R v Harley James Buhagiar

[2017] NSWDC 339

District Court

New South Wales

Medium Neutral Citation:	R v Harley James Buhagiar [2017] NSWDC 339
Hearing dates:	5 October 2017
Date of orders:	10 November 2017
Decision date:	10 November 2017
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	1) The offender is convicted. 2) I impose an aggregate sentence comprising a minimum term of 2 years and 6 months imprisonment to commence on 18 September 2016 and to expire on 17 March 2019. Thereafter the offender is to serve an additional term of 1 year and two months imprisonment commencing on 18 March 2019 and expiring on 17 May 2020 during which the offender shall be eligible to be released on parole. 3) The overall head term is 3 years and 8 months.
Catchwords:	CRIMINAL LAW – SENTENCE – unauthorised possession of prohibited firearm – supply of prohibited drug – methylamphetamine – cannabis leaf – custody of an offensive implement in a public space – Remorse – Special Circumstances – Totality and Accumulation – Prospects of Reoffending
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) s 32 Drug Misuse and Trafficking Act 1985 (NSW) ss 25(1) and 29 Firearms Act 1996 (NSW) s 7(1)
Cases Cited:	R v Najem [2008] NSWCCA 32 Thalari v R [2009] NSWCCA 170 Atkinson v R [2014] NSWCCA 262 R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 R v Borkowski [2009]NSWCCA 102 at [32] R v Qutami [2001]NSWCCA353;(2001) 127 A Crim R 369
Texts Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) per Spigelman CJ
Category:	Sentence
Parties:	Mr Harley James Buhagiar (Offender) Regina (Crown)
Representation:	Ms F Jowett (Offender) Solicitor for the Director of Public Prosecutions (Crown)
File Number(s):	2016/279747

Judgment

1. On 5 October 2017, Harley James Buhagiar was arraigned and entered pleas of guilty to the following three counts:-

COUNT 1: On 18 September 2016, at Austral in the State of New South Wales, he supplied a prohibited drug, namely 7.08 grams of methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW); [1]

COUNT 2: On 18 September 2016, at Austral in the State of New South Wales, possessed an unauthorised prohibited firearm, namely a shortened 12 gauge Belgian manufactured R. Diamond & Co side by side double barrel shotgun, contrary to s 7(1) of the Firearms Act 1996 (NSW); [2] and

COUNT 3: On 18 September 2016, at Austral in the State of New South Wales, possessed an unauthorised pistol, namely a .22 air rifle calibre BNM Custom CO2 powered repeating air pistol, contrary to s 7(1) of the 1996 Act.

1. Hereinafter referred to as the “1985 Act”

2. Hereinafter referred to as the “1996 Act”

2. In sentencing the offender in relation to Count 1 on the indictment, I have been requested to take into account, an offence on a Form 1, being possess prohibited drug, namely 1.1 grams of cannabis leaf on 18 September 2016, in accordance with s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW). [3] In sentencing the offender on Count 2, I have also been requested to take into account, four matters on a Form 1 pursuant to the same section. These latter matters also relate to 18 September 2016 and comprise:-

(1) Possess firearm barrel, namely two .22 air rifle calibre air gun barrels;

(2) Possess ammunition, namely 52 .22 long rifle calibre cartridges; three 12 gauge shotgun cartridges; 296 .22 air rifle calibre pellets; and nine .177 air rifle calibre pellets;

(3) Have custody of an offensive implement in a public place (wooden tribal weapon); and

(4) Custody of a knife in a public place (sword, machete and pocket folding knife).

3. Hereinafter referred to as the “1999 Act”

FACTS

3. The agreed facts in this matter are that at about 1:10 pm on Sunday, 18 September 2016, a vehicle driven by the offender was detected driving northbound on Edmondson Avenue, Austral and was stopped by police. Police introduced themselves to the offender and advised him of the reason he was stopped. After producing his licence and identifying himself as the registered owner of the vehicle, the offender was breath tested and returned a negative result.

