R v Taylor

[2024] NSWDC 232

District Court

New South Wales

Medium Neutral Citation:

R v Taylor [2024] NSWDC 232

Hearing dates:

16 May 2024

Date of orders:

24 May 2024

Decision date:

24 May 2024

Jurisdiction:

Criminal

Before:

Priestley SC DCJ

Decision:

See [Orders}

Catchwords:

CRIME — Firearms offences — Possess ammunition without holding a licence/permit/authority

CRIME — Firearms offences — Possess or use a prohibited weapon without permit

CRIME — Drug offences — Possess prohibited drug

CRIME — Drug offences — Supply prohibited drug — Knowingly take part in supply

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Firearms Act 1996 (NSW)

Cases Cited:

Muldrock v R (2011) 244 CLR 120

McLaren v R [2012] NSWCCA 284

Bugmy v R (2013) 302 ALR 192

Nasrallahv R [2021] NSWCCA 207

R v Millwood [2012] NSWCCA 2

Texts Cited:

Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146

Category:

Sentence

Parties:

Rex (The King)
Bryce Taylor (The Offender)

Representation:

Gilson for the Director of the Office of Public Prosecutions
Kearney counsel for The Offender

File Number(s):

2022/00310098, 2022/00321902

Introduction

Reasons on Sentence

1. Bryce Taylor, the offender, appeared for sentence on 16 May 2024 in respect of five matters dealt with on indictment. In respect of count 1 there is a further matter to be taken into account by way of the Form 1 procedure. There are then a further nine matters to be dealt with summarily being matters that have been brought to this court by way of a section 166 certificate. Accordingly, there are 15 matters that require consideration. The following table sets out the charges on indictment as well as the Form 1 matter and each of the summary matters and indicates the approximate date of the offending, the maximum sentence and if applicable the standard non-parole period:

Count / Seq	Sec	Date	Max	snpp
1	51(1A)(a) FA	27.9.22	20y	10y
F1	51(1) FA	27.9.22	5y
2	51(1A)(a) FA	16.10.22	20y	10y
3	25A(1) DMTA	27.9.22 - 3.10.22	20y	No
4	25A(1) DMTA	15.10.22 - 27.10.22	20y	No
5	25(1); DMTA (cannabis)	17.10.22	10y	No
Seq	Section 166 certificate summary matters
1	s10(1) DMTA; 8mg Buprenorphine	17.10.22	2y & / or 20 pu	n/a
2	s65(3) FA; poss am	17.10.22	50 pu	n/a
3	s7(1) WPA; poss proh weapon; taser	17.10.22	14y	n/a
4	s7(1) WPA; poss proh weapon; knuckle dusters	17.10.22	14y	n/a
5	s7(1) WPA; poss proh weapon; expandable baton	17.10.22	14y	n/a
11	s10(1) DMTA; 8.5g cannabis oil	17.10.22	2y	n/a
12	s10(1) DMTA; 13.96g THC	17.10.22	2y	n/a
14	s10(1) DMTA; 62.76g methandienone	17.10.22	2y	n/a
16	s10(1) DMTA; .12 meth	17.10.22	2y	n/a

2. The offender was initially arrested on 17 October 2022. He was granted bail on 18 October 2022 and arrested again on 27 October. Accordingly count 4 on the indictment was an offence committed at least in part when the offender was on bail. The offender was not on conditional liberty at the time of the other offending.

3. The offender has been in custody since his arrest on 27 October. Any sentence, taking into account the earlier arrest and imprisonment, should start on 25 October 2022 as the entire time in custody is attributable to these offences.

4. I have noted the maximum sentences in the above table and also in respect of counts 1 and 2, the standard non parole period. In relation to the maximum sentences and in respect of counts 1 and 2 the standard non parole period, those matters are taken into account as legislative guideposts, indicating the legislature’s view of the seriousness of the matters so as to assist in arriving at the appropriate sentence. In relation to the standard non-parole period I note that in Muldrock (2011) 244 CLR 120 at [29] the High Court made clear that it has application even when the offending is not considered to be in the middle of the range of seriousness as that term is used in section 54A of the Crimes (Sentencing Procedure) Act (“CSPA”). The standard non-parole period is an indication of the legislative view of the seriousness of the offence.

