R v Frederickson-Angell

[2021] NSWDC 22

District Court

New South Wales

Medium Neutral Citation:

R v Frederickson-Angell [2021] NSWDC 22

Hearing dates:

22 January 2021

Decision date:

12 February 2021

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Period of three years imprisonment to be served by Intensive Correction Order. For orders see [89]

Catchwords:

Multiple possession and deemed supply of prohibited drugs offences; weapons offences; youthful offender; aggregate sentence

Legislation Cited:

Confiscation of Proceeds of Crime Act 1989

Crimes Act 1900

Criminal Procedure Act 1986

Drug Misuse & Trafficking Act 1985

Explosives Act 2003

Firearms Act 1996

Government (Information) Public Act 2009

Weapons Prohibition Act 1998

Cases Cited:

BP v R [2010] NSWCCA 159

Bugmy v R

Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41

Chong v R [2017] NSWCCA 185

Dang v R [2013] NSWCCA 246

IS v R [2017] NSWCCA 116

KT v R [2008] NSWCCA 51

Pearce v R [1998] HCA 57

R v Gorman [2002] NSWCCA 516

R v McMaster [2020] NSWDC 673

R v Pullen [2018] NSWCCA 264

R v Robertson [2017] NSWCCA 205

Wany v DPP [2020] NSWCCA 318

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Tory-John Frederickson-Angell (Offender)

Representation:

Counsel:
M Smith (Offender)

Solicitors:
D Sercombe (Crown)

File Number(s):

19/392180
20/62776

Publication restriction:

Nil

REMARKS ON SENTENCE

1. The offender is to be sentenced in respect of the following five offences to which he has pleaded guilty:

Sequence 1 – possess prohibited weapon pursuant to s 7(1) of the Weapons Prohibition Act 1998

The maximum penalty for this offence is 14 years imprisonment and there is a Standard Non-Parole Period of 5 years imprisonment.

Sequence 2 – supply prohibited drug greater than indictable and less than commercial quantity pursuant to s 25(1) of the Drug Misuse & Trafficking Act 1985 (“DMTA”).

The maximum penalty for this offence is 15 years imprisonment and/or a $220,000.00 fine. There is no Standard Non-Parole Period.

Sequence 3 – possess unauthorised pistol pursuant to s 7(1) of the Firearms Act 1996

The maximum penalty for this offence is 14 years imprisonment and there is a Standard Non-Parole Period of 4 years imprisonment.

Sequence 7 – supply prohibited drug greater than indictable quantity and less than commercial quantity pursuant to s 25(1) of the DMTA

The maximum penalty for this offence is 15 years imprisonment and/or $220,000 fine. There is no Standard Non-Parole Period.

Sequence 11 – knowingly deal with proceeds of crime pursuant to s 193B(2) of the Crimes Act 1900

The maximum penalty for this offence is 15 years imprisonment and there is no Standard Non-Parole Period.

2. The following matters are to be dealt with as related matters on a certificate pursuant to s 166 of the Criminal Procedure Act 1986:

Sequence 5 – possess prohibited drug pursuant to s 10(1) of the DMTA

The maximum penalty for this offence is 2 years imprisonment and/or $2,200 fine.

Sequence 9 – handle explosive pursuant to s 6(1) of the Explosives Act 2003

The maximum penalty for this offence is 12 months imprisonment and/or a $27,500 fine.

Sequence 10 – possess ammunition pursuant to s 65(3) of the Firearms Act 1996

The maximum penalty for this offence is a $5,500 fine.

Sequence 12 – possess prohibited drug pursuant to s 10(1) of the DMTA

The maximum penalty for this offence is 2 years imprisonment and/or $2,200 fine.

Sequence 13 – possess prohibited drug pursuant to s 10(1) of the DMTA

The maximum penalty for this offence is 2 years imprisonment and/or $2,200 fine.

3. There are a further three charges that are to be withdrawn, namely, Sequences 8, 14 and 15.

4. The offences occurred on 12 December 2019, on which day the offender was arrested. He has been in custody since that day.

The sentence hearing

5. The sentence hearing took place on 22 January 2021. The Crown Sentence Summary became Ex A and it included a Statement of Agreed Facts which may be summarised as follows.

6. The offender, who was born in November 1997, was 22 years of age when police executed a search warrant on the home he shared with his girlfriend. When contacted by police by phone and advised of the search warrant, the offender indicated to police that there were prohibited drugs within the premises. The search revealed the following:

1. A pair of knuckle-dusters, which are a prohibited weapon under Schedule 1 of the Weapons Prohibition Act 1998 (Sequence 1).

