R v Jarrod Betts

[2017] NSWDC 123

District Court

New South Wales

Medium Neutral Citation:	R v Jarrod Betts [2017] NSWDC 123
Hearing dates:	16 May 2017
Decision date:	25 May 2017
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full time custodial sentence. For orders see [92] and [93]
Catchwords:	Multiple firearms offences; multiple supply prohibited drugs offences; aggregate sentence
Legislation Cited:	Confiscation of Proceeds of Crime Act 1989 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985 Firearms Act 1996 Weapons Prohibition Act 1988
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Jarrod Betts (Offender)
Representation:	Solicitors: L Hanshaw (Crown) D Barron (Offender)
File Number(s):	16/21902115/346174
Publication restriction:	Nil

REMARKS ON SENTENCE

1. The offender is to be sentenced in respect of two sets of offences. The first set of offences, although they took place later in time than the second set, are as follows:

1. On or about 23 November 2015 in Wagga Wagga and Talbingo, in the State of New South Wales, did possess more than three firearms, namely four firearms, of which two were pistols and one was a prohibited firearm, in circumstances where those firearms were not registered and where he was not authorised by a licence or permit to possess those firearms, pursuant to s 51D(2) of the Firearms Act 1996.

The maximum penalty for this offence is a term of imprisonment of 20 years. There is a Standard Non-Parole Period of 10 years imprisonment.

2. Between 13 September 2015 and 24 November 2015, at Wagga Wagga, in the State of New South Wales, did acquire a pistol, namely a .357 Magnum Calibre Taurus model 689 revolver, from a person who was not authorised to possess the firearm by a licence or permit, pursuant to s 51A(1) of the Firearms Act 1996.

The maximum penalty for this offence is 14 years imprisonment.

3. Between 3 October 2015 and 5 October 2015 at Talbingo, in the State of New South Wales, did use a pistol, namely a .357 Magnum Calibre Taurus model 689 revolver, without being authorised to do so by a licence or permit, pursuant to s 7(1) of the Firearms Act 1996.

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

4. Between 1 January 2015 and 23 November 2015 at Wagga Wagga, in the State of New South Wales, did shorten a firearm that was not a pistol, namely, a .22 Calibre Remington rifle serial number X 3764, without being authorised to do so by a permit, pursuant to s 62(1)(a) of the Firearms Act 1996.

The maximum penalty for this offence is a term of imprisonment of 14 years.

5. Between 13 September 2015 and 24 November 2015 at Talbingo, in the State of New South Wales, did possess a prohibited weapon, namely, a home-made firearm silencer, without being authorised to do so by a licence or permit pursuant to s 7(1) of the Weapons Prohibition Act 1988.

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

6. Between 13 September 2015 and 24 November 2015 at Talbingo, in the State of New South Wales, did possess a prohibited weapon, namely, a home-made metal firearm silencer, without being authorised to do so by a licence or permit pursuant to s 7(1) of the Weapons Prohibition Act 1998.

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

2. In addition to those six matters, the offender has been charged with the following related offences which are subject to a certificate pursuant to s 166 of the Criminal Procedure Act 1986, namely:

1. Sequence 1 – possess prohibited drug

2. Sequence 5 – not keep firearm safely – prohibited firearm

3. Sequence 9 – not keep firearm safely – pistol

4. Sequence 10 – possess ammunition without holding licence/permit/authority

5. Sequence 15 – not keep firearm safely – pistol

6. Sequence 18 – not keep firearm safely – not prohibited firearm/pistol

3. These summary matters have the following maximum penalties:

1. Possess prohibited drug – maximum penalty 2 years imprisonment.

2. Not keep firearm (prohibited or pistol) stored safely (3 matters) – maximum penalty 50 penalty units and/or 2 years imprisonment.

3. Possess ammunition without licence – 50 penalty units.

4. Not keep firearm stored safely (not prohibited or pistol) – maximum penalty 20 penalty units and/or imprisonment for 12 months.

4. The offender was committed for trial on 6 April 2016 from Wagga Wagga Local Court. A plea of guilty was communicated by the offender to the ODPP on 28 October 2016, and the offender was arraigned and entered pleas of guilty to the six counts on an Indictment on 4 November 2016.

5. The offender spent from 24 November 2015 to 23 May 2016 in custody, and was granted conditional bail by the Supreme Court on 18 May 2016, and released from custody on 23 May 2016. He was re-arrested on the second set of matters, which had pre-dated the above offences, on 20 July 2016, and has been in continual custody since that date.

The sentence hearing

6. The sentence hearing took place on 16 May 2017. The Crown Sentence Summary (Ex A) contained Agreed Facts which may be summarised as follows.

