R v Lynch

[2024] NSWDC 92

District Court

New South Wales

Medium Neutral Citation:

R v Lynch [2024] NSWDC 92

Hearing dates:

19 March 2024

Date of orders:

27 March 2024

Decision date:

27 March 2024

Jurisdiction:

Criminal

Before:

Newlinds SC DCJ

Decision:

Sentenced to an aggregate term of imprisonment for a period of 6 years with a minimum non-parole period of 3 years. [145]-[148]

Catchwords:

CRIME – Sentence – firearms – possess pistol – possess ammunition - contravention of Firearms Prohibition Order

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986 (NSW)

Drug Misuse & Trafficking Act 1985 (NSW)

Firearms Act 1900 (NSW)

Cases Cited:

Bugmy v R [2013] HCA 37

Callaghan v R [2006] NSWCCA 58

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1

Muldrock v The Queen (2011) 244 CLR 120

Park v R [2020] NSWCCA 90

Quinlan v R [2021] NSWCCA 21

R v Henry (1999) 46 NSWLR 346

R v Israil [2002] NSWCCA 255

R v Millwood [2012] NSWCCA

R v MJ [2023] NSWCCA 306

R v Olbrich [1999] HCA 54

R v Osenkowski

R v Osenkowski (1982) 30 SASR 212

R v Pogson (2012) 82 NSWLR 60

Veen v The Queen (No 2) (1988) 164 CLR 465

Wat v R [2017] NSWCCA 62

Texts Cited:

The Bugmy Bar Book Project, ‘Childhood Sexual Abuse, ‘Executive Summary’ (November 2019).

The Bugmy Bar Book Project, Impacts of Imprisonment and Remand in Custody, ‘Executive Summary’ (November 2022).

Category:

Sentence

Parties:

Rex (Crown)
Malachi Lynch (Offender)

Representation:

Counsel:
M Franklin (Crown)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Aboriginal Legal Service (Offender)

File Number(s):

2021/00236133

Publication restriction:

None

JUDGMENT

Introduction

1. The offender is before me for sentence in relation to the following Firearms offences to which he has pleaded guilty:

1. Possess pistol in contravention of Firearms Prohibition Order, contrary to s74(1) of the Firearms Act 1900 (NSW). The maximum penalty for this offence is 14 years imprisonment. There is no standard non-parole period specified.

2. Possess ammunition in contravention of Firearms Prohibition Order, contrary to s74(3) of the Firearms Act 1900 (NSW). The maximum penalty for this offence is 5 years imprisonment. There is no standard non-parole period specified.

2. There are matters to be dealt pursuant to s166(1)(b) of the Criminal Procedure Act 1986 (NSW) for the following drug supply related offences:

1. Ongoing supply prohibited drug – Methylamphetamine (7.07 grams) contrary to s25A of the Drug Misuse & Trafficking Act 1985 (NSW). The maximum penalty and jurisdictional limit is 2 years imprisonment and/or a fine of 100 penalty units;

2. Supply prohibited drug, cannabis leaf (63 grams), contrary to s25 of the Drug Misuse & Trafficking Act 1985 (NSW). The maximum penalty and jurisdictional limit is 2 years imprisonment and/or a fine of 100 penalty units;

3. Deal with property reasonably suspected proceeds of crime, contrary to s193C(2) of the Crimes Act 1900 (NSW) ($4,810). The maximum penalty and jurisdictional limit is 2 years imprisonment and/or a fine of 50 penalty units; and

4. Deal with property reasonably suspected proceeds of crime, contrary to s193C(2) of the Crimes Act 1900 (NSW) (a Seiko gold watch valued at $550). The maximum penalty and jurisdictional limit is 2 years imprisonment and/or a fine of 50 penalty units.

Timing of Plea

3. Although the pleas of guilty to the gun chargers were not entered until the first day of trial, the matter reached a resolution in December 2023 (approximately one month before the special fixture was due to commence). It is accepted by the Crown that in those circumstances a 10% discount should therefore apply to the two indictment charges. I propose to allow a 10% discount.

4. The s166 offences do not fall into the same statutory regime which mandates the percentage discount to apply. Any discount should be considered in terms of s22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). In that respect, the first indication of any intention to plead guilty to any of the summary offences was communicated on 29 November 2023. The charges and facts were still being negotiated after the offender entered pleas of guilty to the trial matters. The Crown submits that minimal discount should apply to those offences. I accept that submission.

Time in Custody

5. The offender has been in custody for over two and a half years since his arrest on these matters. However, six months of that time was spent serving a ‘sentence’ consequential on his breach of parole.

6. The Crown submits it would be appropriate to backdate his sentence to 4 February 2022 to give effect to the two years, one month, and 15 days he has spent on remand solely in relation to this offending. That is the Crown suggests that none of the time in custody related to the parole offences should count.

7. On the other hand, on behalf of the accused, reliance is placed on decisions such as Callaghan v R [2006] NSWCCA 58 and whilst it is accepted that it would not be appropriate to backdate any term of imprisonment to the date of arrest, being 18 August 2021, it is submitted that I should take into account the fact that the direct reason for the offender has been in custody since 18 August 2021 relates to the matters before me and whilst accepting that the offender ought not effectively be rewarded for his later offending, I should adjust the start date of any sentence as best I can, taking into account all relevant factors.

8. I’ve decided in all the circumstances that it is appropriate that any term of imprisonment commence on 18 December 2021.

Criminal Record/Parole

9. The offender has what can only be described as an extremely long and disappointing record of offending which includes significant offences involving drugs and guns. He has more than once breached parole by committing further crimes whilst on parole.

10. I do not propose to set out his record in detail, it is too long - suffice to say, the offender once again falls to be sentenced for committing offences involving drugs, and gun/s while he is subject to a Parole Order – themselves being consequences of offences involving drugs and a gun.

