R v Payne

[2014] NSWDC 264

District Court

New South Wales

Medium Neutral Citation:	R v Payne [2014] NSWDC 264
Decision date:	06 November 2014
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	For the offence of unlawfully selling three or more firearms within a period of 12 months, a sentence of 4 years in full time custody. Non-parole period of 2 years.
Catchwords:	CRIMINAL LAW – sentence – particular offence – unlawfully selling three or more firearms within a period of 12 months – acting as an agent for supplier - undercover operative – nature and circumstances of offender – motivated by financial gain - desire to be accepted by supplier - functionally illiterate – substance use disorder – post-traumatic stress disorder – acquired head injury - supportive family – prior criminal record – institutional misconduct - report of forensic psychiatrist – proposed treatment plan – opined good prospects of being successfully rehabilitated – plea of guilty at earliest opportunity – 25% discount – relevance of standard non-parole period - special circumstances for adjusting ratio between head sentence and non-parole period – first time in adult custody – need for structured supervision for rehabilitation on release – limited opportunities for employment in prison – significant reduction - emphasis placed on specific deterrence for this offender
Legislation Cited:	Firearms Act 1996, s 51B(1)
Cases Cited:	R v Howard [2004] NSWCCA 348 R v Mack [2009] NSWCCA 216 R v Parkinson [2010] NSWCCA 89
Category:	Sentence
Parties:	Regina (Crown) Jack Mervyn James Payne (offender)
Representation:	Counsel: B Bickford (offender) Solicitors: NSW Office of the Director of Public Prosecutions (Crown)
File Number(s):	2014/00091775

Judgment

1. I am sentencing a young man for a very serious crime. He is still only 25. His counsel Mr B Bickford, correctly summarised his client’s position in the following terms -

“Mr Payne is a disabled drug addict with a sad personal history. His motivation for this offence was driven by addiction and an obsession with wanting to fit in.”

2. The crime that Jack Mervyn James Payne has been charged with is unlawfully selling three or more firearms within a period of 12 months. It is a very serious offence. One can tell that because Parliament, in enacting the offence in s 51B(1) of the Firearms Act 1996, fixed a maximum penalty of 20 years to the crime and a standard non-parole period of 10 years.

3. Mr Payne pleaded guilty to the offence at what Mr Fitzhardinge, who appears for the Director of Public Prosecutions, agreed is the earliest opportunity and in due course he will receive a 25 per cent discount from the sentence I would otherwise impose upon him. That is because he has assisted the criminal justice system in a number of practical ways, by avoiding the need for a trial so that other matters can be heard.

4. I should say something about the crime which he committed. It is summarised in exhibit A, which is an agreed statement of facts. The crime comprised two sales of firearms by Mr Payne and negotiations for the sale of firearms on four other occasions. An undercover operative was involved.

5. The first occasion, which was a sale, was 18 November 2013 and Mr Payne sold that undercover operative an SKS style rifle in exchange for $2,200 in cash.

6. The second sale was only a few weeks later on 3 December 2013. The same undercover operative contacted Mr Payne and discussed buying another weapon. Mr Payne said that he would go back to his supplier and they both went to meet that supplier. That was in fact on 8 December 2013. There, the undercover operative was given a .22 calibre pistol in exchange for $1,100 in cash. Not only that, the original supplier (not Mr Payne) provided the undercover operative with five rounds of appropriate ammunition.

7. There were four other occasions when Mr Payne negotiated to sell some weapons, which I understand amounts to a sale under the legislation.

8. His telephone was being monitored and he acted as a go-between between his own supplier and another customer for the sale of a weapon. The customer went around to Mr Payne’s place on 14 December 2013 to complete the transaction.

9. As it happened on the same day, Mr Payne negotiated a second sale, this time with an undercover operative. This time the operative asked for a .22 calibre bolt action rifle for $700 and that amounted to a further offence.

