R v Boyes

[2022] NSWDC 384

District Court

New South Wales

Medium Neutral Citation:

R v Boyes [2022] NSWDC 384

Hearing dates:

25 August 2022

Date of orders:

31 August 2022

Decision date:

29 August 2022

Jurisdiction:

Criminal

Before:

Priestley SC, DCJ

Decision:

See Below [96]

Catchwords:

CRIME — Drug offences — Supply prohibited drug — Commercial quantity  
CRIME — Firearms offences — Use/Possess prohibited pistol/firearm 

Legislation Cited:

Criminal Procedure Act 1986 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Firearms Act 1996 (NSW)

Drug Misuse & Trafficking Act 1985 (NSW) 

Cases Cited:

Bugmy v R (2013) 302 ALR 192

R v MAK [2006] NSWCCA 381

Category:

Principal judgment

Parties:

Regina (Crown)
Boyes (Offender)

Representation:

Swift Crown Prosecutor for the Director of Public Prosecutions NSW

Segal Counsel for the offender.

File Number(s):

2020/00272057

Publication restriction:

Unrestricted

Reasons on sentence

Introduction

1. Silus Martin Boys (‘is the offender”) appears for sentence in respect of eight charges on indictment and a further two charges to be dealt with summarily and set out on a certificate pursuant to section 166 of the Criminal Procedure Act (“CPA”).
2. The offences and their maximum penalty, and whether or not there is a standard non-parole period and if so what that period is, are set out in the following table:

No	Section	Offence	Max Pen	SNPP
1	Firearms Act 33A(1)(a); not s7A(1)	Fire firearm likely to injure and endanger safety of another;	10y	No
2	25(2) DMTA	Supply CQ, viz 475g meth	20 y & or 3500 pu	10
3	25(1) DMTA	Supply 184.25 g meth	15y and or 2500 pu	No
4	s24(1)(a)  DMTA	Possess precursor intended for use in mfr of drug	10 y or 2000 pu	No
5	24(2) DMTA	Knowingly take part in attempt manufacture prohibited drug; no less than 250g meth	20y and or 3500 pu	10y
6	23(1)(b)	Supply 3.2kg of cannabis leaf	10 y and or 2000 pu	no
7	25(1)	Supply 14g of cocaine	15y and or 2000pu	No
8	25(1)	Supply prohibited drug, 60g MDMA	15y 2000 pu	No
9	166	Par 48 of agreed facts; goods in custody	1y	No
10	166	Par 49; reasonably suspected proceeds of crime	3y	No

3. The number given to a charge in the above table in the left-hand column is the number by which the counts are referred to in this judgment.
4. I note that the maximum penalties set out above, and where applicable the standard non-parole periods are legislative guideposts indicating the view of the legislature as to the seriousness of the offending to assist me in arriving at the appropriate sentences. Further I note that the standard non-parole period is relevant even where the offending is considered to be below the mid point referred to in section 54A of the Crimes Sentencing Procedure Act (CSPA).  That is, it is a legislative guideposts as to the seriousness of the offending regardless of the assessment of objective seriousness in accordance with Division 1A.
5. I note there are no matters on a form 1, a matter of some relevance for any consideration of parity that might be justified in respect of a co-offender Mr Williams is given, as his sentence on his count 6, attempt manufacture of 250g of meth, took into account on a form 1 4 matters, including 3 of supply in breach of s25(1).
6. All of the offending occurred in the period February to September 2020. The offender was arrested on 18 September 2020 and has been in custody since that date so a period of now almost 2 years.  The sentence imposed will date from 18 September 2020.

The facts and objective seriousness

7. Set out in the following paragraphs are the facts of each count followed by an assessment of the objective seriousness of that count.