11. Significantly, this is the third consecutive time the offender committed offences involving a combination of drugs and guns while on parole.

12. His 2001 offences occurred just over four months after being released from prison onto parole. For that offending he was sentenced on 5 March 2019 to an aggregate three-year term for possessing four guns and supplying/possessing drugs.

13. He was then released onto parole for that sentence on 16 November 2019. Six months later, on 15 May 2020, he breached that parole order by using and possessing guns and drugs. He had also been served with a Firearms Prohibition Order and Weapons Prohibition Order only one month prior on 9 April 2020.

14. The set of offending before me, follows that pattern again, but also represents a startling escalation in how quickly the offender has re-offended. He was released from prison a mere 13 days prior to the offences before the court. He had also just commenced a CCO for resisting police that had a year to run. The consequence of him being sent back to prison is that the CCO has been rendered illusory.

Agreed Facts – Firearm Offences

15. Set out below are the facts agreed by the parties, edited by me.

16. The co-offenders in the matter are Cassandra Williams, Holly Vasquez and Samuel Lynch, who is the brother of the offender.

17. From 30 June 2021, the offender would frequently reside at a residence in Grafton with Williams.

18. A Firearm Prohibition Order and a Weapons Prohibition Order was served on the offender on 9 April 2020 due to an earlier firearms offence committed in 2018.

19. At around 8:50pm on Saturday 10 July 2021, an incident took place in South Grafton where Samuel Lynch shot two people with a pistol and assaulted a third.

20. The Police investigation quickly established that Samuel Lynch was being assisted by others to evade police efforts to locate him Telephone intercept warrants were obtained to monitor the mobile phone numbers belonging to the offender, Williams and Vasquez.

21. Those intercepts reveal the following communications between the parties shortly after the shooting on the night of 10 July 2021:

1. A number of phone calls between Samuel Lynch, Williams and Vasquez took place on 10 July 2021.

2. The offender spoke to Williams by phone a further 5 times between 9:39pm and 10:42pm. Call records indicate the calls ranged from 49 seconds up to 4 minutes and 22 seconds.

3. At around 10pm that evening, Vasquez and an associate drove Samuel Lynch to a property where the three remained hiding out until 14 July 2021.

4. At 11:47pm, Williams messaged the offender, stating “Granny just sent a message saying surrounded.” Williams attempted to speak to him again shortly after however that call was unanswered. ‘Granny’ is a nickname for Virginia Polley. The message coincides with the execution of a search warrant at Polley’s address which was completed at around 5:15am on 11 July 2021.

5. Polley also messaged Vasquez and conveyed the same message to her and that Police had sniffer dogs with them. Vasquez told Polley to contact the offender to keep him informed.

6. Between 11:19pm on 10 July 2021 and 8:01pm the next evening, the offender exchanged 8 voice calls with Holly Vasquez’s mobile phone number. Call records indicate the calls ranged from between 7 seconds and up to 4 minutes and 26 seconds.

22. The offender was aware that his brother had shot a 15 year old boy from the night of the incident and that there was an active police investigation which he and the co-offenders and others were exchanging information about.

23. On 12 July 2021, Police issued a warrant to arrest Samuel Lynch and a media release was issued in relation to the shooting.

24. On 13 July 2021, the offender and an unknown male discussed the recent media release. During the conversation, the offender disclosed knowledge of the bullet injury caused to a person which was not known to the general public at the time.

25. Between 17 July and 25 July 2021, the offender maintained regular contact with his brother over Facebook Messenger, both using accounts with a fake name.

26. On 20 July 2021, Samuel Lynch messaged the offender asking for money because he had run out. The offender offered to give him his last $70 and contacted Williams to ask her if she had any more money she could transfer to his brother.

27. On 21 July 2021, Samuel Lynch and Williams exchanged messages on Facebook Messenger. Samuel Lynch complained that the offender was “…calling my shots”, and “he’s getting a bike out of this” but that the offender was not doing enough to assist him. Samuel Lynch told Williams, “You’ve done heaps more than my own brother.”

28. Williams received a call from Samuel Lynch asking about ‘it’. Williams relayed the call to the offender including that she had told Samuel Lynch the offender had gotten rid of ‘it’. A few minutes later the offender messaged Samuel Lynch directly on Facebook Messenger stating, “Its been put out of town” and in a follow up message the offender told his brother “…You cann get the cunt off Cass when I go out and get it.”

29. Samuel Lynch avoided police detection until he was arrested at an address in Coomera, Queensland, at around 11am on 26 July 2021.

30. Pursuant to a search warrant, a search of a residence in Grafton was carried out at 5:30pm on 26 July 2021. Police found Williams, the offender and Daniel Gilbert (Gilbo) at the residence. All three chose to leave the residence whilst Police conducted their search.

31. During their search, Police found a drawstring bag in a chest of drawers in the bedroom of Williams. The bag contained a shortened .22 Long Rifle calibre, RECK, six chamber, single action, revolver. The revolver meets the definition of a prohibited pistol under s4C of the Firearms Act 1996 (NSW). The pistol was found loaded with three live rounds in the chamber. This was the gun used by Samuel Lynch in the shooting.

32. Ballistics analysis confirmed the RECK pistol was in working order and the barrel had been shortened only 2.8” remaining of the barrel length.

33. Forensic analysis was conducted on the drawstring bag and the firearm which returned the following results:

1. Drawstring of the bag – DNA mixture originating from at least four individuals and the offender could not be excluded as a major contributor.

2. The hammer of the firearm – DNA mixture of at least three individuals and the offender could not be excluded as a contributor.

3. The trigger of the firearm – DNA mixture of at least four individuals and Samuel Lynch could not be excluded as a contributor.

