R v Graves

[2021] NSWDC 722

District Court

New South Wales

Medium Neutral Citation:	R v Graves [2021] NSWDC 722
Hearing dates:	23 November 2020 and 5 November 2021
Decision date:	12 November 2021
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 4 years 6 months with a non parole period of 1 year 4 months.
Catchwords:	CRIME - SENTENCE - supply prohibited drug - possess unauthorised prohibited firearm - possess prohibited weapon - drive whilst disqualified.
Legislation Cited:	Drug Misuse and Trafficking Act 1985 (NSW), s25(1); Firearms Act 1996 (NSW), s7(1); Weapons Prohibition Act 1998 (NSW), s7(1); Road Transport Act 2013 (NSW), s54(1)(a).
Category:	Sentence
Parties:	Regina (Crown) Jamie Michael Graves (Offender)
Representation:	Mr Smith (Solicitor ODPP Campbelltown) Mr Bhutani (Counsel for the offender)
File Number(s):	2019/00361876
Publication restriction:	Nil

Judgment

1. Jamie Michael Graves, on 23 November 2020, you first appeared for sentence in this Court in relation to four principal offences.

2. First, supplying a prohibited drug greater than the indictable, but less than the commercial, quantity for that drug. This is sequence 1. It involves a contravention of s25(1) of the Drug Misuse and Trafficking Act. The maximum penalty for that offence is 15 years imprisonment. There is no standard non-parole period.

3. Secondly, possessing an unauthorised prohibited firearm. This is sequence 2. It involves a contravention of s7(1) of the Firearms Act. The maximum penalty for that offence is 14 years imprisonment. There is a standard non-parole period of 4 years imprisonment.

4. Thirdly, possessing a prohibited weapon. This is sequence 3. It involves a contravention of s7(1) of the Weapons Prohibition Act. The maximum penalty for that offence is 14 years imprisonment. There is a standard non-parole period of 5 years imprisonment.

5. In addition to this principal offence, you have asked me to take into account one matter on a Form 1, which I have certified. That matter is sequence 7, custody of a knife in a public place.

6. Fourthly, possessing a prohibited weapon. This is sequence 8. It also involves a contravention of s7(1) of the Weapons Prohibition Act.

7. In addition to these four principal offences, you have also consented to this Court sentencing you for one matter on a s166 certificate, driving whilst disqualified. This is sequence 5. This involves a contravention of s54(1)(a) of the Road Transport Act. The maximum penalty for that offence is 6 months imprisonment. There is an automatic licence disqualification period of 6 months, and a minimum period of such disqualification of 3 months.

8. The facts surrounding the various offences and the matter on the Form 1 are contained in a statement of agreed facts. Slightly recast by me as to style, but not substance, they can be summarised for today’s purposes as follows.

9. At 3:00am on 18 November 2019, you were driving a motor vehicle in the Sydney suburb of Ambarvale. The motor vehicle came to the attention of police who conducted a check on it which revealed to them that the motor vehicle was unregistered – and possibly driven by a person without a licence.

10. That possibility was correct. You were driving that vehicle without a licence, and it is that conduct which constitutes sequence 5.

11. The police pulled you over and you made a frank admission that you were disqualified.

12. In the conversation between you and the police which then followed, the police noticed that there was a 20cm knife next to you as you sat in that car. It is that conduct which is sequence 7. By having regard to the nature of that matter, it will result in a slight increase in the sentence for the relevant principal offence.

13. You were known to the police for drug offences. They noticed that your hands were shaking and you appeared nervous.

14. As a result of their checks and your behaviour, you and the motor vehicle were searched.

15. During that search, you removed a set of knuckle dusters from one of your pockets. It is that conduct which is sequence 3.

16. The police then began to search the motor vehicle. In the vehicle they found a bag on the passenger seat. The bag contained eight resealable bags and a plastic container, and those items contained quantities of white powder and crystals. Subsequent examination revealed that that powder and crystals was, in fact, 77.4 grams of methylamphetamine. The purity of the drugs is not revealed in the agreed statement of facts. It is that conduct which is sequence 1.