4. Police checks of the vehicle revealed that the offender was the subject of two outstanding warrants and the vehicle’s registration had expired on 1 April 2016. Consequently, police requested the offender to exit the vehicle, where he was placed under arrest, cautioned and handcuffed.

5. As police secured the vehicle, a shortened side-by-side double barrel shotgun was located in the driver’s side foot-well of the vehicle. On inspection of the shotgun, it was found to be fully loaded. This firearm was later examined and it was determined that the shotgun was not in working order because both firing pins were missing. The shotgun was a prohibited firearm and this constituted Count 2 on the indictment.

6. The shotgun was rendered safe and police commenced a search of the vehicle, and located the following items:

(1) A sword stored in a sheath, on the back seat of the vehicle (charged on the Form 1);

(2) 20 white tablets, on the back seat of the vehicle which were later analysed and identified as 7.08 grams of methylamphetamine. This constituted Count 1 on the indictment.

(3) A gas powered repeating air pistol with a separate removable stock in the boot of the vehicle. This pistol was later examined and it was determined that it was not in working order due to deteriorated gas seals which fail to hold and direct gas. This constituted Count 3 on the indictment.

7. The search was then paused due to inclement weather and the offender was conveyed to the Green Valley Police Station. Green Valley detectives and police then conducted a video recorded search of the vehicle where the following further items were located (and all subsequently charged on a Form 1):-

(1) A folding pocket knife hidden between the driver’s seat and centre console;

(2) A wooden tribal weapon, on the back seat of the vehicle;

(3) A black handled machete, located in the boot of the vehicle;

(4) Two .22 air rifle calibre airgun barrels;

(5) Assorted ammunition, being 52 .22 long rifle calibre cartridges; three 12 gauge shotgun cartridges; 296 .22 air rifle calibre pellets and nine .177 air rifle calibre pellets; and

(6) 1.1 grams of cannabis leaf.

The seized items were retained and are contained in Tab 5 of Exhibit A.

8. The agreed facts recorded that the offender has previously held a Minor’s Firearms Training Permit which expired on 16 March 2012. Further, the offender had applied for a Class A and B Firearms Licence on 27 August 2014, but was refused.

9. The offender declined to participate in an electronically recorded interview with police.

OBJECTIVE SERIOUSNESS

10. The Crown conceded that the offence in Count 1 was well below the mid-range of offences of this type and acknowledged that the offender’s activities were to support a drug habit.

11. On the offender’s behalf it was submitted that the offence of deemed supply falls at the lower end of the spectrum and it is acknowledged that the drugs were in a distributable form. It was submitted that the evidence is that the criminal activity was to feed his own drug habit.

12. So far as the firearms charges were concerned, the Crown observed that the Count 2 firearm was loaded, could be easily accessed and unsecured. However, it acknowledged that the firearm was not in working order.

13. The agreed facts also referred to the firearm in Count 3 to be a gas powered repeating air pistol with a removable stock in the boot of the vehicle. The pistol was later examined and it was determined that it was not in working order due to a deteriorated gas seal which fail to hold and direct gas.

14. The Crown observed that there was a significant amount of ammunition and argued that both firearms were for use in connection with the criminal enterprise of drug supply. It contended that to argue otherwise, was inconsistent with the location of the shortened firearm located under the seat whilst the offender was driving. It noted that the offender did not have a right to the firearm and indicated that it was open to the Court to find that there was a desire to use the items, with the offender having knowledge as to how they would work. Whilst it contended that the offender’s explanation for the firearms would be rejected, it nevertheless stated that it was not less serious if the offender’s plan was to sell illegal firearms to someone else.

15. In short, the Crown contended that the offence the subject of Count 2, being possession of the shortened firearm, fell above the mid-range of offences of this kind, and the offence the subject of Count 3, being possession of the pistol, was in the mid-range.