34. On an unknown date between 10 July 2021 and 26 July 2021, the loaded RECK .22 calibre pistol, secured in that drawstring bag, was placed in the chest of drawers in William’s bedroom at her residence in Grafton.

35. During that time period, the offender was also made aware of the presence of that firearm in the drawer of the bedroom at the residence in Grafton. He also knew it was loaded.

36. He either knew it was the gun his brother used in the shooting on 10 July 2021 or at least believed that was likely the case.

37. On 18 August 2021 Police arrested the offender and Williams at an address in Grafton. The offender was taken to Grafton Police Station and read his Part 9 rights. He was given the opportunity to speak to the Aboriginal Legal Service and declined to participate in an interview.

Agreed Facts – Drug related and s166 certificate offences

38. Set out below is an edited version of the agreed facts related to the s166 offences.

39. Following the shooting incident at Camelia Way on 10 July 2021, Police obtained a number of telephone intercept warrants, including for the mobile phones used by the offender, and Williams and Vasquez.

40. The intercepts revealed the offender was engaged in a joint criminal enterprise with Cassandra Williams, who he frequently resided with after his release from jail on parole on 30 June 2021.

41. That enterprise was for the supply of methylamphetamine and cannabis in the Grafton area.

42. Williams oversaw many of the drug supplies and she organised the purchase of drugs in bulk quantities. The two would them on-supply to other dealers or end users.

43. Both offenders had access to a central store of drugs which they kept in Williams’ bedroom at the shared address. They supplied drugs interchangeably and were known to do so by their customers. They allowed customers to come to their home or would travel to conduct the supplies.

44. Payment for those supplies was either on ‘tick’ (agreement to pay later), in cash, or to their bank accounts using PayID.

45. The offender also supplied his own network of customers, separate from the assistance he gave Williams’.

46. The offenders main source of income from at least 13 July 2021 to 26 July 2021, was derived from those supplies.

Sequence 26: Ongoing supply prohibited drug – Methylamphetamine – s25A of the Drug Misuse & Trafficking Act 1985

47. Between 15 July 2021 and 26 July 2021, a 12 day period, the offender supplied methylamphetamine on eight occasions; constituted by seven occasions of supplying the drug in exchange for financial reward, and one occasion of possession for the purpose of future supply.

48. At 1:45pm on 15 July 2021, the offender called Williams and informed her that he had just met an unknown male who had recently been released form jail while he was attending his parole appointment. The offender told Williams he had arranged to supply the male with methylamphetamine. The offender then arranged for Williams to deliver the drugs to him while he waited at the ‘Sportspower’ shop on Prince Street, across the street from the skate park.

49. 15 minutes later, the offender received a telephone call from the male and negotiated the supply of 0.4gms of methylamphetamine in exchange for $400.

50. As the offender approached the arranged meeting point, he identified plain clothes detectives in a vehicle near the meeting spot. At 2:25pm on 15 July 2021 the offender called the male and alerted him to two undercover detectives sitting in a vehicle across the street from their intended meeting spot.

51. The offender told the male

“Yeah there’s 2 D’s in it brother. I’m red hot at the moment that’s all, because my bother just got done, like my brother just done a fucking shooting….They’re trying, they’re alleging trying to say that he shot someone but you know.”

The two met shortly after on Prince Street, and the offender gave the drugs to the male, and the male took the drugs and ran off without paying the offender.

52. The offender called co-offender Williams straight after stating “Oi that was a set up, fuck sis, I owe you four dots eh?” (Supply #1 of Seq 26).

53. At 10:54am on 19 July 2021 the offender called another unknown male to follow up on an outstanding debt owed to Williams, of $500 accrued on tick. The male told the offender he had applied for release of his Superannuation and would pay the debt when the funds were released. The male connected the offender with a new customer who wanted to purchase methylamphetamine. They then made arrangements to bring the new customer to the offenders address to introduce him and supply him with an unknown quantity of drug.

54. The offender and co-offender regularly supplied methylamphetamine to an associate, Virginia Polley, also known as ‘Granny’ who was a street level supplier of methylamphetamine with her own customer base. The offender’s brother, co-offender Samuel Lynch, had been living with Polley in the months prior to the shooting incident.

55. At 10:50am on 20 July 2021, Polley contacted Williams by phone and arranged to purchase 1 gram of methylamphetamine from the offender for $900 with an agreement that she would pay the balance of an outstanding $200 tick debt later that day and the balance in the next morning after having sold more methylamphetamine.

56. Shortly after the offender called Williams to confirm the supply to Polley (Supply #2 of Sequence 26) and to confirm that another customer owed $700 on tick that would be paid later that afternoon too.

Sequence 28: Deal with property reasonably suspected proceeds of crime – s193C(2) of the Crimes Act 1900

57. At 9:54am on 20 July 2021, the offender spoke to Williams by phone about purchasing 300 Lyrica tablets or a stolen Seiko ‘Coutura’ men’s gold watch, valued at $550 which he had been offered. The offender and Williams discussed the value of the watch which the offender then purchased for $200.

Sequence 9: Supply prohibited drug, cannabis lead

58. Between 21 and 24 July 2021, a period of 4 days, the offender supplied small quantities of cannabis lead, as detailed below, totalling 63 grams.

59. At 12:31pm on 21 July 2021 the offender spoke to a customer “Princess” by phone and she later attended his address to purchase to supply of a quarter ounce (7 grams) of cannabis leaf for $100.

60. At 5:01pm on 21 July 2021, the offender spoke to Williams by phone confirming he was running short of cannabis to sell as he had supplied 14 grams of cannabis lead to her brother for $160 and another 28 grams to another customer for $350. Williams informed the offender she would arrange to get more cannabis. The offender replied: “I’m a fucking machine mate. I need more fucken product.”

