R v Matthew Paul Peisley

[2010] NSWDC 240

CITATION:	R v Matthew Paul PEISLEY [2010] NSWDC 240
HEARING DATE(S):	24 September 2010, 8 October 2010
JUDGMENT DATE:	8 October 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Haesler DCJ SC
DECISION:	Count 2 - Proceeds of crime offence and Form 1. NPP 2 years 3 months with a balance of sentence of 1 year and 6 months. Count 1 - Firearms Act offence. NPP 3 years and 9 months with a balance of sentence of 2 years 3 months. The total effective sentence is 7 years with a NPP of 4 years 9 months.
CATCHWORDS:	CRIMINAL - Firearms offences - Proceeds of crime - Operation Schoale
LEGISLATION CITED:	Firearms Act 1996 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Cromarty (2004) 144 A Crim R 515 Mack v R [2009] NSWCCA 216 Basedow v R [2010] NSWCCA 76 R v Mahmud [2010] NSWCCA 219
PARTIES:	Regina Matthew Paul Peisley
FILE NUMBER(S):	2008/00258322
COUNSEL:	Mr W Hunt (Offender)
SOLICITORS:	Ms F Gray (Director of Public Prosecutions) Mr W O'Brien (Offender)

SENTENCE

Introduction

1. On Wednesday 28 February 2007 police attended the home of Matthew Paul Peisley, the offender, in Tarrawanna, a suburb of Wollongong. They had with them a valid search warrant. Over the next few hours police searched the premises and found a significant number of firearms, including three prohibited firearms, being a 12 gauge Remington self-loading shotgun, a 9 mm Parabellum Steyr self-loading pistol and a .22 Stirling model self-loading rifle with silencer attached. Also found was a prohibited pistol, being a .44 Magnum Desert Eagle self-loading pistol with distinctive gold plating.

2. Other firearms and weapons found included magazines, one of which was loaded, for the Steyr pistol; an electric Taser-type anti-personnel device; a .357 Magnum Smith and Wesson six chamber revolver; a .22 Winchester Magnum rimfire; Magnum Mossberg repeating rifle; a .22 calibre Winchester model 600 repeating rifle; a 12 gauge single barrel shotgun of Russian manufacture; and a 12 gauge Amadeo Rossi double barrel shotgun.

3. A large quantity of ammunition was also found. All the firearms were stored away and were not readily accessible. An example is shown in the extract of the video of the search of the premises tendered after the hearing of the matter as Exhibit D. It indicates that although the 9 mm self-loading pistol was located in a bag with magazines, one of which contained four rounds of ammunition, it was also stored behind a cabinet under a television, which had to be moved to get to it.

4. Located in the roof cavity was a quantity of cash. That cash was packed into thirty-nine heat-sealed bags, six of which bore the offender’s fingerprints. No other fingerprints were located on the bags. The cash in the roof cavity totalled $10,209,060. Also found were money counters and a plastic heat-sealed packaging system.

5. An unrelated charge of obtain benefit by deception, involving the offender providing a false letter in an application for mortgage finance, was also before the Court as part of a Form 1.

6. The Agreed Facts indicate that:

“The offender was hiding the money on behalf of others. He was reckless as to whether the source of the money was the proceeds of crime or not. The offender was not actively involved in ‘laundering the money’. However, the offender was paid for his assistance in cash, a motor vehicle and a boat”.

7. The Agreed Facts do not set out any information about the offender’s purpose in having the firearms in his premises.

8. The offender was arrested during the course of the search warrant and has been in custody since 28 February 2007.

9. The offender indicated he would plead guilty in the Local Court. An Indictment was presented here. It contained two counts, the first pursuant to s 51D(2) Firearms Act 1996 and the second pursuant to s 193B(3) Crimes Act 1900. Guilty pleas were entered and the offender accepted his guilt in relation to matters set out in two Form 1 documents.

The Firearms Act offence

10. Section 51D(2) Firearms Act 1996 provides that a person who is in possession of more than three firearms, any one of which is a prohibited firearm or prohibited pistol, is guilty of an offence if the firearms are not registered and the person is not authorised by license or permit to possess the firearms. The offender was not licensed or authorised to possess the firearms. They were not registered.