17. In addition to finding those drugs in that bag, the police found a (black gel blaster) firearm in another bag. This firearm was both an air gun and a pistol within the relevant definitions of the Firearms Act, although it was not capable of discharging bullets. It is that conduct which is sequence 2.

18. The police also found a mace, that is, a bat adapted with nails and screws protruding from it. It is that conduct which is sequence 8.

19. You were then arrested – and refused bail.

20. The sentence hearing on 23 November 2020 was adjourned to allow you to undertake a residential rehabilitation course – which you have successfully completed. (There was some delay in your obtaining a placement in an appropriate facility. You were ultimately admitted to bail on 16 March 2021). The sentence hearing resumed on 5 November 2021, and my decision as to your sentence was then adjourned until today.

21. In the course of your sworn evidence on 5 November 2021, you said that those various items were in that motor vehicle in the early hours of that morning because you had had an argument with your then partner. You described your relationship with her as toxic, and there was an urgent need for you to leave the premises where you and she were living with all your belongings. The author of the sentencing assessment report was (not unreasonably) sceptical about that explanation. However, I found you to be an impressive witness when you gave your sworn evidence after successfully completing the residential rehabilitation course, and I am satisfied of that explanation on the balance of probabilities.

22. It is necessary for the Court to make an assessment of the objective seriousness of each offence for an offence of its kind.

23. Sequences 1 and 8 are just below the mid-range for offences of their kind. In making that finding in relation to sequence 1, I have noted: that the amount is approximately 19 times the indictable quantity; that the purity was not revealed; that you told the author of the sentencing assessment report that the drugs were for personal use and that you had purchased them with $9,000.00 which you had obtained from gambling; that you did not swear to the truth of that assertion when you gave your oral evidence on 5 November 2021; and that you were not cross-examined on that topic. Given that you also told the author of the sentencing assessment report that you supported yourself “…through receipt of Government benefits”, it seems unlikely that you would spend all of those winnings (assuming that version of events was true, i.e. obtaining $9,000.00 to purchase the drugs from gambling) entirely upon drugs for personal use. Rather, I would have expected, if the topic had been pursued, that the more likely fact was that you had the drugs both for your personal use and (small time) supply. However, in the circumstances, I am unable to make any finding beyond what is in the agreed facts.

24. Sequences 2, 3 and 5 are approximately equidistant between the middle and the bottom of the range for offences of their kind.

25. All of the offences are additionally aggravated because, at the time you committed them, you were on both a community correction order and an intensive correction order. In relation to sequence 5, I have noted that you have many similar offences over many years. That is a further additional aggravating factor for that particular offence. It should not be necessary for me to say this, but apparently it is. The use of the words “additionally” or “additional” indicates that those considerations were not taken into account in assessing the objective seriousness of any of the offences.

26. The balance of your subjective circumstances can be summarised as follows.

27. You are now 47 years old.

28. You were brought up in a loving family environment. You were a good child at home and at school.

29. You left school when you were 16, and you started an apprenticeship as an electrician.

30. However, about one year into that apprenticeship, you started associating with people who did not have a good influence on you.

31. You left your parents’ house – and their good influence – in your late teens; and, not long after that, your extensive criminal history began.

32. And you have continuously offended in the approximately 30 years which have followed.

33. As the author of the sentencing assessment report correctly noted, that extensive criminal history has escalated in seriousness over time.

34. Your criminal record means you are not entitled today to the leniency which, in appropriate circumstances, can be extended to a first offender. However, I do not regard your criminal history (other than in relation to your driving record) as an additional aggravating factor.

35. Unsurprisingly, you have had only sporadic (legitimate) employment.

36. Although there is only limited / minimal evidence on the topic, it seems clear enough that illicit drugs have been, not only the object, but also the cause of your continuing criminal behaviour. I do not know when you commenced using illicit drugs (although it seems likely to have been at about the time you left your parents’ home) – or which illicit drugs you have progressed through – but, by the time of your most recent offending, you were abusing methylamphetamine.