Count 1: s33A(1)(a) Firearms Act

8. This is the firearms charge. The offence occurred on a property owned by a co-offender Mr Williams. That property was occupied by Mr Funnell, who had commenced a relationship with Ms Blewitt. They had an argument and Blewitt was assaulted by Funnell. Blewitt complained to Williams and the offender.  Williams told Funnell to vacate the property. Williams told the offender he was “going out to fuck Eric off”, being a reference to Funnell.
9. Williams got to the property first. The offender and his partner Ms Irvine and a Mr Welsh travelled to the property in a separate vehicle which broke down so that they walked the last 10 minutes. They heard shooting whilst walking which was Williams and Funnell. Welsh had a gun and the offender asked Irvine to carry a shot gun for him.
10. The facts at paragraph 9 are that the offender and Welsh arrived at the premises armed one with a sawn off shotgun and the other a long hunting style rifle.
11. Once at the property shots were exchanged between Funnell and the other three men. During this incident the offender discharged a firearm.
12. It is not an agreed fact or even contended by the Crown that any shot of the offender hit Funnell. The offender did sustain injuries and has shotgun pellets in his body to this day.
13. The facts also state that Williams texted the offender saying he had shot Funnell in the face. There is also a text where the offender says words suggesting he thinks he hit the man Funnell also, but that is not the agreed fact.
14. To complicate things when the offender gave evidence in the sentencing hearing he maintained that he did not take a rifle with him but that the rifle he used was found by him at the property. That is almost precisely the same version given to the court by Mr Williams. It is different from what the agreed facts are. No submission was made that the agreed facts should be deviated from. Rather this seemingly obvious and large inconsistency was said to be reconcilable because the agreed facts refer to the shotgun being carried by Irvine and then later say at paragraph 11 that the offender discharged “a” firearm which it was contended was the firearm that the offender said he picked up when he was on the property.
15. The Crown in an admirable adaptation to the changing facts said this did not matter.  Even on this varied version, for it is plainly not in line with at least a first reading of the facts, the situation is of the offender attending at the premises with a rifle and then when on the premises firing a rifle whether it be the rifle he brought on, carried by Ms Irvine, or another one. That approach accommodates both the agreed facts and the offender’s evidence and I adopt it.
16. In terms of objective seriousness the matter is distinguishable from Mr Williams charge. For a start this charge is of firing a firearm likely to injure and endanger the safety of another which has a maximum 10 year penalty as opposed to the use of unauthorised firearm charge against Mr Williams which has a five-year penalty. The basis for the heightened charge is having attended at the property with a firearm. The Crown relies on the fact that this was not a spontaneous event and that the shots were fired at a person. The accused relied on the fact that it occurred in a rural area. With respect I do not consider that makes much difference when the target is a person as opposed to say some unauthorised discharge of a firearm shooting at a tree.  That Mr Funnell was not hit by Mr Boyes does give some assistance though had that occurred the charge would likely have been different. The offender also sought to minimise it due to the fact that it was in response to the assault of Ms Blewitt. With respect that would make it a vigilante type situation and I do not consider that lessens the seriousness at all.  Another significant difference to Mr Williams' matter is that this offender does not have available to him the acceptance that this was conduct of excessive self defence.
17. In my view this offence is above the low range and into the mid range.

Count 2: s25A(2) DMTA

18. Over a seven month period approximately there were 19 occasions which intercepted communications showed the offender receiving or attempting to receive for the purpose of supply a total of 475 g of methylamphetamine through various sources. The estimated value of the drugs was $65,000 based on those communications.
19. The facts are so scant that it is difficult to make any assessment of the offender’s role other than that he was negotiating to receive the drugs. Any attempt to assess his standing in any kind of hierarchy is not possible. The charges are of supplying well more than the commercial quantity. A large commercial quantity commences at 500g. The offending extended over a significant period of time and the conduct engaged in was repeated. On average each transaction was for 25 g or almost an ounce. On these facts in my opinion the matter must be considered as being into the mid range.

