R v Jamie Victor Oatley

[2015] NSWDC 300

District Court

New South Wales

Medium Neutral Citation:	R v Jamie Victor Oatley [2015] NSWDC 300
Hearing dates:	04/12/15
Decision date:	16 December 2015
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Custodial sentence imposed. For orders see [41]
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996
Cases Cited:	El Masri v R [2014] NSWCCA 13 Pearce v R (1998) 194 CLR 610 R v Kitchener [2003] NSWCCA 134 Veen v R No. 2 (1998) 164 CLR 465 Wootton v R [2014] NSWCCA 86
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Jamie Oatley (Offender)
Representation:	Counsel: A Tillers (Crown) Mr Gibbons (Offender)
File Number(s):	15/203701
Publication restriction:	Nil

remarks on sentence

1. The offender has pleaded guilty to an offence of possess unauthorised prohibited firearm pursuant to s 7(1) of the Firearms Act 1996. The offence carries a maximum penalty of 14 years imprisonment and a standard non‑parole period of 3 years imprisonment.

2. The offender has asked that two additional charges be taken into account on a Form 1. They are:

1. Possess prohibited drug, (being less than 2 grams of methylamphetamine); and

2. Possess ammunition without authority (59 live .22 calibre rounds).

Circumstances of the offending

3. The offence occurred on 12 July 2015. At that time, the offender was on parole for an offence of “use offensive weapon in company with intent to commit indictable offence”, and an offence of “possess unauthorised prohibited firearm”. For the first of those offences, he had been sentenced to a total term of imprisonment of 5 years and a non-parole period of 3 years and 4 months commencing on 28 January 2012. For the second offence, he had been sentenced to a total term of 51 months with a non-parole period of 33 months commencing on the same date. He was released on parole on 7 May 2015, just over two months prior to the date of this offence. As a result of this offence, his parole was revoked and he is serving the balance of sentence from 12 July 2015 until 27 January 2017.

4. The sentence hearing took place on 4 December 2015. At that time, he had been in custody for a period of 20 weeks and 5 days.

5. The Crown Bundle (exhibit A) included a statement of Agreed Facts which may be fairly summarised as follows. At 11.40am on Sunday 12 July 2015, the offender was walking along Casey Drive, Watanobbi, holding a pump‑action rifle. Police were called. On sighting the police vehicle the offender decamped on foot and prior to his apprehension, dropped the rifle into a creek. Upon his arrest, the offender made admissions as to having ammunition and indicated the area where he dropped the firearm. A search located three .22 calibre bullets, a number of syringes, and a small plastic resealable bag containing less than 2 grams of methylamphetamine.

6. Following a search, the rifle was located. It was found to be loaded with five live .22 calibre rounds and one .22 calibre spent chambered round. The serial number had been obliterated and it was missing an ammunition tube spring. That item was located in a black backpack worn by the offender, together with another 59 live .22 calibre rounds, some cash and an ice pipe.

7. Upon examination by a ballistics expert, the weapon was found to be a .22 Long Rifle calibre Winchester model 90, repeating pump-action rifle in good working order, which had been shortened to dimensions less than the minimum dimension prescribed by the regulations. The ammunition located was examined and found to be suitable for use in the rifle.

Evidence on the sentence hearing

8. The Crown bundle included the offender’s lengthy criminal history, which had commenced in the Wyong Children’s Court in 2004 and contained numerous offences of assault, break, enter and steal, car stealing, drive in a manner dangerous, unlicensed driving, shop stealing, aggravated break, enter and commit serious indictable offence, assault law officer and recklessly cause grievous bodily harm in company, together with the offences referred to above, for which he was on parole at the time of offending.

9. Also tendered was the offender’s custodial record, which demonstrated that he had substantially spent all of his adult life in custody. He was born on 6 August 1986 and was now 29 years of age.

10. A breach of parole report noted that the offender’s overall response to supervision had been satisfactory, but highlighted his struggles with illicit drug use. When interviewed on 1 July 2015, eleven days prior to the offending, he had acknowledged using ice over a three-day period and had self-referred to a pharmacotherapy program and commenced Suboxone medication at Kullaroo Clinic on 29 June 2015. He had been fully compliant with his treatment obligations and was seeking a mental health care plan.