16. In a Psychological report dated 20 September 2017by Dr Marcelo Rodriguez, the offender stated that he purchased the guns to sell them so that he could buy more ice. He said that he had planned to sell the guns to a friend. The offender stated to Dr Rodriguez that he never bought them for the purposes of using them.

17. On the offender’s behalf it was submitted the firearms offences were serious, but counterbalanced by the fact that none of the firearms were able to be used. However, counsel for the offender conceded that they could have been used for the purpose of intimidation.

18. Whilst the submission as to use advanced by the Crown was acknowledged on behalf of the offender as an available inference, it was submitted that the offender’s account as recorded to Dr Rodriguez is credible. It was argued that the objective gravity of the offences would be mid-range for count 2 and low range for Count 3

19. In respect of Count 1, the amount of drugs in question was not less than the trafficable quantity that is deemed by s 29 of the 1985 Act to have been in the possession of the offender for the purposes of supply. The offender did not seek to prove that he had the drug in his possession other than for the purposes of supply.

20. Pursuant to sch 1 of the 1985 Act, the threshold amount for an indictable quantity of methylamphematine is 5.00 grams. The amount involved was at the lower end of the spectrum of indictable quantities.

21. I accept the submission of the parties that the offence constituted by Count 1 falls within the lower range of objective seriousness for offences of this type

22. In respect of Counts 2 and 3, it is important to reiterate that rationale behind s 7(1) of the Firearms Act 1996 (NSW) described by Hulme J in R v Najem:- [4]

[40] … That rationale includes at least a recognition that firearms and pistols, if possessed, are liable to be used, and if used, are liable to be a source of great danger or damage. It includes also a recognition that not all persons can be relied on to avoid or minimise such danger and not misuse the weapons and that misuse, even without discharge, is liable to amount to a great infringement of others rights.

4. [2008] NSWCCA 32 at [40] (Hulme J with whom Beazley JA and Latham J agreed). See also Thalari v R [2009] NSWCCA 170 at [88] – [89] (Johnson J with whom Young JA and Latham J agreed)

23. The agreed facts do not concede the Crown’s contention as to the purpose for which the firearms were in the offender’s possession. The offender’s submission was in my view more plausible bearing in mind the nature of the various items. The shotgun in Count 2 was described in the agreed facts to be not in working order due to missing both firing pins. What would be required to put it into working order particularly as it is an older style weapon from Belgium was not the subject of any evidence. The pistol in Count 3 was similarly not in working order due to deteriorated gas seal which fail to hold and direct gas. There is no information as to whether it was capable of being put into working order and if so, what it would require .Nevertheless I would adopt what was said by Simpson JA in Atkinson v R:-

[4]… the argument about whether the applicant had either firearm in possession for the purpose of re-sale or for use in his criminal activities, could have had little, if any, impact on the sentencing decision. On-sale would clearly have been to the criminal milieu, with no control on any future use of the weapon. In terms of criminal culpability, possession of a firearm for the purpose of on-sale is no better and no worse than possession of a weapon with the intention of using it in criminal activity. [5]

5. [2014] NSWCCA 262 at [4]

24. Certainly on the facts of this case I am satisfied that the firearms in their state were capable of intimidating but not otherwise being discharged.

25. Count 2 in my view was clearly more serious compared to Count 3 as it involved a more intimidating shortened weapon that was loaded. The extent of the shortening was not described except by reference to photographs tendered. However I was informed at the outset of my remarks on sentence by the Crown without objection that hat an expert’s report identified it as 23 inches in length. The photograph revealed a long unshortened stock which overall limits the extent the firearm can be concealed,

26. Overall I would find Count 2 is in the mid-range of objective seriousness and Count 3 below the mid-range of objective seriousness.

