R v Dixon

[2019] NSWDC 585

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Dixon [2019] NSWDC 585
Hearing dates:	6, 20 September 2019
Date of orders:	20 September 2019
Decision date:	20 September 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	The offender is sentenced to an aggregate term of 11 years with a non-parole period of seven years, commencing 1 May 2017. The non-parole period will expire on 30 April 2024 and the head sentence will expire on 30 April 2028.
Catchwords:	CRIME — Firearms offences SENTENCING — Plea of guilty — Timing of Plea SENTENCING — Relevant factors on sentence — Social Deprivation — Bugmy factors
Legislation Cited:	Crimes Act 1900 Firearms Act 1996
Cases Cited:	Bugmy v R [2013] HCA 37; (2013) 249 CLR 571 Jinnette v R [2012] NSWCCA 217 Laupama v R [2015] NSWCCA 311 Powell v R [2014] NSWCCA 69 R v Borkowski (2009) 195 A Crim R 1 R v Campbell; R v Smith [2019] NSWCCA 1 R v Dib [2003] NSWCCA 117 R v Lambell [2019] NSWDC 78 R v Stambolis [2006] NSWCCA 56 Zhao v R [2016] NSWCCA 179
Category:	Sentence
Parties:	Regina (Crown) Matthew Dixon (Offender)
Representation:	Counsel: A Chatterton (Solicitor Advocate, Crown) D Stewart (Offender)  Solicitors: Solicitor for Public Prosecutions (Crown) Rose Hill and Associate Solicitors
File Number(s):	2017/00130082

Judgment

INTRODUCTION

1. Matthew Dixon appears before me for sentence. He has pleaded guilty to the following:

1. Use offensive weapon with intent to commit indictable offence, contrary to s 33B(1)(a) of the Crimes Act. The maximum penalty is 12 years. There is no standard non-parole period.

2. Fire a firearm at a dwelling house with disregard for safety, contrary to s 93GA(1) of the Crimes Act. The maximum penalty is 14 years imprisonment, with a standard non-parole period of five years.

3. Possess shortened firearm without authority, contrary to s 62(1)(b) of the Firearms Act 1996. The maximum penalty is 14 years. There is no standard non-parole period. The firearm that was possessed was a sawn-off shotgun.

4. A second charge of possess shortened firearm without authority, contrary to s 62(1)(b) of the Firearms Act 1996. The maximum penalty is 14 years. There is no standard non-parole period. This charge relates to a second firearm in possession of the offender, which was a self-loading rifle.

2. The offender was arrested on 1 May 2017. He has been in custody since that date. From 28 June 2017 until 27 August 2017 the offender served a two month fixed term for an unrelated matter.

3. The maximum penalty and the standard non-parole period are an important guidepost in the assessment of sentence. A judge should steer by the maximum penalty and standard non-parole period but not aim for it.

PLEA OF GUILTY

4. The offender entered pleas in relation to the shortened firearms, the subject of counts 4 and 5 on arraignment on 2 February 2018. A trial was set down in relation to counts 1, 2 and 3 on an indictment dated 1 February 2018 (the original indictment). The then count 1 was a break and enter, contrary to s 112(3) of the Crimes Act, which carries a maximum penalty of 25 years and has a standard non-parole period of seven years. After negotiation the Crown replaced this charge with use an offensive weapon with intent, contrary to s 33B(1)(a) of the Crimes Act. The maximum penalty is 12 years and there is no standard non-parole period. The penalty applicable to this offence is vastly different to the original offence. In further Crown submissions, undated, the Crown accepts that a 25% discount is applicable to this offence.

5. Count 2 of the original indictment was a separate break and enter, occurring on 24 April 2017, where it was alleged the offender, in company with two others, had arrived with a shortened shotgun and attempted to break into Mr Savona’s apartment, contrary to s 112(3). The maximum penalty is 25 years, with a standard non-parole period of seven years. After negotiation this charge was not proceeded with.

6. Count 3 on the original indictment became count 2 on this indictment and counts 4 and 5 (the shortened firearm offences) on the original indictment became counts 3 and 4 on this indictment. The Crown accepts that a 25% discount is applicable to counts 3 and 4.