The offender’s evidence

11. The offender gave evidence that he had suffered abuse as a child which involved continual violent, physical abuse. He started smoking pot at eight to nine years of age, and by 14 years, was regularly using amphetamines, ecstasy and marijuana. From 18 years he suffered an addiction to heroin. He left home at 14 years of age and found trouble easily.

12. During his last sentence, the offender had completed an IDAPT program and on release on parole he had sought rehabilitation and counselling at the Kullaroo Clinic. He had also sought assistance from the Parole and Probation Board to obtain employment, but was deemed too high a risk to work.

13. The offender conceded that he had spent all of his adult life in custody. He was now at a cross-roads where, if he did not change, it would be impossible for him to change later on. He had enormous problems on release to the community. He gave evidence that “everything had changed” and gave examples of the widespread use of computers, and his inability to go to shopping centres where he would suffer panic attacks. Prior to his release, he had not much experience with the drug ice, but following his release on parole, used it “quite a bit”.

14. On the day of the offending, he had not slept for seven days because of his drug use. He gave evidence of being confused, and had obtained the rifle after taking it off a friend who had become suicidal. Once he obtained it, he became paranoid and formed a belief that there were people chasing him. He now knew that there were not.

15. The offender gave evidence that upon release on the next occasion he would able to live with his parents and that he had now asked for rehabilitation to get him off drugs, something he had never asked for before. He also had some hope of obtaining employment from a friend of his father to assist him installing escalators.

16. In cross-examination, the offender conceded that he had reverted to drugs within a couple of days of his release on parole on 7 May 2015. He quickly became addicted to ice, notwithstanding that he knew that he was in breach of his parole each time he consumed drugs. He also knew that the firearm was loaded, but said that whilst the clip was full of bullets, it was not actually in the gun.

17. The offender acknowledged that his Kullaroo Program concerned taking Bupnemorphine, which was specific to his heroin addiction, and that Kullaroo was not aware of his ice addiction. In the future, he knew that he would have to force himself to do more to return to the community. His goal was to attend courses to assist in his rehabilitation and notwithstanding his past failure to rehabilitate, he now wanted to try to do so.

The offender’s submissions

18. It was conceded on behalf of the offender that the fact of the gun being loaded and present in a public place increased the seriousness of the conduct. However, there was no evidence of planned criminal activity using the weapon, so that the matter did not lie at the upper end of objective seriousness for such an offence.

19. The submissions highlighted the offender’s subjective features. He was subjected to abusive discipline when young, and commenced using drugs from a very young age. From the age of 18 years, he has spent most of his adult life in custody and is now institutionalised. His harsh upbringing, and early difficulties with drug use were matters that could attract some leniency.

20. It was submitted that on his last release on parole he had made some attempts at change by commencing opiate replacement therapy and having made arrangements for psychological and drug counselling. He wished to find work and had difficulties adjusting to life outside gaol. This led him to begin using ice, which he had not used previously.

21. It was submitted that whilst his prospects of rehabilitation are guarded, he did have a wish to change and would benefit from an extended period of supervision.

22. It was submitted that he was entitled to a 25% utilitarian discount on sentence in respect of his early plea of guilty, and further, that he had cooperated with the police. There was also a wide discretion regarding backdating his sentence. It was submitted that where revocation of parole results from the offence, it can be appropriate to backdate. If there is no backdate, that would amount to double punishment, and the sentence is also increased due to the offence occurring whilst on parole, relying on R v Kitchener [2003] NSWCCA 134. It was further submitted that special circumstances were established pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999, as he would need considerable support on his release if he was to adjust to life outside custody.

The Crown submissions

23. The Crown submitted that the offender’s prospects of rehabilitation were guarded. The objective seriousness of the offending here was within the mid‑range, or alternatively just below it.

24. As to the revocation of his parole, there should be some partial accumulation of the offending and not a total backdating of it. His parole was due to expire on 27 January 2017.

Determination

25. 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.”