SUBJECTIVE FACTORS

Background

27. The offender participated in an interview with Community Corrections for the purposes of preparing a pre-sentence report. That report was prepared by Ms Cheryl Robinson, Unit Leader, John Morony Parole Unit and is dated 17 July 2017. Ms Robinson obtains a history that the offender had advised that he commenced using illicit substances at eighteen years of age with amphetamines, namely speed, which he attributed to his employment obligations. The offender declared that by nineteen years of age, his speed use had reached its peak and he was consuming one gram of the substance daily. At the same age, the effects of speed was reported to have decreased to such a point that he substituted it with methamphetamines, namely ice. The offender stated that he was initially using a “few points” of the substance daily, up until he was twenty years of age, at which time it increased to him smoking three and a half grams daily, and this pattern of use continued until his current incarceration.

28. In the report prepared by Dr Marcelo Rodriguez dated 20 September 2017, [6] a history is obtained of the offender completing Year 10 and then beginning a butcher’s apprenticeship, attending Granville TAFE for four years. A history is obtained of him working three years as a butcher. At the age of seventeen, the offender stated that he began using amphetamines whilst working long hours. Further, a history was obtained that during one Christmas he was working from 4:00 am to 8:00 pm every day as a butcher for Nandos Butcher in Kemps Creek. He stated that he was exhausted and his manager introduced amphetamines to him for the first time. The offender said that he felt “good, awake and alert.” He stated that he was immediately “hooked” but did not purchase the amphetamines himself until about twelve months later. He said he was consuming one gram of amphetamines a day until “it stopped working.”

    6. Exhibit 1

29. Eventually, the offender reported that he started using methamphetamines, namely Ice, and began to “hang out” with his manager and his friends. He stated that he used ice from the ages of 18 to 22 and at one stage, was consuming $600 worth of ice a day, which he eventually funded through the proceeds of crime. It was recorded that he began depending on drugs and believed that his judgment became impaired and his personality changed. The offender stated that he needed drugs to “feel normal” and “just to survive.”

Guilty Plea

30. The Crown acknowledged that the accused entered a plea of guilty at the earliest opportunity, entitling him to the full 25% discount, notwithstanding the circumstances arising from his late arraignment. In the circumstances I accept that a discount of 25% is appropriate in accordance with s 22 of the 1999 Act. [7]

    7. R v Thomson and Houlton (2000) 49 NSWLR 383 [2000] NSWCCA 309 and R v Borkowski [2009]NSWCCA 102 at [32]

Remorse

31. In a letter dated 20 July 2017 submitted to the Court [8] the offender stated that during his time in custody, he was able to reflect on his actions and investigate his thinking. He stated:-

“During my time in custody … [I have] become fully remorseful for my actions. I have also through conversation with fellow inmates come too [sic] the realisation of the consequences of long term drug abuse particularly ice and its impacts regarding family, assets, jobs and the community overall. Being in custody and in a controlled environment has been a real kick start too [sic] my recovery.” [9]

8. Exhibit 2

9. Exhibit 2

32. The letter identifies that the offender has come to appreciate his liberty as something which is not to be taken for granted and had he not been charged he would no doubt, still be doing the wrong thing in his life. In the same letter, the offender stated that he was prepared to give full attention to participating in rehabilitation and/or counselling after his release. He has acknowledged the great shame to his family and friends, and his desire to “earn it all back.”

33. The Crown contended that the offender’s account should be given little weight as he had chosen not to expose himself to cross-examination.

34. The Crown contended that the offender’s correspondence does not elaborate on how the offences have affected the listed people. It submitted that the references provided on his behalf do not indicate what he had been charged with and that the location of the firearm was under his feet whilst he was driving.

35. I have noted the Crown submission and in particular the fact that the offender has not given evidence; a matter that requires me to exercise caution before accepting hearsay material. [10] However, despite the shortcomings referred to I have noted that Ms Robinson in her report refers to the fact that that the offender accepted responsibility for his actions and presented with appropriate insight into the possible consequences of his offending may have on others both in terms of supply of illicit substances and firearms. Further his version of events did not amount to an attempt to mitigate his conduct.