Count 3: s25(1) DMTA

20. This is a another supply charge but of a lesser quantity namely 184.25 g of methylamphetamine. In the same periods for count 2 there were 35 occasions of the offender supplying or agreeing to supply the drug. That would be an average of 5g approximately.
21. This supply was from the drugs sourced in count 2. The offending therefore needs to be seen as in effect the one combined activity of obtaining and then supplying drugs. The amount involved places it closer to the commercial quantity than the small quantity. I would assess this as being into the mid range also. The amounts supplied are in excess of what may often be seen as being to a street user and suggest that perhaps it had been a combination of retail supply but also on occasion supplies to others who would then on supply which in my view adds to its seriousness.

Count 4: s24(1)(a) DMTA

22. The background to counts 4 and 5 is that Williams made several attempts to manufacture methylamphetamine on his property at Thora.  He kept the offender aware of his progress. The offender knowingly took part in that he knew what Williams was doing because Williams told him, he encouraged Williams, he attended the site and “minding a brew” and he sourced ingredients and equipment including electric woks, blenders, digital pH metres, and a pressure cooker as well as certain ingredients. The location for this attempted manufacture included glassware and equipment, a sink, a fan and a burner plate powered by a petrol generator.
23. Count 4 is possessing a precursor intended for use in the manufacture of a drug namely methylamphetamine according to the facts. There are communications that are agreed of the offender offering to source the iodine and enthusiastic encouragement by him for what is being done. For example the offender confirmed to Williams that “we need” iodine and sodium phosphate and said on another occasion he would be coming up soon. The encouragement included saying “wicked motherfuckas need to bow down to that shit brother”.  The offender made enquiries about getting bulk supplies of ingredients.
24. The precursors that the offender possessed were iodine, sodium hypophosphite and methylamine.
25. What is not disclosed in the facts but what I consider needs to be noted is that for the same offending or associated offending of attempting to manufacture by Williams it was agreed that it was impossible to manufacture the methylamphetamine. I consider that needs to be taken into account here.
26. It was difficult to extract a submission from the accused as to how to assess this offending. The Crown assessed it as being below the mid range.  The offending occurs between May and August so some three months. The level of enthusiasm shows commitment to the illegal conduct. However the fact that what was being engaged in was a pointless exercise leads me to concur with the Crown assessment of being below the midpoint of objective seriousness.  The Crown view of the pointlessness of the exercise differs from mine in that there was the necessary intent and the fact that the offender was, together with Williams, not very good at it was something beside the point. There is some merit in that however I do consider that the fact that no methylamphetamine could have come from this activity is a relevant consideration.

Count 5: s24(2) DMTA

27. Between 14 August and 23 August the offender persisted in obtaining plant and equipment for the attempts of Mr Williams to manufacture methylamphetamine of no less than the commercial quantity of 250 g. The agreed facts are of communications whereby Williams seems to think that he has created a lot of the drug and with the offender being enthusiastic to that result.  Williams gives instructions to the offender as to what to do in his absence and the offender does as told. They are basically discussing what they need to do to continue their attempts at manufacture.
28. The quantity involved places this just into the commercial quantity. The role of the offender is an enthusiastic one where he seems to be very much a partner of Mr Williams though perhaps a lesser partner though I note Mr Williams is not considered a principle. The quantity involved together with the futility of the exercise, as noted at [25] above so that little if any harm could arise from this conduct, persuades me that this is below the mid.

Count 6: s23(1)(b) DMTA

29. This is a charge of supplying 3.2 kg of cannabis leaf. This is supplied in five transactions including three of 908 g.
30. Again the facts do not allow a really good assessment of the offender’s role other than to say that the offender was able to supply another co-offender Rebecca Warman. When she was sentenced for an amount of 2.97 kg of cannabis she was dealt with by way of a form one to be taken into account in respect of a supply methylamphetamine charge. In terms of parity this seems to me to lead to a situation where the punishment should be lesser rather than more and I take that into account.
31. What the offending shows though is of ability to access significant quantities of another type of illegal drug and I consider this to be in the high low mid range.