7. On 23 November 2015, police conducted a search of premises in Ashmont, which was the home of the offender. In a shed at the rear of the property they located a firearm hidden beside a workbench. It was a 0.22 calibre Remington rifle that had been shortened, with half its barrel cut off and the stock cut off in the form of a pistol grip. It was 55 cms in length. The offender later admitted that he was the person who shortened the firearm and that he did not hold a licence or permit to possess firearms.

8. Police also located several small resealable bags, with one containing a white crystalline substance, along with $400 in cash. These were the subject of the offences on the s 166 certificate. The offender admitted the crystalline substance was methylamphetamine, which he had purchased for $200. He told police he had found the firearm in the Berrijerri State forest when he was hunting.

9. The offender was arrested on 24 November 2015 and took part in an electronically recorded interview. In that interview he was asked about a pistol that had been stolen from Wagga Firearms between 13 September 2015 and 30 October 2015. He told police he had purchased the Taurus model 689 .357 calibre pistol from the son of the proprietor of the Wagga Firearms shop. This was the conduct contained in Count 2 on the Indictment. He purchased the pistol for $1,000 and it came with 40 rounds of ammunition. He made no enquiries from the seller as to whether he was authorised to sell the firearm.

10. The offender also told the police that he had stored the firearm at a friend’s house at Talbingo, and that he had used the pistol on the October long weekend, by firing 20 rounds at a tree.

11. When investigating police attended the premises at Talbingo, the occupant of the premises immediately surrendered the Taurus pistol. She surrendered to police the following items also kept on behalf of the offender:

1. Two x silencers

2. 1 x semi-automatic pistol

3. 1 x 22 calibre semi-automatic rifle

4. 1 x black ASICS brand bag containing 10 rounds of .357 magnum ammunition, 2 used cartridges, 2 Winchester Powerpoint .22 long rifle boxes with 1 live round of .22 calibre ammunition.

12. On 23 November 2015, at premises in Wagga Wagga and Talbingo, the accused possessed four firearms, two of which were pistols, and one prohibited firearm. None of the firearms were registered and the offender did not hold a licence or permit to possess the abovementioned firearms. That was the conduct comprised in Count 1 on the indictment. None of the firearms were stored safely, which accounted for sequences 5, 9, 15 and 18 on the s 166 certificate.

13. Exhibit A contained the criminal antecedents of the offender. It contained offences relating to possession of ammunition and being an unauthorised person failed to surrender firearm, and possess unregistered firearm in 2012, for which small fines were imposed. Leaving aside traffic offences, he was also convicted in 2016 of a false representation resulting in police investigation and goods suspected of being stolen, for which fines were also imposed. He was convicted of a similar offence of goods suspected stolen in October 2016 at Tumut Local Court, and again, a fine was imposed.

14. Exhibit A also contained a Pre-Sentence Report dated 17 January 2017, and a further report dated 4 May 2017, both under the hand of Ms Alison Robb. The report set out his family history. He had been raised in a close family and had regular contact with his parents and older brother. He had been in a relationship for the past two years, which was also described as positive and supportive. The offender is the father of two children with whom he had regular contact.

15. The offender left school during year 8 due to educational difficulties. He worked in various labouring jobs and outlined to the author of the report a detailed employment history. He hoped to re-engage with employment upon his release from custody. His mother described a strong work ethic and commented that he would easily find work upon his release.

16. The offender had stated that he commenced using illicit substances during his adolescence. He identified abuse of both cannabis and methamphetamines. Prior to accepting treatment, his drug use involved using 3 grams of methamphetamine daily, resulting in him rapidly spending $20,000 of personal savings.

17. The offender attended the Riverina Drug and Alcohol Centre on 23 May 2016, and successfully completed phase 1 of the program. He was actively participating in phase 2 of the program, when he was charged and bail refused on 20 July 2016 in respect of the second, but earlier, course of offending.

18. The offender’s attitude to the offending was one of regret for his actions. He denied being aware of the seriousness of the index offences, however, he cooperated with police and during the initial phase, advised them of the whereabouts of the firearms at Talbingo. He demonstrated insight into his offending behaviour and acknowledged responsibility for it.

19. The offender was assessed as a medium risk of re-offending. His identified criminogenic needs are:

• Education/employment

• Financial

• Family/marital

• Leisure/recreation

• Companions

• Alcohol/drug problems

• Emotional/personal

20. In the later report, the author considered the offender would benefit from a period of supervision by Community Corrections. Case management strategies would include:

• Referral for alcohol and other drug assessment, counselling and programs

• Referral for mental health assessment

21. He was assessed as suitable for a Community Service Order, and to participate in the EQUIPS Foundation and EQUIPS Addiction Developmental programs.