2. A clear plastic container containing 4.95 grams of the prohibited drug 3-4 Methylenedioxymethylamphetamine (MDMA) (Sequence 2).

3. A tupperware container with numerous empty capsules.

4. Numerous plastic bags and containers containing cannabis. The total quantity of cannabis seized was 267.7 grams (Sequence 12).

5. A black tin containing a small, clear resealable bag containing 0.14 grams of the prohibited drug, N-N – dimethyltryptamine (DMT) (Sequence 5).

6. A black-grey coloured gel ball calibre meeting the definition of pistol as defined in s 4(1) of the Firearms Act 1996 (Sequence 3).

7. A container of hydrated gel balls suitable for use with the gel ball calibre weapon. The gel balls satisfied the definition of ammunition as defined in s 4(1) of the Firearms Act 1996 (Sequence 10).

7. When the offender arrived at the property he was placed under arrest and made admissions as to possession of the prohibited drugs and knuckle-dusters. Further searching of the premises revealed the following:

1. A glass jar containing approximately 500 millilitres of honey with mushrooms, which the offender admitted were “magic mushrooms”. The mushrooms contained the prohibited drug psilocin in a quantity of 446.5 grams (Sequence 13).

2. A small plastic container containing 12 bags of cocaine, with a total quantity of 8.27 grams (Sequence 7).

3. $10,190.00 in cash, being proceeds of crime from supplying prohibited drugs.

4. A further $2,000 in cash also proceeds of crime from supplying prohibited drugs (Sequence 11).

5. A large, clear plastic bag containing at least 15 medium combination fireworks. The fireworks meet the definition of “explosives” for the purposes of the Explosives Act 2003 (Sequence 9).

8. The offender’s mobile phone was seized and forensically examined. It included numerous text messages relating to the supply of prohibited drugs. The text messages were attached to the Agreed Facts as Annexure A.

9. The offender participated in an ERISP interview in which he made full admissions in relation to the various drugs and other items. In relation to the cash seized, he stated it was from small poker machine wins, however, he could provide no further information.

10. Exhibit A included a New South Wales Police report which showed the offender had one conviction on 22 February 2018 for drive vehicle with illicit drug present in blood, for which he received a $450 fine and was disqualified from driving for a period of six months.

11. Exhibit A also included a Sentencing Assessment Report under the hand of Ms Kay Fernandez dated 18 January 2021. The author noted that the offender was employed full-time as a glazier, however, in the period leading up to his arrest, he was having periods off work due to seizures he was suffering for unknown reasons.

12. Under the heading “Attitudes”, the author noted that the offender acknowledged his actions were wrong, but had attempted to rationalise his actions in that “he was not supplying to children”, but to friends only.

13. The offender reported a history of drug use that started at age 12, which he attributed as a means of self-medicating to deal with life’s stressors. Leading up to the arrest he reported using cannabis daily as well as hallucinogens and alcohol on weekends.

14. Under the heading “Financial”, the author noted that the offender stated he was supplying drugs to support his addiction and denied supplying for financial benefit. However, he admitted to financial stress which arose from accruing a drug-related debt during his periods off work.

15. Under the heading “Mental health”, the offender described a history of symptoms associated with depression, but was not receiving any psychological intervention. He was willing to engage with mental health services upon his eventual release from custody.

16. Under the heading “Insight into impact of offending”, the offender acknowledged that having possession of weapons could be perceived as intimidating, however, he appeared to minimise this by stating that the weapon “wasn’t real” and that he only used it with his friends. He did identify the negative impact on the community of his actions as a result of supplying drugs.

17. The author assessed the offender as a low/medium risk of reoffending and assessed him as suitable to undertake community service work.

18. Exhibit B comprised two photographs of the gel calibre pistol.

The offender’s evidence

19. The offender tendered a bundle of documents which became Ex 1.1 to 1.7. Exhibit 1.1 was a report of Dr G Chew, consultant psychiatrist, dated 24 December 2020. Dr Chew assessed the offender via AVL on that date, and set out relevant matters of the offender’s history. He reported a significant seizure disorder since 2018 and was currently taking medication to control same. He did not have a diagnosis, however, Dr Chew opined that this was “most likely epilepsy exacerbated by illicit drug use”.

20. The offender expressed remorse for his offending behaviour. He reported using cannabis daily, and also regular MDMA and cocaine use on weekends, usually in conjunction with consumption of alcohol. He admitted the substances he had possession of were mainly for personal use, but he was also selling small amounts to help pay for his own addiction. He had been abstinent from drugs since his arrest and had been working in the metal shop in custody since January 2020.