7. In relation to count 2, the Crown submits:

“It is respectfully submitted that the situation is different in relation to the offender’s guilty plea to count 2. On the entering of that plea to a charge that the offender always faced on the trial indictment in relation to his offending on 24 April 2017, the Crown indicated there would be no further proceedings in relation to the s 112(3) offence associated with that offending.”

8. The Crown submitted at [7]:

“Although his guilty plea to count 2 resulted in the discontinuance of the more serious charge pursuant to s 112(3), that plea was not to an offence that the offender had always faced on the indictment. In that regard his guilty plea to count 2 cannot be regarded as a guilty plea to a lesser charge as contemplated by Hodgson JA in R v Dib.”

9. The Crown submitted at [9]:

“In such circumstances the Crown submits that an appropriate discount would be in the range of 5 to 10% to represent the utilitarian value of the offender’s plea to count 2.”

10. The current indictment is vastly different to the original indictment. It is worth restating what I said in R v Lambell [2019] NSWDC 78 at [4] and following:

“It has been argued that the plea of guilty was offered by the offender at the first reasonable opportunity after the indictment appeared in its current form. The plea by the offender has resulted in a significant utilitarian value. The observation by Howie J in R v Borkowski (2009) 195 A Crim R 1 at [32], `The utilitarian value of a delayed plea is less and consequentially the discount is reduced even if there has been a plea bargain’ was obiter and not the ratio of the appeal. His Honour relied upon R v Dib [2003] NSWCCA 117. In Dib, Hodgson JA, when dealing with the ground that the sentencing judge erred in the assessment of the appropriate discount for a plea of guilty, said at [3]:

`In my opinion the amount of any discount to be allowed by reason of the utilitarian benefit of a plea of guilty should not be reduced on the ground that the plea was offered in association with the abandonment by the Crown of a greater charge and if in such a case the plea offered, as soon as the Crown indicates a willingness to accept a plea to a lesser charge it should be regarded as being made at the earliest opportunity. To hold otherwise would be inconsistent with a presumption of innocence of the greater charge, which in those circumstances must stand unaffected’.

Dowd J at [27] said:

`The applicant’s submission was that the discretion of the learned sentencing judge miscarried in his approach to the timing of the plea on the basis that the original charge carried a maximum penalty of 25 years and it was only on 11 September that the Crown charged the alternative to which the applicant immediately entered a plea and this was the first opportunity. I agree with that submission’.

His Honour went on to say at [29]:

`I do not agree that the discount should be reduced by reason of the is [sic] a benefit in acceptance of a plea to a lesser charge. A person in the position of the applicant comes with a presumption of innocence and no assumptions can be made as to the basis for the acceptance of the plea, the plea should be treated as one made at the earliest opportunity.’

Howie J in my view has misconstrued the reasoning of R v Dib. The case does not stand for the proposition as advanced by him that the `Utilitarian value of a delayed plea is less and consequentially the discount is reduced, even where there has been a plea bargain.’

It is in fact to the contrary, I have taken the view that the plea offered in this case has been one at the earliest opportunity as was recognised in the case of Dib. The rule of thumb approach by Howie J was severely criticised and disagreed with by RS Hulme AJ in Mooney v R [2016] NSWCCA 231 at [32]-[36]. His Honour was critical of the fact that no reason had been advanced for the rule of approach adopted by Howie J.”

11. If one tracks through the authorities, including Zhao v R [2016] NSWCCA 179 and R v Stambolis [2006] NSWCCA 56, it is clear that what Howie J at point 9 of [32] of Borkowski said, “The utilitarian value of a delayed plea is less and consequentially the discount is reduced even if there has been a plea bargain”, means that a plea bargain must (mandatory) be less purely by reason of the plea bargain. This is not how I understand the law. What was being set out in R v Dib was that a sentencing judge has a discretion firstly as to whether the plea has been entered at the earliest opportunity and, if so satisfied that it has been entered at the earliest opportunity, the judge has a discretion to afford the offender a discount of up to 25%. Mr Chatterton correctly accepts that proposition in these proceedings.

12. In my view, the utilitarian value of the plea is high and I accept that it was at the first reasonable opportunity. I will discount the indicative sentence by 25%. The utilitarian value is high because it saved a 70 year old victim from giving evidence and reliving the trauma.

