R v Finigan

[2019] NSWDC 590

District Court

New South Wales

Medium Neutral Citation:

R v Finigan [2019] NSWDC 590

Hearing dates:

20 September 2019; 22 October 2019

Date of orders:

22 October 2019

Decision date:

22 October 2019

Jurisdiction:

Criminal

Before:

Weinstein SC DCJ

Decision:

You are convicted of the offences of:

 

(1) possess unregistered firearm (Remington pump action rifle) contrary to section s36(1) of the Firearms Act 1996 (NSW); and

 

(2) supply large commercial quantity (5.484 kilograms) of methylamphetamine, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW).

 

Taking into account the matters on the Form 1, you are sentenced to an aggregate term of imprisonment of 3 years 9 months. The aggregate sentence I impose consists of a non-parole period of 2 years 2 months commencing from 5 February 2019 and a head sentence of 3 years 9 months. You will become eligible to be released on parole on 4 April 2021. I have deviated from the statutory ratio of 75% because I have found special circumstances.

 

If separate sentences had been imposed instead of an aggregate sentence, for the offence of possess unregistered firearm (Remington pump action rifle) contrary to section s36(1) of the Firearms Act 1996, I would have imposed a head sentence 9 months. This term has been reduced by a discount of 25% for the plea of guilty. Had the discount not been applicable, I would have sentenced you for 12 months.

 

For the offence of supply large commercial quantity (5.484 kilograms) of methylamphetamine, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985, I would have imposed a sentence of 3 years 4 months and the non-parole period would have been 2 years 2 months. This term has been reduced by a discount of 25% for the plea of guilty. Had the discount not been applicable, I would have sentenced you to a period of imprisonment of 4 years 6 months.

 I direct that the report of Dr Adams dated 22 August 2019 be put on the Justice Health file of the offender.

Catchwords:

SENTENCING – possess unregistered firearm – supply large commercial quantity (5.484 kilograms) of methylamphetamine – minor role of ‘storeman’ but large commercial quantity of drugs – plea of guilty entered early – constellation of mental health issues – special circumstances found – full-time custody

Legislation Cited:

Firearms Act 1996 (NSW) section ss36(1), 39(1), 65(3)
Drug Misuse and Trafficking Act 1985, s25(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss3A, 5, 21A, 53A

Cases Cited:

Cahyadi v R [2007] NSWCCA 1
DPP v De La Rosa (2010) 79 NSWLR 1
Muldrock v The Queen (2011) 244 CLR 120
Markarian v The Queen [2005] HCA 25
Mill v The Queen (1988) 166 CLR 59
R v Jarrold [2010] NSWCCA 69
Veen v The Queen (No 2) (1988) 164 CLR 465

Category:

Sentence

Parties:

Crown
Mr Finigan (Offender)

Representation:

Solicitors:
Mr K. Ng (Crown)
Mr G. Goold (Offender)

File Number(s):

2019/39563

Publication restriction:

Nil

Judgment

Introduction

1. The offender, born in 1988, is before the court for sentence for possess unregistered firearm (Remington pump action rifle) contrary to section s36(1) of the Firearms Act 1996. The maximum penalty for this offence is five years imprisonment and there is no standard non-parole period. The offender is also before the court for sentence for supply large commercial quantity (5.484 kilograms) of methylamphetamine, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985, for which the maximum penalty is life imprisonment, 5000 penalty units, or both, and the standard non-parole period is 15 years.

Evidence

2. Before me are three exhibits. Exhibit 1 is a bundle of documents prepared by the Crown which includes:

1. A Statement of Agreed Facts;

2. A Notice of Committal and two Court Attendance Notices (CAN);

3. A Form 1, setting out the additional offences of failure to keep firearm safe contrary to s39(1) of the Firearms Act 1996, and possess ammunition w/o holding licence/permit/authority contrary to s65(3) of the Firearms Act 1996;

4. The offender’s criminal history;

5. The offender’s custodial history;

6. A Forensic and Analytical Science Service (FASS) Certificate confirming the weight and purity of the prohibited drug methylamphetamine; and

7. A Sentencing Assessment Report (SAR) dated 19 September 2019 authored by Joshua Moran.

3. Exhibit 2 is a bundle prepared on behalf of the offender, which includes:

1. A report from Dr Jonathon Adams, forensic psychiatrist, dated 22 August 2019;

2. An affidavit from Ms Elizabeth Viola, the partner of the offender, sworn on 17 September 2019;

3. An undated apology letter from the offender;

4. A reference from Luke Stephen Horsburgh, who served in the Navy with the offender, dated 16 September 2019;

5. A reference from Maxwell Tough, a friend of the offender of 25 years dated 9 September 2019;

6. A reference from Denise McCarthy, a teacher and family friend of the Finigan family, dated 26 August 2019;

7. An undated reference from Korrin Ireland;

8. A reference from Larry Malone, retired Sergeant of Police, dated 25 May 2019;

9. A reference from Kellie Chaffer, Secretary and Treasurer of the Forresters Beach Boardriders Inc., who has known the offender for the past five years, dated 24 May 2019; and

10. A reference from Damian Gordon, registered nurse and a family friend of the offender for approximately 30 years, dated 9 September 2019.