10. The following day, 15 December 2013, Mr Payne took a call from a customer, not an undercover operative, about selling a firearm and offered to sell to that customer a firearm for $350 in cash. They agreed to meet at a shopping centre.

11. Finally, the following day, 16 December 2013, Mr Payne offered to sell the undercover operative a shotgun and a rifle for $3,500. A couple of days later Mr Payne indicated that the rifle was available but not the shotgun.

12. By those four sets of negotiations, he had committed the offences - so he engaged in six separate transactions, two actual sales and four negotiated sales. Exhibit A includes photographs of the weapons that were sold. One can readily understand why Parliament has fixed a maximum of 20 years imprisonment and a standard non-parole period to crimes such as this, although I will return to that.

13. Jack Payne comes before the court with a criminal record, most of it in the Children’s Court comprising break and enter, theft and assaulting. He also has traffic matters and has been called up a number of times for breach of bonds. Significantly, his record contains an offence of possessing a firearm in or near a public place. In 2010 he was given a community service order for that offence. So this is not the first time that Mr Payne has been involved with a firearms offence.

14. He was arrested on 26 March 2014 and has been in custody ever since.

15. It is important for a judge, in sentencing an offender, to make some kind of assessment of how serious an example of the particular crime has been committed by that offender. As Mr Bickford pointed out - by reference to the Court of Criminal Appeal’s decision in R v Mack [2009] NSWCCA 216 -considerations relevant to assessing the seriousness include the number of firearms and the nature and type of the firearms. They also include, he argues by reference to the Court of Criminal Appeal’s decision in R v Parkinson [2010] NSWCCA 89, that the fact that his client was acting as an agent for someone else was significant. I accept both of those submissions. His client was more a go-between than the direct source.

16. I do not accept Mr Bickford’s submission that his client was not involved in a business. His client was involved in a business. He reaped some $3,300 from the sale of the firearms and also in some transactions prohibited drugs were obtained for the firearms. Indeed as Mr Fitzhardinge points out, some of the transactions obviously occurred in exchange for drugs which suggests that he was prepared to sell his firearms to those already involved in illegal activity. He was indiscriminate about whom he sold those to. It did not bother him who was purchasing the firearms and what may become of them.

17. Mr Fitzhardinge proposed that the offence, given the limited number of firearms actually supplied and the fact that he was an agent, fell below the middle of the range of objective seriousness. I accept that submission. I do not accept that it was towards the bottom of the range at all. However, I do agree that it fell below the middle of the range of objective seriousness.

18. It is important also for a judge to take into account personal factors which are relevant to an offender. As I said, Mr Payne is now 25. He has been described as functionally illiterate because his education was affected by a very serious incident which occurred to him when he was nine. He was seriously burnt by petrol which became alight. Evidently, the circumstances involved some behaviour by men which resulted in them being charged. He spent months in hospital and had to spend a lot of time in recuperation after hospital. Mr Bickford called Shirley Tibbett, Mr Payne’s mother, who confirmed what had happened. She pointed out, as has been mentioned in some other places, that the tattoos which Mr Payne wears on his face are to cover his scarring. She noticed a big change in his early teenage years which, to my mind, is probably connected with the accident and his disfigurement as a result of that accident. Her evidence is consistent with a detailed pre-sentence report prepared by Stacey Deller, who said that it was “from this moment...the offender realised a decline in his behaviour and self-confidence”. He started mixing with the wrong people.

19. He has had employment on only one occasion but found it very difficult because of another accident which occurred when he was still only 17. He had a serious motor bike accident. He was affected by drugs and alcohol at the time and he lost some fingers as a result of the accident or amputation to his right hand.

20. The pre-sentence report says that Mr Payne “has been chronically consuming a multitude of illicit substances since his teenage years.” Revealingly the pre-sentence report also noted that he has two institutional misconduct charges since his admission into custody. One was for possessing a drug implement and the other for failing a prescribed urine test. In addition he was segregated for attempting to bring drugs into a visitor centre at Cessnock Correctional Centre.

