R v As and GB
[2013] NSWDC 196
•23 May 2013
District Court
New South Wales
Medium Neutral Citation: R v AS and GB [2013] NSWDC 196 Hearing dates: 3 May 2013, 17 May 2013 Decision date: 23 May 2013 Before: Letherbarrow SC DCJ Decision: AS: Sentenced to a total term of imprisonment of four and a half years and an effective nonparole period of 2 years and 3 months
GB: Sentenced to a total term of imprisonment of three years and an effective nonparole period of 18 months
Catchwords: CRIME - Firearms offences - role of offender - relevance of ex police officer - whether mitigating factor - objective seriousness post Muldrock Legislation Cited: Firearms Act 1996, s51(2A), s65(1)
Weapons Prohibition Act 1998, s7(1)
Crimes Act 1900, s347
Crimes (Sentencing Procedure) Act 1999, s44(2)Cases Cited: R v Tauok (1992) 65 ACrimR 387, R v Thompson and Houlton (2000) 49 NSWLR 383, Muldrock v The Queen (2011) 244 CLR 120, Markarian v The Queen (2005) 228 CLR 357, Pearce v The Queen (1998) 194 CLR 610, Category: Sentence Parties: Director of Public Prosecutions - Crown
AS - Offender
GB - OffenderRepresentation: Director of Public Prosecutions
AS: W. Terracini SC with M. Tanevski
GB: A. Djemal
Director of Public Prosecutions
AS:
GB: Zahr & Zahr Lawyers
File Number(s): 2011/334708, 2011/334848 Publication restriction: Non publication and suppression order
Judgment
INTRODUCTION
The offender, S, adheres to guilty pleas entered in the Burwood Local Court on 4 December last to two charges under the Firearms Act 1996 (the Act). The first is that, on 25 July 2011, contrary to s 51(2A) of the Act, he knowingly took part in the sale of a prohibited pistol that had not been arranged through a licensed firearms dealer or witnessed by an authorised police officer. The maximum penalty for such an offence is twenty years' imprisonment. The legislation also provides for a standard non-parole period of ten years' imprisonment.
In relation to this offence S has requested that three matters be taken into account on a Form 1, being two charges of sell ammunition without seeing a buyer's licence/permit contrary to s 65(1) of the Act for which the maximum penalty is fifty penalty units and one charge of possess a prohibited weapon without a permit, namely, an extendable baton, contrary to s 7(1) of the Weapons Prohibition Act, for which the maximum penalty is imprisonment for fourteen years.
The second charge to which S adheres to his plea is that on 1 September 2011, contrary to s 51(2A) of the Act, he was accessory before the fact to the sale of a prohibited pistol that had not been arranged through a licensed firearms dealer or witnessed by an authorised police officer. While charged as an accessory before the fact, it is trite this offence carries the same maximum penalty as the first charge, namely twenty years' imprisonment. Also, the legislation provides for the same standard non-parole of ten years: see s 347 of the Crimes Act.
In relation to this second charge, S has requested that two matters be taken into account on a form 1, namely a further charge of selling ammunition without seeing a buyer's licence/permit contrary to s 65(1) of the Act and a further charge of being an accessory before the fact to the sale of a prohibited pistol not arranged through a licensed firearms dealer or witnessed by an authorised police officer contrary to s 51(2A) of the Act.
The offender, B, also adheres to his plea and at the Burwood Local Court on 3 December last that on 1 September 2011, contrary to s 51(2A) of the Act, he did sell a prohibited pistol where such sale had not been arranged through a licensed firearms dealer or witnessed by an authorised police officer. As mentioned, the maximum penalty for such an offence is twenty years' imprisonment and the legislation provides a standard nonparole of ten years' imprisonment.
In relation to this offence B has requested that two matters be taken into account on a form 1. The first is a further charge that contrary to s 51(2A) of the Act he did sell a prohibited pistol where such sale had not been arranged through a licensed firearms dealer or witness by an authorised police officer. The second is a charge of selling ammunition without seeing a buyer's licence/permit contrary to s 65(1) of the Act which carries the maximum penalty referred to above.