The second set of charges

22. On 20 July 2016, the offender was arrested and charged with the following:

1. Three offences of supply prohibited drug of greater than indictable quantity, pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985 (“DMTA”).

The maximum penalty for each offence was 15 years imprisonment.

2. Two offences of supply unregistered firearms (not prohibited or pistol), pursuant to s 36(1) of the Firearms Act 1996.

The maximum penalty for each offence was 5 years imprisonment.

3. Offence of supply prohibited firearm to unauthorised person, pursuant to s 51(1A)(a) of the Firearms Act 1996.

The maximum penalty for this offence was 20 years imprisonment, and there is a Standard Non-Parole Period of 10 years.

4. There is a later charge subject to a certificate pursuant to s 166 of Criminal Procedure Act 1986 of supply ammunition to a person not authorised, pursuant to s 65(1) of the Firearms Act 1996.

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

23. The offences occurred between July and September 2015.

24. In respect of these offences, the Crown Sentence Summary became Ex A. It contained a summary of facts which may be summarised as follows.

25. The offender was residing at premises in Ashmont. Jordan Betts resided at different premises in Ashmont. Police conducted an undercover operation in relation to the supply of prohibited drugs and firearms by the offender and his associates. On 30 July 2015, an undercover officer attempted to contact the offender to arrange the supply of firearms and prohibited drugs. Soon after, that person received a text message from the offender informing him to contact his younger brother, Jordan, who would arrange the sale. On the same day, the officer made contact with the co-offender and drove to his home in Ashmont. The co-offender took the officer to the shed at the rear of the premises and began to search for firearms and prohibited drugs. The officer located an unloaded shortened 12 guage “Boito Brazil” shotgun, and a belt containing 20 shotgun rounds. Also found was a sunglasses case containing three resealable bags of pills, one of which contained 100 pills, and the other two bags each contained 50 pills.

26. The sale of the shortened shotgun, ammunition and pills was negotiated whereby it was agreed that the shotgun and ammunition were sold for $500 and the 100 pills were sold for $1,600. A total of $2,100 was paid. At no time was the officer asked to provide paperwork showing he was entitled to possess the prohibited firearm and/or ammunition. He then dropped the co‑offender off at premises in Wagga Wagga.

27. The pills were later analysed and found to weigh 26.2 grams of 3, 4-Methylenedioxymethylamphetamine (“MDMA” aka ecstasy).

28. The shortened Boito shotgun was a single-shot 12 guage shotgun with serial number 519538. It was not in working order due a broken firing pin. Portions of the barrel and buttstock had been removed and the firearm had an overall length of approximately 562 millimetres. The firearm was classified as a shortened firearm and the shotgun shells were examined and found to be suitable for use within it. The shorted Boito shotgun was not registered.

29. In a further controlled operation on 29 September 2015, an undercover officer attempted to contact the offender, but was unsuccessful. He then contacted the co-offender, Jordan Betts, who informed the officer that he would get in touch with the offender and have him return his calls. Investigators lawfully intercepted conversations between the co-offenders. The offender told his brother that he was out of town but would be back in half an hour. Jordan Betts said to the offender:

“They don’t want to be fucked around they have money, they’re not going to fuck you around Jarrod.”

The offender then agreed to call the officer back.

30. A few minutes later, his brother sent the offender a text message saying:

“Ring him. U won’t get fucked around trust me I talk to these guys all the time. They’re alright make some money for yourself.”

Further text messages passed between the two co-offenders. They discussed where to meet the undercover officer and the offender suggested placing the guns in a guitar case and arranging for the officer to meet the co‑offender. The co-offender declined, saying:

“I don’t want to do this shit man.”

31. The offender then arranged a place to meet with the officer and on 29 September at 5.47pm, went to the Barbeques Galore car park at Wagga Wagga. The offender took a black guitar case from the vehicle and placed it in the officer’s vehicle. The officer sighted two rifles inside the guitar case. A price of $1,600 was negotiated and that sum of money was handed to the offender. The two rifles supplied were a .22 Sterling rifle serial number 217700, and a 22-250 Zavodi Crevena Zastovo rifle serial number 35793. The firearms were examined and found to be in working order.

Supply of 714 tablets of MDMA and 8.85 grams of methylamphetamine

32. Between 7 August 2015 and 5 September 2015, the offender agreed to supply MDMA and methylamphetamine on a number of occasions. Twenty‑five separate transactions were captured by lawful interception of a telephone service belonging to the offender. In total, the offender agreed to supply 714 tablets of MDMA in the course of 13 transactions. He also agreed to supply 8.85 grams of methylamphetamine in the course of 12 transactions. On three of those occasions, namely on 20 August 2015, 29 August 2015, and 12 September 2015, the offender agreed to supply his co-offender, Jordan Betts, with 100, 50 and 50 MDMA pills respectively.