Count 7: s25(1) DMTA

32. This is a supply charge under section 25(1) of 14g of cocaine or half an ounce.  The facts are simply that on one occasion 1.5 g was supplied to Mr Williams and on another day some 12 g was supplied to some other person. Nothing more is said about it than that.
33. On these facts it must be simply assessed as being in the low level of objective seriousness

Count 8: s25(1) DMTA

34. This is a charge of supplying 60 g of MDMA. The facts allude to involvement in the manufacture of this drug but that is not the charge. The facts are simply that the drug was manufactured by Williams and the offender then supplies 55 g “ongoing” and 2 smaller supplies of 3 g and 2 g.  The amount is about half way to the commercial amount.
35. The facts say the offender supplied the 55g amount “onwards” which suggests that there was, consistent with his methylamphetamine supplies set out above, a range of people he serviced. I would assess this as just below the mid range

Section 166 matters: goods in custody; suspected proceeds of crime

36. The facts here are of nine motor vehicles, one motorcycle and two trailers being located on the offender’s property which were all registered as stolen. That strikes me as a significant number of stolen vehicles of varying types. Nothing else is said about it; nothing is known as to how they got there, or just what the offender’s role was.  In my view this result in an assessment of it being in the low range of objective seriousness though the sheer quantity suggests that is an under estimate.
37. The maximum sentence is one year if it is a motor vehicle and six months otherwise; it was charged as one offence.
38. On arrest the offender had $3065 in cash in his possession which is said to be proceeds reasonably suspected of being proceeds of crime which has a maximum sentence of three years. I assess this in the low range of objective seriousness.

Aggravating factors

39. The Crown relies on the drug matters as being part of a planned and organised activity. In my view that does not aggravate the situation. It seems a fairly amateurish operation so far as manufacture is concerned. It is better organised in respect of the supply insofar as the offender was supplying drugs and doing it regularly. There is nothing about it though that suggests a great deal of communication technology or other indicators of sophistication. To the extent that it has been planned and organised I have taken account of it in assessing objective seriousness.
40. The Crown also relied on the offence being committed for commercial gain. That was no doubt the intent but that in my view is part and parcel of this offending. Furthermore the actuality of that was that there was no obvious substantial profit being earned by Mr Boyes, and it seems in large part to have been a self-perpetuating self-defeating exercise in terms of the cycle of substance abuse.  That is, I infer much of the money earned was spent on his own supply needs.

Subjective case

41. The offender relied on a report of Peter Jenkins dated 9 August 2022. He gives a history taken in an interview with the offender. The offender was born in Strathfield but moved to the north coast in the Bowraville area. He left school halfway through year nine. He had learning issues. He was sexually abused at age 6 by a teacher. This occurred twice by two different teachers. At a very young age said to be six he first drank alcohol. He first had cannabis at age 10. The environment he grew up in had cannabis available. By 18 he was regularly using amphetamines and other pills. At 30 he began smoking heroin and using methamphetamine. This led to the need to deal drugs to support his habit.
42. He has had regular work though not always full-time throughout his working life until 2007 when he began caring for his mother and receiving the carer’s pension. His mother’s need for care was partly triggered by the suicide of his brother which also impacted the offender greatly. A friend in childhood died at nine and another friend died at 15 and the offender witnessed a death in a public accident and then there was the death of his own infant son.
43. His father suffered schizophrenia and violence was an issue.
44. Mr Jenkins says the offender expresses genuine remorse, something confirmed by the offender in his evidence in court.
45. Tests were administered including the DASS test revealing depression in the severe clinical range, and so too for anxiety and stress. Other tests suggest the responses given were accurate and were not given in an attempt to distort.
46. Amongst a range of matters raised in the interview was a high degree of mistrust with others as well as thoughts of worthlessness. He is described as a person suffering psychological turmoil. The view is offered that he is likely to have limited social skills and be socially isolated. There is reference to potential outbursts of anger.
47. The author notes the interest of the offender in making changes in his life but says despite that favourable sign his combination of problems that he is reporting suggest treatment will be challenging.
48. It is said to a presentation of the offender that is consistent with a diagnosis of PTSD, psychoactive substance dependence and major depressive disorder. A treatment plan is put forward including CBT which can be achieved under a mental health care plan. A further 10 sessions may be approved depending on further assessment.
49. In summary Mr Jenkins considers that at the time of the offending the offender was cognitively impaired, suffering from a mental illness and suffering from a mental condition for which treatment is available.
50. For all the reasons outlined above the view was offered that the mental health issues causally contributed to the offenses now before the court.
51. It is also noted that his time in custody will be more onerous due to his conditions.  Finally the psychologist offers to undertake to provide psychological treatment initially weekly and fortnightly then monthly and further to liaise with the GP to initiate this treatment and to take relevant medication and undergo assessment as needed.
52. The offender wrote a letter to the court and also gave evidence.