THE AGREED FACTS
The agreed facts in relation to S are set out in exhibit A4. The agreed facts in relation to B are set out in exhibit B4 which includes a one page document headed "Additional facts". On the second day of the sentence hearing some more agreed facts further explaining the role of the below mentioned "source" became exhibit C. As the second offence to which S has pleaded guilty relates to the offence to which B has pleaded guilty there is some considerable factual overlap.
A summary of all the agreed facts is as follows.
In July 2011 a controlled police operation organised by the Middle Eastern Crime Squad authorised a former police officer, being New South Wales registered source No. 912262 (the source), to purchase firearms. On 18 July 2011, the source attended S's business premises at Lakemba and asked him if he could assist in purchasing firearms. S told him to return the following day. The source in fact returned on 21 July 2011 whereupon he engaged in a conversation with S about a male person who had a revolver for sale.
On 25 July 2011, the source again attended S's business premises where he was introduced to R. After this introduction S walked to the front of his premises and left R and the source to talk alone. During this discussion R and the source entered into negotiations concerning the sale of a .38 calibre revolver which R told the source he had owned for twelve years and was only selling because he needed the money. R asked the source to attend at the former's home for the purpose of conducting the transaction but the source was reluctant to do so and declined. R then left the premises in a motor vehicle registered in the name of his wife and returned some thirty minutes later in another vehicle registered to a hire company, parking it outside S's premises. The source walked over to R's car where R showed him the .38 calibre revolver which the source agreed to purchase and left the scene to collect $5,000 which was the purchase money. The source returned shortly thereafter to S's premises and found him and R waiting inside. R showed the source the said revolver again and S said to R, "You deal with him," before walking to the front of the premises. R opened the revolver's chamber displaying six rounds of ammunition and told the source that he would provide a further ten to twelve rounds at a later stage for no extra cost. The source then gave R the sum of $5,000 in prerecorded buy money in exchange for the said revolver and the six rounds of ammunition.
On 27 July 2011, the source again attended at S's business premises and S showed him a blue plastic bag containing twelve live rounds of .38 calibre ammunition which had been dropped off by R. The source informed S that he would return to collect them another day.
On 29 July 2011, the source against attended at S's business premises and S handed him the blue plastic bag containing the twelve rounds of ammunition which he then took from the premises. Ballistics examination revealed that the .38 calibre revolver was a Smith and Wesson which had been reported stolen from a break and enter incident in January 1998. It was test fired and found to be in working order. The police have advised that it has not been in a criminal offence.
On 16 August 2011, the source again attended S's business premises and entered into a conversation in relation to the sale of the said .38 revolver which was recorded by an authorised listening device. During such conversation S said he believed that the person from whom the revolver had been obtained had owned it for ten to fifteen years and was apparently selling it as he was desperate for money.
On 20 August 2011, the source was driving past S's premises and saw what he considered to be suspicious looking males and stopped his car and got out. Upon entering the premises the source spoke to S about the purchase of further firearms. At that time the offender, B, was inside the premises and S introduced the source to B, saying to B, "This is my mate, you try and get him what he wants," before walking away. B and the source then engaged in conversation about the former being able to source firearms and the two exchanged mobile telephone numbers.
Between 23 August and 1 September 2011, B and the source had a number of telephone conversations regarding the sourcing of illegal firearms with B indicating that he has spoken to a friend who had agreed to sell a .22 pistol and a seven millimetre pistol to the source for $15,000.
The source and B then agreed to meet at the Lakemba railway carpark on 1 September at about 5pm. On that date B was late and the source telephoned him at which time the offender explained, "I'm going now to see the boys...I'm going to fix everything...I'll call you to inform you that I'm coming".
Shortly thereafter the source and B met at the said car park. The meeting was electronically monitored by police. B and the source engaged in conversation regarding the price of the .22 pistol and a 7.62 millimetre pistol with B indicating that he had no say in the price of the firearms which would be "up to his friend".