33. Exhibit A contained the same criminal antecedents and custodial record as the first set of offences, together with the Pre-Sentence Report of Ms Robb dated 4 May 2017.

34. The sentence hearing took place on 16 May 2017. In respect to the first set of offences, the offender had been committed for trial on 6 April 2016, and the trial was set down for 14 November 2016. A plea of guilty was communicated to the Crown on 28 October 2016, and entered upon the offender being arraigned on 4 November 2016. In those circumstances, the Crown submitted that the offender was entitled to a 15% utilitarian discount on sentence in respect of those offences, as no witnesses were required to be at court.

35. In respect of the second set of offences, earlier in time, a plea of guilty was entered at the earliest opportunity in the Local Court on 15 March 2017. The offender was therefore entitled to a 25% utilitarian discount on sentence in respect of those matters.

The offender’s evidence

36. The offender tendered a handwritten letter written by him six weeks before the sentence hearing. It outlined the changes that he had undergone since entering custody, particularly the effect of missing the birth of his first son, and the suffering of two heart attacks by his father. He acknowledged that he was in custody because of his own actions, however, he had set goals for his life following his release. The offender acknowledged the seriousness of the charges. He had purchased the firearm, being the .357 Magnum Calibre Taurus model 689 revolver for the purpose of pig hunting and kept it at Talbingo away from the major centre of Wagga Wagga. The offender advised that he was a bushman who engaged in hunting and fishing and it was this hobby that got him into trouble. He acknowledged that he had done the wrong thing and was truly sorry for his actions. The letter was Ex 1.

37. Exhibit 2 was a letter from Calvary Riverina Drug and Alcohol Centre confirming the offender’s positive engagement in the rehabilitation course referred to above.

38. Exhibit 3 were testimonials written by his former partner and present partner (being the mother of his son born on 1 January 2016). It also contains two character references which speak to his work ethic and remorse.

39. Exhibit 4 comprised medical evidence in relation to the coronary health of the offender’s father.

40. The offender gave evidence that the handwritten letter he had written was true and correct. Prior to his Supreme Court Bail, he had been 181 days in custody. That bail was granted on strict conditions that he become a resident at the Rehabilitation unit at Calvary, where he completed 8 weeks and 4 days prior to his subsequent arrest on the pre-dated charges. He had been in custody from 20 July 2016 on both sets of charges.

41. He described his gaol experience as very scary. He survived by keeping to himself, training and working as a sweeper, a responsible and trusted position. He had had no trouble in custody.

42. The offender gave evidence that he learnt a lot from his residential rehabilitation about his drug addiction and about himself. At the time of the offending he had been consuming 3 grams of ice per day and would do anything to obtain it. His drug abuse involved him staying up for three weeks at a time and he now understood how dysfunctional his life was, and it caused him to lose friends, family and his job. Prior to his arrest, the offender gave evidence that he was slowly decreasing his intake to 3 grams per week, and trying to get off ice. He has not used at all since he has been in custody and the damage that drugs had played in other people’s lives was all he thought about.

36. The offender gave evidence that on release he would not go back to drugs. He wanted to work and spend time with his family and children. A friend who had a business involving excavators and machinery had offered him work, and since he had been in custody his relationship with his partner and parents had improved. He would like to complete his residential rehabilitation at Calvary to ensure that he does not relapse into further drug abuse.

37. The offender gave evidence that his possession of guns arose from his interest in hunting. He had been introduced by a family friend to kangaroo shooting, and that had developed into an interest in pig shooting. Whilst he acquired firearms through his knowledge of people with them, he understood the laws and regulations regarding firearms were there for a reason, and understood that it would be unlikely that he would ever hold a licence to use firearms again, and that he would abide by that.

38. The offender said that he was really sorry for his offending, that it had embarrassed himself and his family. His time in gaol had made him realise how lucky he had been and also that he had taken a lot of things for granted. All of the firearms and parts such as the silencers were used for pig hunting.

39. With respect to the second set of offences for which he was arrested in July 2016, the offender gave evidence that he was in denial about his drug problems. He had sold the drugs in question, and the prohibited firearms to finance his drug habit at the time.

The offender’s submissions

47. The offender submitted, that in respect of the first set of offences, he was entitled to a discount in respect of his plea of guilty of 20%. The matter had been set down for trial, based on what he regarded to be a deficient Crown brief. It was not until the Crown brief was delivered in respect of the second set of matters that he became aware of certain telephone intercepts which were relevant to the first set of offences. The formal plea was entered on 28 October 2016, but had been indicated to the Crown well before that.