21. The offender had reported being depressed at the end of 2019, but had not undergone any treatment.

22. Dr Chew diagnosed the offender as suffering from the following:

“a. Depressive Disorder in the context of childhood adversity and illicit drug use.

b. Severe Substance Use Disorder currently in remission in a controlled environment.

c. Seizure Disorder – likely epilepsy complicated by substance use.”

23. Dr Chew reported that the offender’s mental condition may have contributed directly to the commission of the offending behaviour by affecting his judgment. His Substance Use Disorder:

“May have contributed to the offending behaviour by exacerbating his depression and providing a significant motive to possess substances.”

24. Dr Chew further opined that his risk or reoffending was lowered by treatment and abstinence from illicit drugs.

25. Exhibit 1.2 was an affidavit affirmed by the offender’s paternal grandmother, which set out the family history. She deposed that the offender was exposed to illicit drug taking from an early age. His parents separated when he was aged two, and when he was aged 11, his grandmother obtained custody of the offender. At the age of 12 he went to live with his mother and within six months, his mother was arrested on a serious charge of aggravated detention for advantage of a young person, which involved a dispute over a drug debt. She was found guilty following a trial and sentenced to a number of years imprisonment. The offender and his sisters were removed from their mother’s care and were placed in a foster home. The offender was therefore exposed to drug taking and abuse from an early age. He was returned to the care of his grandmother and stayed with her until after he had completed his Higher School Certificate.

26. Ms Sharp deposed that the offender commenced an apprenticeship as a glazier in 2019. He and his partner moved in to a unit together in 2018, following which the offender started to have seizures. Medical advice was to the effect that the seizures were caused by his drug use.

27. Ms Sharp further deposed that the offender had assisted her in her hobby as a dog breeder and showing dogs. She set out her own experience of being in custody and the advances she had made in life since her release. The offender has her full support and she expressed confidence that he will be able to put his past behind him following his release from custody. She regarded his arrest and custody as “a really big wake-up call”. Upon his release, the offender had expressed to her a wish to move away from Sydney with his partner and start life fresh. He will go back to working as a glazier and has her full support.

28. The affidavit annexed the records from Department of Family and Community Services which supported the history outlined by the deponent.

29. Exhibit 1.3 was an affidavit affirmed by the offender’s solicitor, annexing the offender’s custody records obtained pursuant to a request under the Government (Information) Public Act 2009. The records noted that the offender was employed in the metal shop and demonstrates a great work ethic, producing great quality of work. There were no issues with his behaviour in custody.

30. Exhibits 1.4, 1.5 and 1.6 are testimonials written by Tara Herd, Brittany Jacksmith and Joshua Fry, which all speak highly of the offender as a young man who has the support of his family and friends, and is caring of those around him. They also speak of the adversity the offender faced as a child, his remorse for his offending and his intentions to turn his life around.

31. Exhibit 1.7 is a letter written by the offender to the court expressing his remorse and contrition, and taking full responsibility for his criminal conduct. The offender outlined his family history and his exposure to drug use, alcoholism and domestic violence from a young age, and his placement in a foster home before going into his grandmother’s custody. He stated that he turned to alcoholism and drug use as a coping mechanism and became reliant on drugs and addicted to them. He began selling drugs in order to feed his habit. The offender expressed being ashamed of his actions, but was proud that he had not let his time in custody go to waste. He had completed a number of courses, participated in art classes, and worked full-time in the metal shop from January 2020 until the present time. He now had insight into the harm done by drugs in the community and intended to continue his rehabilitation, utilising the strong support network that he has found in his friends and family.

32. Exhibit 2 was a letter written by Reverend L Tukutama dated 21 January 2021. He is the chaplain at Parklea Correctional Centre and he set out a number of programs completed by the offender. He noted that the offender had expressed a deep sense of remorse and had accepted responsibility for his very poor decisions made in the past. He was impressed with the offender’s consistent attendance at worship and his acceptance of responsibility, and commitment to building and living a much healthier lifestyle upon his release from custody. He described the offender as:

“A compassionate, kind and very humble young man, who always wanted to do the right thing with his life and others around him.”

33. Exhibit 3 was a still photograph taken from the video of the execution of the search warrant at the offender’s premises. The purpose of its tender was to explain to the court the location of a number of items that are the subject of the charges.

The Crown submissions

34. The Crown relied on a written outline of submissions. Sequences 2 and 7 related to supplying not less than an indictable amount of MDMA and cocaine. Sequence 2 is a deem supply of 4.95 grams of MDMA, against an indictable quantity of 1.25 grams. The commercial quantity is 500 grams of MDMA.

35. Sequence 7 is a deem supply of 8.27 grams of cocaine. The indictable quantity of cocaine is 5 grams and the commercial quantity 250 grams.