B then made a phone call and a short time later a white van arrived whereupon he opened the door to the van and told an unknown male inside to show the source the two firearms which were then inspected. The unknown male confirmed that the .22 calibre pistol came with five live rounds of ammunition and referred to it as "like my baby", stating that he had owned it for a long time.
B then told the unknown male to go for a drive whilst he spoke to the source. During this further conversation B and the source engaged in negotiations concerning the sale of the two firearms with the source asking B to attempt to reduce the price thereof. B then made a number of telephone calls during which asked the person to whom he was speaking if he could drop the price by "a couple of grand".
A short time later B received a phone call and was told that the "last price is thirteen (thousand dollars) for the two". The source then agreed to the sale on this basis.
B then made another phone call and arranged for the van to return whereupon the firearms and ammunition were given to the source who then gave $13,000 prerecorded buy money to the unknown male in the van with B stating "It was all right" and that the money had been counted. The unknown male then left in the van.
Ballistics examination revealed that the .22 calibre pistol was manufactured by Jennings and was of selfloading or semiautomatic operation. Its serial number had been removed. It was test fired and found to be in working order. Similar ballistics examination revealed that the 7.62 millimetre pistol was an imitation of a Walther PPK firearm. It was supplied with an empty magazine.
On 11 October 2011, the source returned to S's business premises and entered into a conversation with S in relation to the firearm sold by B to the source on 1 September. This conversation was recorded by an authorised listening device. In it S confirmed introducing the source to B for the purpose of obtaining firearms and when told by the source that B had "brought me two", S replied, "All right, good". S had previously held category A, B and H shooter's licences, however these had expired in September 2011.
S was arrested outside of his business premises on 20 October 2011 and a search of his vehicle located the abovementioned extendable baton.
B was arrested on 20 October 2011 at his worksite.
As mentioned, at the relevant time the source was a former police officer. On 22 July 2011 shortly after first attending at S's premises and three days before the sale of the subject .38 revolver, the source pleaded guilty to six offences on indictment, being one offence of corruptly receiving a benefit, three of obtaining property by false pretences, one of attempting to procure false testimony and one of possessing a prohibited pistol. He also offered to assist the authorities and agreed to be part of two controlled operations one of which covers the present matters. He was eventually sentenced to a term of imprisonment on 27 October 2011 by another judge of this court whose remarks on sentence are MFI 5. The source received a total discount on sentence of thirty per cent for his assistance to authorities in relation to, inter alia, procuring the subject firearms through S and B.
In exhibit C the Crown concedes that the "available inference" to be drawn from these facts is that the source purchased illegal firearms from S and B for his own personal gain and that he wanted to receive a discount on sentence for assisting the authorities. I accept that this was the source's motivation.
THE RELEVANCE OF THE SOURCE'S INVOLVEMENT
During the sentence hearing before me the role of the source was relied upon by both offenders' counsel as a reason to significantly mitigate any sentences to be imposed upon them. Mr Jamal, counsel for B, at one point described B as being the victim of a "sting" type operation. Mr Terracini SC, who appeared with Mr Tanevski on behalf of S, submitted that the crimes would not have been committed at all without the source's encouragement which was clearly motivated by his desire to achieve a discount on sentence like he eventually did. I will return to this issue in a moment.
Mr Terracini SC also submitted that S was, in effect, stood over and bullied by the source into agreeing to commit the offences to which he has pleaded guilty. When I pointed out that the agreed facts were silent as to any such matters Mr Terracini SC called S to give some evidence which overall I found to be very unsatisfactory. During such evidence S in essence said that the source "pretty much begged" him to source firearms on five or six occasions before S eventually relented in circumstances where the source had also made him aware of his criminal background including his connections with bikie gangs whom the source told S he did not want to "let down", thereby apparently implying some form of threat and that such firearms were destined for these gangs. S also said that the source told him that he did not want to cause S "trouble".