48. The offender also submitted that he had given assistance to the investigating police as to the location of the firearms at Talbingo. He had also admitted use of the revolver and told the police about the three firearms located there. But for his admissions, he would not have been charged and therefore a further discount should be given to him for his assistance.

49. The offender had spent 181 days in custody until he was granted Supreme Court Bail to enable him to undergo residential rehabilitation. That was interrupted when he was arrested on the second set of charges. The progress he made with his rehabilitation, it was submitted, augers very well for the future. Further, the offender had given evidence and expressed his contrition and shame for his criminal conduct. He was very ashamed of the effect of his conduct on his father’s medical condition and was genuinely remorseful. His offending arose from his addiction to drugs.

50. The testimonials contained in Ex 3 spoke very highly as to the offender’s character. On his release from custody he wanted to build a future, but first wanted to complete his rehabilitation program.

51. It was submitted that the court would find special circumstances, given that he had made considerable progress with his rehabilitation.

52. Finally, in respect of the first set of offences, it was submitted that the Remington .22 calibre rifle in respect of Count 4, was not in working condition, and therefore the offending was towards the lower end of the range of objective seriousness. It had been shortened and was therefore a prohibited weapon. The other firearms were located in a remote location on a rural property. They were used only for hunting.

53. In respect of the second set of offences, the offender submitted that the supply of prohibited drugs was to an undercover officer and the drugs were not disseminated into the community generally, or within the criminal class. He did not advertise any of the weapons for sale, and he gave sworn evidence that the offending was borne of his drug addiction. He was not making huge profits from the endeavour, but enough money to buy drugs to fund his 3 gram per day habit.

54. A finding of special circumstances should be made to enable the offender to complete his rehabilitation. He had been in custody on remand for a lengthy period and the eight weeks and four days that he spent in rehabilitation was a form of quasi-custody, for which he should receive credit, at least to the extent of 50% thereof.

55. It was submitted that whilst general deterrence and specific deterrence were important in the sentencing process, the offender’s sworn evidence had indicated that he had learnt a salutary lesson.

The Crown submissions

56. The Crown submitted that there was no issue that a finding of special circumstances should be made, and further, that whilst on Supreme Court Bail, the offender had been in quasi-custody and was entitled to a discount representing half of the time spent there.

57. The Crown did not concede that the Crown brief was deficient when the matter was set down for trial. It was submitted that all elements were established on the available evidence, and the defence case at that time was that one of the Crown witnesses was lying. It was submitted that it was a strong prosecution case that did not rely on the listening device evidence that supported the second set of matters. The Crown submitted therefore that the offender was entitled to a 15% utilitarian discount on sentence.

58. In respect to the first set of offences, the Crown submitted that Count 1 was the most serious, as it involved more than three firearms. Three of those firearms comprised two pistols and one prohibited firearm, and the offending therefore fell within the mid-range of objective seriousness.

59. The Crown submitted that the offending in Count 2 fell below the mid-range. The offender had acquired the pistol, which was one of the firearms referred to in Count 1, by purchasing it from the son of the owner of a firearms shop in Wagga.

60. It was submitted that Count 3 involved the use of the pistol as admitted by the offender, and fell within the lower range of objective seriousness. Count 4 also fell at the lower end of the range of objective seriousness for the offence of shortening the firearm.

61. It was further submitted that Counts 5 and 6, which related to the possession of prohibited weapons, being two silencers, were also at the lower end of the range for such of objective seriousness for such an offence.

62. In respect of the second set of offences, the Crown conceded that the drugs and firearms were not disseminated into the community, but that the offender believed that they were being sold for use by members of the community.

63. The Crown submitted that the combination of drugs and firearms here was not an aggravating factor pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”). The court would take that into account in the overall assessment of the offending, as both were supplied at the same time.

64. The police operation had been designed to investigate this particular offender. In respect of sequence 8, which involved an agreement to supply 714 tablets, the offending did not involve actual supply, but did involve a very high number of tablets. It was therefore submitted to be offending above the mid-range of objective seriousness for such an offence, and over the indictable quantity. The tablets were not weighed, however, the offending took place over the course of 13 transactions between 7 August 2015 and 5 September 2015. Of the 13 agreements to supply MDMA, 50 tablets in all were supplied by way of completed transactions.

65. The Crown submitted that the supply of MDMA constituted offending above the mid-range of objective seriousness for an offence pursuant to s 25(1) of the DMTA.

66. The Crown submitted that the offence of supply prohibited firearm, pursuant to s 51(1A)(a) fell at the lower range of objective seriousness for such an offence. It still constituted very serious offending.