THE FACTS

13. There are agreed facts to be found at tab 2 of exhibit 1, the Crown sentence summary. They read as follows:

“The victim in this matter is Vincent Savona, aged 70 years at the time of the offending. He lives by himself at Unit 29 of 12 Woodward Crescent, which is a two-storey unit block. Mr Savona’s unit is a bed-sit style apartment with an attached kitchen and bathroom on the ground floor. His large back windows look out onto the car park in the rear of the property.

Count 1, possess firearm with intent to commit the indictable offence of intimidation

Several weeks before 24 April 2017 at about midday the victim was at home, with the main front door open and the security door locked. Dixon arrived and knocked on the security door. Dixon said, `Let me in. If you don’t let me in I’m going to rip the security door off the hinges’. Dixon was standing at the door holding a khaki-coloured sack with the butt of a rifle protruding out of the bag. The victim unlocked the security door and let Dixon in.

Dixon entered the unit and was ranting and raving. Dixon was about 2 feet away from the victim when he pulled the rifle out of the sack and pointed it towards the victim’s groin. The victim was scared and said, `You are not seriously going to shoot me, are you?’ Dixon replied, `Well the safety is off.’ The victim said, `Leave now and go and spend some time with your wife and kids. There is nothing to be gained here.’ At this point Dixon put the rifle back in the sack and walked out of the unit. The victim did not immediately report the matter to the police.

Count 2, fire a firearm at a dwelling house

On the evening of 24 April 2017 the victim was at home watching television by himself. The main front door and the security door were both locked and closed. At about 8pm the victim heard a knock on the front security door. The victim opened the main door and saw a man known to him as Theo standing on the other side of the security door. Dixon was standing behind Theo with another taller man unknown to the victim. The victim said, `What do you want?’ Theo replied, `Have you got anything?’ The victim said, `No, I’ve stopped selling them.’ Theo said, `Are you sure you don’t have anything?’ The victim said, `No.’ At this point the victim shut the main door. The victim stood behind the main door once it was closed. About 30 seconds later there was a loud bang on the front door. The victim immediately got on the floor and put his right shoulder firmly up against the door to prevent anyone getting into his unit. He then screamed for help.

At this time Glen Freeman was inside his unit on the floor above the victim. After hearing a loud bang, Mr Freeman walked out his front door onto the balcony. He looked down towards the victim’s unit and saw three men kicking the victim’s door. Two of these men were Dixon and the man known to the victim as Theo. Mr Freeman saw the tallest of the three men pull out what he thought was a sawn-off shotgun with a rounded handle from a bag he was carrying. Mr Freeman heard the man yelling at the victim and being abusive as they were kicking the door. He heard the victim yelling, `Go away. I have nothing.’ At this point Mr Freeman grabbed an old television by his front door and threw it over the balcony towards the three men in an attempt to scare them off. He then ran inside his unit.

A short time later the victim and Mr Freeman heard what they thought sounded like a shotgun being fired. Immediately after the victim heard the gunshot he felt splinters of glass fall on top of him. He suffered a small cut to the left side of his head. He noticed that the glass of a photo frame had been shattered by what appeared to be seven holes. It was later discovered that a shotgun cartridge had been fired through the victim’s back window and curtains. A crime scene officer formed the opinion that the shot was discharged from the car park area towards the rear window of the victim’s unit.

About five seconds later he heard the shot, Mr Freeman heard the screeching of tyres coming from the car park. With a neighbour he went to check on the victim. The victim did not call police. He stayed the night elsewhere.

At 8am the next morning the victim walked back to his unit and saw the police standing at his front door. The victim subsequently gave a statement to the police.

Count 3, possess shortened firearm (shotgun)

Count 4, possess shortened firearm (self-loading rifle)

At about 10am on 29 April 2017 a red Subaru being driven by Dixon was stopped by police at Miller shopping centre. The police cautioned Dixon and then asked him a number of questions, including whether he knew anything about a shooting at the victim’s house. Dixon said, `I don’t know anything about it, I was home at the time.’ He denied knowing the victim. He was not arrested at the time.