5. In regards to the Form 1 procedure it is important that the focus remains on the principal offences for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community’s entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.

The facts and objective seriousness

6. Count 1: This is a charge of supplying, or knowingly take part in the supply, of a prohibited firearm, in contravention of s51(1A) of the Firearms Act. On 27 September 2022 the offender offered on the Threema app to supply a.32 bulldog pistol, a Glock 17 pistol and a Mac 10 fully automatic submachine gun. The last of these is a prohibited firearm; the section captures pistols and prohibited firearms. Photographs of the firearms were sent to the person being offered them. The offender said the first two were in working order and that he had ammunition for the Glock. The submachine gun was not in his possession but he could obtain it for $30,000 if it was wanted and the answer was it was not wanted. The offer being made by the offender constitutes the offence.

7. The agreed facts state that the offender had “indicated” that the two pistols were in his possession, and that he could get the machine gun if the potential customer wanted it. Beyond that there is no evidence that he in fact had such guns in his possession. So whilst the offender admits to “indicating” he could supply these guns, he says that in fact he did not have them. Just how well this distinction was understood by the Crown in agreeing to these facts is not clear, and the matter can only proceed on what is set out in the agreed fact document. Notably on the searches of the offender’s residence no guns of the type described were found, and in the psychologist’s report that was not challenged, the offender speaks of how he would do anything to obtain money for drugs. Nevertheless, to accept matters adverse to the accused the Crown must satisfy the court of the matter beyond reasonable doubt. The interpretation of the agreed facts as stopping short of agreeing to the offender being in possession of the guns is accepted.

8. The agreed fact remains however of the offender “indicating” that he could obtain a submachine gun; further, it may be that whilst the other guns were not in his possession contrary to what he told the would be purchaser, he could obtain them. The sentence will proceed on the basis that the offender did not have possession of the weapons in question, but that at least in respect of the.32 bulldog pistol and Glock 17 pistol he indicated that he could get those weapons, and there is nothing in the agreed facts (in contrast to what was said in the psychologist’s report) that suggests that was untrue. The same cannot be said of the machine gun; that is the indication there of possessing the weapon is an admission of making a representation and does not amount to an admission of being in possession. The objective seriousness of a charge of supplying a firearm where the facts do not establish there is a firearm (here the machine gun) to be supplied must be low, and this appears to be the offender’s position. Adverse to the offender is this argument does not succeed in respect of the other two weapons, the clear drug context in which this offending is occurring, and the need to deter people engaging in gun supply, and as the Crown notes, the fact that the offer was of three guns. It is significant that no guns were introduced to the community by the offender’s conduct. I find the objective seriousness of count 1 is low.

9. The facts of the Form 1 matter to be taken into account with this matter are that, again using the Threema app the offender agreed to supply a 57 Cal chrome to a person known as “nightstalka”. As the specifics of this are not known it cannot be said to be a prohibited firearm, so that the matter is to be considered under s51(1), the offence of supplying or knowingly take part in the supply of a firearm, which has a maximum penalty of 5 years, as opposed to 20 years, and without a standard non parole period. The offender said he could supply it the following day for “45” meaning $45,000. The agreed facts are worded differently here without the use of the word “indicated” and show simply an agreement to supply the weapon. It is again noted that the proposed transaction did not result in any firearm being introduced to the community. The matter will be taken into account in line with the Form 1 procedure.

10. Count 2: On 16 October again using the app Threema the offender agreed to supply a revolver for $45,000, (that is, a pistol), and thus in breach of the section. The offender seems to rely on the same argument as for count 1, however for the reasons just stated in connection with the Form 1 matter that argument does not succeed here. The arrangement made was that the potential buyer would get the firearm on the morning of 17 October; it would have been informative to see what occurred at that time; the firearm the subject of the Form 1 matter was also to be supplied on the 17 October. Yet the police executed the search warrant at 9am that day as the offender left his premises, so the proposed transaction or meeting never took place. The objective seriousness here is low.