4. Exhibit 3 is also tendered by the offender. It includes:

1. A letter from Thi Cam Le Le, senior psychologist, dated 19 November 2015;

2. A report from Dr Nalin Wijesinghe, consultant psychologist, dated 15 March 2016;

3. A Navy Performance Appraisal Supplementary Report dated 14 September 2016; and

4. A Medical Employment Classification Review Board (MECRB) Decision Document dated 10 April 2017.

Agreed Facts

5. The agreed facts, which are very brief, are as follows. On 5 February 2019, NSW Police went to Matthew Finigan’s (the offender’s) home on Newland St, Bondi Junction, to serve a firearms prohibition order (FPO) on him. The offender lives alone. The offender told NSW Police that there would be a black rifle at his home, in his bedroom, in a black bag.

6. NSW Police located a Remington .308 pump action rifle.

7. The offender was placed under arrest and cautioned. The offender also told NSW Police that there may be some ecstasy tablets in the kitchen area. NSW Police then applied for a search warrant, which was granted. While the offender was being processed at Waverley Police station, NSW Police found in the search at the offender’s home an Aldi bag which contained a large amount of white powder, suspected to be a prohibited drug. The crystal was tested by FASS as 5.484 kg of methylamphetamine, with a purity of 66%.

8. Both the Crown and the offender agree that there is little if anything that I can infer from the facts beyond reasonable doubt in favour of the Crown or on the balance of probabilities, in favour of the offender.

Exhibit 1

9. I will now summarise some of the documents which have been placed before me. I propose to highlight and quote a number of important elements in these documents.

10. In Exhibit 1, the offender’s past criminal record shows a number of driving offences for which the offender was fined and disqualified from driving in 2009 and 2013/2014. It also shows one count of assault occasioning actual bodily harm in 2010, for which the offender was also fined. It was conceded by the Crown that the offender’s criminal history is of no moment, and that it was not an aggravating factor.

11. The offender’s custodial history shows that he has not been in custody prior to being placed in custody in relation to the charges presently before the court.

12. The SAR of 12 September 2019 notes that prior to being in custody, the offender resided alone and identified the living arrangement as problematic. He had been employed in the Australian Navy for 13 years, but at the time of the offences was not cleared for active duty due to suffering from mental health issues. In custody, he has been performing employment in a fitness unit to a high degree. The offender took responsibility for the firearm offences. He maintained that he was not selling or supplying prohibited drugs but acknowledged that his possession of them was unlawful.

13. The offender reported that the firearm and drugs belonged to his associates. As to substance abuse, the offender states that he commenced the use of cannabis, ice and prescription drugs at age 26 years. He acknowledged concern regarding his drug abuse. He was experiencing anxiety and depression prior to his incarceration. He was assessed at a medium to low risk of re-offending.

Exhibit 2

14. Dr Jonathon Adams, forensic psychiatrist, prepared a psychiatric report dated 22 August 2019. I note that Dr Adams is a highly experienced psychiatrist who has an extensive background in both the custodial and drug and alcohol settings. Dr Adams reports that Mr Finigan’s mental health began to deteriorate at the age of 20. Having joined the Navy at the age of 17, Mr Finigan was posted to the North Arabian Gulf, and while he never saw active combat, he reported his involvement in life-threatening situations where he was frequently concerned about his safety and the safety of his colleagues. Mr Finigan began drinking more and using more illicit substances after returning from this tour of duty to Sydney. Mr Finigan continued with overseas deployments for a further six years back to back, working in situations involving border protection, detention centres and exposure to people smugglers, which he described as having a traumatic impact.

15. In 2015, the offender’s mental situation deteriorated significantly after he was escorted away from his unit in Oman after blowing above the legal alcohol limit of .002. He was placed in a safe house during which time he was not allowed to make calls until the seventh day, when he was able to call his mother. His mother helped him secure a lawyer and eventually he returned to Sydney. He was then placed in a ‘holding unit’ and attended a drug and alcohol program on base.

16. Mr Finigan was then asked to do a further three years at sea, which he thought excessive. This posting was to be in Victoria, which distressed him, as his mother’s mental health was deteriorating at the time and he did not want to be far away from her. He also had pain in his shoulder which necessitated a shoulder operation, and he had his first panic attack. He reported that he ‘had a breakdown’, which led to his first contact with a Navy psychologist.