36. Whilst each of the quantities of prohibited drugs are substantially less than the proscribed commercial quantity, they nevertheless were above the indictable quantity. The offender was also in possession of 0.14 grams of DMT (Sequence 5), 267.7 grams of cannabis (Sequence 12), and 446.5 grams of psilocin (Sequence 13). The Crown submitted that whilst the individual quantities are relevant to the overall assessment of objective seriousness, the quantity alone is not the sole determinant.

37. The Crown submitted that each of the offences needed to be assessed, having regard to the whole of the circumstances including the presence of the following indicia of supply:

1. The cocaine was individually packaged within 12 separate bags

2. Numerous empty capsules were located near the MDMA

3. Numerous drug-related messages were retrieved from the offender’s mobile phone

4. A significant quantity of cash was located.

38. The cash amounted to $12,190.00 (Sequence 11). That amount was found in two different locations and constituted proceeds from supplying prohibited drugs.

39. The Crown submitted that the offender’s role was to be assessed, having regard to his involvement and the steps undertaken by him to commit the offences, relying on Chong v R [2017] NSWCCA 185 at [71]. The Crown submitted that the evidence reflects the considerable degree of involvement with the supply of prohibited drugs.

40. The Crown submitted that the nature of the text messages located on the offender’s phone indicated a familiarity with drug supply processes. Negotiations took place as to price and different prices were allocated to drugs in varying states (for example, raw or capped). The evidence led to a conclusion that the presence of the prohibited drugs located at his property for the purposes of supply was not an isolated irregular occurrence, but rather, an ongoing and profitable business. The Crown submitted that the offender realised a significant financial benefit from his drug supplying activities which was reflected in the substantial amount of cash hidden at his home. This was indicative of an involvement in drug supply that exceeded merely supplying his own drug use, which in turn bears upon his moral culpability: see Dang v R [2013] NSWCCA 246.

41. Notwithstanding the above, the Crown submitted that the seriousness of the drug offences fell below the mid-range for offences of their type.

42. In respect to the weapon and pistol offences, Sequence 1 involved the possession of knuckle-dusters and Sequence 3 involved the possession of an unauthorised pistol, namely a gel ball calibre pistol. Whilst there was no evidence that the weapon or pistol had been used, they were located in close proximity to quantities of drugs and indicia of drug supply. The Crown submitted that an inference could be drawn that they were connected with the offender’s drug supply activity. Both items were capable of presenting a threat and instilling fear. The pistol was “capable of inflicting a serious injury if it was used to strike the eyes of the victim with a projectile”, relying on R v McMaster [2020] NSWDC 673 at [63].

43. The Crown submitted that the objective seriousness of these offences fell below the mid-range.

44. Sequence 10 was an offence of possession of hydrated gel balls as ammunition for gel ball calibre pistol. Sequence 9 involved possession of explosives, namely 15 medium combination fireworks. The Crown submitted that both offences fell in the low range of objective seriousness.

45. The Crown conceded that the offender entered pleas of guilty at the earliest opportunity and was entitled to a 25% discount on sentence. Further, he had only one prior conviction relating to driving with an illicit drug present in his blood.

46. With respect to the offender’s prospects of rehabilitation, the Crown submitted that that was dependent on his ability to abstain from the use of prohibited drugs.

47. The Crown submitted that the threshold in s 5 had been crossed and that any sentence should be backdated to 12 December 2019 when the offender went into custody. General deterrence, denunciation and protection of the community were significant considerations in sentencing here. Further, a confiscation order was to be made in respect of the amount of $12,190 pursuant to the Confiscation of Proceeds of Crime Act 1989. The offender consented to that order.

38. The Crown also sought a drug destruction order pursuant to s 39B of the DMTA.

39. Finally, Sequences 8, 14 and 15 on the s 166 Certificate were back-up charges to be withdrawn.

40. In her oral submissions, the Crown referred to self-serving statements contained in the Sentencing Assessment Report, Ex 1, and the offender’s letter to the court. These should be approached with caution, as they were designed to lessen his role in the offending, for example, the reference in the SAR that he was selling to his friends only. A further example was that he was supplying to support his addiction and not for financial benefit, which was not supported by the facts. Also, “the gel ball calibre pistol was not real and was only used with his friends”. In his letter to the court, the offender had described selling drugs to finance the purchase of drugs for his personal use only, which was not borne out by the evidence.

41. The Crown submitted that such statements are to be given no weight. There had been no opportunity to test those statements by cross-examination and there was evidence to the contrary, namely the indicia of drug supply found in his premises and the significant amount of cash.

42. With respect to the pistol and knuckle-dusters, the Crown submitted that as the weapons were found in the same room as the drugs, an inference can be drawn that they were connected with his drug supply activities and thereby increased the objective seriousness of the offences.