11. Count 3: In October 2022 police executed two search warrants at the offenders residence seizing mobile phones. Messages contained on the phones showed a supply of drugs on three separate days in the 22 day period 11 September to 3 October 2022.

12. The three supplies here are:

1. On 27 September 14 g of cocaine;

2. On 28 September 1 gram of cocaine for $350.

3. On 3 October 3 .5 g of cocaine.

13. On the first occasion the app “signal" is used and on the other two occasions the app “Threema”.

14. Count 4: The phones also showed there had been three separate days on which there was supply of drugs in the 12 day period of 15 October to 27 October 2022.

15. The first supply here used the app Threema and was for 28 g of cocaine.

16. The second occasion for this charge is based on the deemed supply provisions. The second occasion is made up of two drugs, being 104.1 g of cocaine and 23.86 g of MDMA located on the search that occurred on 17 October 2022.

17. The third occasion arises from the search of 27 October 2022 when police located 2.42 g of cocaine. This is less than the traffickable quantity of 3g, and the supply charge is based on the offender’s admission that the 2.42g of cocaine was in his possession for the purpose of supply.

18. At that time, 27 October, the offender was on bail having been arrested in the first place on 17 October. This is an aggravating factor.

19. Count 5: This is based on the first search on 17 October where police located 1.5 kg of cannabis leaf. It is relevant to note that was located in what was described as a grow room. The drugs were found not only in a grow room but also in a residence where police located more than 20 items consistent with drug supply including cannabis leaf that was drying, other drugs including methylmphetamine and cannabis oil, various weapons ranging from knuckle dusters, a bayonet and just under $30,000 in cash which was admitted to be from the sale of illegal drugs. Many of these items are the basis of other charges and care has been taken not to “double count” any matter, but these facts make plain the drug lifestyle environment in which the offending occurred.

20. The objective seriousness of each of these drug offences can be considered together, though the assessment does vary. The assessments are hindered due to the brief nature of the facts agreed to constitute the actual offending.

21. The submission of the offender was that he should be considered to have a role toward “street-level”. The submissions note the actual quantities the subject of the ongoing supply charges and also that with some exceptions the supplies were made up of deemed supply.

22. The submission is made that the assessment of objective seriousness is impacted by matters personal to the offender with reference being made to McLaren v R [2012] NSWCCA 284. The point being made by Justice McCallum in that case was the distinction between assessing, objectively, the seriousness of an offence in accordance section 54A of the Crime (Sentencing Procedure) Act as opposed to when assessing the seriousness of a matter more generally, sometimes referred to as an offender’s moral culpability. For present purposes what is being considered is in line with the term referable to section 54A. As there is in fact no standard non parole period relevant to the drug matters this is not a necessary exercise but still can be of some assistance in the overall process of assessing the appropriate sentence. The impact of the personal circumstances and background of the offender so far as they may affect his moral culpability will be considered in connection with the subjective evidence.

23. The submission of the Crown as to objective seriousness of the drug charges includes that the third occasion of supply for one of the section 25A matters (count 4) occurred whilst on bail (though I consider that an aggravating feature for that count). It also notes that different phones were used as were encrypted applications. It also notes the $29,950 cash that was admitted to be a result of drug sales. At the same time the Crown notes the “relatively insignificant” quantities of the second and third instances of the three supplies for count 3, and submits it is the first supply of 14g which keeps the matter from falling at the lowest end of the spectrum.

24. Count 4 is said to fall at the upper end of the low range and the increased quantities there are relied on for that assessment.

25. Count 5 is said to be at the lowest end of the low range as the quantity is only just beyond the indictable level and is far less than the commercial quantity of 25 kg.