17. As a result of his deteriorating mood and the panic attack, Mr Finigan was admitted to the Navy mental health unit at the South Coast Pacific Hospital in Wollongong for five weeks in 2015. He noted that during this time he experienced intrusive suicidal ideation, but never attempted suicide or engaged in self-harming behaviour. Mr Finigan had his medication regime rationalised during this time. He said that during the first week he was given the antidepressant mirtazapine, which was changed to a low dose sedating and antipsychotic, chloropromazine. Mr Finigan described the benefits, but stopped taking the drug approximately one year later because he wanted to return to sea and medication was prohibited. After the first week at this facility, Mr Finigan completed a four week mood and anxiety course, which he found beneficial, particularly with respect to coping mechanisms and anxiety management. Mr Finigan’s mental health improved for six months, then deteriorated again, reportedly as a result of repeated surgical procedures.

18. At the time of the offences in February 2019, Mr Finigan was working in a Navy administrative role Monday to Friday in Sydney, as he had been medically downgraded following his second shoulder surgery. He said that at the time he was smoking three points of methamphetamine per day, sometimes whilst at work. He said he was smoking between 20-30 cones of cannabis a day, primarily in the evenings, using cocaine approximately twice a week, and using benzodiazepines on weekends. He was engaging in excessive use of Endone and Tramadol, usually in the evenings before going to sleep. He was angry about everything related to his current circumstances, had a poor diet, low appetite, poor energy, low levels of motivation, and a lack of sense of humour. He described his mental state as ‘numb’.

19. With respect to the offences, he recounted that an acquaintance asked him to clean a gun for him. He agreed, given his expertise with weapons, and stored the gun and ammunition. He said this acquaintance then ‘went missing’ and only returned to ask him to store the methamphetamines. The acquaintance then disappeared again. Mr Finigan was aware of the illegality of his behaviour but felt stressed and not sure what to do.

20. Mr Finigan said that he did not consider the potential ramifications of his involvement in the offending behaviour in depth at the time. Reflecting upon the offending to Dr Adams, he noted ‘massive regret…I wish I was thinking this clearly then, I wouldn’t have put myself in that situation.’ He described the deleterious impact his offending behaviour had on his partner, family and acquaintances.

21. During his time in custody, Mr Finigan observed that his recent emotional state has been ‘great’ as whilst in custody he has been able to avoid illicit substances and stressful situations. He receives regular visits twice a week and is employed on a daily basis as a gym sweeper, and hence is allowed to exercise daily. He has been abstinent throughout his time in custody.

22. On examination, Dr Adams described Mr Finigan as euthymic, ie in a normal mood state, not depressed, and found that there was no evidence of cognitive dysfunction. Mr Finigan demonstrated a good overall level of insight into his behaviour.

23. Dr Adams found that there was no clear evidence to conclude that Mr Finigan suffered from a major mental illness prior to the age of 20. Dr Adams believed that while Mr Finigan did not reach the threshold of suffering from post-traumatic stress disorder (PTSD) after returning from his first deployment, he did experience recurrent episodes of low mood and mounting anxiety, with periods of low mood lasting several weeks, amounting to symptoms associated with a major depressive illness.

24. Dr Adams observes that Mr Finigan’s description of his extensive drug taking after returning from his first tour would be consistent with a severe substance use disorder, which would have compounded underlying depression and anxiety. Dr Adams suggests that ‘given the chronology of his mental health changes, the pervasive nature of his symptoms of depression, the necessity for a psychiatric admission, and his family history of depression, in my view a comorbid diagnosis of a recurrent major depressive disorder is appropriate.’

25. Dr Adams notes that Mr Finigan’s instability intensified in 2015 as a result of a range of factors including disciplinary issues with the Navy, his mother’s deteriorating health, and ongoing physical issues.

26. Dr Adams states that ‘It is apparent that the offending behaviour was set in the context of Mr Finigan’s ongoing symptoms of major depression, a fourth surgical procedure, continuing pain, incapacity, concerns about his demotion in the Navy, his frustration with his administrative role, the suicide of three close acquaintances (identified by his partner), and his persisting severe substance use disorder. I understand that he was not prescribed any psychiatric medication, nor was he followed up with by a psychologist or psychiatrist. While there is no direct nexus between any one of these perpetuating factors and the offending behaviour, it is reasonable from a psychiatric perspective to conclude that this constellation of issues would have impacted upon his judgment, decision-making, and consequential thinking.’ I observe that the Crown pointed to this paragraph as evidence that there is a causal link, on the balance of probabilities, between the offender’s mental health issues and the offending: see DPP v De La Rosa (2010) 79 NSWLR 1.