In crossexamination, S's evidence was contrasted with what was contained in the agreed facts. His responses to questions were vague, confusing and contradictory. His demeanour was poor. In reexamination, Terracini SC questioned him about having taken some medication that morning which he later submitted may well have adversely affected the evidence that he gave. This was not my impression. Having seen and heard S's evidence, I am not satisfied on the balance of probabilities that before introducing the source to R he felt in any way compelled to do so by anything the source said or due to any knowledge that he had gained of the source's reputation, let alone that he acted under duress. Nevertheless, I am satisfied that by the time S introduced the source to B some weeks later that S was aware of the source's background as an ex police officer with criminal connections and I am prepared to accept that such knowledge did have some input into S's decision to continue to deal with the source. I note that the Crown in argument accepted that this was the likely position as at that time. Accordingly, I have taken this matter into account in S's favour in relation to the second count.
Apart from any questions as to whether S acted under some form of express or implied pressure or duress instigated by the source, Mr Terracini SC, as mentioned, submitted that his conduct in "encouraging" the commission of the offences for his own benefit was a very significant mitigating factor. Nevertheless, Mr Terracini SC specifically disavowed any submission that the source's conduct turned the matter into one involving an entrapment. Mr Jamal was not so circumspect. At one point, as mentioned, he described the source's involvement as a "sting". In the result, he also submitted that such involvement was a very significant mitigating factor with respect to B. On the other hand, Ms Crown submitted that there was no evidence that the source had acted any differently from any other undercover operative, although she ultimately conceded that the source's involvement in this case was a mitigating factor with respect to both offenders but not to the extent as submitted by their counsel.
In R v Taouk (1992) 65 A Crim R 387, the Court of Criminal Appeal held that on sentence the question is not whether an offender can show that but for the involvement, encouragement or incitement by police, he or she would not have committed the crime but whether, in all the circumstances, the involvement of the police was such as to diminish the culpability of the offender. Whilst here the source was an ex police officer there is no reason why this principle should not apply to the current situation.
In the current circumstances, I am satisfied that the source's involvement does diminish the culpability of each offender but not to the extent submitted by their counsel. Both offenders' roles remain significant in relation to the sourcing and supply of the firearms in question. Nevertheless, I have taken the source's role into account in each offenders' favour.
THE UTILITARIAN VALUE OF THE PLEAS
After their arrests on 20 October 2011, a committal hearing in relation to the offenders ran for two days in August 2012 before being adjourned part heard for a further three days commencing on 3 December 2012. B indicated he would plead guilty about a week before the recommencement of the committal hearing and he did so on 3 December 2012. A similar indication was given by S although his pleas were not entered until 4 December 2012.
In these circumstances, neither offender pleaded guilty at the earliest Opportunity. However, their pleas were still entered while the matters were in the Local Court and have significant utilitarian value. In accordance with the principles set out in R v Thomson and Houlton (2000) 49 NSWLR 383, I assess such value in relation to each offender as entitling them to a discount of twenty per cent on the sentences that would otherwise have been imposed.
REMORSE
The materials also contain evidence of remorse on the part of each offender, including handwritten letters written to the court by both. I accept that such expressions are genuine and have taken them into account in each offender's favour.
THE OFFENDERS' PRIOR CRIMINAL HISTORY/GOOD CHARACTER
S was born on 21 May 1975 and has just turned thirtyeight years of age. He has three minor matters on his criminal history dating from early 2007, all of which were dealt with by way of small fines. They involve possession of a prescribed restricted substance, the display of a water pipe in a shop and dealing with property suspected to be the proceeds of crime. There is no dispute that S does not have a significant record and prior to the commission of the subject offences was a person of generally good character and reputable standing within the community. The numerous references and other documents tendered on his behalf clearly establish such matters. Accordingly, S's criminal history is such that he is entitled to leniency. I have also taken into account in his favour his otherwise generally good character and reputation.