41. As to his evidence I have some concerns given the departure from the agreed facts addressed above concerning the firearms charge. Mr Boyes presented as being somewhat stilted in effect yet at the same time he also struck me as a person who was thoughtful. The variation in the facts concerning the firearms charge is concerning however overall I formed the view that he was sincere in his evidence concerning his desire to straighten his life out and rehabilitate.
42. I also accept without reservation the matters of his personal history that he gave. This included that he had been drug free for the last two years in custody and was the best he had been since 2010. He has suffered grief in his life with his brother suiciding at the age of 27 and the loss of his own son in 2018 with birth complications.
43. In the offender’s letter to the court he begins by saying he has made a mess of his life and done things that he is not proud of and how his offending has impacted his family. He says in custody he has detoxed from drugs. He refers to the numerous courses he has undertaken whilst in custody has also attended Alcoholics Anonymous and Narcotics Anonymous along with Chapel service and says he will do this for the rest of his life.  On his second day in custody he was assaulted and has been in protection since then.  Being in custody with sex offenders has brought back suppressed memories of childhood abuse. He has plans to contribute to the church and society on release. He has also not yet met his son born whilst he was in custody.  He referred to the periods of lockdown during Covid.
44. His partner Rebecca Irvine gives a character reference. The status of the relationship is not totally clear but it is clear they continue to care for each other. She talks of the support he once gave her and it would seem she will now give him.
45. The correctional Centre chaplain vouches for the regular attendance at chapel services by the offender.
46. A letter from Karen Hirst of lifetime connect is Sophia’s grandmother so therefore the mother of Ms Irvine. She says the offender has always cared for Sophia and says that without him she has found it hard.
47. Sophia also provides a letter. She is 15 years old and says that she spent most of her life living with her father because her mother had drug issues and alcohol addiction. A further letter from Merryn Hirst, Sophia’s auntie confirms the position concerning Sophia and speaks of the offender as a person who has always helped people.
48. There was also a letter of support from Hugh Frazer for whose family the offender had done farm work.
49. The offender's mother Wendy Boyes wrote a letter supporting the difficulties that the offender has had and saying he has been responsible for the family most of his life. She speaks of the loss of her other son and grandchild and how the offender has cared for Sofia.
50. I take this supporting matters into account favourable to the offender.
51. The offender first offended at the age of 19  with a possession offence.  Then at 22 there was a contravene AVO. No offending then occurred for about eight years when there was an assault occasioning charge and enter enclosed lands dealt with by way of a suspended sentence and fines. Five years after that was resist arrest and possess prohibited drug dealt with by way of a bond and a fine. Seven years after that there was the offence of possessing or using a prohibited weapon for which a conditional release audit without conviction was recorded.
52. This current offending occurring in 2020 is clearly a significant escalation. The criminal history of the offender whilst it does not entitle him to leniency does suggest that for large parts if not most of his adult life he has largely conducted himself in a way that is not brought him to the attention of police. That is a factor in his favour in terms of rehabilitation and prospects
53. Due to the timing of the offenders guilty pleas, the parties agreed the appropriate discount on sentence was 10% in respect of the firearms charge and 5% in respect of all other matters.
54. In my view the factors under section 21A(3) which assist the offender are his criminal history; as noted above whilst it does not allow for leniency due to a lack of offending the sporadic nature of the offending shows a significant periods of pro social behaviour which founds a basis for considering his prospects of being pro social in the community are realistic. Though I note the assessment of a medium likelihood of reoffending in the sentencing assessment report.  In my view that assessment when all things are considered is a fair one but does not detract from the point just made.