21. He had previously been under supervision from the Community Corrections Service and the report regarded his compliance as being satisfactory. He has ongoing support from his parents and his brothers and sisters. He started smoking cannabis at around 15 and by the time he was 16 he began using amphetamines, hallucinogens, heroin and cocaine. Then he also started on methamphetamines.

22. The author assessed his risk of reoffending as medium to high and the author also noted that the Justice Health medical file “confirmed that the offender is currently being treated with antipsychotic medication on a daily basis”. The author insightfully said that unless Mr Payne “is willing to genuinely address” his inclination to crime “he will likely continue to engage in criminal activity”. There is an opportunity for him to enter the program at Bennelong’s Haven.

23. Whilst in custody he has undertaken an OH&S course. Before he went into custody he was on a disability support pension which was related to his right hand.

24. Mr Bickford tendered a report from a forensic psychiatrist, Dr Furst. Dr Furst noted the drug and alcohol history and that Mr Payne “has never been admitted to a drug and alcohol counselling rehabilitation service”. Dr Furst noted his plans to try to get off the drugs. He diagnosed Mr Payne as having a substance use disorder as well as post-traumatic stress disorder and acquired head injury related to the bike accident, chronic dysthymia and childhood ADHD. Dr Furst thought that in his offending behaviour Mr Payne “was probably motivated by financial gain and an apparent desire to be accepted by his ‘upline supplier’”. Realistically his drug habit was also a motivating factor. Dr Furst pointed out that Mr Payne’s “underlying post-traumatic stress disorder, low self-esteem and chronic dysthymia were probably indirectly related to his offending”. Dr Furst recommended that he be referred to a clinical psychologist within Corrective Services . Dr Furst proposed a treatment plan which he thought Mr Payne is “likely to benefit from”. Dr Furst thought that Mr Payne “has good prospects of being successfully rehabilitated”.

25. There is a reference from Sister Margaret Mary Birgan, the congregational leader of Our Lady’s Nurses for the Poor. She has known Shirley Farrell (nee Tibbett) for almost 30 years. Sister Birgan insightfully pointed out in her reference the “absolute fragmentation of a family with little resources and backup as they struggled to grow up.” She pointed out how Mr Payne had “suffered from the effects of his burn”, as well as his schooling suffering. Both Sister Birgan - and Ms Tibbett in evidence - said that Mr Payne had received an insurance payout of some half a million dollars which he squandered, leaving nothing. Sister Birgan thought that “if Jack has someone to believe in him and guide him and to give him hope, he can make the grade”. She thought that being taught to read and write would be a very good start.

26. Mr Payne has a three and a half year old daughter, Shanella.

27. Mr Payne expressed his remorse for his offending behaviour when giving evidence before me. In evidence he said that he wanted to get off the drugs and get back to a stable life. He was driven by a desire to make friends and fit in. That also affected his drug taking behaviour in gaol.

28. Mr Fitzhardinge, in his helpful written submissions, referred to what the former Chief Justice, Spigelman CJ, had said in the Court of Criminal Appeal in R v Howard [2004] NSWCCA 348, a case involving the sale of firearms. At [66] his Honour said this -

“Where it appears that there are elements within the community who refuse to accept that firearms offences must be regarded as serious, the objectives of general and personal deterrence are entitled to substantial weight in sentencing for such offences. The availability of such weapons poses a major threat to the community particularly where, as here, an accused is completely indifferent to the persons who were to acquire them. The community has determined that trade in such weapons on any other than a strictly regulated basis is to be regarded as a serious offence. That must be reflected in the sentence imposed.”

Needless to say that is a judgment which applies to me in sentencing Mr Payne today.