67. The Crown submitted that the offence of supply 26.2 grams of MDMA fell somewhere below the mid-range of objective seriousness for an offence pursuant to s 25(1). The indictable quantity for that prohibited drug was 1.25 grams, whereas the commercial quantity was 125 grams.

68. The Crown submitted that sequences 4 and 5, which were both offences pursuant to s 36(1) of the Firearms Act, were both below the mid-range of objective seriousness for such an offence. Both still constituted serious offending for which a lengthy sentence of full time custody was appropriate.

Determination

69. 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.”

70. In respect to the first set of offences, the first offence of possession of more than three firearms, namely four firearms, of which two were pistols and one was a prohibited firearm, was in this case below the mid-range of objective seriousness for an offence pursuant to s 51D(2) of the Firearms Act 1996. The reason for that was that the firearms were located on a remote rural property, and were used solely for the purpose of hunting on that property. It still constituted serious offending, and was towards the mid to upper level of the lower range of objective seriousness for such an offence. I accept the Crown’s submission that this offence was the most serious criminal conduct in which the offender was involved.

71. I also accept the Crown submission that the offending in Count 2, namely, that he acquired a pistol, namely, a .357 Magnum Calibre Taurus model 689 revolver, from a person not authorised to possess the firearm by a licence or permit, was also below the mid-range. It had been purchased by the offender from the son of the owner of a firearms shop in Wagga Wagga. I find that the offence was towards the middle of the lower range of objective seriousness for an offence pursuant to s 51A(1) of the Firearms Act 1996.

72. Count 3 constituted offending within the lower range of objective seriousness for an offence pursuant to s 7(1) of the Firearms Act 1996, as did Count 4, as was submitted by the Crown. I also find that Counts 5 and 6 fell at the lower end of the range of objective seriousness for offences pursuant to s 7(1) of the Weapons Prohibition Act 1998.

73. I also find that the offences contained in the certificate pursuant to s 166 of the CSPA (sequences 1, 5, 9, 10, 15 and 18) were all offences where the objective seriousness fell towards the lower end of objective seriousness for such offences.

74. I have taken into account the maximum penalties proscribed by Parliament in respect of the first set of offences as a guideline in the sentencing process as follows:

Count 1 – s 51D(2) of the Firearms Act 1996 – 20 years imprisonment and a Standard Non-Parole Period of 10 years.

Count 2 – s 51A(1) of the Firearms Act 1996 – 14 years imprisonment.

Count 3 – s 7(1) of the Firearms Act 1996 – 14 years imprisonment and a Standard Non-Parole Period of 4 years.

Count 4 – s 62(1)(a) of the Firearms Act 1996 – 14 years imprisonment.

Counts 5 and 6 – s 7(1) of the Weapons Prohibition Act 1998 – 14 years imprisonment and a Standard Non-Parole Period of 5 years.

75. I have also taken into account the maximum penalties for the related matters on the s 166 certificate as follows:

Sequence 1 – maximum penalty 2 years imprisonment

Sequences 5, 9 and 15 – maximum penalty 50 penalty units and/or 2 years imprisonment

Sequence 10 – 50 penalty units

Sequence 18 – 20 penalty units and/or imprisonment of 12 months.

76. In respect of the second set of offences, I find that the offending in respect of sequence 8, which involved an agreement to supply 714 tablets, but did not involve actual supply, was just below the mid-range of objective seriousness for an offence pursuant to s 25(1) of the DMTA. I therefore reject the Crown submission that it was offending that fell above the mid-range of objective seriousness for such an offence. The offending took place between 7 August 2015 and 5 September 2015. The tablets were not weighed, and of the 13 agreements to supply MDMA, only 50 tablets in all were supplied by way of completed transactions. Whilst it was below the mid-range of objective seriousness for such an offence, it still constituted serious offending.

77. I accept the Crown submission that the objective seriousness of the offence of supply unregistered firearms pursuant to s 36(1) of the Firearms Act 1996 (sequences 4 and 5), were both below the mid-range of objective seriousness for such an offence. I also accept the Crown submission that the offence of supply prohibited firearm pursuant to s 51(1A)(a) of the Firearms Act 1996 fell at the lower range of objective seriousness for such an offence in the circumstances. These offences, however, still constituted serious offending by the offender.

78. I have taken into account the following maximum penalties for the offences in the second set of offending, as guideposts in the sentencing process:

Section 25(1) of the DMTA – 15 years imprisonment

Section 36(1) of the Firearms Act 1996 – 5 years imprisonment

Section 51(1A)(a) of the Firearms Act 1996 – 20 years imprisonment and a Standard Non-Parole Period of 10 years.

79. I have also taken into account that the offence on a s 166 certificate in respect of the second set of offences, of supply ammunition, carries a maximum penalty of a fine of $5,500.