26. I consider it is difficult to assess the role of the offender as anything much other than a “user / supplier”. The offender’s role is not however minor, given the quantities that are being sold; amounts such as 14g, 28g and 104.1g, and the cash that he was found with, allow for the conclusion that he is not the end of the drug hierarchy. The fact that he is selling different types of drugs also shows the extent to which he is embedded in the drug milieu. At the same time supplies of 1g and 3.5g are consistent with a street supplier. That quantity is not a determining factor is accepted, yet it still remains a factor relevant to take into account, and in the facts of this case is a significant factor. This is not a person driving a car not knowing the quantity of drugs on board; it is a person repeatedly knowingly having these amounts of drugs and supplying them, either actually or due to the deeming provisions. I would assess count 3 as in the low range, and count 4 as being more serious given the quantities of 104.1g of cocaine and 23.86g of MDMA, but still below the mid range. As to Count 5 I accept the Crown submission that it is at the lowest end of the low range.

27. Summary matters: Each of the summary matters arise from the search of the offender’s premises, with little other facts known beyond the bare fact of the offender possessing the items, and of course in the circumstances that he is heavily involved in a drug lifestyle. Five of the offences are under s10 DMTA, so matters commonly dealt with by way of a non custodial penalty. Sequence 16 is .12 of methamphetamine, sequence 12 concerning the THC 13.96g, sequence 1 is 8mg of buprenorphine, sequence 14 was possession of 62.76g of methandienone, which schedule 1 of the DMTA show is just above a small quantity of 50g, and well below a traffickable quantity of 500g, for sequence 11 the drug is cannabis oil in the quantity of 8.5g. All of these offences are low amounts, which is in the nature of the possession charge. It is important to note the charge is possession and not supply, despite what suspicions might arise for a person acting as the offender has, concerning possible supply of small quantities. It is also relevant to bear in mind the maximum sentence is 2 years. In short, each of the matters certainly shows in the circumstances a disregard of the drug laws, but overall would not be considered unduly serious, and for convenience are referred to in the below table as being low in objective seriousness.

28. Of the remaining 4 summary matters 3 are charges of possessing a prohibited weapon, being a taser, knuckle dusters and an expandable baton. The maximum sentence for each offence is 14 years, but there is a jurisdictional limit of 2 years for each offence, and 5 years when an aggregate sentence is imposed; see s53B CSPA. The facts do not expressly state the purpose of these weapons, but the inference is open to make on the standard of beyond reasonable doubt, and which is made, that they are weapons possessed by the offender in connection with his drug activities for protection. In saying this it is noted the offender told the psychologist that he bought the taser online when drunk so he and a mate could “taz each other”. That assertion truly stretches credulity, and even in the absence of any challenge to it is difficult to accept. Nevertheless, proceeding on the basis that is accepted, it remains the case the taser was in the possession of the offender, who was actively engaged in drug supply. In all the circumstances of the facts of this case, these offences objectively are not minor or trivial. The last of the summary matters is the possession of ammunition, which is a fine only offence. Again for convenience they are referred to as being low in objective seriousness in the below table.

Subjective case

29. The offender pleaded guilty at a time that entitles him to a 25% discount on his sentence.

30. The offender has no criminal record in NSW, but has a criminal record in Queensland that shows that he has been involved in drug activity for some time. The record is not extensive but is such that it denies him leniency. The offender is not new to drug offending.

31. The offender was born on 1 June 1997, so he is presently 26 years old, and was 25 at the time of the offending. The offender relies on a psychological report of Dr Freeman which records the offender’s history as given by the offender and which is not challenged. The following is taken from that report:

1. The offender accepted responsibility for the offending.

2. The offender reported maintaining employment but to a reducing degree whilst attempting to fund his dependency on alcohol, cocaine and cannabis. It is said the foundation of those addictions stems in part from exposure to personal stressors and examples are given of childhood sexual trauma and the stress of his partner's unsuccessful pregnancies. The role of a negative peer group was also noted.

3. It is said the offender accepts engaging in impulsive decision-making. It may be the way this is worded, but that seems to suggest a minimalist view on the part of the offender as to his offending, though that was not the overall impression of the report.

4. He maintains that he falsely claimed to have a weapon for sale.

5. The offender expressed remorse and regret for his offending. He appreciated the impact not only on those close to him but on the broader community by reference to other people’s drug problems.