11. The Agreed Facts reveal that the offender is connected to, and his arrest follows, an investigation in relation to the importation and supply of cocaine, assigned the name Operation Schoale. Other members of the “syndicate” have been charged with drug supply, firearm possession, and dealing with the proceeds of crime offences. The offender is to be sentenced for the offences for which he has admitted his guilt, not the activities of others.

12. Section 51D(2) carries a maximum penalty of twenty years imprisonment. A standard non-parole period of ten years applies. At the time of the commission of the offence no standard non-parole period applied. However, Schedule 2 of the Crimes (Sentencing Procedure) Act 1999 indicates that the standard non-parole period is to apply to the determination of a sentence for an offence whenever committed, unless a court has accepted a plea of guilty and the plea has not been withdrawn before the commencement of the amendment. This pre-condition was not met. It was submitted that the full rigour of the standard non-parole period should not apply because, given the retrospective nature of the charges, its general deterrent effect could not have influenced the offender. While superficially appealing, it is hard to incorporate this submission into any sentencing calculus. I am bound to apply the law as enacted by Parliament and give retrospective effect to the standard non-parole period provisions.

13. The gravamen of this offence is the possession of prohibited firearms. The seriousness of the offence is measured by the number and nature of those firearms and how and where they were stored. The purpose for which they were stored may impact on the seriousness of the offences however s 51D(2) punishes possession not purpose.

14. It is clear that there were a significant number of firearms. A number were prohibited firearms and there was a prohibited pistol and a pistol. There is insufficient evidence to establish beyond reasonable doubt that the firearms were there to be used to defend the premises or the money stored in the ceiling. They were not left loaded. Most of the firearms were packed away and secured away from areas where the offender or any other person in the home could have ready access to them. Given the subjective material produced in relation to the offender and all the facts available to me, I find that they were being stored on behalf of others for reward.

15. That being said, the principles underlying the Firearms Act 1996 confirm that firearm possession is a privilege that is conditional on the overriding need to ensure public safety. The maximum penalty and the standard non-parole period indicate the seriousness with which the legislature views such offences. It is the possession of the firearms that is criminalised and that possession must bear most heavily on the offender. The number and nature of the firearms here clearly indicates that a significant breach of the Firearms Act occurred. There was a real and appreciable risk that those firearms would have fed the market for illegal firearms.

16. It was submitted by Mr Hunt, for the offender, that the firearms offences were towards the lower end of the range, perhaps “high in the low range”. The Solicitor Advocate for the Director of Public Prosecutions submitted initially that the matter was at the lower end of mid range but, when pressed, conceded it was, “just outside mid range”. That was a proper concession.

17. There are limited facts upon which I can reach my determination in relation to the firearms. My focus must therefore be upon what was actually done by the offender, that is his storing of a number of prohibited firearms and a prohibited pistol any one of which would, in combination with two other weapons, lead to the commission of the aggravated version of the offence. He was playing a part in holding illicit firearms, which posed a significant risk to the community.

18. The offender was not a collector; the weapons were not part of any professional, recreational or rural use; they were being kept for others. There is no evidence as to what might have happened when their owners recovered them. The firearms were not kept in a gun safe but they were stored away, not loaded, and not readily accessible. In assessing what is a middle of the range offence I am able readily to conceive of more serious offences of this type, involving loaded weapons and possession in circumstances where the risk to the community is far greater than that here. All these factors mean the offence is not in the lower range but rather it falls toward but outside the middle of the range of objective seriousness.

19. That finding, together with the plea of guilty, the offender’s prospects for rehabilitation, and the need to adjust the non-parole period to take account of accumulation and totality principles, all provide reasons not to impose the standard non-parole period.

20. The offender has asked that I take into account the ammunition, possession of the handheld Taser device, and the magazines for the Steyr machine pistol as recorded on a Form 1. I do so. While the possession of the detachable magazines would add nothing to the principal offence, the quantity of ammunition found in the first matter on the Form 1 and the other prohibited weapon found are factors that must increase the sentence to be imposed.

