main bedroom of the premises, a further $5,270.00 was found. This total amount of $14,970.00 is sequence 8.

20. Two firearms were also found in the garage.

21. One of those firearms was a loaded 9mm Parabellum calibre CZ 75B self-loading pistol (otherwise known as a Ruger pistol). It is your admitted possession of that pistol which is sequence 13.

22. The second of those firearms was a .44 magnum calibre Smith & Wesson revolver. It is your admitted possession of that revolver which is sequence 14.

23. Each of those firearms was in working order.

24. In addition to those two firearms, a quantity of ammunition relevant to each firearm was also found in the garage.

25. In relation to the Ruger pistol, 15 cartridges were found. It is your admitted possession of that ammunition which is sequence 12.

26. In relation to the Smith & Wesson revolver, 6 cartridges were found. It is your admitted possession of that ammunition which is sequence 1.

27. I earlier noted that there was one exception to the facts being agreed – and that related to the circumstances by which you came into possession of the pistol, the revolver, and the related ammunition.  

28. In a “letter of remorse” dated 5 July 2022 (and which is part of Exhibit 1), you said:

“… I should not have allowed for people to have firearms in my home.”

This somewhat exculpatory assertion was not the subject of any sworn evidence by you; nor was it advanced to the author of the sentencing assessment report or the author of the psychological report (which was prepared on your behalf). In these circumstances, I do not accept, on the balance of probabilities, that you were (in effect) storing those items for others. The only rational inference in the circumstances is that they were, in fact, “owned” by you and were part of your involvement in the supply of illicit drugs. That being said, there is no evidence (and I make no finding) that you had ever used either of those firearms – and it is not part of the Crown case against you that you ever did.

29. It is necessary for me to make a finding of the objective seriousness of each principal offence for an offence of its kind. In my opinion, sequence 4 is slightly below a mid-range offence; and sequences 13 and 14 are mid-range offences.

30. By having regard to the nature of the matter on the relevant Form 1, sequence 8 will result in a modest increase in the sentence for sequence 4; and sequences 12 and 1 will result in only a very slight increase in the sentence for sequences 13 and 14.

31. There are no additional aggravating circumstances.

32. As I have already indicated, you did not give sworn oral evidence in the sentence proceedings. The balance of your subjective circumstances was placed before the Court through the sentencing assessment report; your letter of remorse; a psychologist’s report; and a character testimonial from your father. From those documents, I am satisfied of the following facts, on the balance of probabilities.

33. You were brought up in a generally supportive family environment – although your father did have some issues of his own concerning cannabis use as a consequence of a series of unsuccessful surgical procedures.

34. You left school during Year 11 and commenced an apprenticeship as a carpenter.

35. After three years of that apprenticeship, you stopped it and worked for two years in the real estate industry, after which you resumed your carpentry apprenticeship.

36. When you were 25 years of age, you had a serious motorbike accident. As a result, you lost your job and you significantly increased your consumption of illicit drugs – which had commenced when you were in your mid to late teens. Before long, you were dealing in illicit drugs, specifically cocaine, both to fund your own drug habit and for profit. The first principal offence for which you are to be sentenced today was, therefore, not an isolated incident.

37. You have been diagnosed by the psychologist as having attention deficit hyperactivity disorder; generalised anxiety disorder; major depressive disorder; substance use disorder; alcohol use disorder; and gambling disorder. But I am not satisfied that any of these conditions (apart from the substance use disorder) is causally connected to your offending.

38. Whilst you have been in custody since your arrest, the COVID pandemic has restricted the professional intervention which might otherwise have been available to you to help you address these significant psychological conditions. Nevertheless, you have managed to complete the Positive Lifestyle Program whilst in custody.

39. Additionally, you have not consumed illicit drugs whilst you have been in custody.

40. However, you would be assisted by professional assistance for the balance of your time in custody and when you are released to parole.

41. Whilst you have been in custody, you have been appointed as a sweeper. This is a position of significant trust and clearly you have made a positive impression on the experienced officers.

42. You have the ongoing love and support of your wife, parents and brother; and your brother has arranged work for you as a concreter upon your ultimate release.

43. You have no prior offences and are, therefore, entitled to the leniency which can be extended to a first offender in appropriate circumstances.

44. I have had to consider whether you are remorseful and contrite for your offending. I have had to reflect carefully on this important topic for two reasons: first, because you did not give sworn evidence to that effect; and secondly, because I have not accepted your (unsworn) assertion as to how you came to have the firearms in your possession. However, by having regard to the sentencing assessment report, your father’s letter, the psychologist’s report, and the balance of your letter of contrition, I am (just) satisfied, on the balance of probabilities, that you have genuine remorse and contrition and good insight into your offending.

45. In all the circumstances, I regard your prospects of rehabilitation as being reasonable.

46. Nevertheless, both general and specific deterrence are fully engaged, as is the need to encourage your rehabilitation.

47. You entered early pleas of guilty and are entitled to a discount of 25 per cent for the utilitarian value of those pleas.

48. In addition to being unable to participate in rehabilitation courses whilst on remand, the COVID pandemic has also resulted in you enduring sustained and prolonged lockdowns – to date, 160 days. This has made your incarceration more harsh than it otherwise would have been and I have specifically taken that also into account.

49. No sentence for any of the principal offences other than a sentence of full-time imprisonment is appropriate and the contrary was not submitted on your behalf by Mr Lloyd KC.

50. I intend imposing an aggregate sentence and, therefore, it is necessary for me to state the indicative sentences underpinning the ultimate aggregate sentence. That sentence will of course be backdated to the date that you were arrested.

51. In relation to sequence 4 (and taking into account the matter on the relevant Form 1), except for your plea of guilty, the indicative sentence would have been imprisonment for 4 years 6 months. After the discount of 25 per cent, the indicative sentence is imprisonment for 3 years 4 months; the indicative non-parole period is 1 year 8 months.

52. In relation to sequence 13 (and taking into account the matter on the relevant Form 1), except for your plea of guilty, the indicative sentence would have been imprisonment for 5 years. After the discount of 25 per cent, the indicative sentence is imprisonment for 3 years 9 months; the indicative non-parole period is 1 year 10 months.

53. In relation to sequence 14, the indicative sentence is the same as for sequence 13.

54. It would not be appropriate for any of the indicative sentences to be totally concurrent with any other indicative sentence.

55. Because this is your first time in custody, and because your prospects of rehabilitation would be enhanced by a longer period on parole, I make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period.

56. Mitchell John Aquilina, for the three principal offences, I sentence you to an aggregate term of imprisonment of 7 years.

57. I fix a non-parole period of 3 years 6 months to date from 4 March 2021 and which will expire on 3 September 2024.

58. I fix a balance of 3 years 6 months to date from 4 September 2024 and which will expire on 3 March 2028.

Decision last updated: 04 November 2022