29. Mr Bickford also provided some helpful written submissions as well as addressing me in Court. He correctly pointed out that although his client’s drug and alcohol addiction did not provide an excuse, it was relevant to his moral culpability in that they would have affected his capacity for judgment. In other words it was not as if his client was a sober, cold and calculating dealer in firearms. Mr Bickford submitted that there are special circumstances for altering the usual ratio between a non-parole period and a full sentence. Normally a non-parole period is 75 per cent of a full sentence but a judge can reduce that in special circumstances. Mr Bickford pointed out that this would be his client’s first time in adult prison and also that he needed structured supervision for his rehabilitation on release. He also had limited opportunities for employability in prison, given the injury to his hand. Mr Fitzhardinge did not cavil with those submissions and I accept them.

30. I also accept Mr Fitzhardinge’s submissions that the previous conviction involving a firearm “indicates a need for greater emphasis to be placed on specific deterrence for this offender”.

31. I need to determine an appropriate sentence for this crime in light of the observations which I have already made. I regard as an appropriate sentence for a crime such as this, taking into account all of the matters that I have referred to, as one of five and a half years imprisonment. However, Mr Payne has pleaded guilty at what is acknowledged to be the earliest opportunity. I would therefore reduce that five and a half year sentence by 25 per cent. That reduces the sentence from five and a half years to a couple of months over four years. I would be prepared to round the sentence down to four years.

32. Needless to say - but I say it - there is no alternative in sentencing Mr Payne other than to full-time custody.

33. Normally for a four year gaol sentence, the non-parole period should be three years. In this case I propose to fix the non-parole period as two years. That is a significant reduction. I do that because of the special circumstances which Mr Bickford drew to my attention and which I have already referred to.

HIS HONOUR:   I am going to sentence you now Jack Payne, if you would stand up please?

34. I set a non-parole period of two years, which commenced when you were arrested on 26 March 2014 and expires on 25 March 2016. The balance of the term is two years, which will commence on 26 March 2016 and expire on 25 March 2018. The first date on which you will be eligible for parole is 25 March 2016.

HIS HONOUR: So Mr Payne your overall sentence is four years. You’ve got a non-parole period of two years. Normally it would be three, but I have reduced it to two. It commenced when you were arrested 26 March this year, and you will be eligible for parole 25 March 2016. You know better than I do that if you keep drawing the attention of the prison authorities to your activities in prison to do with drugs, then the Parole Authority is not going to be very impressed by this. But that is up to the Parole Authority. Just have a seat there for a moment. Now am I right in thinking I don’t fix parole? Three years or under, I do not fix parole.

FITZHARDINGE: Three years and under, where your Honour needs to direct.

HIS HONOUR: No. Now are the mathematics correct Ms Eyers and Mr Fitzhardinge?

FITZHARDINGE: Yes your Honour.

EYERS: Yes your Honour.

HIS HONOUR: All right and I will make available to my associate exhibit 1 which is Dr Furst’s report. I will ask him - there is not a clean copy of that I suppose is there Ms Eyers?

EYERS: I haven’t checked that your Honour.

HIS HONOUR: Would you mind having a look because I marked it in pencil, it will just save my associate having to rub it all out.

EYERS: It may unfortunately be with counsel.

FITZHARDINGE: If it assists your associate your Honour, I can make available a copy that has some yellow highlighter that won’t show up when run through--

HIS HONOUR: That would be good. Could you make available - thank you, he will give that back to you but if you make that available he will photocopy it and I will just ask Corrective Services officers, should I give that to one of you to accompany him into custody? It is a psychiatric report and those who classify or who will classify Mr Payne are assisted by these reports and I can either fax it to someone or send it with you into custody, provided it gets to the right place.

SPEAKER: --put with his file.

HIS HONOUR: Say that again? Go with you?

SPEAKER: Yes.

HIS HONOUR: All right, my associate will photocopy it and send it down for you and it is to accompany him and to be made available to those who assess him. Is that okay? Good. Anything else Ms Eyers, Mr Fitzhardinge?

FITZHARDINGE: No thank you your Honour.

EYERS: No your Honour.

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Decision last updated: 12 February 2015