    10. R v Qutami [2001] NSWCCA353;(2001) 127 A Crim R 369

36. Overall I am satisfied that remorse has been established within the terms of s 21A(3)(i) of the 1999 Act.

Previous Criminal History

37. The offender’s history shows one prior offence on 9 March 2016 of take and drive conveyance without the consent of the owner, in respect of which he was convicted and fined $400.

38. He has a number of other matters in the Local Court which at the time of sentencing submissions he had yet to be sentenced, but which pre-date the commission of the offences the subject of the indictment of 18 September 2016.

39. Notwithstanding this fact I am satisfied that the offenders history of previous offending is generally limited.

Rehabilitation and Prospects of Reoffending

40. On the offender’s behalf a number of references have been submitted from family friends referring to their positive observations of the offender’s upbringing and family support and strong prospects for rehabilitation.

41. Mr Rohan Coleman states that he can’t help but feel that the offender’s lack of self/confidence and self-esteem has led him to becoming mixed up with the wrong crowd and led him on the path to self-destruction. Dr Rodrigez also notes that the offender reported self-esteem issues. Ultimately Dr Rodrigez concludes;

‘Mr Buhagiar presents as a naïve young man, who is easily influenced, with personality traits consistent with Dependent Personality Disorder. It is likely that he became dependent on Ice very quickly and that this dependence assisted others to manipulate him and enlist him in carrying out criminal activity as he had to fund his addiction.’

42. The report of Ms Robinson records that the offender is now 23, had a good upbringing and was afforded ongoing support of his familial unit. It records that the offender has maintained close and supportive bonds with his parents and siblings who have visited him regularly and maintained and maintained close telephone contact.

42. The offender has completed his school certificate and went on to complete a butcher’s apprenticeship. He maintained ongoing employment in his line of work up until his current incarceration.

43. He has not at this point engaged in interventions in order to address his drug use but has expressed a willingness to comply with any directions in relation to relapse prevention.

44. Ms Robison records that the offender’s resolve towards remaining drug free appeared to be strong however it is only with time that he will be able to demonstrate his willingness to remain drug free. Ms Robinson notes that offender has a medium to low level LSI-R score.

45. One of the offender’s testimonials comes from Mr Rohan Coleman from RC Carpentry and Building. He has proposed that upon release he would be willing to offer the offender a labouring job or adult apprenticeship as he chooses. The offender however informed Dr Rodrguez that he would intend to live with his parents who provide stability and proposed that he could work with a family friend Ben Fleming carrying out maintenance of swimming pools. Ms Zenda Fleming one of the owners of South West Pools and Spas says in her letter dated 5 July 2017 that the offender has previously helped out and she wouldn’t hesitate to let him come back to help out at any time.

46. The Crown drew particular attention to the reference of Ms Cherie McGregor dated 17 July 2017, which only noted a change in the offender’s behaviour in February 2016, a few months before the offence, whereas there was evidence of the offender using drugs since 2012. It was argued that the opinions carried little weight when the referees were not aware of the problems that the offender is suffering.

47. Overall I am satisfied that the offender has good family and community support. This is his first instance of custody and as Ms Robinson notes it has taken for him to enter the custodial environment in order to moderate his behaviour. In custody he had remained drug free and is reported as not to be a management concern. He has no instances of institutional misconduct.

48. I am satisfied that he has good prospects of rehabilitation although he may well require relapse prevention and assistance with his self-esteem. He does not intend to return to work as a butcher and may well benefit form vocational counselling and retraining.

Totality and Accumulation

50. The Crown concedes that some concurrency should be provided for, although there must be some accumulation to give weight to the separate firearms and the Form 1 offences attached to them.

51. I accept that a level of accumulation is appropriate to reflect the different level of offending whilst recognising overlapping criminality.

Commencement

52. The offender has been in custody from 18 September 2016, bail refused. It is appropriate to commence the sentence from that date in accordance with s 24(a) of the 1999 Act.