6. He notes that on going into gaol he weighed 47 kg and now weighs 81 kg. That is evidence of rehabilitation.

1. As to his background he said his father was in gaol for his whole life. He is of first nation heritage born in the Tweed region with four siblings. His parents separated when he was six mainly due to his father’s offending.

2. He says he was raised in poverty. He says that his father’s partner got him into smoking “ice” at the age of 12. He is said to have been homeless for a period. He did not want his siblings to see what he was doing with drugs.

3. His schooling was disjointed and included going to an intervention camp due to poor behaviour. It was there when he was approximately 10 that he was sexually assaulted by an older male staff member by being forced to perform oral sex and he concealed this abuse. He is now seeking compensation through a redress scheme. He accepts that this fuelled his drug use vulnerabilities.

4. Despite attending numerous schools some of which he had to leave due to his drug taking and despite significant truancy seemingly due to a lack of parental supervision and drug use he did complete year 12.

5. From the age of 17 there was some stability when he had a partner and a job and ceased using methamphetamine. He worked in a civil earthmoving business for six years and completed a pipe laying apprenticeship and gained accreditations for operating machinery. Following a second unsuccessful of his partner pregnancy he relapsed into drug abuse. This would seem to have been around the time that he was approximately 23. I infer he lost employment because he then regains employment but that was destabilised by his drug use.

6. Pausing there it is notable that there is a significant period of relative stability in the not too distant past which I consider to be a favourable factor in considering his prospects of rehabilitation.

7. He has an interest in off-road dirt bikes and on road motorbikes.

8. He has had one significant relationship and this partner who he would appear still to care for and perhaps is still in a relationship with has significant health concerns. They have endured a number of distressing experiences involving pregnancy.

9. As to his drug and alcohol use, the history is of drinking alcohol at age 12 with his stepmother; his alcohol use ceased as his methamphetamine use increased, something also encouraged by his stepmother. Alcohol dependency has also reemerged. He smoked cannabis daily from age 12 until he went to gaol, so for some 13 years. As indicated above the methamphetamine use ceased at 17 when he went cold turkey at the request of his partner that he then relapsed when aged 21. Paragraph 7.3 of the report suggests he has been abstinent from methamphetamine for the past five years so it must have been a short relapse. It would seem that his drug use at the time of the offending was cocaine, cannabis and alcohol. He accepts he was chronically dependent and stated “I was sending photos of guns to people and saying that I had them. As long as I got more cocaine I didn’t care. I got shot in the calf, I’ve been stabbed, I didn’t care”.

10. At age 15 the offender was prescribed antipsychotic medication said to be due to depression/anxiety but which made him worse. From age 21 he was prescribed antidepressant medication and benzodiazepines but he was not compliant. There was some counselling at school but he otherwise has not engaged in drug treatment interventions prior to custody. In custody he engages in weekly psychological one-on-one consultations.

11. The assessment is of alcohol dependency disorder, cannabis dependency disorder and cocaine dependency disorder all in partial remission in a controlled environment, namely custody. It is also suggested there is “other specified trauma disorder (provisional diagnosis)”, which is a reference to possible PTSD but that is not able to be determined on the current assessment because of the challenges of disentangling his substance abuse effects from depression. The assessment of some form of specified trauma disorder is made because it is said he experiences trauma related symptomatology. That symptomatology is sleep disturbance, periods of depressed mood, elevated anxiety, rumination and hypervigilance.

12. He presented as quite insightful with high levels of self-awareness and a capacity to recognise the origins of his offending behaviour.

13. He has been in consistent employment in custody. There have been some infractions, but overall, the offender has been positive in his approach to incarceration.

14. His plan is to live with his partner, return to employment, achieve financial stability, avoid relapsing into drug use and engaging in interventions to that end, and to engage with a medical practitioner to coordinate his mental health treatment needs and to engage in the redress scheme for his childhood trauma.

15. The conclusions raised by Dr. Freeman note his disadvantaged background factors as identified above and also notes the period of stability that he maintained for some time. It notes that research demonstrates that individuals exposed to childhood mistreatment or abuse are at increased risk of committing offences in adulthood due to increased impulsivity as well as by developing drug addiction.