B was born on 10 February 1984 and is now twentynine years of age. In 2008 he was convicted of destroying/damaging property and stalk/intimidate intending to cause fear for which he was sentenced by way of a fine and a ninemonth s 9 bond respectively. In 2009 he was fined for driving whilst unlicensed. Accordingly, he does not have a significant record. The evidence also establishes that prior to the subject offences he was generally a person of good character and reputable standing in the community. Again, the references and other documents and evidence tendered on his behalf attest to such matters. B's record is a such that he also is entitled to leniency. I have also taken his otherwise generally good character and reputation into account in his favour.
S'S SUBJECTIVE CIRCUMSTANCES
S's subjective circumstances, all of which I have taken into account, are contained within, inter alia, the Probation and Parole Service PreSentence Report of 3 May last, the psychological report of Ms Nasar of 30 April last and the other medical material in evidence.
S was born in Australia and is the second eldest of five children. He had a stable family upbringing and his family are still supportive of him. He completed his HSC and has a good work history. At age twentyfive he opened his tobacconist business at premises where some of the subject offences occurred and wherefrom he continues to operate it. He married his wife, whom he had known since she was sixteen, when he was twentyseven. They do not have any children but are hoping to in the future. His marriage remains a good one.
S has never taken illicit drugs and rarely drinks alcohol. He has never had a problem with gambling.
As to his medical history, S has suffered from migraines for many years and at times requires injections of pethidine and botox by way of treatment. He is lactose intolerant. He has certain other conditions as set out in the report from his GP, Dr ElJamm, dated 27 March 2013. As to his mental health, he suffers from depression and anxiety which conditions have been exacerbated by the current matters. Ms Nasar assessed him to be of average intelligence. Whilst I am not satisfied that any medical condition, either physical or psychological, from which S suffers cannot be adequately managed in custody, I accept that such conditions will make custody more burdensome for him and have taken this into account in his favour.
As to S's attitude towards the offences, the author of the abovementioned Probation Services Report concluded that whilst S admitted to them, he "attempted to minimise and justify his involvement". This view is supported by some of the history contained within Ms Nasar's report which led her to conclude that his offending was best understood as turning "a blind eye" towards "antisocial conduct...knowing that it may have been illegal in nature". There is no doubt in my mind that S's conduct involved considerably more than turning "a blind eye" and that he was well and truly aware that it was "illegal in nature".
S'S LIKELIHOOD OF REOFFENDING AND PROSPECTS OF REHABILITATION
Despite such abovementioned attempts to excuse or minimise his offending, which were still apparent during his evidence before me, I am nevertheless satisfied that the likelihood of S re-offending is very low. Being brought before the courts and facing these serious charges have no doubt had a serious impact upon S and his family which will continue. As to his prospects of rehabilitation, I find these are good, particularly if he begins to accept more responsibility for his offending.
B'S SUBJECTIVE CIRCUMSTANCES
B's subjective circumstances, all of which I have taken into account, are contained within, inter alia, the psychological of Mr Machlin dated 2 May last. They were further expanded upon in the evidence given before me by a long term family friend, Mr Henness, as well as by B's wife. B was born in Australia being the only son of five children. His upbringing involved some poverty which was made worse by his mother's gambling of his father's income from his work as a form worker. His father was also seriously injured when B was in his teens. B attended numerous high schools apparently caused by the family being evicted from different premises. He left school at fifteen and followed his father into form work and labouring. He then opened his own business at the age of twentyone, employing his father on light duties and utilising a number of contractors. This business operated successfully up until B was arrested for the subject offences. He was then aged twentyseven.
Thereafter, B spent over ten months in custody before being bailed. As a result his business collapsed. After his release on bail, B has reestablished himself in the same industry in partnership with a friend.
As to his personal life, B met his wife at seventeen and was married at twentytwo. They have three children aged six and under. B has always been in good physical health and prior to his arrest has never had any mental health issues. He has no illicit drug history and drinks alcohol sparingly. After his arrest and as a result of going into custody, B became acutely anxious and distressed. His wife confirmed that he took going into custody "quite hard", especially with respect to its effect on his children.