61. At 2:03pm on 22 July 2021, the offender called Williams as he was leaving his parole appointment and confirmed he had supplied two customers each with 0.1 grams of methylamphetamine for an unknown amount and he had enlisted a new associate who was now arranging drug sales for him.

62. At 12:41pm on 23 July 2021, the offender and Polley called Williams to confirm the terms of a supply of 0.5 grams of methylamphetamine to Polley for $450 and payment of her outstanding $350 tick debt. (Supply #5 ).

63. At 12:41pm on 23 July 2021, the offender supplied 7 grams of cannabis leaf to a customer of his own, in exchange for the transfer of money to him by Pay ID..

64. At 12:51pm on 24 July 2021, the co-offender Williams spoke to the offender by phone and asked him to supply 0.1gm of methylamphetamine to their associate ‘B’ who arrived as they spoke and received the drug from the offender (supply #6). The offender told Williams that he had earlier supplied 7 grams of cannabis leaf to her brother for $80 who also had an outstanding tick debt .

58. At 12:08pm on 26 July 2021, the offender received a call from Vasquez. The offender agreed to supply her with 0.05 grams of methylamphetamine and shortly after he attended her address to conduct the supply for an unknown amount (supply #7).

59. Around 5:30pm on 26 July 2021, Grafton Detectives executed a search warrant at the home of Williams and the offender at Grafton. Williams and the offender were initially present, but later decided to leave while Police continued to execute the warrant.

60. In Williams’ bedroom, Police located the co-offender’s methylamphetamine stash concealed in a wooden box with a secret compartment. In the concealed compartment were 11 plastic resealable bags each containing a quantity of ‘Ice’, also known as methylamphetamine, totalling 4.82grams. The offender and Williams jointly possessed the drug for purposes of supply (supply #8).

61. This was at the same location where Police located the loaded pistol used in the shooting.

Sequence 27: Deal with property reasonably suspected proceeds of crime – s193C(2) of the Crimes Act 1900

69. On 8 August 2021, the offender and Williams were arrested at the residence of Williams. The offender was searched by Police and produced folded knife with 5-inch blade from the waist band of his pants, which he handed to Police. The offender claimed he had only recently found the knife while he was leaf-blowing the yard. As Police searched his pockets, the offender produced a bundle of fifty-dollar bills secured with a rubber band from his pocket, totalling $4,810.00 in Australian currency. The offender claimed the money had been withdrawn from Williams’s bank account to buy a bike for her child, which is not accepted.

Objective Seriousness

70. The crown submits that the objective seriousness of Count 1, is above mid-range for the following reasons:

1. The offender knew or believed the pistol had been used in a shooting which involved two people being shot, one of whom was only 15 years old;

2. The court would readily infer the offender’s motive in possessing that pistol was to assist his brother by avoiding its seizure by the police;

3. The offender was being “remunerated” by his brother for that assistance;

4. The offender must have handled the pistol himself, due to his DNA being not only on the outside of the bag, but on the hammer of the gun inside it;

5. The pistol was shortened, the only purpose for which is to better conceal its use for criminal activities;

6. The pistol was loaded, which the offender knew;

7. The loaded pistol was also kept unsecured, in a house where others (including children) resided.

71. The objective seriousness of Count 2 is said by the Crown to be in the mid-range. The ammunition involved, while not large in quantity, was not kept separately from the firearm, but rather was loaded inside the pistol, ready for use.

72. The offender submits that the assessment of the objective seriousness of the firearms offending requires me to find facts and draw inferences from those facts (Park v R [2020] NSWCCA 90 at [30] (Bathurst CJ) and [182] (R A Hulme J).

73. This is correct, moreover as the High Court held in R v Olbrich [1999] HCA 54, I may not take facts into account in a way that is adverse to the interest of the offender unless those facts have been established beyond a reasonable doubt. If there are circumstances which the sentencing judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.

74. It is submitted by the offender that Count 1 is below the mid-range of objective seriousness for the following reasons:

1. The offender was in “constructive possession” of the firearm and ammunition;

2. The firearm was not accompanied by any further ammunition other than the three bullets found in the firearm;

3. The serial number of the firearm was not defaced or removed;

4. The firearm is a manually loaded single-shot pistol which minimises its firing capacity;

5. Whilst it was not secured in the sense of what is required by law of a person with a firearms licence, it was not found in an open and shared space in the house (such as a lounge room);

6. He is not in possession of the firearm with intent to use it in his organised criminal activities (see below).

75. It is submitted by the offender that Count 2 would be in the low range noting he was also in constructive possession of them and it relates to three bullets, that were in the gun itself.

76. The offender submits the following facts cannot be established from ‘the Agreed Fact’s’:

1. His motive in possessing the pistol was to avoid its seizure by police and/or it was also stored for potential use in his drug dealing activities.

2. He was being remunerated for his assistance in avoiding the pistol’s seizure by police. Whilst his brother is intercepted saying to Ms Williams that “he’s getting a bike out of this”, it cannot be established that “this” refers to his assistance in hiding away the pistol and not some other reason.

3. It was the offender who brought the firearm to the residence in Grafton. A reasonable inference is that it was Ms Vasquez or Ms Williams noting the extensive contact they had with Samuel Lynch, both over the telephone and in person after the shooting.

77. An offence under s 74(1) includes “acquiring, possessing or using” a firearm in breach of a Firearms Prohibition Order. “Constructive possession” is a method of proving possession.

78. The Firearms Act allows for an extended definition of the legal concept of “possession” such that a person can be convicted of possession if they have the firearm on a premises that they are occupying (ss4 and 4A of Firearms Act 1996 (NSW). It is submitted by the offender that “constructive possession” is less serious than “actual possession” (i.e. found on his person during the search warrant).