55. The offenders prospects are added to by the significant evidence which I accept and showing he has made progress towards rehabilitation whilst in custody.  There were some 14 certificates of different courses in evidence together with his involvement with the Chaplain and I also accept that he has some motivation to remain within the community, that is to not reoffend, due to his desire to be with his young son and provide further assistance to his teenage daughter. It is true of course that those motivations existed (or re the son were soon to exist) at the time of the offending however this period in custody is his first time in prison and in my view will provide a further motivation to not offend
56. There is also his various expressions of remorse giving weight to this view. This has been expressed to the psychologist, by his actions in seeking to improve himself, and in his letter to the court and in his evidence in court.
57. In respect of that evidence he confirms the history given to Mr Jenkins and the various factual matters referred to above. He said that there was violence in the home not only from his father but from several other boyfriends of his mother. This included physical violence upon himself in addition to the sexual abuse at school. He said he felt ashamed of himself and bad for the people his actions impacted.  It was notable that he was more concerned about his family than anything to do with the impact of drugs in the community, and that is a concern.
58. He made reference to the fact that the firearms incident has left him with 40 pellets on the right side of his body.  My initial reaction ws it was peculiar and incongruous to seek leniency for firing at a person with a rifle and to then receive some injury in return however I do take this into consideration as an ongoing negative consequence of the matters being sentenced for.
59. He said the longest lockdown he had in custody was 17 days but there were also periods of 14, 10 and six days. There was evidence of a solicitors letter showing he was pursuing compensation for the sexual assaults alleged.
60. In cross examination he was asked why he would think he could do better than his previous six-month stint without drugs in the community. He answered because he had now been drug-free for two years in custody, had time to consider the impact of his behaviour, was 44 and did not want to be like this for the rest of his life but rather to be a useful member of the community.
61. When asked was not it predictable that his offending would impact his daughter and his mother this way he said he did not really think about it and that with the drugs and day-to-day life he led he was not in touch with reality. He said that he was behaving like his parents had, which seems to me a frank realisation which would not have been pleasant. He did note that he was living in a separate house to his daughter which may be somewhat self deceptive of him, as it seemed to be an attempt to minimise the impact of his behaviour.
62. He had qualifications as a small engine mechanic.
63. He said he had only been to the property of Mr Williams for five or six occasions. This was somewhat disconcerting because it is on the agreed facts he was an active participant in Mr Williams activities.  That assertion and his assertions as to what was happening with the gun discussed above are really concerning; at first blush this evidence suggests the offender is not being frank as to what has happened.  Yet the Crown did not submit that these matters should not be accepted.  The view I take with some hesitation is to not take this evidential matters into account against him; in relation to the gun for the reasons given above and in relation to the drug involvement, on the basis that his minimal assessment of his visits to the property, although to my mind surprisingly few, are not inconsistent with the agreed facts.
64. The state of health of the offender, this being his first time in custody, the presently more onerous nature of custody, and his obvious need for a significant period of supervision to assist him with his substance abuse history and trauma history means that a finding of special circumstances is easily made.