16. At paragraph 12.2 the view is expressed that the origins of the offences can be directly attributed to his drug abuse and association with negative peers and his relapse vulnerabilities which are exacerbated by his trauma. This is said to have likely increased his impulsiveness and impaired decision-making. The impact of drug consumption on judgment is noted. It is then stated that a likely additional contributor to his substance abuse vulnerabilities is his exposure to trauma.

17. Paragraph 12.3 states that taken together the current case appears to be a clear example of the destabilising effects of drug use.

18. Steps to minimise reoffending are noted and with respect are fairly obvious and are to remain abstinent, avoid negative peers and seek treatment for his mental health and trauma.

32. Also in evidence was a sentencing assessment report dated 11 March 2024. It notes he is in regular contact with pro social family members but also that at the time of the offending his social circle was of people using drugs. It notes the current charges to be an escalation in his offending. It also notes the infractions he has incurred in custody. It notes that he did not actually sell the firearms in question consistent with other evidence before the court. He said his addiction was due to the grief of losing a child; this is second statement of the offender that gives cause for concern that he does not fully appreciate his addictive vulnerabilities arise from his developing years, though perhaps this comment is referring to his then current relapse. The offender was open to intervention including residential rehabilitation.

33. Whilst some family members are pro social he described others as being antisocial influences, which is clear from the earlier history set out above.

34. He reported he was using MDMA and cocaine at the time of the offending which is consistent with what was found on the search. The offending was, he said a direct result of needing to finance his addiction.

35. As to insight it is said he focused on the impact on himself and his family of being in custody. His insight was broader than this when talking to Dr. Freeman. He was motivated to address his polysubstance misuse. This includes being open to intervention. He was not considered suitable for community service work due to what is said to be unaddressed illicit substance dependency though the evidence including his physical condition would seem to suggest that Dr. Freeman is right to say it is in remission in a controlled environment.

36. He was assessed as a medium risk of reoffending on the level of service inventory-revised [LSI-].

37. The report has a supervision plan which included addiction programs, residential rehabilitation, alcohol and other drug services for counselling and referral to his general health practitioner for a mental health care plan.

38. Also in evidence was a letter from an owner of a plastering business speaking highly of the offender and making a standing offer for him to be employed by them. His previous employment showed him to be a hard worker and punctual.

Submissions

39. The offender argues that the history given of a disadvantaged background which is not challenged gives means that the principles referred to as Bugmy principles apply. The submissions of the Crown at the risk of overgeneralising them, appeared sympathetic to the notion that the emphasis should be on rehabilitation though that is not expressly stated. The Crown notes the youth of the offender and acknowledges the long-term struggle he has had with substance abuse issues.

40. I accept that the history given to the psychologist which is not the subject of challenge makes out a background of significant disadvantage. He was exposed to antisocial influences from a young age and to drug abuse at a young age most strikingly evidenced by being introduced to both alcohol and methamphetamine by his father’s partner (variously referred to as his stepmother also) when he was just 12 years of age. His teenage years were unstable and included periods of homelessness, when one would ordinarily expect a child to be receiving the shelter, food and care of their parents. Through his father he was exposed to anti-social influences. In addition to that there was a specific traumatic incident which research, and the authorities, recognizes often has the consequence of subsequent drug use. The principles of Bugmy are enlivened.

41. The offender submitted that there was a duality to the offender which I consider to be an apt description. He has had these disadvantages but at the same time completed his schooling to year 12 and from the age of approximately 17 to 23 was engaged in gainful employment and was at least since the age of 21 abstinent from methamphetamine but sadly not from other drugs.

42. On that basis it is argued that he has good prospects.

43. It was accepted by both parties that the section 5 threshold had been crossed, at least in respect of the 5 counts on the indictment. The submission on behalf of the offender was that the aggregate sentence would not exceed three years and that an intensive correction order should be imposed. The Crown’s position was that whilst the offending may be considered objectively towards the low end of seriousness the nature of the offences being committed is such that any sentence imposed would mean that section 68 CSPA would prohibit the imposition of an ICO.