Special Circumstances

53. The offender submitted that special circumstances should be found by reason of his need to undertake drug and alcohol treatment, relapse prevention, the lack of available resources in custody and the fact that his record has been clean, indicating that he has good prospects of rehabilitation, particularly when combined with the high level of family support. It further submitted that the offender was entitled to the benefit of remorse, reflected in his plea of guilty, and the fact that his acquaintances have been informed of the manner of his expression of remorse, both in the pre-sentence report and to the psychologist.

54. The Crown conceded that this, being the offender’s first time in custody, his strong level of familial support and the potential to benefit from supervision and programs upon release justify a finding of special circumstances.

55. I am satisfied that by reason of the offender’s youth, good prospects of rehabilitation, his first time in custody and the need for additional supervision on release a finding of special circumstances is justified and I so find.

DETERMINATION

56. The charges the subject of the Form 1s I have been requested to take into account pursuant to s 32 of the 1999 Act. I do so noting the need for greater weight to personal deterrence and retribution. [11] Each of the offences recorded on the Form 1 are summary in nature.

    11. See Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) per Spigelman CJ i

57. In relation to Count 1, the maximum penalty provided for is 15 years imprisonment. There is no standard non parole period.

58. In relation to Counts 2 and 3, the maximum penalty provided for is 14 years imprisonment. Pursuant to of s 54A of the 1999 Act, a standard non-parole period of 4 years imprisonment is provided for taking into account only the objective factors affecting the relative seriousness of the offence. Both the maximum penalty and the standard non-parole period are legislative guideposts to be taken into account as part of the instinctive synthesis process, although in respect of the standard non parole period it is to be taken into account together with other considerations pursuant to s 54B(2) of the 1999 Act.

59. In imposing sentence I have regard to the purposes in s 3A of the 1999 Act. With offences of this kind general deterrence and specific deterrence loom large. The potential of the offender’s actions to cause harm to the community is such they need to be denounced, and the offender punished and made accountable. I am satisfied that incarceration has already impacted in specifically deterring the offender from the likelihood of committing offences in the future. With a young offender such as Mr Buhagiar, the community interest in seeing him rehabilitated as a contributing member of the community is significant.

60. I am satisfied that no penalty other that of imprisonment is appropriate. [12]

    12. s 5 (1) 1999 Act

61. I propose to proceed by way of aggregate sentence under s 53A of the 1999 Act.

62. Pursuant to s 53A(2)(b) of the 1999 Act I specify the indicative sentences I would have imposed as follows:

1. In respect of Count 1, and taking account of the matter on the Form 1 as earlier discussed I would have imposed a sentence of 2 years imprisonment; however in light of the offender’s plea of guilty I would have imposed term of imprisonment of 18 months.

2. In respect of Count 2, and taking account of the matters on the Form 1 as earlier discussed I would I would have imposed a sentence of 4 years imprisonment. Having regard to the plea of guilty however I would have imposed a non-parole period of 2 years and an additional term of 1 year imprisonment being an overall sentence of 3 years.

3. In respect of Count 3, I would have imposed an overall term of 3 years imprisonment. In light of the plea of guilty however, I would have imposed a non-parole period of 18 months and an additional term of 9 months being an overall term of 2 years and 3 months imprisonment.

63. Having regard to the principles of accumulation and totality, I impose and aggregate sentence comprising a minimum term of 2 years and 6 months and an additional term of 1 year and 2 months, making an overall term of 3 years and 8 months imprisonment.

ORDERS

64. The offender is convicted.

65. I impose an aggregate sentence comprising a minimum term of 2 years and 6 months imprisonment to commence on 18 September 2016 and to expire on 17 March 2019. Thereafter the offender is to serve an additional term of 1 year and two months imprisonment commencing on 18 March 2019 and expiring on 17 May 2020 during which the offender shall be eligible to be released on parole.

66. The overall head term is 3 years and 8 months.

Endnotes

Decision last updated: 29 November 2017