Sentencing considerations

77. The purposes of sentencing are as follows:
    1. To ensure the offender is adequately punished
    2. To prevent crime by deterring the offender and others from committing similar offenses
    3. To protect the community from the offender
    4. To promote the rehabilitation of the offender
    5. To make the offender accountable for his actions
    6. To denounce the conduct of the offender
    7. To recognise the harm done to the victim of the crime and the community.
78. Section 5 requires that a term of imprisonment only be imposed where no other sentence is appropriate. There is no issue in this regard.  It is accepted that a term of full time imprisonment will be imposed.
79. The main submission of the offender was that the focus must be on rehabilitation. Reliance is placed on the obvious steps taken in that regard to date and the assertion of wanting to get his life on track motivated by his children.
80. A submission that there was disadvantage such as to engage Bugmy principles was made. The Crown accepted this to be the case. There is clearly present a family background of physical violence perpetrated on the offender and added to that are the childhood trauma of sex abuse followed by the various tragedies of friends dying in childhood followed by the suicide of his brother, and there is also the grief of the death of his son.  The environment the offender grew up in normalised abuse of alcohol and drugs. 
81. A submission was made as to special circumstances which was not argued against and I have accepted above.
82. Reference was also made to parity though not in any detail and I have addressed this when imposing the necessary sentence for each of the offenses, for not all the offending attracts that consideration.
83. With respect to the offender’s submissions this is not just all about rehabilitation. The range of offending involved here shows the offender to be a person with significant involvement in a range of criminal offending including manufacturing prohibited drugs albeit in attempts doomed to fail, and a very active participation in the supply of significant amounts of drugs.
84. There is a need for significant general deterrence in this matter. That is mitigated by the fact of a lesser moral culpability finding owing to the application of the Bugmy principles and also the contribution of the state of mental health of the offender to his offending. It does not however mean there is no role at all for deterrence.  The sentence will reflect some weighting for deterrence both general and specific, though lessened by the background and mental health factors.  There is also a need to protect the community and to denounce this conduct, promoting as it does the availability and use of illegal drugs that are so damaging to the community.
85. The sentence should encourage rehabilitation.  This is not an entirely one-way street for the offender, that is, the evidence is mixed as to his prospects.  The offender’s departure from the facts is a concern and his failure to recognise harm to the broader community as opposed to the impact it has had on his own personal relationships was a concern. On balance however I do find that the evidence shows that he is making determined efforts at rehabilitation and, as already discussed, there is an evidentiary basis for considering that his prospects are better than might otherwise be thought.
86. There is no question in this case that there will be a term of imprisonment. The submissions did not address in any detailed way each of the offences.
87. I propose proceeding by way of an aggregate sentence. In doing so I have applied a 10% discount to the firearms charge and 5% to each of the other charges which is the agreed position.
88. The table below sets out in respect of each count the particular charge, the assessment of objective seriousness, the maximum penalty, the SNPP if any, the discount for the guilty plea and the indicative sentence before and after the application of the discount.  The discounted sentences have been rounded down when appropriate.
89. Table of indicative sentences

No	Section	Offence	Obj ser	Max Pen	SNPP	ind	After disc	disc
1	Firearms Act 33A(1)(a)	Fire firearm likely to injure and endanger safety of another	Into mid	10y	No	24m	21m	10%
2	25(2) DMTA	Supply CQ, viz 475g meth	Into mid	20 y & or 3500 pu	10	4 y	45m	5%
3	25(1)	Supply 184.25 g meth	Into mid	15 y and or 2500 pu	No	2	21m	5%
4	s24(1)(a)  DMTA	Possess precursor intended for use in mfr of drug	Below mid	10 y or 2000 pu	No	1	11m	5%
5	24(2) DMTA	Knowingly take part in attempt manufacture prohibited drug; 250g meth	Below mid	20y and or 3500 pu	10y	30m	28m	5%
6	23(1)(b)	Supply 3.2kg of cannabis leaf	High low	10 y and or 2000 pu	no	24m	22m	5%
7	25(1)	Supply 14g of cocaine	Low	15y and or 2000pu	No	18m	17m	5%
8	25(1)	Supply prohibited drug, 60g MDMA	Below mid	15y 2000 pu	No	2y	22m	5%
9	166	Par 48; GIC	low	1y	No	6m	5m	5%
10	166	Par 49; suspected proceeds	low	3y	No	3m	2m	5%