Consideration

44. The purposes of sentencing are as follows:

1. To ensure the offender is adequately punished

2. To prevent crime by deterring the offender and others from committing similar offences

3. To protect the community from the offender

4. To promote the rehabilitation of the offender

5. To make the offender accountable for his actions

6. To denounce the conduct of the offender

7. To recognise the harm done to the victim of the crime and the community.

45. This is a case involving drug use, possession and supply, and attempts to supply very serious weapons, and also the possession of weapons in the summary matters. There is about the supply weapons charges the minimising feature of the supply not actually occurring, and indeed the offender not having actual possession of the weapons, and that is taken into account. It remains the case that the type of conduct being dealt with, the drug offending and all the weapons matters, is offending in which deterrence is a major consideration, as is of course the need to protect the community. At the same time, the offender is still reasonably young, has support in the community available to him, and has taken rehabilitative steps in custody. The sentence should be one that promotes his rehabilitation.

46. That Bugmy principles have been enlivened was accepted above. In Bugmy at [28] it was said:

“The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.”

47. So too here, the offender’s moral culpability is lessened by reason of his background. The circumstances of the offender in Nasrallah [2021] NSWCCA 207 were considered sad and tragic, but not to be of profound disadvantage, so that the principles of Bugmy were not bluntly engaged. Should the above assessment of the present case be incorrect, then, in line with Nasrallah the circumstances outlined in the psychologist's report must still be taken into account. On either view there is a reduction in the moral culpability of the offender, with the question of the extent to which that is reflected in the sentence being dependent on the other considerations required to be taken into account, such as the danger the offender may present to the community.

48. Further, it can be said that the offender has had a start in life that fits within the description given Justice Simpson in Millwood [2012] NSWCCA 2 at [69]:

69. I would reject the proposition contained in the first sentence. 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. I should not be taken as implying that such a person bears no moral responsibility; but I consider that the DPP's submission significantly underestimates the impact of a dysfunctional childhood. Indeed, it sits uneasily with the immediately preceding acknowledgement that his upbringing had been "tragic and dysfunctional". That his background is a relevant consideration affording some (although limited) mitigation is entirely consistent with the approach taken by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58, a decision which has repeatedly been followed in this Court. If that were not so, there would be no purpose in sentencing courts receiving, as they invariably do, evidence concerning the personal background of offenders.

49. The offender’s background is set out above by reference to the psychologist’s report, and referred to at [40] above. In addition there was an absence of a pro social male role model in the offender’s life, and whilst he admired his father, his father was anti-social, being incarcerated for much of the offender’s childhood. Schooling was difficult, and life was one of disadvantage as noted above. This was made all the worse by the trauma of child abuse. Based on the research frequently referred to and not challenged, the likelihood of drug use was significantly greater for the offender than a person with a more “normal” upbringing.

50. In relation to the traumatic event of child abuse, in Nasrallah [2021] NSWCCA 207 at [13] it was said, having discussed in effect why a traumatic event may not make out the factual requirements for the operation of Bugmy considerations, and having favourably referred to AWF [2000] VSCA 172:

13 AWF, a pre-Bugmy decision, was referred to by McCallum J (as her Honour then was) in JL v R.[24] There, the sentencing judge, whose decision was upheld, did not accept that the offender’s sexual abuse as a child lessened his moral culpability other than to a minor degree associated with the link between that abuse and the offender’s abuse of alcohol.

51. The point here is the offender suffered sexual abuse at age 10; at 12 he is introduced to drugs by his father’s partner. There is a confluence of disadvantage and trauma, one directly leading to drug abuse, and the other recognised by research commonly accepted to more likely result in a person abusing drugs. On the facts of this case, the link between the disadvantaged background, the childhood trauma, the drug use, and the offending is strong.

52. The psychologist’s report reads as if to emphasise the drug taking as to be the cause of the offending, yet it also recognises the connection between the drug taking and the trauma; see at [31.22]-[31.23] above. Whilst the report refers to the offending arising from the effects of drug use, that must be read with the view that the drug use is likely contributed to by his trauma, and I would add, his disadvantaged background.