21. Statistics from the Judicial Commission were provided to me. So far as the Firearms Act matter is concerned they provide no real assistance, given the small number of matters recorded and the fact that very few sentences involving consideration of the standard non-parole period have been dealt with by the Courts. I have also had the opportunity of reading the decisions of the Court of Criminal Appeal in R v Cromarty (2004) 144 A Crim R 515; Mack v R [2009] NSWCCA 216; Basedow v R [2010] NSWCCA 76 and R v Mahmud [2010] NSWCCA 219.

The proceeds of crime offence

22. Section 193B(3) Crimes Act 1900 provides that a person who deals with the proceeds of crime, being reckless as to whether it is proceeds of crime, can be subject to a maximum penalty of imprisonment for ten years. Section 193B is headed “Money laundering”. I note that this offence is the least serious of the matters so described in that section. I also note the concession in the Agreed Facts that the offender was not himself involved directly in the laundering of the money. It is nonetheless a serious offence, the seriousness of which is amply demonstrated by the amount of money involved. That amount should not dominate the sentencing process. Nevertheless, it is a clear indication of the seriousness of the crime for which the offender must be sentenced.

23. I accept that the offender did not know the source of the money and that he was not actively involved in laundering it but held it for others for reward. Nevertheless, his recklessness in dealing with such a significant amount of money requires the imposition of a substantial custodial penalty. That sentence must reflect a significant degree of general deterrence.

24. In relation to the Form 1 attached to this count, I note that the evidence reveals that although a benefit was obtained the full value of the housing loan was repaid and the mortgagor concerned suffered no loss. This matter would only add very modestly to the penalty that I intend to impose for the second count but I do take the Form 1 into account.

25. Although these matters have been before the Court since February/March 2007, the parties inform me that it was caught up in the much larger operation involving others in Operation Schoale. I am informed, and accept, that when the present prosecutor and defence counsel and solicitors became involved the matter progressed quickly and that the offender showed a willingness to assist the course of justice and entered his pleas in a timely fashion in the Local Court. It is not in dispute that the utilitarian value of the plea is high and that, for that aspect of the plea, a reduction in the penalties to be imposed of twenty-five per cent is called for.

Subjective matters

26. The offender was born on 1 April 1971. He was the sole occupant of the home at Tarrawanna, although his two young sons would visit on occasions. He was estranged from his wife. He has two minor matters on his criminal record that, for all intents and purposes, can be ignored. Were it not for the commission of these offences, he would be entitled to be regarded as a person of good character. That good character however made him a more reliable candidate for his role as bailee of the firearms and cash.

27. A number of testimonials attesting to his character and setting out details of his background were before the Court as Exhibit 1. It is clear that the offender has worked for many years as a fencing contractor and, until he was incarcerated, was able to fulfil his role as a good father to his two sons. He is regarded as an honest and reliable man and the testimonials, which I accept, indicate that his primary recreation appears to be greyhound racing and that he is “not a fan of firearms or a firearm enthusiast”.

28. I take into account the subjective circumstances set out in the testimonials and reports. I also take into account the evidence before me in Exhibits 4 and 5 which establishes to my satisfaction that the offender ran a legitimate business and that the mortgage the subject of the second Form 1 was paid in full with no loss to the mortgagor. Those documents indicate a man who lived a modest lifestyle. The offence appears to have been opportunistic and one committed out of modest greed.

29. A report from Michelle Player, clinical psychologist, sets out the offender’s background, which, although disturbed by the break-up of his parents’ marriage and a period of teenage rebellion and some drug use into his twenties, also indicates a degree of stability as he grew older. His alcohol use at the time of the commission of the offence was described as “excessive and problematic”. The reports and testimonials indicate an otherwise unremarkable background of a man who has been in regular employment, particularly since taking up work as a fencing contractor in 1998.

30. Ms Player concludes that the offender will require motivational and relapse prevention counselling to facilitate his achieving controlled alcohol use in the long term. She recommends, as imperative, forms of drug and alcohol treatment and psychological therapy. She also notes that prolonged incarceration is unlikely to offer as much rehabilitative opportunities as would supervised and supported residence in the community where the offender can pursue stable employment, participate in pro-social activities and better draw upon his family support.

