R v Frost

[2016] NSWDC 445

District Court

New South Wales

Medium Neutral Citation:	R v Frost [2016] NSWDC 445
Hearing dates:	7 October 2016
Date of orders:	07 October 2016
Decision date:	07 October 2016
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	The offender is sentenced to an aggregate term of imprisonment of 4 years with a non-parole period of 2 years, 6 months.
Catchwords:	SENTENCING — drug offences — firearms offences — aggregate sentence of imprisonment
Legislation Cited:	Criminal Procedure Act 1986 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) The Firearms Act 1996 (NSW)
Cases Cited:	Muldrock v Queen (2011) 244 CLR 120 R v McNaughton (2006) 66 NSWLR 566 Veen (No 2) (1988) 164 CLR 465
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Graeme Barry Frost (Offender)
Representation:	Counsel:     Solicitors:
File Number(s):	2015/00363208
Publication restriction:	N/A

SENTENCE

1. HIS HONOUR: The Offender pleaded guilty in the Local Court and adhered to his plea in this Court to the following offence: that between 10 September and 25 September 2015 at South Penrith he did on three or more occasions during a period of 30 consecutive days supply a prohibited drug other than cannabis, being methylamphetamine for financial or material reward. That is an offence under section 25A of the Drug Misuse and Trafficking Act 1985 (NSW); it has a maximum penalty of 25 years imprisonment and or a fine of $385,000.

2. He pleaded guilty today to an indictment containing an offence that on 10 December 2015 at Penrith he possessed an unauthorised pistol. That is an offence under section 7 of The Firearms Act 1996 (NSW), and has a maximum penalty of fourteen years imprisonment and a standard non-parole period of four years. That charge was effectively in substitution for a charge to which he entered a plea of guilty in the Local Court, the Crown accepts that he should be treated as having entered his plea at the earliest opportunity in relation to that offence.

3. The offender asked that when sentencing him on the offence under section 25A of the Drug Misuse and Trafficking Act that I take into account the following offences which are on a Form 1. Knowingly take part in the supply of a prohibited drug; this relates to the finding of two resealable plastic bags containing 2.68 grams of methylamphetamine when the police executed a search warrant on his residence on 10 December 2015. There is also an offence of deal with the proceeds of crime; this relates to the police on the same day finding $755 in cash on the computer desk in the offender’s premises when searched, $400 of which was from buy money handed over by the undercover officer at some stage that day but during the course of a transaction which is not the subject of a charge as I understand it. There are also three drive whilst disqualified charges on a section 166 certificate under the Criminal Procedure Act 1986 (NSW) to which the offender has acknowledged his guilt. These three offences relate to three occasions when the offender drove to meet with the undercover officer as he was then a disqualified driver. I turn then to the facts.

Facts of the Offending

4. Apparently he is disqualified from driving by the Local Court at Penrith on 2 December 2012 until 2 December 2038. In September 2015 police commenced a control operation in relation to the supply of drugs. On 10 September 2015 a police undercover operative made contact with a man called Richard and they arranged to meet. At 3.35pm the undercover officer went to Richard’s residence in Penrith. Richard introduced the undercover officer to the accused at the Accused’s residence at unit 65 of that address. The accused provided the undercover operative his mobile phone number. The accused and the undercover operative discussed arrangements for the accused to provide the undercover officer with methylamphetamine in the future. They discussed a code to use for future telephone conversations; that a gram would be termed one beer and an ounce would be termed a dozen. The accused gave the undercover operative 0.91 grams of methylamphetamine which had a purity of 76%.

5. The undercover operative paid the offender $450. On 17 September 2015 the undercover operative and the offender arranged to meet at Jamison Park Penrith. At about 1.10pm the undercover operative entered the offender’s car parked in the car park. The offender provided the undercover operative with 0.66 grams of methylamphetamine with a purity of 80%. The undercover operative paid him the $440. On 24 September 2015 the undercover operative and the offender arranged to meet at Jamison Park Penrith. At about 5.30pm the undercover officer observed the offender to drive to the park. The undercover officer sat in the passenger seat of his vehicle and the offender provided the undercover officer with 0.88 grams of methylamphetamine with a purity of 80%. The undercover officer paid him $450.