26. I have had regard to the maximum penalty of 14 years imprisonment and the standard non-parole period of 3 years as guidelines in the sentencing process.

27. I am also mindful that the offender entered his plea of guilty at the earliest possible opportunity and is therefore entitled to a 25% utilitarian discount on sentence. He has also shown contrition for his offending, and now realises he is at a crossroads where, having spent almost all of his adult life in prison, he has become institutionalised. He has expressed a desire to change that and to do so must first overcome his drug addiction and thereafter be assisted with his rehabilitation to return to the community.

28. Having regard to the circumstances of the offending, this offending does fall, in my view, within the mid-range of objective seriousness for an offence pursuant to s 7(1) of the Firearms Act. It was conceded that the gun was loaded and the offender was in a public place at the time of the offending, which increased the seriousness of the conduct. Whilst I accept that there was no evidence of planned criminal activity in using the weapon, that does little to mitigate the objective seriousness of the offending here.

29. General deterrence is an important matter to be taken into account in respect of this offence. Appellate courts have acknowledged the apparent increasing prevalence of illegal firearms in the community – see El Masri v R [2014] NSWCCA 13, and Wootton v R [2014] NSWCCA 86 per Campbell J (with whom Gleeson JA and R A Hulme J agreed) at [34].

30. I have regard to what the High Court said in Veen v R No. 2 (1998) 164 CLR 465 at 477 where the plurality said:

“The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. The antecedent criminal history is relevant, however, to show that the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In that case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.”

31. It is clear from the above that the offender’s appalling criminal history here does not entitle him to any leniency.

32. Notwithstanding that record, I was impressed with the evidence given by the offender on sentence. He has had a life of deprivation, starting with abuse as a child and then early introduction to drug taking by his family. This had led to him now, at age 29, becoming institutionalised, having spent all of his adult in prison. Efforts at rehabilitation have, up to the time of his last release on probation, proved to be ineffectual and he quickly succumbed to illicit drug use on his release to conditional liberty. The fact that the offending was committed whilst on conditional liberty is an aggravating factor which I have to take into account on sentence.

33. I find that there are special circumstances established pursuant to s 44(2) of the C(SP) Act, given the need for the offender to address his drug addiction, and to develop the wherewithal to return to the community in a constructive way. I therefore intend to vary the ratio between any head sentence and his non-parole period to reflect those needs.

34. I have also taken into account the matters on the Form 1, which I have certified as having taken those offences into account.

35. In respect of the backdating of the term of imprisonment to be served by the offender, I am of the view that there should be some accumulation between the balance of parole he is serving in respect of his offending, and the current offence. I accept the offender’s submission that there should be an avoidance of double punishment in accordance with R v Kitchener, supra. His sentence will therefore commence on 1 October 2015.

36. I also take into account that the offender is entitled to a discount of twenty-five per cent, and I am mindful of the principles of parity, proportionality and avoidance of double punishment set out in Pearce v R (1998) 194 CLR 610 at [45].

Sentence

37. I am satisfied pursuant to s 5 of C(SP)A that no penalty other than imprisonment is appropriate.

38. In setting the non-parole period pursuant to s 44 of the Act, I have taken into account the 25% discount for the offender’s plea of guilty, and I have also taken into account the subjective mitigating factors as outlined above.

39. I have found special circumstances pursuant to s 44(2) of the Act. Having regard to the principles of sentencing set out above, together with the need for deterrence generally, I set a non-parole period for the offender of 2 years and 3 months.

40. I set the balance of the offender’s term to a period of 1 year and 9 months.

Orders

41. I make the following orders:

1. You are convicted of the offence pursuant to s 7(1) of the Firearms Act 1996.

2. I sentence you to a term of imprisonment by way of a non-parole period of 2 years and 3 months commencing on 1 October 2015 and expiring on 31 December 2017.

3. I fix a balance of sentence of imprisonment of 1 year and 9 months expiring on 30 September 2019.

4. The total sentence of imprisonment is 4 years.

5. Your parole eligibility date will be 31 December 2017. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.

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Decision last updated: 16 December 2015