80. In respect of the first set of offences, I find that the offender, given the lateness of his plea, is entitled to a utilitarian discount on sentence of 15%. I do not accept the submission that the Crown brief was deficient. I do, however, accept the submission made on behalf of the offender that he had given assistance to the investigating police as to the location of the firearms at Talbingo, and had also admitted use of the revolver at that location. But for his admissions, he may not have been charged with the particular offences and I therefore give him a discount of 10% for his assistance.

81. I also accept that whilst the offender was on Supreme Court Bail, he was attending a residential course of rehabilitation prior to his arrest on the second set of offences. That amounted to a form quasi-custody, and I find that he is entitled to a credit of 50% of the time that he spent on that course.

82. General deterrence is very important in the sentencing process for both supply of prohibited drugs and firearms offences. A clear message must be sent to like-minded members of the community that Parliament has proscribed maximum penalties of lengthy terms of imprisonment for such offences, and that the courts will impose long sentences in relation to them. Specific deterrence is also important here, although I accept that the offender has learnt a salutary lesson from his criminal conduct, and is a low risk of re‑offending.

83. I accept that the offender has made progress with his rehabilitation which augers well for the future. I also accept that he has expressed remorse and contrition for his criminal conduct. He is very ashamed of the effect of his conduct on his father’s medical condition, and I accept that his offending was borne of his addiction to drugs.

84. I make a finding of special circumstances here pursuant to s 44 of the CSPA. I am satisfied that there are positive signs that the offender will respond well to drug and alcohol rehabilitation, and that he will require a lengthy period of time under supervision to assist him in that regard. He is still a young man and this has been his first custodial sentence

85. I propose to proceed by way of an aggregate sentence, having regard to the manifold offences here. Before I do so, I am required to provide the indicative sentences that I would otherwise have sentenced the offender to. This provides transparency in the sentencing process. Where there is no Standard Non-Parole Period proscribed for an offence, I am not required to indicate what non-parole period would be imposed for that purpose.

86. The indicative sentences that I would impose for the first set of offences are as follows:

Count 1 – offence pursuant to s 51D(2) of the Firearms Act 1996 – 2 years and 3 months imprisonment with a Non-Parole Period of 1 years and 3 months imprisonment.

Count 2 – offence pursuant to s 51A(1) of the Firearms Act 1996 – 12 months imprisonment.

Count 3 – offence pursuant to s 7(1) of the Firearms Act 1996 – 6 months imprisonment with a Non-Parole Period of 3 months.

Count 4 – offence pursuant to s 62(1)(a) of the Firearms Act 1996 – 3 months imprisonment

Count 5 – offence pursuant to s 7(1) of the Weapons Prohibition Act 1998 – fixed term of 3 months imprisonment.

Count 6 – offence pursuant to s 7(1) of the Weapons Prohibition Act 1998 – fixed term of 3 months imprisonment.

87. In respect of the offences subject to the s 166 certificate, I provide the following indicative sentences:

Sequence 1 – s 10(1) of the DMTA – 1 month imprisonment.

Sequence 5 – s 39(1)(a) of the Firearms Act 1996 – 1 month imprisonment.

Sequence 9 – s 39(1)(a) of the Firearms Act 1996 – 1 month imprisonment.

Sequence 10 – s 65(3) of the Firearms Act 1996 – conviction without imposing any other penalty pursuant to s 10A of the CSPA.

Sequence 15 – s 39(1) of the Firearms Act 1996 – one month imprisonment.

Sequence 18 – s 39(1)(a) of the Firearms Act 1996 – one month imprisonment.

88. In respect to the second set of offences, the indicative sentences I would otherwise impose are as follows:

Sequence 8 – agreement to supply 714 tablets of MDMA, pursuant to s 25(1) of the DMTA – 18 months imprisonment

Sequence 1 – supply of 26.2 grams of MDMA, pursuant to s 25(1) of the DMTA – 12 months imprisonment

Sequence 9 – supply of 8.85 grams of methylamphetamine, pursuant to s 25(1) of the DMTA – 3 months imprisonment

Sequence 4 – supply unregistered firearm, namely, .22 Sterling rifle serial no. 217700, pursuant to s 36(1) of the Firearms Act 1996 – 12 months imprisonment

Sequence 5 – supply unregistered firearm, namely, Zavodi Crevena Zastovo rifle serial no. 35793, pursuant to s 36(1) of the Firearms Act 1996 – 12 months imprisonment

Sequence 6 – supply prohibited firearm, namely, shortened shotgun, pursuant to s 51(1A)(a) of the Firearms Act 1996 – 12 months imprisonment with a non-parole period of 6 months

89. With respect to the offence on the certificate pursuant to s 166 of the CPA, namely sequence 3, pursuant to s 65(1) of the Firearms Act 1996, the indicative sentence is a conviction without imposing any other penalty pursuant to s 10A of the CSPA.