6. On 25 September 2015 the undercover officer and the offender arranged to meet at Jamison Park in Penrith. The offender drove to the park and the undercover officer sat in the passenger seat. The offender provided the undercover officer with one gram of methylamphetamine and the undercover officer paid him $450. The brief facts concerning the two matters on the Form 1, in terms of the possess pistol matter are the police located a Walther number 39 replica pistol in a shelf above the fridge in the offender’s premises. It’s an imitation of a .380 Beretta model 84 self-loading pistol. The offender participated in an interview and he admitted to supplying methylamphetamine on the dates of the supply. He said his role in the transaction was to collect payment and deliver the drug and that the person he obtained the drug from gave him 0.5 grams of ice a day or what is colloquially referred to as “a point” for each supply of his participation. He said that the drug found at his house, some was for personal use and some was to go to somebody else. He admitted to driving to the transactions knowing he was disqualified.

7. I will turn them to my assessment of the objective seriousness of the offending;

Objective Seriousness

8. The offence under section 25A of The Drug Misuse and Trafficking Act involves some four individual supplies resulting in a total of 3.45 grams being supplied. The purity of the drug supplied, at least on three occasions was high, some $1,790 was paid by the undercover officer. The role of the offender would seem to be that of a low level street dealer. He gave evidence that he supplied drugs in order to obtain drugs; there is no evidence that he had made any substantial money from his supplies, the supplies were to an undercover officer so the supplies did not enter the user market, however it is trite to say that the offender did not know that. Section 25A of The Drug Misuse and Trafficking Act is directed to repetition, system and organisation in the business of drug supply. The persons to whom the provision is directed are those who appear to be indulging in a practice or business of supplying prohibited drugs. The number of times the drug is supplied and the quantity are clearly relevant matters to consider when sentencing for offences under the provision. The fact that a relatively small quantity of the drug is supplied does not necessarily mean that the offence is at the lower end of objective seriousness. The number of times the drug is supplied and the quantity are relatively low.

9. I would assess the offending in relation to the section 25A Drug Misuse and Trafficking Act offences as being below the mid-range of objective seriousness. In terms of the Firearms Act offence, the objective seriousness of a firearms offence depends to a significant degree on the purpose of the possession. The fact that a replica pistol was possessed is in my view clearly less serious than an actual pistol, although of course a replica pistol can be used for a criminal purpose.

10. The offender gave evidence that someone had simply given him the replica pistol and that he did not possess it for any particular purpose. His evidence was that he had never taken it out of his home and had at one point considered sending it to his grandchildren. No photo of the replica pistol was put before me, although the offender in his evidence accepted that it looked like a real weapon. While I might have some reservations about accepting his evidence about how he came to have the pistol and what he intended to do with it, I cannot find beyond reasonable doubt that he had it for an unlawful purpose. The public safety concerns associated with an actual pistol capable of being fired do not attach to the possession of a replica pistol. I would assess the objective seriousness of this offence as being towards the low end of the range. The drive whilst disqualified offences have no particular features associated with them. He was driving for the purposes of supplying the drug to the undercover, and it appears from the limited facts that he did not drive over a long distance.

Subjective Case

11. The offender is 53 years of age. He has a significant criminal history. In terms of the drive whilst disqualified offences on the 166 certificate, he has a number of convictions for that offence. While he has a significant record for a variety of offences, he appears to have only one conviction for an offence involving prohibited drugs being a possession offence in Queensland in 2007. Certainly his record over all does not entitle him to leniency, I think overall it is an aggravating factor as that concept has been explained in the R v McNaughton (2006) 66 NSWLR 566 and Veen (No 2) (1988) 164 CLR 465.

12. He entered his pleas of guilty at the earliest opportunity and should receive a 25% discount of his sentence for the utilitarian value of his pleas. The offences were committed while on a section 9 bond imposed on 19 November 2014 for an unrelated offence; that is an aggravating factor.