27. Dr Adams noted that it was encouraging that Mr Finigan’s mental health had improved significantly during his time in custody.

28. In Dr Adams’s opinion, Mr Finigan should engage in long-term psychological therapy with a cognitive behavioural framework that should address psychoeducation, adaptive coping strategies, and relapse prevention. Drug and alcohol therapy should be included. Mr Finigan should remain abstinent for the long term. If Mr Finigan’s mental health does not remain stable or his symptoms of major depression were to no longer remain in remission, Dr Adams recommends that Mr Finigan should be referred to a psychiatrist, and antidepressant medication should be considered.

29. In Dr Adams’s opinion, if Mr Finigan engages with a management plan, it will significantly reduce the likelihood of future offending behaviour. Dr Adams said that Mr Finigan’s prognosis is currently favourable and his prospects of rehabilitation are promising.

30. Elizabeth Viola, who is the partner of Mr Finigan, provided an affidavit dated September 2019. She says that she first met Mr Finigan in 2013, at which point he was ‘always happy and positive, fun to be around’ and that he was passionate about his job in the Navy and he did not intend to leave.

31. Ms Viola observes that Mr Finigan’s demeanour changed once he was told that he was going to be posted back to the Middle East a few months after they started dating. When he came home in 2015, he was taking drugs on a regular basis, his mother was suicidal and Mr Finigan was his mother’s only support network. He took on the responsibility of paying his mother’s mortgage for two years as his parents were splitting up around that time. In July 2015, Mr Finigan had surgery on his shoulder and in October 2015 he had surgery on his foot. During this period, Mr Finigan’s mother tried (unsuccessfully) to commit suicide.

32. Ms Viola says that when Mr Finigan returned to work in 2015, he was demoted and given a pay cut. Even though he could not afford to make payments on his mother’s mortgage, he continued to help without informing his mother.

33. In 2017 following a surfing trip to Bali, Mr Finigan got injured and required a second shoulder surgery. Ms Viola became concerned about the amount of drugs he was taking. She says that in in late 2018, Mr Finigan had decided to quit the Navy with medical clearance in February 2019 and move to the coast with her to start a simple life with a family. In February, he was informed that his notice period was extended by six months, which by chance was also the week he was informed that three of his friends from the Navy had committed suicide – making a total of eight friends who had committed suicide since Mr Finigan joined the Australian Defence Force.

34. In 2020, Ms Viola will open her second Anytime Fitness franchise and would like Mr Finigan to be involved upon his release. She continues to love and support the offender.

35. The next tab of Exhibit 2 is a letter of apology from Mr Finigan. It states that ‘I am terribly remorseful and regretful for my decisions and actions that resulted to my incarceration, Also for letting my life sink to the point where I would be prepared to put other people at risk of harm. To the court the community and my family I am really sorry.’ [sic] The offender says that he got into the Navy because he wanted to ‘help and protect’ his country. He notes that his offending is a total contradiction of everything he has tried to achieve in his life, but that gaol gave him the opportunity to change his life in a positive way. He says that he wants to do good things with his life, start a family and never come back to court again.

36. All the following referees are aware of the matters before the court.

37. Luke Horsburgh, who served in the Navy with the offender, provides a character reference for the offender in which he states that Mr Finigan is an ‘honest, genuine, down to earth and very hard working person.’ Mr Horsburgh says that Mr Finigan’s actions which brought him before the court are ‘very disappointing’, out of character and ‘a direct result of Mr Finigan going through an extremely difficult period in his work and family life.’ He notes that Mr Finigan is a veteran who has served his country with dignity, will achieve success and will make a contribution to society. He states that he will continue to support Mr Finigan and his family in any and every way he can.

14. Maxwell Tough, who has been a friend of with the offender for over 25 years, provides a character reference, in which he states that Mr Finigan is his oldest friend. He notes that Mr Finigan’s parents suffer from alcoholism and that as a result, Mr Finigan took on caring for his younger sister and making mortgage repayments on the family home. He noted that Mr Finigan was intelligent, caring and grounded. He says that he has visited Mr Finigan multiple times in prison, that he believes Mr Finigan has had time to think about his actions and learn from his mistakes, and that he believes Mr Finigan will not reoffend.

15. Denise McCarthy is a teacher and family friend of the Finigan family. She states that her five daughters and the three Finigan children grew up together and that Mr Finigan has always been a polite and courteous young man. She notes that he remains someone that she, her husband, and their children hold in high regard. She says that she believes he has the determination to move on from this episode and that ‘he will do even greater things onwards to compensate for this lapse in his character.’

16. Korrin Ireland has known Mr Finigan for his entire life. She says he is a natural leader with a deep respect and love for his family. She believes that Mr Finigan ‘will achieve great things in his future and will have the full support of family and friends around him to ensure his success.’