79. To “acquire” means to accept or receive supply of, and to “use” means to fire or hold a firearm so as to cause a reasonable belief that it will be fired. It is submitted by the offender that the actus rea of constructive possession is much less serious offending.

80. The offender’s DNA profile was a contributor to mixtures of DNA profiles located on the hammer of the firearm and the drawstring of the black bag that contained it. It is not accepted that this is evidence proves beyond a reasonable doubt that he had direct contact with the pistol or when.

81. Accordingly, so the submission goes, the Court could not draw an inference beyond a reasonable doubt on the Agreed Facts that the offender was in actual possession of the firearm, in the sense of touching it, and the ammunition in the relevant offending period (26 July 2021).

82. The offender emphasised that he is not being sentenced for any conduct that relates to the assistance provided to his brother after the shooting. I accept this submission.

Resolution as to Objective Seriousness

83. Some considerable time was spent in submissions on what seems to me to be a fine, but not particularly helpful debate as to the difference between “constructive possession” of a firearm as against “actual possession”.

84. I don’t think those labels are of a great help generally, but in this case, particularly, I think they mask the true factual situation.

85. The fact is, as a matter of law, the offender has accepted that he was in possession of the firearm. As a matter of fact, he accepts that he knew that the firearm was in the premises which he had free access too. He knew the gun was loaded and he knew that it had been recently discharged by his brother and had actually shot two people, and that his brother was consequently seeking to evade capture by the police so that he could be charged with serious criminal conduct relating at least in part, to his brothers use and possession of the gun. To my mind, the totality of that conduct can only be described as serious. It is wrong to suggest that he has pleaded to some sort of technical offence. He knew what he was doing as a matter of practicality, he had control of the gun.

86. I am satisfied beyond reasonable doubt, that the offender’s motive in possessing the gun was to assist his brother so as to avoid its seizure by the Police.

87. Whilst I would be satisfied on the balance of probabilities that he was doing that for reward in the sense that his brother promised him a “bike” I am not satisfied of that fact beyond reasonable doubt.

88. I am also not satisfied beyond reasonable doubt, that the guns had any connection with the offenders’ drug supply activities was ever intended to be used by the offender.

89. I am also not satisfied that the gun was bought to the premises by the offender, but I don’t think that matters because he knew that it was there and why it was there and was most certainly involved in the decision to store it in the premises. I am also not satisfied beyond reasonable doubt that he handled the actual gun himself but again, I don’t think that really matters.

90. Accordingly, I am left with the factual situation that the offender was involved in storing a loaded pistol which he knew the police were looking for, which pistol had, to his knowledge, been used in an alleged serious crime by his brother. All of this in the context of him having being served with a Firearms Prohibition Order.

91. As I have already said, on any view of those facts, I consider the objective seriousness of Count 1 to be well above the mid-range and Count 2, to be somewhere slightly below the mid-range. This is because there was not very much ammunition, and I have already taken the ammunition into account when assessing Count 1, by describing the gun as loaded. To take the ammunition into account for that purpose but also to consider it to be as part of the seriousness of Count 2 must involve double counting. It seems to me that in a practical sense Count 1 involves possession of a loaded pistol. Count 2 is therefore wholly subsumed by Count 1, it being the very ammunition that makes the gun loaded.

Objective Seriousness – Drug Related Offences

92. The Crown has submitted that the objective seriousness of Sequence 26, the ongoing supply, would fall below mid-range for an offence of that type, for a number of reasons including:

1. This offender (alone) supplied to vulnerable parolees and even recruited one as a drug runner while at his own parole appointments;

2. The joint criminal enterprise involved supplying other dealers, not just end-users;

3. He supplied at least eight clear times over 12 days, and would supply more than once a day—for a charge constituted by only three supplies within 30 days;

4. The offending was relatively unsophisticated in nature.

93. The offender submits that the drug related matters fall in the low-range or the mid-range, and that the proceeds of crime offences are of low objective seriousness, Sequence 27 being wrapped up with the drug supply matters.

94. I don’t think the parties are very far apart and proceed upon the basis as contended for by the Crown, in relation to the s166 matters. That is, each of those matters fall somewhere below the mid-range of objective seriousness.

Aggravating Features

95. The following aggravating features under s21A(2) must be taken into account:

The offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences) – while previous conviction/s for similar offending other than violence may not enliven Veen v The Queen (No 2) (1988) 164 CLR 465 considerations in and of itself, this is an offender who has for the last five years continued to commit drug and firearms offences together, each time in breach of parole. His rapid recidivism each time, regardless of whether he is drug-free or not, requires the community to protected from him;

(j) the drug offences were committed while the offender was on conditional liberty in relation to a similar offence; and

(o) the drug offences were committed for financial gain, although the gun offences were not. The offender claims to have been drug-free at the time and admits his dealing was effectively his only form of employment (as it paid better than Centrelink).

96. I generally accept the Crown’s contentions as to these aggravating factors, but for reasons I have already given, whilst I accept that the drug supply offences were done for financial gain, I do not think the gun offence was for that purpose, rather that it was done for the purpose of helping out his brother.

Mitigating Features

97. The Crown accepts the following mitigating features under s21A(3) would be taken into account:

(k) The plea of guilty by the offender (as provided by section 11 or Division 1A).

98. The Crown however emphasises that there is no evidence of remorse. The offender’s affidavit contains not a single statement recognising the harm he has caused, any insight into his offending or acceptance of any responsibility. I agree with this and whilst it reflects well on the offender in the sense of his honesty, it is a matter of great concern.