13. The offender gave evidence about his early life and his family background. While none of that evidence was corroborated from an independent source and he is someone with more than a passing familiarity with the criminal justice system, he struck me as a straight forward witness trying to tell the truth, at least in relation to his background. He gave evidence of a very difficult childhood and of being sexually assaulted when young. He gave evidence that he had been involved in the transport industry and that was where he had been working when introduced to prohibited drugs. He said that upon his release from custody he hopes to be able to stay away from drugs but acknowledges that when released he will require assistance to do so. I consider that in order to address his drug rehabilitation there should be a finding of special circumstances.

14. I think there is very limited evidence of remorse, really nothing apart from the plea of guilty and the expressed intention to get away from drugs and those who use them.

15. Given his record, his age and the fact he committed these offences while on a section 9 bond I am guarded about his prospects of rehabilitation. He has been in custody since his arrest on 10 December 2015, however on 21 December 2015 he was sentenced to two terms of imprisonment for drive whilst disqualified. He received one sentence of twelve months imprisonment with a non-parole period of nine months to date from 10 December 2015 and one of eight months imprisonment with a non-parole period of six months dating from the same date.

16. I have taken the Form 1 matters into account in accordance with the guideline judgment in the Attorney General’s application under section 37 of The Crimes (Sentencing Procedure) Act 1 of 2002.

17. Those who traffic in prohibited drugs must receive significant sentences in order to deter the offender concerned and others from engaging in such offences, drugs are causing the destruction of lives, families and the community generally. General and specific deterrence have a role to play in this sentence.

18. I have had regard to the maximum penalty and the standard non‑parole period in relation to the firearms offence as legislative guide posts in accordance with Muldrock v Queen (2011) 244 CLR 120. It will be seen that I have departed from the standard non-parole period for the firearms offence because of my assessment of the objective seriousness.

19. In terms of accumulation and concurrency, I consider that there should be some partial accumulation given the discrete offending involved, in doing so I have regard to the fact that he is currently serving two sentences, I have taken that into account - I withdraw that. Those sentences may have just expired but in doing so I have had regard to the fact that he has recently served the two sentences being for the drive whilst disqualified offences I mentioned earlier. I have taken that into account when determining that the sentence is to commence on 1 July 2016 so there is some concurrency with the existing sentences.

20. One of those sentences has expired the other the non-parole period has expired. I propose imposing an aggregate sentence, I will first indicate the indicative sentences. For the firearms offence as it has a standard non-parole period I am required to record the indicative non-parole period for that offence. The offender is convicted of each offence, including the offences on the 166 certificate. The indicative sentences are as follows:

1. On the drive whilst disqualified offence particularised as occurring between 17 September and 25 September 2015, eight months imprisonment;

2. On the drive whilst disqualified offence particularised as occurring on 24 September 2015 eight months imprisonment;

3. On the drive whilst disqualified particularised as occurring on 25 September 2015 eight months imprisonment;

4. On the offence under section 25A of the Drug Misuse and Trafficking Act and having regard to the matters on the Form 1, three years imprisonment;

5. On the offence under the Firearms Act nine months imprisonment with a non-parole period of six months.

21. I impose an aggregate sentence consisting of a non‑parole period of two and a half years and a balance of term of eighteen months, that is a total sentence of four years. The sentence is to commence on 1 July 2016 and will expire on 30 June 2020, he is eligible to be released to parole on 31 December 2018. Whether he is released is a matter for the State Parole Authority.

22. On each of the drive whilst disqualified matters there being a conviction I note the statutory period of disqualification of two years arises on each count. It is to commence from the expiration date of his current period of disqualification.

Orders

23. The offender is sentenced to an aggregate term of imprisonment of 4 years to commence on 1 July 2016 and expiring on 30 June 2020 with a non-parole period of 2 years, 6 months. The offender is first eligible for parole on 31 December 2018. The offender is to be released to supervised parole when the non-parole period expires. The relevant agency for the purposes of supervision is Probation and Parole Service.

24. The drugs are to be destroyed.

25. The firearm is to be forfeited.

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Decision last updated: 06 May 2019