Submissions on behalf of the offender

53. Learned counsel for the offender also relied on a written outline of submissions. In relation to the deemed drug supply charges, it was submitted that the total amount of drugs possessed by the offender for the purpose of supply was modest. Sequence 2 involved 4.95 grams of MDMA, which was almost four times the indictable quantity but less than 4% of the commercial quantity applicable to that drug. Sequence 7 involved 8.27 grams of cocaine, which was less than twice the indictable quantity and only slightly more than 3% of the commercial quantity applicable to that drug.

54. It was submitted that the SMS messages in Annexure A to the Agreed Facts did not suggest the offender was part of a broader supply network. Rather, he was involved in directly distributing amounts of prohibited drugs and it followed it was he who was exposed to the greatest risk of detection by law enforcement officials.

55. The offender submitted there was no sophistication in the drug supply operation. The offender did not utilise runners, nor did he use encrypted phones or applications. Further, he used only the most rudimentary code words and appears to have supplied drugs from his own premises.

56. It was submitted the objective seriousness of the offending conduct fell well below the mid-range of objective seriousness for the drug supply offences. Whilst the offences were not isolated, the amount of drug in each case was towards the bottom end of the applicable range and the operation was demonstrably unsophisticated in nature.

57. With respect to the weapons offences, it was submitted that both offences fell well below the mid-range of objective seriousness. The knuckle-dusters the subject of Sequence 1 are significantly less serious than other weapons captured by s 7(1) of the Weapons Prohibition Act 1998. The gel blaster calibre pistol, the subject of Sequence 3, was also objectively a much less serious weapon than other types of firearm covered by s 7(1) of the Firearms Act 1996. The gel blaster was located in its box on an entertainment unit in the offender’s lounge room and there is no evidence that the weapon, which was incapable of inflicting injury, was associated with the offender’s drug supply activity.

58. It was submitted that the offence, Sequence 11, of knowingly deal with proceeds of crime pursuant to s 193B(2) of the Crimes Act 1900, was also below the mid-range of objective seriousness having regard to the amount of money involved.

59. Learned counsel referred to well known sentencing principles. The offender did not have relevant matters on his criminal history and was entitled to be treated as a person of prior good character. His subjective case was dominated by his chaotic and deprived upbringing as demonstrated by:

1. His parents separating when he was approximately 2 years of age.

2. Both parents were drug users who appear to have been involved in criminal activity.

3. By the time he was aged 12, the offender had changed from living with one relative to another five times before being removed into foster care for a time.

4. Neither of the offender’s parents provided a stable and suitable home life for the offender. The offender’s mother’s home was “chaotic” and his father failed to provide a clean and stable environment for the offender.

5. Both parents had contact with the criminal justice system. The offender’s mother had served a lengthy sentence of imprisonment following her conviction for a kidnapping offence.

6. During his high school years the offender’s mother and sister were both incarcerated and their crimes were the subject of media attention.

7. The offender was exposed to domestic violence, drug use and criminal activity while in his parents’ care.

60. From the age of 13 to 18 the offender resided with his paternal grandmother in a supportive environment, however, it was submitted that his chaotic and disturbed early childhood was sufficiently deprived to reduce the offender’s suitability as a vehicle for general deterrence, relying on IS v R [2017] NSWCCA 116.

61. It was submitted that the offender had excellent prospects of rehabilitation. He had completed his Higher School Certificate, and also completed an apprenticeship and qualified as a glazier. He had no relevant criminal history and had been of exemplary behaviour whilst in custody. Further, the testimonial evidence before the court confirms the offender has the support of his family, partner and friends. The offender accepted that his long term rehabilitation is inextricably linked to abstinence from prohibited drugs, but given his ability to overcome his unfortunate childhood and his performance in custody since his arrest, he is entitled to a finding that he has excellent prospects for rehabilitation.

62. It was submitted that the offender has clearly accepted responsibility for his criminal conduct and is remorseful.

63. In applying principles of totality to an aggregate sentence pursuant to s 53A of the CSPA, any degree of accumulation between the sentences should be modest, relying on Pearce v R [1998] HCA 57 and R v Gorman [2002] NSWCCA 516.

64. It was submitted that any sentence of imprisonment imposed should be served by way of an Intensive Correction Order pursuant to s 7 of the CSPA. Counsel referred to R v Robertson [2017] NSWCCA 205, where the Court of Criminal Appeal rejected the rigidity of the previous approach by the courts whereby offences of substantial drug supply meant that unless exceptional circumstances were demonstrated, a custodial sentence should be imposed. It was submitted that appropriate conditions could be attached to an ICO to ensure community safety.