99. The Crown contends that while the psychological report and offender’s affidavit refer to treatment options and paths to rehabilitation upon release, the offender’s past actions, both in the community and while in custody, give very dim prospects of any realistic follow-through. For example, the offender reports having been diagnosed with various mental health conditions, both as a child and while in custody. He has also clearly been aware of his drug addiction for many years. Yet he has never sought any psychiatric intervention, or done any drug rehabilitation program, even while both were free and available in custody. He also claims to have been drug-free at the time of his most recent offending, yet that did not prevent him choosing to return to a life of crime almost immediately upon release.

100. There was considerable debate before me, as to whether the financial gain sought to be attained by the offender from selling the drugs, was an aggravating factor, in that it exceeded the amount of financial gain assumed and built into the offence itself. This topic is discussed in cases such as Wat v R [2017] NSWCCA 62.

101. I think the distinguishing feature here, is that unlike so many low-level drug supply offenders, the offender is not suggesting before me that his motive was to obtain more drugs for himself, but rather, simply to make money, he having only just left prison some 13 days previously.

102. I’m not sure whether that of itself is an aggravating factor, and therefore, give the benefit of my doubt to the accused, and do not take it into account as such.

Subjective Factors

103. The offender is a 27-year-old Aboriginal man through the ancestral birthrights of his mother. His subjective background is detailed in the report of Ms Diana Grujoska and the affidavit of the offender and can be summarised as follows:

1. He was born in Coffs Harbour.

2. The earliest memory of his father was when he was put through a window to break into a house in Grafton. He was seven years old when his father died.

3. His mother was a drug addict and the offender often saw needles around the home and in her arm. Her addiction worsened after she was prescribed pain relief after an assault by their neighbour which broke her jaw as well as after his father’s death.

4. After his father died, he and his siblings were neglected by his mother. His older sister arranged for the Department of Community Services (DoCS) to remove him, his older brother, Samuel and younger sister, Kallara from his mother.

5. The children were separated. The offender began to self-harm around this time (aged seven).

6. The offender was suspended from school and did not attend for several years until Year 4. He was enrolled in two primary schools around Coffs Harbour but struggled with the curriculum and would often act out.

7. He was diagnosed with ADHD and a psychotic disorder by Dr Lawrence Budd when he was nine years old. He was prescribed Ritalin, Movox and Risperidone.

8. He would frequently run away from his foster homes, hit the carers and smash their homes. He was deemed ‘high-risk’ and placed in independent living with a full-time carer at around aged 12 years old.

9. In this placement, he did not socialise with other children and did not have a very active lifestyle.

10. He was sexually abused by a carer whilst in the care of DoCS at around 11 or 12 years old.

11. As a young teenager, he attended two high schools but got kicked out for fighting, smoking and selling alcohol.

12. Around the same time, he fled to Grafton when his brother, Samuel was released from gaol. He then couch surfed and started using drugs, including cannabis and ecstasy which led to a drug induced psychosis. He was introduced to the criminal justice system around this time.

13. He started selling drugs to support himself. He started using ice in 2015 (aged 20) to stay up to be able to make more money.

14. His mother died when he was in gaol in 2013 when he was aged 23 years old.

15. He has never had a legitimate job except for six months working at a hydroponic farm.

16. Whilst on parole, he was not using illicit drugs and was on the suboxone replacement program.

17. He ceased taking suboxone in custody and went “cold turkey” until he began smoking “bupe” illicitly whilst in custody when his cousin, Shannon, died suddenly on 7 June 2023. He admitted his relapse to Justice Health several months later and indicated his willingness to stop using.

Childhood disadvantage

104. The High Court in Bugmy v R [2013] HCA 37 outlined the way in which childhood deprivation can operate to substantially reduce moral culpability (emphasis added):

Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision (Bugmy v R [2013] HCA 37, 249 CLE 571 at [43]).

105. The reason a difficult upbringing affects moral culpability was explained by Justice Simpson in R v Millwood when Her Honour stated (emphasis added):

I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a "normal" or "advantaged" upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions (R v Millwood [2012] NSWCCA at [69]).

106. The “Bugmy” principle remains relevant even where there is a long history of offending.

107. Simpson AJA stated in R v MJ [2023] NSWCCA 306 that to

“search for a causal connection between the dysfunctional background and the offence in question is to bypass the larger issue and to focus too narrowly on the offence”.

Her Honour warned that asking whether there is a causal connection is

“to ask the wrong question and potentially to mislead and distract from the essential question, which is the assessment of the offender’s moral culpability”.

Bugmy Bar Book Project

108. Whilst it is conceded that evidence from the Bugmy Bar Book is general in nature, it is relied upon by the offender to understand the opinions expressed by Ms Grujoska as to the offender’s childhood disadvantage and better explain the connection between the offender’s background and the offending.

109. The Bugmy Bar Book has found that childhood sexual abuse which I find the offender was subjected to, is a ‘substantial risk factor for the development of subsequent mental health problems’, which can include major depression, increased risk of alcohol and drug dependence, often as a means of coping with the psychological trauma of having been abused, aggressive behaviours and social anxiety (The Bugmy Bar Book Project, ‘Childhood Sexual Abuse, ‘Executive Summary’ (November 2019).

The moderation of moral culpability in this matter

110. It is submitted that the offender’s early exposure to criminal activity and drug abuse when he was very young was detrimental to his development. That is understandably and undoubtedly so.

111. When he left his placement at age 15, he was essentially homeless and started to use drugs with friends he met on the streets. He had no role models or support systems around him to be able to support himself and started selling drugs to make money.

112. Ms Grujoska concludes that the offender:

“appears to have lacked exposure to appropriate role models and positive friendships, and this has led to the development of maladaptive coping strategies, such as substance use, to deal with difficult life experiences involving the trauma of his upbringing and subsequent sexual abuse during his time in care.”