Also in the car with Dixon was Crystal Markham. Her mobile telephone was seized and later examined. Police found two photographs of Dixon holding a sawn-off shotgun in one photo and a sawn-off shotgun and rifle in another. The photographs were taken on 18 April.”

14. The photographs appear at tab 3 of the Crown’s sentence bundle.

OBJECTIVE SERIOUSNESS

“The possession and use of firearms in society is an extremely troubling aspect, for which general deterrence and specific deterrence loom large. The possession of weapons … has become far too common in society. The possession of such weapons undermines the fabric of society and, when possessed for the purpose of other criminal activity, puts at risk the rule of law and the appropriate relationship between members of society.”: R v Campbell; R v Smith [2019] NSWCCA 1, Rothman J at [9].

15. His Honour considered a Crown appeal in relation to a sentence that had been imposed on Mr Smith, which had been discounted to three years, and was assessed as being “middle of the range”, for the possession of a firearm in contravention of a prohibition order (maximum penalty 14 years) was manifestly inadequate. His Honour went on to say that:

“An examination of sentences imposed for like offences results in the middle of the range of such offences being a head sentence of approximately six years...In my view, even the six year head sentence for an offence in the middle of the range of objective seriousness is far too lenient. The Courts have, unfortunately, treated firearm offences far too leniently.”: at [4]-[5].

16. The offence in count 2 represents the most serious example of the offender’s overall conduct. The offence has a maximum penalty of 14 years and a standard non-parole period of five years.

17. The offender, in company with two others (Zabakly and an unknown man) went to the apartment of Mr Savona. They were refused entry. A neighbour, Mr Freeman, heard a loud bang. He went out to his balcony. He looked towards the victim’s unit and saw three men kicking the victim’s door. He saw the tallest of the three pull out what he thought was a sawn-off shotgun with a rounded handle from a bag he was carrying.

18. Mr Freeman threw an old TV at them to scare the men off. It worked. A short time later a shotgun blast was heard. Luckily Mr Savona was lying on his floor. The shotgun had been fired through a window that lined up with the front door. If he had been standing, he would have been struck by the shotgun pellets. Mr Savona felt splinters of glass fall on top of him. The glass came from a framed photograph of his sons that was hit by the pellets. He suffered a small cut to the left side of his head. A crime scene officer formed the opinion that the shot was discharged from the car park area towards the rear window of the victim’s unit.

19. I am satisfied beyond reasonable doubt that this offender fired the shotgun. I am so satisfied due to the following reasons:

1. Several weeks before this offence the offender attended at Mr Savona’s apartment armed with a firearm;

2. He was alone and produced a firearm which he had in a sack and threatened the victim;

3. It demonstrated the ability of the offender to possess an illegal firearm and his mindset to threaten the victim with it;

4. Photographs taken on 18 April 2017, six days before this offence, show the offender in possession of a sawn-off shotgun and a rifle;

5. The possession of a shotgun six days earlier and its use on 24 April 2017 are consistent with the offender being the shooter;

6. There is no evidence to suggest that Mr Zabakly or the man were in possession of the shotgun on 24 April 2017.

20. I note that Mr Dixon did not give evidence on the sentence proceedings.

21. The Crown submits that the offence is at or very close to the mid-range for an offence of this type. In my view the offence is at the mid-range of objective seriousness.

22. The Crown referred me to Powell v R [2014] NSWCCA 69. It was a manifestly excessive appeal. The applicant after trial had been found guilty, amongst other things, of firing a firearm into a dwelling house with reckless disregard for the safety of any person, contrary to s 93GA(1) of the Crimes Act.

23. At the time the applicant was sentenced the offence was not subject to a standard non-parole period. On that count the sentencing judge imposed a head sentence of nine years with a non-parole period of five years.

24. The facts of Powell in short compass were that the applicant and another man attended at a home at Albion Park. A number of boarders lived at the house. As a result of dogs barking and seeing the co-offender through a window the home owner opened the door. There was some conversation and the co-offender walked off. The home owner returned to his lounge room, he then heard one or two shots, he went to ground. Several days later police identified a small hole in the blinds of the front window. A projectile was found lodged in a section of gyprock in the kitchen/dining area.