65. In his oral submissions, learned counsel submitted that whilst the evidence did not support a finding that the offender was a user/dealer only, his drug abuse was a precursor to his involvement in the criminal activity of deemed drug supply.

66. With respect to the firearms offence, it was submitted that the gel blaster fired gel balls similar to a “paint ball” from a hopper placed on top of the firearm. Whilst the implement was not legal in New South Wales, it was in other jurisdictions and fell at the bottom end of the range of objective seriousness for an offence pursuant to s 7(1) of the Firearms Act. There was no evidence that the gel blaster had been used or was intended to be used in connection with the supply of prohibited drugs.

67. With respect to the objective seriousness of the drug offences, the offender generally did not cavil with the Crown’s submissions. There were indicia of drug supply and it was not a one-off offence. However, the evidence supported a finding that it was a most unsophisticated enterprise and the objective seriousness of the offending in each charge fell at the bottom of the range of objective seriousness.

68. It was submitted that the Crown had not cavilled with the subjective factors outlined by Ms Sharp. The evidence supported a finding of a chaotic early childhood until his grandmother provided a good environment for him, which meant that he finished school and obtained a trade. Whilst the evidence of deprivation did not extend to the same extent as that of the appellant in Bugmy v R, it was sufficient to diminish his moral culpability for the offending here. In accordance with principle, it significantly diminished him as a vehicle for general deterrence in the sentencing process. His childhood had the effect of desensitising him to drug use, which diminished his moral culpability.

69. Counsel rehearsed his submissions as to the subjective factors here. The offender had a trade, a partner, good prospects of a job in the future and excellent prospects of rehabilitation. This was supported by his custodial record, which indicated that he was highly regarded by his supervisors. This also demonstrated that the offender had overcome adversity in the past and would do so again. He did, however, require help, having regard to a lengthy and entrenched addiction to drugs. The Crown had submitted that his prospects of rehabilitation were inextricably linked to his drug addiction, however, in all of the circumstances, he was entitled to a finding that he had excellent prospects of rehabilitation, but with assistance.

70. Counsel submitted that the s 5 threshold had been crossed for some of the offences, but not all. An aggregate sentence pursuant to s 53A would amount to a head sentence not exceeding 3 years which would invite consideration for his suitability to serve any sentence in the community by way of an Intensive Correction Order. Counsel also referred to protection of the community being better served in the community relying on Wany v DPP [2020] NSWCCA 318 per McCallum J. The offender had been relatively youthful at the time of the offending, which was also relevant to the sentencing process, relying on BP v R [2010] NSWCCA 159.

Determination

71. Section 3A of the C(SP)A sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

72. I make the following findings of objective seriousness for each of the offences, having regard to the whole of the circumstances of the offending, including the presence in the offender’s home of the various indicia of drug supply relied on by the Crown, as follows:

1. Sequence 1, an offence pursuant to s 7(1) of the Weapons Prohibition Act 1998, concerned the possession of a knuckle-duster. By comparison with other prohibited weapons caught by the section, this item fell in the low-range of objective seriousness, given that it had limited capacity to harm others. There was no evidence supporting a finding that it had been used or was intended to be used by the offender in connection with his drug supply enterprise. For that reason, I find that the objective seriousness of the offence fell within the low‑range for an offence pursuant to s 7(1) of the Weapons Prohibition Act 1998.

2. Sequence 2 – involved the deemed supply of 4.95 grams of MDMA, which was some four times more than the indictable quantity for that drug, but well below the commercial quantity of 500 grams. It fell within the low-range for an offence pursuant to s 25(1) of the DMTA and towards the middle of the low-range.

3. The objective seriousness of the offending in Sequence 3, possession of unauthorised pistol pursuant to s 7(1) of the Firearms Act 1996, concerned the gel ball calibre pistol. Given the nature of the firearm and its limited ability to cause harm, I find that the objective seriousness of the offending fell within the middle of the low-range of objective seriousness for an offence pursuant to s 7(1) of the Firearms Act 1996.

4. Sequence 7 related to the deemed supply of 8.27 grams of cocaine against an indictable quantity of 5 grams and a commercial quantity of 250 grams. It fell within the low-range of objective seriousness for an offence pursuant to s 25(1) of the DMTA.

5. The objective seriousness of the offending in Sequence 11, the offence of knowingly deal with proceeds of crime, pursuant to s 193B(2) of the Crimes Act 1900, concerns an amount of cash in the sum of $12,190.00 which are proceeds of the offender’s drug supply enterprise. For an offence pursuant to s 193B(2), it is a relatively modest sum of money, and is the proceeds of an unsophisticated drug supply operation which was easily capable of detection by the authorities. For those reasons, I assess the objective seriousness of the offending as within the low-range for an offence pursuant to s 193B(2) of the Crimes Act 1900.