90. Although there has been discussion of the objective and subjective matters which I have taken into account at arriving at these indicative sentences, it assists to make some further remarks in respect of some of the offences. In relation to the firearms offence that was dealt with by way of a CCO in the case of Mr Williams. The offence charged against Mr Williams was the less serious offence under section 7A carrying only a maximum term of five years as opposed to the offence charged against Mr Boyes which carries a maximum penalty of 10 years. Further Mr Boyes did not have available to him the feature of excessive self defence.  Mr Boyes also attended at the property armed as opposed to Mr Williams who did not, though they both fired a gun that they found at the property. The confusion on the facts from Mr Boyes did not extend to disputing that he did indeed arrive armed albeit that Ms Irvine was carrying a rifle for him.  Further still, Mr Williams received a 25% discount on his sentence for his guilty plea, whereas Mr Boyes received only 10% for the firearms charge and 5% for the other offences.
91. Counts 2 and 3 should have a significant degree of concurrency as they represent they, at least to the extent of 184.25g are connected transactions.
92. In terms of counts 4 and 5 those offences were carried out in conjunction with the same attempted manufacture as Mr Williams though Mr Williams was also charged a number of lesser quantities of attempted manufacture, as well as the larger quantity of Mr Boyes. As noted above, for the 250g charge Mr Williams had 3 s25(1) supply charges taken into account on a Form 1.  In the case of Mr Boyes 3 counts of supply in breach of s25(1) were proceeded with on the indictment, not the form 1.  When viewing the matter from a parity perspective, note needs to be taken of the absence of any form 1 matters is reflected in the sentence for count 5, and also the differing discount for the plea.
93. In respect of counts 2 and 5 there is a standard non-parole period. As required by the CSPA had it been necessary to impose a non-parole period for those offences I would have imposed a non-parole period of 14 months and 11 months respectively. The reason for that is it approximates the ratio I have imposed overall on the aggregate sentence of the balance of term to the non-parole period. It varies from the standard non-parole period because of the numerous strong subjective features of the offender’s case, and in respect of count 5 because the objective seriousness is below the mid point.
94. Although the offender and Mr Williams were only co-offenders in respect of the firearms matter, and then in respect of different charges, and in relation to the manufacture charge it nevertheless remains that there is very much a degree of connectedness between the offending of the two offenders. I consider it relevant to bear in mind the principles of parity in respect of their sentences albeit that there is a good argument that the parity principle does not apply. On balance I think it should be paid recognition due to the degree of connectedness just referred to. The points of difference are that the firearms charge and supply charges against Mr Boyes are more serious and this is reflected in the sentence.
95. As was noted in the judgment of Williams at [114] the sentence should reflect the overall criminality of the offender in the way discussed in R v MAK [2006] NSWCCA 381 at [15]-[18]. Those passages make the point that the aggregation of all the sentences is “a just and appropriate measure of the total criminality involved”. The point is made that the severity of the sentence is not simply linear. The principle of totality applies in this case; whilst the period of the offending is significant, over some 7 months, I consider the offending is a course of conduct. The overall criminality of the offender is not the sum of the various sentences. That would result in a disproportionate sentence. The sentence to be imposed takes account of all of the objective and subjective matters and is a sentence that is proportionate.
96. Ultimately the result that I have reached is that the aggregate term should be 9 years with a non-parole period of 5 ½ years to date from 18 September 2020.

Orders

1. In respect of the 10 charges set out in the above table the offender is convicted.
2. I have set out the indicative sentences having applied the discounts indicated in the table.
3. The offender is sentenced to a term of imprisonment with a non-parole period of 5 ½ years commencing on 18 September 2020 and expiring on 17 March 2026 with a balance of term of 3 ½ years expiring on 17 September 2029.

Decision last updated: 31 August 2022