25. The offending in this matter can be distinguished as being objectively more serious as the victim suffered a cut to the left side of his face from splinters of glass caused by the shot and its aftermath. He was very lucky that he was not standing at the time of the shot. The indiscriminate discharge of a shotgun into the victim’s residence had the potential to maim or kill the resident.

26. The sentencing judge noted that, “The indiscriminate use of firearms at domestic dwellings requires stern punishment”. The judgment does not espouse any binding principle other than the sentence was excessive and the applicant was resentenced to a head sentence of seven years with a non-parole period of four years. Button J did say, “The imposition of a lengthy sentence for this dangerous and antisocial criminal act was inevitable”: at [30]. Button J, “respectively agreed with the learned sentencing judge that offences of this kind require condign punishment”: at [38].

20. People should not possess firearms. It is illegal and strikes at the fabric of society. People should not use firearms and, if they do, they should be sent to gaol for long periods of time to deter other would-be users of firearms. The dominant sentencing purposes are general deterrence, specific deterrence, denunciation and protection of the community.

COUNT 1

28. The offender showed aggression to the victim. He threatened to rip the security door off its hinges. As a result of this threat the victim allowed the offender to enter. The offender pulled a rifle out of a sack and pointed it towards the victim’s groin. The victim was scared but had the ability to persuade the offender from not doing anything further even though the offender said the “safety is off”.

“The Crown disagrees with the offender’s submission that the victim’s response to being threatened by the offender would not necessarily have caused him fear …”

29. The Crown misconstrues the offender’s submission and should have read the submission more carefully. The offender’s submission was: “Pointing the firearm at the victim’s groin would have necessarily caused fear”. The word “not” did not appear in the offender’s submissions. It is common ground that the victim was in fear and this is apparent from [6] of the agreed facts. The Crown in error referred to [2] of the agreed facts.

30. I accept the Crown’s submission that the objective seriousness was below the mid-range. The rifle was produced for a short period of time and the offender left immediately after the victim told him to.

COUNTS 3 AND 4

31. The offending demonstrates the offender’s ready access to firearms, which in turn informs the Court that the protection of the community looms large as part of the overall sentence exercise. I accept the Crown’s submission that the objective seriousness can be assessed at below the mid range.

SUBJECTIVE FACTORS

32. The following documents have been tendered on behalf of the offender:

1. Report of John Machlin, clinical psychologist, dated 1 July 2019 (exhibit A);

2. Letter from Sarah Painter, undated, the partner of the offender (exhibit B).

33. The report of Mr Machlin informs me of the following:

34. Mr Dixon was born in Sydney and raised in the Liverpool area. His father was a kitchen carpenter and his mother worked at some stages as a laundress. Mr Dixon’s mother is Aboriginal and Mr Dixon himself identifies as Aboriginal. Mr Dixon’s father had ongoing problems with alcoholism and was also known to smoke marijuana. From the time he was ten or 11 Mr Dixon recalled recurrent domestic violence perpetrated by his drunken father towards his mother. He recalled being sent away with his siblings to stay with other family members when his mother was recovering from the violent episodes. He had a troubled relationship with his father. When he reached his teens Mr Dixon tried to step in to protect his mother, his father then turned the violence towards him, prompting Mr Dixon “To take off and hang out in the streets”. His parents had separated when he was 15 and by that time Mr Dixon was already getting into trouble with the law and spending time in boys’ homes. Mr Dixon has spent the large majority of his adult life in prison.

35. Under the heading “Education and Employment” the author says:

“Mr Dixon attended primary school in Sadleir, where he recalled being placed in special classes because of his poor literacy. He recalled being bullied about his family background, that is, ‘My mum being black and I’m white’. He was suspended a number of times but never expelled. Mr Dixon commenced high school at Sir Joseph Banks and quit after a matter of weeks. He has since incurred recurrent prison admissions and only held employment in the community for brief periods. When last at liberty he was unemployed”.

36. Under the heading “Relationship and Children” the author informs me that Mr Dixon reported he has been with the same partner, Sarah, for the past 20 years since aged 16. Together they have a daughter aged 16 and two sons aged 10 and five. The three children reside with their mother in Macquarie Fields and Mr Dixon’s mother provides some domestic help.