113. Ms Grujoska administered the “International Trauma Questionnaire (ITQ)” on the offender and his results:

“reveal he endorsed several problems relating to trauma and stress which have surpassed the cut off scores for CPTSD and indicate a functional impairment relating to interpersonal relationships and employment.”

114. I accept that the offender’s moral culpability for his offending, even his continued offending, is significantly less than someone who had better emotional resources to guide his behavioural decisions.

115. His moral culpability must be considered through the lens of his childhood, being his lack of parental supervision when he commenced selling drugs from a young age to support himself.

Mental Health

116. Ms Grujoska has diagnosed the offender with the conditions of Severe substance use disorder and Complex Post-Traumatic Stress Disorder.

117. Ms Grujoska concludes that the offender’s:

“extensive substance use over time has likely impaired his judgement and reduced his ability to think in a clear and rational manner. It is also expected that his ADHD condition has affected his impulse control and executive functioning abilities in addition to his substance use.”

118. Any link between his mental health conditions and his offending is not a very strong one. However, an offender’s mental condition can have the effect of reducing their moral culpability and matters such as general deterrence, retribution and denunciation have less weight (Muldrock v The Queen (2011) 244 CLR 120 at [53]; R v Israil [2002] NSWCCA 255 at [23]; R v Henry (1999) 46 NSWLR 346 at 354).

119. The offender has submitted that general deterrence should be given less weight in this matter because the offender is not an appropriate vehicle to be made an example of. Further, specific deterrence should be moderated given his disorders impacted on his decision-making capacity (DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]).

120. It is submitted and I accept that I should find that the offender’s time in custody would have been more onerous due to his diagnosis of PTSD meaning that his remand would “weigh more heavily” on him.

121. It is unknown why the offender was taken off medication for his PTSD when he was given the bupe injection and another alternative medication was not offered. The offender is no longer on the bupe injection but is still not medicated for his PTSD.

122. However, the Bugmy Bar Book Project has found that treatment of mental health in custody is inadequate. It found that gaol can worsen existing mental health conditions and facilitate new experiences of poor mental health” (The Bugmy Bar Book Project, Impacts of Imprisonment and Remand in Custody, ‘Executive Summary’ (November 2022)).

123. Put bluntly, I accept that the custodial setting is not a culturally appropriate place for the offender to address his underlying trauma given it largely stems from trauma suffered in an institutional setting by an authority figure.

Prospects of Rehabilitation

124. The concept of rehabilitation includes ensuring that an offender will not re-offend by addressing any underlying issues that bear upon the risk of recidivism (R v Pogson (2012) 82 NSWLR 60 at [103]).

125. This offending was committed whilst the offender was on conditional liberty at the time of the offending. This is a continuation of a very concerning pattern as I have explained. It is conceded by the offender in this case, that the Court’s assessment of his prospects of rehabilitation will be guarded.

126. The offender comes before the court with a long history of criminal convictions. However, the Court must have regard to the observations made by King CJ in R v Osenkowski (1982) 30 SASR 212 when sentencing the offender (emphasis added):

There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which had traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform^.

127. The offender seems to have no insight into why his criminal conduct is wrong. However, he does have some insight into the underlying causes of his offending which is pertinent to addressing his risk of re-offending given he:

“advised he is hoping to find sustainable employment, maintain abstinence, remove negative associates, secure housing, and engage in mental health treatment”.

128. Ms Grujoska has said that should the offender:

“be given an opportunity to address his drug behaviour, mental health, and involvement with antisocial associates, it is likely he will be able to maintain his abstinence and therefore reduce his risk of re-offending.”

129. This is all very well and may be accepted but I am sure many judicial officers before me have heard and acted on this same submission. There will come a time where the offender will be afforded no more opportunities to mend his ways.

130. I do infer that a new and significant motivation to put this into action has been the death of his cousin, Shannon who has left three young boys without a parent. He, the offender stated to Ms Grujoska that his main priority is to care for them. This will be a new motivation for him to stay out of gaol and be a role model for them.

131. All the above, means that the offender submits that he has prospects of rehabilitation with the appropriate treatment, support and supervision.

Resolution as to Prospects of Rehabilitation

132. There is much to be said about the Crown and offenders’ submissions in this regard. They both make powerful submissions which point in opposite directions.

133. On the one hand, the long and sorry criminal history of the offender which includes multiple offences involving guns and drugs often whilst on conditional liberty all point against the prospect of him changing his ways. I also think it is of significance, despite giving evidence before me by way of affidavit, the offender has expressed no remorse, contrition, or insight into why his criminal offending is wrong. At one level this reflects well on him because it demonstrates he is honest. But an inability of someone to understand why their conduct in the past is not just legally but morally wrong, does not bode well for the future. Moreover, and sadly, the very “Bugmy” principles which entitle him to leniency at the same time do not support a favourable assessment of his future prospects and in particular, likelihood of reoffending.

134. On the other hand, I take into account the undoubtedly deprived upbringing of the offender, the fact that he is nearly 30 years of age and might be starting to mature, the fact that he seems to determined to look after his recently deceased friends children and the fact that it is almost certainly, more likely than not, that he will at least have access to better treatment in the event that he receives some compensation for the past sexual abuse he alleges.

135. I am not prepared to “write off” the offender but rather assess his prospects of rehabilitation, whilst not great, are reasonable. In coming to this conclusion, I have not overlooked what has been described as his “extremely poor custodial behaviour” which I think it is a far cry from the situation described by Harrison J in Quinlan v R [2021] NSWCCA 21.

Parity

136. Ms Williams, Ms Vasquez, and Samuel Lynch, have all been sentenced in relation to similar, but not identical matters.