17. Larry Malone is a retired Sergeant of Police who has known the offender for his entire life. He says that he provided Mr Finigan work experience with NSW Police at age 16, but as Mr Finigan was then too young to join the police, he suggested that Mr Finigan join the Navy. Mr Malone says that ‘I do not condone what Mathew has done, but knowing him from a very young age he had gained my trust and respect during that time’ [sic]. He says that in general Mr Finigan is a good young man, and he asks me to take that into consideration when sentencing the offender.

18. Kellie Chaffer, the Secretary and Treasurer of the Forresters Beach Boardriders Inc., has known Mr Finigan for the past five years, and notes that Mr Finigan has been a member of the club for the last 15 years. She states that she has observed that he actively mentors the under 18-year-old members (both girls and boys), that he assists in running contests on the one day per month they are held and is always the first to offer to cook food on the barbeque. He also acts as a water safety officer for children whilst they are in the water. She says that he is always polite, well-mannered and has a positive attitude towards life, is always socially engaged and makes an effort to include new members and their families into the club. She believes that Mr Finigan has ‘a heart of gold’, and is always willing to support the community club and its members.

19. Damian Gordon is a registered nurse who has been a family friend of the offender for almost 30 years. He recalls the ‘imperfect childhood with significant psychosocial stressors’ that Mr Finigan experienced. He says that despite this, Mr Finigan continued to be successful and joined the Navy, but that Mr Finigan’s extensive tours have ‘affected him on many psychological fronts.’ He notes that Mr Finigan remains ‘extremely polite, respectful and well mannered.’ He acknowledges the burden that this offending has placed on Mr Finigan, his parents, family and the community. Mr Gordon believes Mr Finigan is extremely remorseful, humble and possessed of a new drive to give back, both through his involvement with Forresters Beach Community Boardriders and by showing gratitude to his family.

Exhibit 3

44. Exhibit 3 consists of several documents obtained by Ms Viola in the preparation of the offender’s case.

45. A confidential letter from Thi Cam Le Le, Senior Psychologist, dated 19 November 2015, says that Mr Finigan was seen on 19 and 20 November 2015 and that he was distressed at the possibility of being placed farther away from his mother. Thi Cam Le Le noted Mr Finigan’s depressive and stress symptoms which then fell in the moderate range, but he anticipated that if the offender moved away from his mother, his symptoms would increase to the severe and extremely severe ranges, and would impede his mother’s recovery process as Mr Finigan was his mother’s primary emotional support. In his opinion, at that time the offender did not suffer a mental disorder. Neither did he pose a risk to himself or others.

46. A MECRB Decision Document dated 10 April 2017 noted the offender’s history of physical injuries, his admission to the South Coast Private Hospital in February 2016, and his undisclosed DUI which led to his demotion. It notes that his treatment with anti-depressant medication had ceased, and that the offender believed that he had recovered from his mental health symptoms.

47. Dr Nalin Wijesinghe, consultant psychiatrist, reported on 15 March 2016 that the offender was admitted under his care to the South Coast Private Hospital, Wollongong. Dr Wijesinghe says that Mr Finigan presented as a highly anxious man. He started Mr Finigan on Avanza, which over-sedated him, so it was ceased. He commenced him on Largactil 25mg nocte instead. He did not start the offender on anti-depressants, as he felt the diagnosis was one of adjustment disorder with anxious mood. Mr Finigan attended the mood and anxiety program which helped him cope with his stressors, and his anxiety eased further when he realised he could stay in Sydney.

48. A Navy Performance Appraisal Supplementary Report dated 14 September 2016 covers the period of 6 July 2016 to 31 August 2016, while Mr Finigan was loan-posted to the FBE gymnasium. The report notes that he was employed as a gymnasium attendant who assisted with duties including assisting in facilitating classes, cleaning, training and organisation of the gym. The report notes that Mr Finigan was ‘an energetic self starter who embraces all tasks with no fuss.’ Despite the fact that his role could at some times be mundane and unrewarding, Mr Finigan maintained a positive attitude throughout. He was considered ‘a well liked Sailor’ and ‘a valued member of the FBE gymnasium team.’

Oral Evidence from Ms Viola

49. In her oral evidence, Ms Viola confirmed that at the time of the offending, she was concerned about Mr Finigan’s level of drug taking, that he became anxious and depressed following his surgeries, and that he was much better when he had structure and routine. She said that she would continue to support the offender and she believed that his leadership and fitness training would be helpful in running her two Anytime Fitness franchises in Yass and Young. Ms Viola was not cross-examined by the Crown.