37. The author of the sentencing assessment report has noted that your previous response to supervision was poor, and he expressed the not unreasonable opinion that you were a medium to high risk of reoffending.

38. But all is not bleak. Far from it.

39. When you gave your sworn evidence on 5 November 2021, I found you to be an impressive witness - as I have already said.

40. As a result of the residential rehabilitation program which you have successfully completed over a significant period of time (something you have not previously attempted), you have shown real and meaningful insight into your offending.

41. You have expressed genuine remorse.

42. Your parents are again significant people in your life. Your children are back in your life. You have a new and supportive partner. You have meaningful and immediate work opportunities (which require a driver’s licence). And you are now a mature man, 47 years of age.

43. But as the Crown and your counsel both acknowledge, your progress in rehabilitation, whilst impressive, is not yet complete.

44. In my view, your prospects for rehabilitation are reasonable. They would be enhanced by a longer period on parole.

45. The sentence to be imposed upon you must be one that deters others from doing what you have done and deters you from reoffending; in other words, both general and specific deterrence are fully engaged. And, clearly, the need to encourage your rehabilitation is fully engaged.

46. In relation to each of the four principal offences and the matter on the s166 certificate, no sentence other than a period of imprisonment is appropriate.

47. I intend imposing an aggregate sentence. It is necessary, therefore, for me to state the indicative sentences underpinning that ultimate aggregate sentence. In this context, I note that you entered early pleas of guilty and, consequently, there will be a 25 per cent discount to each of the indicative sentences.

48. In relation to sequence 1, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 4 years; after the discount, the indicative sentence is imprisonment for 3 years.

49. In relation to sequence 2, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 3 years 6 months; after the discount, the indicative sentence is imprisonment for 2 years 7 months. The indicative non parole period is 9 months.

50. In relation to sequence 3, and taking into account the matter on the Form 1, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 12 months; after the discount, the indicative sentence is imprisonment for 9 months. The indicative non-parole period is imprisonment for 6 months.

51. In relation to sequence 8, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 2 years; after the discount, the indicative sentence is imprisonment for 18 months. The indicative non-parole period is 9 months.

52. In relation to sequence 5, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 6 months; after the discount, the indicative sentence is imprisonment for 4 months.

53. In the result, in relation to sequences 1, 2, 3, 8 and 5, I impose an aggregate term of imprisonment of 4 years 6 months.

54. The question arises as to what is to be the start date for that sentence. You were arrested on 18 November 2019. You were in custody from that date until you were released to bail on 16 March 2021. Whilst the conditions of that bail were described by your counsel as “strict”, he specifically disavowed that it ought be regarded as “quasi custody”.

55. As I have already noted, you were on an intensive correction order at the time you committed the offences, and that order was revoked by the Parole Authority on 3 December 2019. However, that order itself was rescinded on 16 March 2021 to allow you to undergo the s11 bail, and you are, therefore, still subject to the intensive correction order which concludes on 4 February 2022.

56. As a deliberate act of leniency, the start date of the aggregate sentence of imprisonment will take into account the total period of time that you were refused bail, which I have rounded up to 1 year 4 months (cf MFI-3).

57. In order to encourage your rehabilitation, at this crucial stage of your life, I make a finding of special circumstances to vary the ratio of the non-parole period to the head sentence.

58. I, therefore, fix a non-parole period of 1 year 4 months imprisonment to date from 13 July 2020 and which expires today, 12 November 2021. You are, therefore, immediately eligible for parole.

59. I fix a balance of 3 years 2 months to date from 13 November 2021 and which will expire on 12 January 2025.

60. Further, in relation to sequence 5, you are disqualified from driving for a period of 6 months dating 23 November 2020.

61. I note that there have been no submissions by either party in relation to the breach call up matter of 2018/244181. I therefore direct no action be taken in relation to the breach of the Community Corrections Order imposed 8 May 2019.

Decision last updated: 31 January 2022