90. There must be some accumulation demonstrated in an aggregate sentence, having regard to the indicative sentences. I therefore propose to sentence you to an aggregate sentence of 4 years and 6 months imprisonment, with a non-parole period of 2 years and 6 months.

91. The sentence will be backdated to take into account the time you have spent in custody You will also be given credit for 50% of the time that you spent on Supreme Court Bail at the residential rehabilitation centre. You were in custody in respect of the first set of matters from 24 November 2015 to 23 May 2016, a total of 181 days. You have been in custody since your arrest on the second set of matters from 20 July 2016 until 25 May 2017, a total of 310 days. The total time you have spent in custody in respect of all offences is therefore 491 days. In respect of your time in residential rehabilitation, the period of 8 weeks and 4 days, I intend to further backdate your sentence by 30 days, representing half of that time. The sentence will therefore be backdated a total of 521 days, to commence on 21 December 2015.

Orders

92. You are convicted of the following offences:

1. On or about 23 November 2015 in Wagga Wagga and Talbingo, in the State of New South Wales, did possess more than three firearms, namely four firearms, of which two were pistols and one was a prohibited firearm, in circumstances where those firearms were not registered and where he was not authorised by a licence or permit to possess those firearms, pursuant to s 51D(2) of the Firearms Act 1996.

2. Between 13 September 2015 and 24 November 2015, at Wagga Wagga, in the State of New South Wales, did acquire a pistol, namely a .357 Magnum Calibre Taurus model 689 revolver, from a person who is not authorised to possess the firearm by a licence or permit, pursuant to s 51A(1) of the Firearms Act 1996.

3. Between 3 October 2015 and 5 October 2015 at Talbingo, in the State of New South Wales, did use a pistol, namely a .357 Magnum Calibre Taurus model 689 revolver, without being authorised to do so by a licence or permit, pursuant to s 7(1) of the Firearms Act 1996.

4. Between 1 January 2015 and 23 November 2015 at Wagga Wagga, in the State of New South Wales, did shorten a firearm that was not a pistol, namely, a .22 Calibre Remington rifle serial number X 3764, without being authorised to do so by a permit, pursuant to s 62(1)(a) of the Firearms Act 1996.

5. Between 13 September 2015 and 24 November 2015 at Talbingo, in the State of New South Wales, did possess a prohibited weapon, namely, a home-made firearm silencer, without being authorised to do so by a licence or permit pursuant to s 7(1) of the Weapons Prohibition Act 1988.

6. Between 13 September 2015 and 24 November 2015 at Talbingo, in the State of New South Wales, did possess a prohibited weapon, namely, a home-made metal firearm silencer, without being authorised to do so by a licence or permit pursuant to s 7(1) of the Weapons Prohibition Act 1998.

7. You are also convicted of the following six offences listed in a certificate pursuant to s 166 of the CPA:

Sequence 1 – possess prohibited drug

Sequence 5 – not keep firearm safely – prohibited firearm

Sequence 9 – not keep firearm safely – pistol

Sequence 10 – possess ammunition without holding licence/permit/authority

Sequence 15 – not keep firearm safely – pistol

Sequence 18 – not keep firearm safely – not prohibited firearm/pistol

8. You are also convicted of the following offences contained in the second set of charges:

Sequences 1, 8 and 9 - offences pursuant to s 25(1) of the DMTA

Sequences 4 and 5 - offences pursuant to s 36(1) of the Firearms Act 1996

Sequence 6 – offence pursuant to s 51(1A)(a) of the Firearms Act 1996.

9. You are also convicted of the offence contained in the s 166 certificate, being Sequence 3 pursuant to s 65(1) of the Firearms Act 1996.

93. You are sentenced to all of the above offences to an aggregate sentence pursuant to s 53A of the CSPA. I make the following orders:

1. I sentence you to a non-parole period of 2 years and 6 months commencing on 21 December 2015 and expiring on 20 June 2018.

2. I sentence you to a balance of term of 2 years commencing on 21 June 2018 and expiring on 20 June 2020.

3. I order pursuant to s 24(1) of the Confiscation of Proceeds of Crime Act 1989 you pay to the State a penalty order in the sum of $2,100.00.

4. I order pursuant to s 29(1) of the Confiscation of Proceeds of Crime Act 1989 that you pay to the State a drug proceeds order in the sum of $1,600.00.

5. I further order that the firearms and prohibited drugs, which are the subject of these offences, be destroyed.

94. 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 May 2018