137. It is accepted by both parties, in terms of parity, the Williams matter is the only one that is close to instructive. There is just too much variation in the objective and subjective facts and circumstances for the other matters to be relevant to questions of parity.

138. In relation to Ms Williams, Priestly SC DCJ, on an appeal from a magistrate, gave the following indicative sentences, after the application of a 25% discount:

1. Sequence 34: Ongoing supply – 9 months

2. Sequences 1, 3 and 4: Supply methylamphetamine – 3 weeks

3. Sequence 27: Supply methylamphetamine – 6 weeks.

4. Sequence 11: Receiving - s10A, convicted with no other penalty.

5. Sequence 33: Hinder – 22 months.

6. Sequence 21: Possess firearm – 6 months.

139. The aggregate sentence of 18 months was ordered to be served by way of ICO for a period of 18 months, noting and taking into account Ms Williams had already spent 18 months in custody. Thus the effective aggregate sentence was, 3 years I think.

140. Whilst I think I should strive for parity in relation to the drug related matters, even though the level of culpability and subjective cases seem slightly different, I think there are very important reasons for me to distinguish, between the gun offences to the point where parity becomes close to irrelevant. The cases are just too different objectively and subjectively.

141. Given the late pleas of this offender, it is also important to be considering the ‘starting point’ for the sentences imposed on Williams, rather than the ultimate result. That was, effectively:

1. A four-year aggregate term for Cassandra Williams (note: a starting point is not clearly reflected in the Judgement; however an aggregate term of three years was the end result after a 25% discount, that term having reduced by 18 months to reflect time already served on remand)

142. The important distinguishing factors I can identify are as follows:

1. The charges and factual basis relating to the gun possession are very different. Williams was not sentenced on the basis of knowledge that the gun was either shortened or loaded, but only on the basis of having deemed constructive joint possession. The offender however is being dealt with on a far more aggravated factual basis, as I have explained.

2. Conversely, in terms of the ongoing supply of ice, the offender largely answered to Williams and sourced drugs from her, so was slightly lower in the hierarchy despite being part of a joint criminal enterprise with her. His dealing was for a shorter time period and involved a lesser total drug quantity.

3. Unlike every other co-offender, this offender was dealing drugs for financial gain rather than to support his own drug use.

4. The subjective cases are markedly different. While each co-offender reports varying degrees of disadvantage in their background, Williams (and Vasquez) had never previously been imprisoned and had lived a pro-social life for decades prior to becoming addicted to drugs, starting to commit offences, and ultimately dealing to support that habit. Both had favourable prospects of rehabilitation. Conversely, the offender has been committing criminal offences since he was a child and has an appalling history of breaching parole and court orders, particularly for this type of offending. Even when managing to largely abstain from drug use, he has still rapidly reverted to the same criminal behaviour for financial benefit. He thus has a very different and less favourable subjective case. His prospects of rehabilitation are at best reasonable.

143. It is also very important to identify in relation to the gun offences that Priestly DCJ had before him, a severity appeal from a magistrate, which prescribed the penalty.

Resolution

144. Taking into account all the matters I have referred to, but in particular, the level of objective seriousness of both the gun offences and the drug offences which I have identified the significant need for general deterrence, together with the significant history of offending by the offender and what appears to be his persistent breaching of parole type orders. Whilst at the same time taking into account the offender’s deprived background and the leniency he is entitled to as explained in cases like Bugmy, together with what I think are his guarded but reasonable prospects of rehabilitation and the need for me to send a clear signal to the community by way of general deterrence that the behaviour subject to all the matters before me is wholly unacceptable, and will be met with stern punishment by the Courts. I have also considered the other relevant factors listed in s3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), I have decided, firstly, the section 5 threshold has been crossed and that no sentence other than fulltime imprisonment is appropriate. Secondly, taking into account the matters on the Form s166, the appropriate aggregate sentence for the gun offences is a head sentence of 6 years.

Special Circumstances

145. There is considerable material before me that suggests the offender is already “institutionalised”. He seems to find life in gaol more comfortable than life in the community. This is a profound tragedy which by reference to his deprived upbringing, cannot be said to be all his fault. I do think that whatever prospects of rehabilitation the offender has will be greatly improved by a longer period on supervised parole. I am conscious that he has a long and sorry history of parole violations but feel he deserves one more chance to change his ways and accordingly, I have decided to vary the usual ratio significantly.

146. My indicative sentences are as follows, having deducted 10% for the guilty plea:

• Count 1 – 6 years imprisonment;

• Count 2 – 2 years imprisonment.

Section 166 offences as follows:

• Ongoing supply prohibited drug – Methylamphetamine (7.07 grams) - 2 months;

• Supply prohibited drug, cannabis leaf (63 grams) – 2 month imprisonment;

• Deal with property reasonably suspected proceeds of crime – 1 month imprisonment;

• Deal with property reasonably suspected proceeds of crime – 1 month imprisonment.

Totality

147. As between counts 1 and 2, that is the possession of the gun itself and the possession of the ammunition, I think they are but the one piece of the same criminal conduct, indeed Count 2 is very much subsumed by Count 1. I have factored into Count 1 the fact that the gun was loaded with the very ammunition, the subject of Count 2. I propose to wholly accumulate the sentences to reach an aggregate, which I think represents an appropriate overall sentence for the crime.

ORDERS

148. Taking into account the matters to be dealt with pursuant to s166 of the Criminal Procedure Act 1986 (NSW), and after deducting 10% for the plea of guilty, I impose an aggregate sentence of 6 years imprisonment to commence on 18 December 2021 and expire on 17 December 2027.

149. There will be a minimum non-parole period of 3 years to commence from 18 December 2021 and expire on 17 December 2024, which will be the first day the offender will be eligible for parole.

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Decision last updated: 27 March 2024