Mr Machlin, as a result of his assessment of B on 24 April last, diagnosed him to be suffering from an adjustment disorder with mixed anxiety and depressed mood consequent upon his arrest. He otherwise opined that B was of "good intelligence with no discernible cognitive impairment".
On the evidence, I am not satisfied that B's psychological condition cannot be adequately managed whilst in custody, although I find that it will make any return to prison more burdensome on him and I have taken this into account in his favour.
As to his involvement in the offences, Mr Machlin took a history of B admitting to becoming involved with "the wrong crowd" and that B had sought no payment for the subject transaction. B also told Mr Machlin that he had disassociated himself from these persons which fact his wife confirmed in her evidence.
B'S LIKELIHOOD OF REOFFENDING AND PROSPECTS OF REHABILITATION
Mr Machlin assessed B's prospects of recidivism as "being extremely low". I agree and so find. Likewise, I find his prospects of rehabilitation are good.
THE SERIOUSNESS OF THE OFFENCES
In Muldrock v The Queen (2011) 244 CLR 120 the High Court held that a court is still to continue to assess the objective seriousness of an offence where a standard non-parole period is applicable but there is no need to "classify" the offending or assess whether it falls in the mid range of objective seriousness. An assessment of objective seriousness is also to be undertaken wholly by reference to the nature of the offending and without reference to matters personal to a particular offender or class of offenders.
In relation to S, Mr Terracini SC submitted that his offending fell "at the bottom of the range". In this respect, he relied upon a number of factors. First, he argued that there was no evidence that any offence had been committed with either firearm consequent upon their procurement and sale they were taken off the street due to the involvement of the source. Secondly, he pointed out that there was no evidence that they had ever been used in any past offences. Thirdly, he relied upon the fact that there was no evidence that S was ever paid or sought any form of payment for his role.
The Crown submitted that whilst S's offending was in the low range it was not at the bottom thereof and still involved various serious objective features. The Crown pointed out that both the .38 revolver and the .22 semiautomatic pistol were in working order, were sold with live ammunition and were both capable of killing. As to the first charge, the Crown argued that S not only introduced the source to R but provided the premises, being his shop, in which the transaction took place and also later directly handed over further ammunition.
Taking into account the matters raised by Mr Terracini SC, which I accept are established on the evidence, as well as the factors pointed out by the Crown, which are not in issue, in my view S's offending does fall within the low range but neither offence falls at the bottom of such range. In coming to this conclusion, I have also taken into account the small number of firearms involved and S's role being that of an intermediary. Nevertheless, his role in relation to both offences was significant, more so with respect to the first offence which I regard as the more serious of the two.
As to B, the Crown submitted that whilst his offending also fell in the low range it was of a more serious nature than that of S. In this regard, the Crown relied upon B not only sourcing the two firearms in question but being present and involved in their handing over to the source as well as being involved in the negotiating of the price. Mr Jamal emphasised that only two firearms were involved and B did not seek or receive any payment or other benefit. In relation to any negotiations, he argued B was merely a "conduit".
In my view, B's offending is more serious than that of S. His role was greater than either S's role in relation to the offence for which they are cooffenders or S's role in relation to the offence involving R. B was more directly involved in sourcing the relevant firearms. As well he was involved in negotiations as to the price, he arranged their delivery and was present when it occurred and when the firearms and the money changed hands. Whilst B was an intermediary and I have treated him as such, his culpability is, in my view, greater than that of S.
DETERRENCE
In matters of this nature, general deterrence is of the utmost importance. Those members of the community tempted to become involved in the illegal supply of firearms, especially pistols which are easily concealed and used, must understand that significant punishment awaits them. The law abiding balance of the community must also be protected from such behaviour. Whilst matters of specific deterrence are of less weight in the circumstances of these two offenders, it must also not be forgotten.