6. In respect of the related matters subject to the s 166 Certificate, namely Sequences 5, 9, 10, 12 and 13, the objective seriousness of the offending in respect of each charge falls at the low-range of objective seriousness for such offences.

73. General deterrence is important in sentencing for drug supply offences and firearms and weapons offences. A clear message must be sent to like‑minded persons in the community that Parliament has proscribed severe maximum penalties and that the courts will impose condign punishment in appropriate cases. Specific deterrence is also important in that the offender must understand that continued offending will result in longer periods of imprisonment being imposed.

74. It is well established that in sentencing juveniles, emphasis must be given to rehabilitation rather than general deterrence and retribution when sentencing young offenders – see KT v R [2008] NSWCCA 51 per McLellan CJ at CL. This emphasis may be moderated when a young person has conducted him or herself in the way an adult might and has committed a crime of violence or considerable gravity.

75. In BP v R , supra, Hodgson JA, having referred to KT v R, supra, said as follows:

“4 First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person’s less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] – [36].

5 Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person’s youth diminishes the closer the offender approaches the age of maturity, and that a ‘child offender’ of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime.

6 Third, I do not think courts should be over-ready to discount the relevance of an offender’s youth on the basis that the offender has engaged in adult behaviour or acted as an adult. …”

76. Notwithstanding that the offender was 22 years old at the time, the offending was unsophisticated, easily discoverable, and demonstrated a degree of emotional immaturity and absence of impulse control in a youthful offender. This does have the effect of both diminishing the offender’s moral culpability and the need to emphasise retribution and general deterrence in sentencing.

77. The Crown has conceded that the offender’s pleas of guilty were entered at the earliest opportunity and that he is entitled to a 25% utilitarian discount on sentence. I also find that he is remorseful for his criminal conduct and has accepted responsibility for it.

78. I also take into account that the offender does not have a record of previous convictions for like conduct, with only one prior conviction related to driving with an illicit drug present in his blood. I therefore take into account his previous good character in arriving at an appropriate sentence here.

79. Notwithstanding the necessary caution with which self-serving statements must be approached to those compiling Sentencing Assessment Reports and psychologist’s reports, I accept here that the offender had a chaotic childhood in which he was exposed to drug and alcohol abuse from an early age, and domestic violence. This does diminish his moral culpability for his offending to a degree. However, with the support of his paternal grandmother, he overcame that childhood and completed school and qualified as a glazier, he is in a supportive relationship and has done well in custody, obtaining employment and being well regarded by his supervisors. Given he has demonstrated ability to overcome adversity in life, I am satisfied that the offender has good prospects of rehabilitation, however, he will need some assistance in preventing relapse into use of prohibited drugs. He has however already made significant progress with his rehabilitation, is abstinent from prohibited drugs and has done well in the custodial environment.

80. The offender’s risk of reoffending is also inextricably interwoven with his successful rehabilitation. With help, I find that he is a low risk of reoffending.

81. I intend to sentence the offender by way of an aggregate sentence pursuant to s 53A of the CSPA. In doing so, in order to provide transparency to the sentencing process, I am required to provide indicative sentences taking into account the objective seriousness of the offending, the subjective matters set out above and the 25% discount on sentence. The indicative sentences are as follows:

Sequence 1 – offence pursuant to s 7(1) of the Weapons Prohibition Act 1998 – 1 year imprisonment with a non-parole period of 6 months imprisonment.

Sequence 2 – deem supply offence pursuant to s 25(1) of the DMTA – 18 months imprisonment.

Sequence 3 – possess unauthorised pistol pursuant to s 7(1) of the Firearms Act 1996 – 18 months imprisonment with a non-parole period of 9 months.

Sequence 7 – deem supply offence pursuant to s 25(1) of the DMTA – 18 months imprisonment

Sequence 11 – knowingly deal with proceeds of crime pursuant to s 193B(2) of the Crimes Act 1900 – 18 months imprisonment.

82. The related offences subject to a s 166 Certificate may also be included in an aggregate sentence. However, here, given my findings as to the low level of objective seriousness of the offending in each of Sequences 5, 9, 10, 12 and 13, none of the offences would warrant the imposition of a custodial sentence and I intend to sentence the offender in respect of each of those offences to a conviction pursuant to s 10A of the CSPA, but with no further penalty imposed.

82. In arriving at an aggregate sentence, I must have regard to the principle of totality in sentencing, as described by Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]:

“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 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 what 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 two offences. 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.”