Crown Submissions

The Drug Offence

50. Mr Ng made able and helpful submissions on behalf of the Crown. He accepted that the role of the offender was that of a storeman, and that there was no indication that this offending was committed for the purpose of financial gain, despite the large commercial quantity of drugs found in his apartment. He observed that while the offender’s role was minor, the legislative guideposts for this offence were a maximum penalty of life imprisonment and a standard non-parole period of 15 years. He suggested that with regard to objective seriousness, this offence fell somewhere between the low range and the mid-range.

51. With respect to general deterrence, the Crown accepted that the constellation of mental health issues set out by Dr Adams meant that general deterrence had little role to play. The Crown did not disagree that the offender has significant unresolved, untreated, and undiagnosed mental health issues.

52. The Crown acknowledged that the offender had shown remorse for his actions.

53. So far as personal deterrence and rehabilitation are concerned, the Crown acknowledged that these factors did not have particularly large roles to play in this offence as the offender seems to otherwise have been a person of good character. He observed that this appears to be a ‘one off’ in which the offender has involved himself in a bad situation. Thus, rehabilitation plays less of a role, because there is little to rehabilitate from.

54. The Crown noted that the offender’s record disclosed an assault occasioning actual bodily harm in 2009 that resulted in a fine and some driving offences, but that the court could, for all intents and purposes, put those out of mind. The Crown acknowledged that the offender’s criminal history does not disentitle him to leniency.

55. Mr Ng submitted that there were no aggravating factors present. He agreed that there were a number of mitigating factors including the offender’s mental health issues, the fact that there was no substantial planning associated with the offence. Neither was there any financial reward, nor any evidence that Mr Finigan was living an extravagant lifestyle.

The Firearms Offence

56. The Crown said that with respect to objective seriousness, whilst any firearms offence was objectively serious, given all the questions surrounding the facts it was open to me to find that this offence was in the low range. He agreed that there was no evidence that the firearm was loaded or used, and that all we can know from the evidence before the court was that there was a FPO served on the offender, that he told police where the gun was stored and that it was in a bag.

57. Mr Ng submitted that there were offences on the Form 1 for possessing ammunition without license and not keep firearms safely, but that these did not go to the objective seriousness of the offence.

58. Mr Ng submitted that there should be a little accumulation between the two offences because, whilst the offending may be viewed as part of one course of conduct, the criminality involved in the two sequences is different.

59. The Crown submitted that the threshold of section 5 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act) had been crossed with respect to both offences and that the only appropriate sentence would be full-time custody. He submitted that it would be appropriate to fully backdate the sentence.

60. The Crown agreed that given the offender’s mental health issues, this being his first time in custody and his relative youth, I would not be in error in finding special circumstances and applying De La Rosa factors appropriately when assessing moral culpability.

Offender’s Submissions

61. Mr Goold, who appeared for the offender, handed up some brief written submissions and made oral submissions before me on 20 September 2019. He began by conceding that the section 5 threshold was crossed and that a period of full-time custody would be appropriate.

62. With respect to objective seriousness, Mr Goold suggested that both offences fell within the low range. He noted that with respect to the drugs offence, whilst the quantity of drugs is something that the court can take into account, its importance was diminished in this case given the minimal role played by the offender as storeman. He submitted that Mr Finigan’s role was of passive involvement.

63. Mr Goold agreed with the Crown’s submissions that the offender’s constellation of mental health issues did not make him an appropriate vehicle for general deterrence.

64. With respect to specific deterrence, whilst Mr Goold noted that the offender needed to be punished, he said that this offence had not been committed for financial gain and submitted that the extant mental health factors in this case significantly impacted on the offender’s moral culpability, meaning that personal deterrence also has a limited role to play.

65. Mr Goold agreed that there were no aggravating factors. With respect to mitigating factors, he submitted that there was no substantial planning, no financial reward, and no evidence that Mr Finigan was living an extravagant lifestyle.

66. With respect to rehabilitation, Mr Goold suggested that if the offender focused on psychiatric and psychological support, his unresolved mental health issues would likely improve if not resolve. Mr Goold said this should result in a complete rehabilitation from the use of drugs, and thus that Mr Finigan is unlikely to reoffend.

67. With respect to special circumstances, Mr Goold agreed with the Crown that a combination of mental health factors, first time in custody and the offender’s relative youth should be taken into account. He also suggested that there was a need for ongoing and lengthy supervision.

68. Finally, Mr Goold agreed that there should be some accumulation between the sentences.

Consideration

Plea of Guilty

69. The offender pleaded guilty at the earliest opportunity and he is entitled to a discount of 25% for the utilitarian value of his early plea.