37. Under the heading “Substance Abuse” I am informed that Mr Dixon said he started smoking marijuana at 13. He has struggled with heroin addiction since he started smoking it at the age of 15. He has tried many other drugs including amphetamine, methamphetamine and cocaine but did not like any of them and did not persist with them. He has been on methadone and buprenorphine programs in custody previously. He said he participated in the Drug Court Program some years ago but was terminated after nine months. He has attended the EQUIPS Program targeting addiction a number of times in prison without perceived benefit.

38. Mr Dixon has an extensive criminal history. He was unable to estimate how many times he has been admitted to prison. From memory the longest he has been out was in 2012 when he adhered to the Drug Court Program for nine months. He said he has typically lasted only a few months before being arrested again on offences to support his heroin habit, as was the case when last at liberty for four months.

39. Mr Dixon has been in custody for over two years since his arrest. He said the hardest thing is being away from his family. He is grateful for his partner’s ongoing support. He maintains hope for a better future in which he can be stabilised and rehabilitated. Ideally he would like to relocate with his family to a new area away from local influences and start afresh.

DIAGNOSIS

40. He has been diagnosed as having a substance use disorder. Mr Dixon has sustained an opiate addiction through most of his adult life to the severe detriment of lifestyle and family functioning and consistent with a substance abuse disorder. Longstanding family dysfunction, exposure to violence and the chronic impact of incarceration have no doubt affected his general personality and mood functioning and it is quite likely that he has experienced stress, anxiety and depression on the scale of a clinical condition at various times throughout his history.

41. Under the heading “Conclusion and Recommendations” Mr Machlin says:

“Mr Dixon was raised in a situation of recurrent domestic violence between his parents, who both were heavy drinkers. As the eldest he bore the brunt of the situation, trying to shield his younger siblings, and later incurring his father’s violence when trying to protect his mother. He performed poorly and was maladjusted at school. He became isolated from his mother and siblings when they were taken into refuges and from there at that time was in and out of boys’ homes.

Heroin addiction has pervaded his life since his teens, leading to recurrent prison admissions throughout his adult life. The indications are that he has never recovered from the adversities of his upbringing and has been institutionalised from a young age. Against this background his ongoing heroin addiction has presented insurmountable challenges for him. He is contrite about his offences.

Mr Dixon would benefit from reintegration support within the structures of Corrective Services on release, including a residential rehabilitation placement under the supervision of Probation and Parole”.

42. His partner of 20 years and the mother of his three children, Sarah Painter, informs me:

“Matthew has faced a lot of hurdles in his life, with a violent father and alcoholism from both parents. I have seen how good Matthew can be as a partner and a father. I know that he can be the man he wants to be with some support. Matthew tries hard to be a good father to his children. He loves taking them to football and encourages their talent. He loves helping with homework and being present when they receive awards or perform at school.

Unfortunately when Matthew runs into old friends, old habits also form and he has made some bad decisions. During these times Matthew doesn’t want the kids or myself to see him like this so he tends to stay away. I know that Matthew regrets the bad decisions and mistakes he has made but I have also seen the side of Matthew where he is at home with the kids helping with homework or just kicking the footy around or jumping on the trampoline with them and I know he wants to change.

I am willing to stand by Matthew. He has tried the last couple of times to help himself with his drug problem. With the help of a rehabilitation program and our continued support I am positive he can make changes that he needs and wants to make in his life.”

PROSPECTS OF REHABILITATION

43. The offender has a lengthy criminal record. He first appeared before the Children’s Court in 1996 when he was 13 years of age. He has appeared before the courts on at least 45 occasions. His longest sentence was four years with a non-parole period of two years and six months imposed by the Parramatta Drug Court on 24 September 2013. His record of antisocial behaviour disentitles him to leniency. His prospects of rehabilitation are bleak.

SOCIAL DEPRIVATION

44. The offender has had a terrible life, raised in a household surrounded by alcohol abuse and violence. I have taken into account the social deprivation experienced by the offender. The effects of profound childhood deprivation do not diminish with the passage of time and repeated offending. “Full weight” should be given to an offender’s deprived background in every sentencing decision: Bugmy v R [2013] 249 CLR 571 at [44].