84. Here, in accordance with that authority, there must be some accumulation in sentence, however, there should be a large degree of concurrency given that the deem supply offences and the proceeds of crime offence arose out of the same course of criminal conduct. I therefore find that an aggregate sentence of 3 years imprisonment is appropriate in all of the circumstances.

85. I now turn to whether that sentence should be served by way of an Intensive Correction Order pursuant to s 7 of the CSPA. It is clear that the paramount consideration in determining whether the sentence should be served in the community is community safety, pursuant to s 66 of the Act. Pursuant to s 66(2), I am to make an assessment as to whether making the order or serving the sentence by way of full-time detention is more likely to address the offender’s risk or reoffending – see Wany v DPP, supra at [61] per McCallum JA.

86. In R v Pullen [2018] NSWCCA 264, Harrison J said at [84]:

“84 In determining whether an ICO should be imposed, s 66(1) makes ‘community safety’ the paramount consideration. The concept of ‘community safety’ as it is used in the Act is broad. As s 66(2) makes plain, community safety is not achieved simply by incarcerating someone. It recognises that in many cases, incarceration may have the opposite effect. It requires the court to consider whether an ICO or a full-time custodial sentence is more likely to address the offender’s risk of re-offending. The concept of community safety as it is used in the Act is therefore inextricably linked with considerations of rehabilitation. It is of course best achieved by positive behavioural change and the amendments recognise and give effect to the fact that, in most cases, this is more likely to occur with supervision and access to treatment programs in the community.”

87. I am mindful that the purposes of sentencing set out in s 3A of the CSPA above must be given full weight in determining whether to exercise the power to impose an ICO. The Court of Criminal Appeal in R v Pullen, supra, identified the type of offender most likely to be assessed as suitable for an ICO, that is, “a young offender with limited or no criminal history and excellent prospects of rehabilitation” (see [87]). That applies to the offender here, notwithstanding the number of offences and the extent of his criminal conduct. Further, the offender has been in custody since his arrest on 12 December 2019, a period of some 14 months, and has done well in the custodial environment. He has advanced his rehabilitation by being abstinent from drugs and has been in employment. Further, he has strong ties in the community and the support of his partner and grandmother.

88. Taking all of those matters into account, particularly my findings as to the offender’s excellent prospects of rehabilitation and low risk of re-offending, provided he obtains appropriate support, his sentence is to be served by way of an Intensive Correction Order pursuant to s 7 of the CSPA. It will be subject to conditions that he accept the supervision of Community Corrections and that he undergo drug and alcohol rehabilitation.

Orders

89. I make the following orders:

1. You are convicted of the following offences:

Sequence 1 – possess prohibited weapon pursuant to s 7(1) of the Weapons Prohibition Act 1998

Sequence 2 – supply prohibited drug greater than indictable and less than commercial quantity pursuant to s 25(1) of the Drug Misuse & Trafficking Act 1985.

Sequence 3 – possess unauthorised pistol pursuant to s 7(1) of the Firearms Act 1996

Sequence 7 – supply prohibited drug greater than indictable quantity and less than commercial quantity pursuant to s 25(1) of the DMTA

Sequence 11 – knowingly deal with proceeds of crime pursuant to s 193B(2) of the Crimes Act 1900

2. I impose an aggregate sentence in respect of Sequences 1, 2, 3, 7 and 11 of 3 years imprisonment.

3. That sentence is to be served by way of an Intensive Correction Order pursuant to s 7 of the CSPA. The sentence will commence today.

4. The standard conditions of the order will apply pursuant to s 73:

1. You must not commit any offence; and

2. You must submit to supervision by Community Corrections.

5. The following additional conditions will apply:

1. A rehabilitation or treatment condition requiring the offender to participate in drug and alcohol rehabilitation and to receive treatment for the same as recommended by his supervisor.

6. In relation to the following related offences subject to a s 166 Certificate, namely Sequences 5, 9, 10, 12 and 13, you are convicted of each offence but no further penalty is to be imposed pursuant to s 10A of the CSPA.

7. I note that the related offences on the s 166 Certificate, namely 8, 14 and 15, are withdrawn and dismissed.

8. I make an order pursuant to the Confiscation of Proceeds of Crime Act 1989 for the confiscation of the sum of $12,190.

9. I further make a drug destruction order pursuant to s 39P of the DMTA in relation to the prohibited drugs the subject of the above offences.

90. If you fail to comply with the conditions of this intensive corrections order, sanctions may be imposed by the Commissioner of Corrective Services or State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or it may include revocation of this order.

91. If the order is revoked, you may be required to serve all or some of the period of your sentence in full-time custody.

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Decision last updated: 17 February 2021