Objective Seriousness

70. In relation to the drug offence, it was agreed between the parties that Mr Finigan acted as a ‘storeman’. There is no evidence that he was being paid for the storage of the drugs, and there is no suggestion that he was living a lavish lifestyle financed from the proceeds of crime. I find this role is at the lowest level of role for this type of offending. I find that whilst the offender’s role was at the lowest level, I must also take into account the large commercial quantity of the drugs as a factor. The drugs were of a weight of 5.484kg, which is over 10 times the large commercial quantity threshold. Therefore, I find that this offence falls between the low to mid-range of objective seriousness.

71. In relation to the firearms offence, whilst all firearms offences are objectively serious, I find that this offence falls at the low end of objective seriousness, as was agreed by Mr Ng and Mr Goold.

General Deterrence and Denunciation

72. I find that the offender is an inappropriate vehicle for general deterrence given his significant mental health issues which may result in a reduction of sentence which would otherwise be imposed: see DPP v De La Rosa [2010] NSWCCA 194. Notwithstanding that comment, I must still consider the large quantity of drugs, and the Form 1 offences when determining the appropriate sentence.

73. As was said in De La Rosa, the state of an offender’s mental health, where it contributes in a material way (as set out in Dr Adams’s report), may reduce an offender’s culpability. I find such a reduction in this case.

74. Further, the state of an offender’s mental health may have the consequence that the offender is an appropriate vehicle for general deterrence resulting in a reduction in sentence. I so find in this case.

Personal Deterrence and Prospects of Rehabilitation

75. I find that personal deterrence does not have a particularly large role to play in sentencing this offender for reasons already advanced; see De La Rosa. The report of Dr Adams highlights the extent to which the offender was influenced by his severe substance abuse disorder and significant unresolved mental health issues at the time of the offending. Therefore, I find that the significance of personal deterrence is by and large eliminated.

76. I note that Dr Adams in his report suggests that Mr Finigan’s prognosis is currently favourable and that his prospects of rehabilitation are promising. I also observe that he has a strong supportive community of close friends and family who have come to support him today, and that he has good prospects of employment working with Ms Viola in her Anytime Fitness franchises in Yass and Young upon his release. I expect that the offender will achieve rehabilitation when he accesses appropriate mental health services. I note too that he has been entirely abstinent since he was taken into custody – almost 10 months - which is not insignificant, and weighs in favour of his rehabilitation.

Remorse

77. I accept that the offender has expressed remorse and that he is genuine in his expressions. I note that he has consistently expressed remorse to various persons, and I find that he has demonstrated some insight, in particular in his statements to Dr Adams in which he stated his ‘massive regret…I wish I was thinking this clearly then, I wouldn’t have put myself in that situation.’

Prior Criminal History

78. The offender has a minimal prior criminal history of some driving offences and one previous assault occasioning actual bodily harm in 2009. I find that the offender’s criminal history, such as it is, does not disentitle him to leniency in all the circumstances. No submissions to the contrary were put.

Totality

79. A court sentencing an offender for more than one offence must determine the appropriate sentence for each individual offence and then consider questions of accumulation or concurrence bearing in mind the principle of totality. The effect of the totality principle is to require me, having assessed all individual sentences, to stand back and consider whether the overall sentence to be imposed is just and appropriate and reflects the overall criminality of the offending. [1]

    1. Mill v The Queen (1988) 166 CLR 59 at [63].

80. In Cahyadi v R [2007] NSWCCA 1 at [27], the NSWCCA said the following regarding the principal of totality:

… there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.

81. This in turn requires consideration to be given to whether the sentences to be imposed for each offence should be concurrent or cumulative. I also take into account the matters on the Form 1, and I have carefully considered section 33 of the Sentencing Act and the judgment of Spigelman CJ in Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 22 (2002) 56 NSWLR 146 at [39] – [42]. This has the effect of increasing the sentence that would otherwise have been imposed for the principal offences, although I note that in this case that effect is minimal.

82. In this instance, the firearm offence overlaps to some extent with the drug offence in that the offender was in possession of both at the same time – although not in the same location at his premises. I note that a sentence must not be concurrent simply ‘because it may be seen as part of the one course of criminal conduct’[2] . The question for me is whether or not the offence of possess unregistered firearm can be encompassed in the sentence for supply large commercial quantity of methylamphetamine. I find that whilst the offender was storing both the firearm and the drugs at the same time in the same apartment and reportedly received them from the same acquaintance, these offences were different and distinct from one another. I have determined that there should be some small degree of accumulation between the offences.

    2. R v Jarrold [2010] NSWCCA 69 at [56].

Special Circumstances

83. Having regard to the offender’s ongoing need for psychological therapy, and drug and alcohol counselling, and psychiatric intervention which will assist in his rehabilitation, I make a finding of special circumstances. He clearly will require a lengthy period of supervision upon his release. I note that the Crown agreed that I should make such a finding.