31. As indicated, the plea of guilty has considerable utilitarian benefit. It also indicates a degree of practical remorse and supports my positive conclusions in relation to likelihood of re-offending and rehabilitation. I take all of these matters into account in fixing the sentences, although little weight is given to the question of rehabilitation at this stage because I intend to take it into account as a special circumstance when fixing the appropriate non-parole periods.

32. In addition, I take into account the fact that there is evidence that the offender has spent over three and a half years on remand in maximum security and that this delay has meant that he has missed the opportunity of being reclassified and serving his sentence at a lower security rating and in more congenial circumstances than maximum security. I note that his performance in custody indicates that he has demonstrated a capacity for rehabilitation. It would also appear from the evidence before me that the offender has little likelihood of re-offending and the purpose of sentencing relating to personal deterrence has been met.

Purposes of sentencing

33. One of the purposes for which a court may impose a sentence is to promote rehabilitation. Such rehabilitation here will assist in promoting the protection of the community much better than a lengthy period of imprisonment.

34. There are other purposes of sentencing which must be given effect to. Those purposes include: adequate punishment, the deterring of others, making the offender accountable, denunciation, and recognition of the harm (here, harm of considerable potential) to the community.

Disposition

35. In imposing the sentences I take into account the Forms 1 that attach to each respective count on the Indictment, together with the maximum penalties and the standard non-parole period which applies to Count 1. I have been assisted by the submissions of the Solicitor Advocate for the Director of Public Prosecutions and Mr Hunt, who appears for the offender.

36. My assessment of the appropriate penalties does not involve an arithmetical assessment, nor have I attempted to simply fix a percentage of the standard non-parole period. I have taken into account the compounding impact of long sentences on an offender: severity of imprisonment is not simply proportional to the length of time served. I have particular regard to the standard non-parole period and the maximum penalties, together with the other material, including cases and JIRS statistics, as guides in reaching what I regard to be the appropriate penalties.

37. This is a matter where two sentences carry with them certain similarities in that the offender held the firearms and money for others for reward. Because of the similarities between the matters and because I have taken similar factors into account in both aggravating and mitigating the sentences, there should be a measure of concurrence between the sentences. There must also be a measure of independent punishment. I am guided in my overall assessment by the principle of totality and the requirement that the sentences not exceed that which is necessary to meet the objective circumstances of both offences regarded together.

38. Viewing each offence independently the appropriate starting point for the sentence for Count 1 would be a sentence of 8 years, before allowance is made for the utilitarian aspect of the guilty plea. So far as the second count is concerned, a sentence of 5 years, before any reduction for the guilty plea, would be appropriate.

39. I find there are special circumstances that require some adjustment to the non-parole periods because this is the offender’s first time in custody but, more importantly, to encourage his rehabilitation by ensuring he is closely supervised and supported in the community. There are also special circumstances in the need to make adjustments because of accumulation.

40. I intend to sentence on Count 2 first.

41. In relation to Count 2, the Crimes Act 1900 offence, you are convicted. You are sentenced to a term of imprisonment that consists of a non-parole period of 2 years 3 months, to commence on 28 February 2007 and expire on 27 May 2009. The balance of the sentence of 1 year and 6 months expires on 27 November 2010.

42. On Count 1, the Firearms Act 1996 offence, you are convicted. You are sentenced to a term of imprisonment that consists of a non-parole period of 3 years and 9 months, to commence on 28 February 2008 and expire on 27 November 2011, on which date you will be eligible to be released to parole. The balance of the sentence of 2 years 3 months expires on 27 February 2014.

43. This gives a total effective sentence of 7 years with a non-parole period of 4 years 9 months. The sentences are to date from when the offender first came into custody. You will become eligible to be released to parole on 27 November 2011.

44. In relation to the matters on the s 166 certificate, with the exception of the four matters taken into account on the Form 1 on Count 1, the remaining matters are withdrawn and dismissed.

45. On the undertaking that exhibits 4 and 5 will be retained by the solicitor for the offender, I grant leave to the solicitor to uplift these exhibits.

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