45. In Bugmy v R the plurality at [40] said:

“…The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way”.

46. It was Hoeben CJ at CL’s understanding of that statement:

“That it refers to the ultimate effect of that factor. The plurality were not saying that a consideration of this factor was optional. What the plurality clearly had in mind was that even when that factor is taken into account there may be countervailing factors (such as protection of the community) which might produce or eliminate its effect”: Ingrey v R [2016] NSWCCA 31 at [35].

47. The inability of the offender to control his drug use and the commission of offences increases the importance of protecting the community from the offender.

SPECIAL CIRCUMSTANCES

48. The Crown contends that there is no reason to make a finding of special circumstances based on the offender’s institutionalisation. It submitted that the danger of institutionalisation does not automatically entitle an offender to a finding of special circumstances.

49. In Laupama v R [2015] NSWCCA 311 the Court held that the danger of institutionalism did not in every case amount to special circumstances so that the failure to find the special circumstances did not amount to appealable error: at [30].

50. In Laupama the Court approved what Johnson J said in Jinnette v R [2012] NSWCCA 217 at [104]-[106]:

“[104] It is the case that the applicant has had a terrible life involving a dysfunctional family and constant negative events involving abuse and exploitation of him by others. There is no way his life can be recalled and more a positive life substituted for it. All reasonable persons will have a considerable measure of sympathy for him.

[105] At the same time reasonable members of the community will observe what the applicant has done consistently when at large in the community offending in different ways including placing members of the community at risk and harming them. There is a history of failed conditional liberty and breaches of parole. The criminal justice system has no ready solution for cases such as this given the relatively blunt instruments available to it.

[106] The protection of the community remains a most important consideration in a case such as this involving incapacitation through incarceration of the applicant and also the protection of the community in taking reasonable steps to provide an opportunity for intensive supervision when the applicant comes to be considered for release on parole.”

51. Counsel for the offender submitted that the offender has greater prospects of responding to supervision whilst on parole than the offender in Laupama.

52. Counsel for the offender points to the offender having served a lengthy period of parole during 2015/2016 without committing offences. He submitted the offender has the benefit of a long term supported relationship with his partner and an interest in spending time with her and his children. He has the support of his extended family.

53. In considering the question of special circumstances I take into account the opinion of Mr Machlin, clinical psychologist. It is his opinion that:

“Mr Dixon would benefit from reintegration support within the structures of Corrective Services on release including a residential rehabilitation placement under the supervision of Probation and Parole.”

54. I find special circumstances to assist in the offender’s reintegration in the community. Institutionalism should be avoided. Protection of the community (community safety) and reformation are not opposites in the consideration of what is an appropriate sentence.

COMMENCEMENT DATE OF SENTENCE

55. The offender has been in custody, bail refused, following his arrest for these matters on 1 May 2017. Although the offender served a two month sentence on 26 June 2017 until 28 July 2017 for an unrelated matter it is agreed between the parties that the sentence for these matters should commence on 1 May 2017.

TOTALITY/PROPORTIONALITY

56. It is necessary that there be partial accumulation between all offences. There should also be partial accumulation between counts 3 and 4, because those counts relate to separate firearms. Accumulation of offences must accord with the principles of totality and proportionality. I have taken those principles into account in assessing what is an appropriate sentence.

SENTENCE

57. I intend to impose an aggregate sentence.

Count 1

58. The indicative sentence is three years imprisonment, but for the 25% discount the sentence would have been four years.

Count 2

59. The indicative sentence is 7 years 6 months, but for the 25% discount the sentence would have been one of ten years. As a standard non-parole period applies in relation to that offence it is necessary for me to set an indicative non-parole period and I set the non-parole period of five years.

Count 3

60. The indicative sentence is three years, but for the 25% discount the sentence would have been 4 years.

Count 4

61. The indicative sentence is three years, but for the 25% discount the sentence would have been one of four years.

62. I impose an aggregate sentence of 11 years with a non-parole period of seven years. The non-parole period will expire on 30 April 2024 and the head sentence will expire on 30 April 2028.

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Amendments

02 December 2019 - correction at [50], change 'projection' to 'protection'

Decision last updated: 02 December 2019