Threshold

84. Having considered all the possible alternatives, I am satisfied that the section 5 threshold has been crossed. Due to the seriousness of the offences, I find that no penalty other than imprisonment is appropriate. No submissions were put otherwise.

Sentence

85. I have taken into account the various purposes of sentencing under s3A of the Sentencing Act. They include: ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender’s rehabilitation, making an offender accountable for his or her actions, denouncing an offender’s conduct and recognising the harm done to victims of an offence in the community. As I have said, with respect to Matthew Finigan, the facts and circumstances of the present offences and this offender highlight how the various purposes of sentencing pull in competing directions – especially given that the offender’s own addiction to multiple drugs and history of mental health issues played a significant contributing role in his offending behaviour.

86. As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]:

87. The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476–477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.

88. The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of each offence, matters affecting relative seriousness, the offender’s subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalty and the standard non parole period and the factors referred to in s21A of the Sentencing Act. The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances (Markarian v The Queen [2005] HCA 25).

89. Matters adverse to an offender must be proved beyond reasonable doubt whilst those favourable to an offender need only be proved on the balance of probabilities. The parties agree and I accept that there are no aggravating factors. There are a number of mitigating matters (all noted above) that come into play as referred to in s21A(3) of the Sentencing Act.

90. I intend to proceed to sentence the offender by way of an aggregate sentence pursuant to s53A of the Sentencing Act. I have been mindful to ensure that the aggregation of the sentences reflects an appropriate measure of the total criminality involved, taking into account all relevant matters including the offender’s mental health.

91. In determining an appropriate sentence I have kept in mind the two legislative guideposts: the maximum penalties, which are life imprisonment or 5000 penalty units or both for the supply of large commercial quantity of drugs offence, and imprisonment for five years for the possess firearms offence, and the fact that there is a standard non-parole period of 15 years for the drugs offence and no standard non-parole period for the possess firearms offence.

92. As I am satisfied that no alternative other than a sentence of imprisonment is appropriate, the next step is to determine the aggregate sentence. Having considered all of the matters I have referred to in this sentence judgment, I impose an aggregate sentence of imprisonment for 3 years, 9 months. This is the effective sentence after applying a 25% discount for the offender’s early guilty plea. Had this discount not been applicable, the aggregate sentence would have been imprisonment for 5 years.

93. I take into account that the offender has served 258 days in custody.

94. As required by s53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the indicative sentences I would have imposed are as follows:

1. For the offence comprising count 1 on the indictment, namely possess unregistered firearm (Remington pump action rifle) contrary to section s36(1) of the Firearms Act 1996, I would have imposed an indicative sentence of imprisonment of 12 months. Taking into account the offender’s plea of guilty, the effective indicative sentence for this offence would have been reduced to 9 months.

2. For the offence comprising count 2 on the indictment, namely supply large commercial quantity (5.484 kilograms) of methylamphetamine, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), I would have imposed a sentence of imprisonment for four years 6 months. Taking into account the offender’s plea of guilty, the effective indicative sentence for this offence would have been reduced to 3 years and 4 months. The non-parole period would be 2 years and 2 months.

95. I set a non-parole period of 2 years 2 months, which represents a variation in the statutory ratio to approximately 58% in light of special circumstances.

Orders

96. Mr Finigan, please stand.

97. You are convicted of the offences of:

1. possess unregistered firearm (Remington pump action rifle) contrary to section s36(1) of the Firearms Act 1996 (NSW); and

2. supply large commercial quantity (5.484 kilograms) of methylamphetamine, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW).

98. Taking into account the matters on the Form 1, you are sentenced to an aggregate term of imprisonment of 3 years 9 months. The aggregate sentence I impose consists of a non-parole period of 2 years 2 months commencing from 5 February 2019 and a head sentence of 3 years 9 months. You will become eligible to be released on parole on 4 April 2021. I have deviated from the statutory ratio of 75% because I have found special circumstances.

99. If separate sentences had been imposed instead of an aggregate sentence, for the offence of possess unregistered firearm (Remington pump action rifle) contrary to section s36(1) of the Firearms Act 1996, I would have imposed a head sentence of 9 months. This term has been reduced by a discount of 25% for the plea of guilty. Had the discount not been applicable, I would have sentenced you to 12 months.

100. For the offence of supply large commercial quantity (5.484 kilograms) of methylamphetamine, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985, I would have imposed a sentence of 3 years 4 months and the non-parole period would have been 2 years 2 months. This term has been reduced by a discount of 25% for the plea of guilty. Had the discount not been applicable, I would have sentenced you to a period of imprisonment of 4 years 6 months.

101. I direct that the report of Dr Adams dated 22 August 2019 be put on the Justice Health file of the offender.

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Endnotes

Decision last updated: 24 October 2019