AVAILABLE OPTIONS
As I understood their submissions, counsel for both offenders argued that whilst the court may well consider imprisonment the only appropriate alternative, total head sentences of two years or less should be imposed, thereby opening up other options such as intensive correction orders.
The Crown's position was that total head sentences of two years or less with respect to either offender were inadequate and that sentences involving periods of fulltime custody were demanded.
In any event, in my view, imprisonment is the only appropriate option with respect to each offender and I so find. The sentences imposed below do not permit consideration of the options urged upon me by counsel for the offenders. Even if I had imposed total head sentences of two years or less, I would not have gone down any path other than fulltime imprisonment as such course would not, in my view, reflect the objective seriousness of the offending nor fulfil the manifold purposes of punishment.
SENTENCING APPROACH
In reaching the sentences imposed, as required by Muldrock v The Queen (supra) I have had regard to the two legislative guideposts namely the maximum penalty and the standard non-parole period, as well as to all matters referred to above pursuant to the approach described by McHugh J in Markarian v The Queen (2005) 228 CLR 357 at [51]. I have also had regard to the principles and objects of the Act as set out in s 3 thereof.
The sentences imposed upon S have also been determined in accordance with the principles stated in Pearce v The Queen (1998) 194 CLR 610. In order to reflect the totality of S's criminality such sentences will be partially accumulated. I do not accept Mr Terracini SC's submission that they should be entirely concurrent, the offences were separate and committed over one month apart. More relevantly, the sentence for one offence cannot comprehend and reflect the criminality of the other and they demand, in my view, a degree of separate punishment.
SPECIAL CIRCUMSTANCES
In accordance with s 44(2) of the Crimes (Sentencing Procedure) Act 1999, I find special circumstances in relation to each offender.
As to S, I rely upon the need for partial accumulation of the sentences, my satisfaction that he will benefit from an extended period of supervision to assist in his rehabilitation generally and the fact that this will be his first time in prison.
As to B, I am satisfied that he will benefit from an extended period of supervision to assist in his rehabilitation generally and to reestablish himself in the community. Whilst he has spent some considerable time in custody before being granted bail, this sentence relates thereto and it is the first time he has been sentenced to fulltime custody.
THE SENTENCES
As to S, the sentences will be backdated to commence on 17 April 2013 to take into account the thirtysix days he spent in custody prior to being released on bail.
As to B, his sentence will be backdated to commence on 18 July 2012 to take into account the 309 days he spent in custody prior to being released on bail.
S is convicted of both offences. For the second offence, for which I find it is appropriate to take into account the relevant form 1 matters, a nonparole period of twelve months is set.
The total term of the sentence is two years' imprisonment commencing on 17 April 2013 and expiring on 16 April 2015. The nonparole period expires on 16 April 2014 when S is to be released to parole.
For the first offence, for which I find it is appropriate to take into account the relevant form 1 matters, a nonparole period of fifteen months is set.
The total term of the sentence is two and a half years commencing on 17 July 2013 and expiring on 16 January 2016. The nonparole period expires on 16 October 2014 when S is to be released to parole.
S is therefore subject to a total effective sentence of two years and nine months and an effective nonparole period of eighteen months.
B is also convicted. I find it appropriate to take into account the relevant form 1 matters.
A nonparole period of eighteen months is set.
The total term of the sentence is three years' imprisonment commencing on 18 July 2012 and concluding on 17 July 2015. The nonparole period expires on 17 January 2014 when B is to be released to parole.
In relation to S, I direct that copies of the following reports/documents accompany his warrant of commitment:
(1) Dr Nasar, dated 30 April 2013;
(2) Dr Cordato, dated 22 March 2013;
(3) Dr El-Jamm, dated 27 March 2013;
(4) the three-page patient history from Your Family Chemist at Lakemba dated 28 March 2013.
In relation to B, I direct that a copy of the report of Mr Machlin of 2 May 2013 accompany his warrant of commitment.
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Decision last updated: 14 October 2013
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