53. The report also talks of the offender’s depression and of having been medicated intermittently since a teenager. Yet there was little to suggest that was causative of any offending, nor really any evidence to suggest it would make custody more difficult.

54. The conclusion that I reach is that the offender’s moral culpability is decreased by reason of his disadvantaged background, and the extent of that lessening is increased by reason of their being a clear, albeit indirect connection, between the offending and the confluence of factors referred to above.

55. That the offender has managed to complete schooling and had 6 years of gainful employment, so a life with some pro social features (his ongoing drug taking is recognised) does not lessen the finding of lesser moral culpability. Rather, that he had been in a significant way pro social is evidence supporting an argument favouring him as to his prospects. He has demonstrated an ability to at least in some way be pro social.

56. Although the evidence is scant, he also has a healthy non anti-social interest in motocross and motorbike activity. It may seem small, but so often offenders suffering serious drug addiction seem to have no outlet or interests.

57. The offender has committed himself well in custody. In custody he has had steady employment, and has made significant health advances as shown by his weight gain from 47kg to 81kg, and as a lay observation, in court he appeared healthy.

58. I accept the offender's expressions of remorse to be genuine, and that he, at least in custody away from the more open temptations in a non controlled environment, has acted in a way that shows he wishes to rehabilitate by remaining abstinent. I place little weight on the infractions on his record given the dearth of detail provided about those matters, and also because the fact a polysubstance abuser lapses to drink on an occasion in custody should not be seen to negate the positive steps taken.

59. The obvious concern is that once back in the community the offender will not remain abstinent. Should that occur then it is almost certain he will reoffend. For that reason the assessment of his prospects, otherwise promising, must be guarded. This applies to both his prospects of rehabilitation and the likelihood of his reoffending.

60. The real seriousness of this offending are the 25A matters along with the summary prohibited weapons matters, though I do not wholly discount the seriousness of counts 1 and 2 as the offender sought to argue. As to counts 1 and 2 the sentence will be greater for count 1 due to the Form 1 matter and also because it involves 3 weapons not 1, and the offender’s argument concerning “indicated” affected only the matter of the machine gun. The drug matters and possess weapons matters do present a real risk to the community, and should be denounced, and the need to protect the community must be a factor. The weight to be placed on deterrence is less than it would otherwise be due to his lesser moral culpability, and in this case this applies to both general and specific deterrence. The summary drug matters as already noted provide context to the offender’s offending; that is, this is not one off behaviour, and as he acknowledges he was in the grip of great addiction at the time.

61. The sentence will be an aggregate sentence. The indicative sentences before and after the 25% discount are set out in the below table, which for convenience also repeats the matters set out in the table at the beginning of these reasons. A number of the summary matters have been dealt with by way of s10A CSPA given the lack of utility of any community based order being made that would date from today.

Table

Count / seq	Section	Date	Max	SNPP	Obj ser	Before 25% disc	After 25% disc
1	51(1A)(a) FA	27.9.22	20y	10y	Low	16m	12m
F1	51(1) FA	27.9.22	5y	No	Low
2	51(1A)(a) FA	16.10.22	20y	10y	Low	12m	9m
3	25A(1) DMTA	27.9.22 - 3.10.22	20y	No	Low (and below 4)	2y	18 m
4	25A(1) DMTA	15.10.22 - 27.10.22	20y	No	Low	2 ½	22m
5	25(1); DMTA (cannabis)	17.10.22	10y	No	Low (and below 3)	18m	13m
Seq	Section 166 certificate summary matters
1	s10(1) DMTA; 8mg Buprenorphine	17.10.22	2y & / or 20 pu	n/a	Low	s10A
2	s65(3) FA; poss am	17.10.22	50 pu	n/a	Low	s10A
3	s7(1) WPA; poss proh weapon; taser	17.10.22	14y	n/a	Low	1y	9m
4	s7(1) WPA; poss proh weapon; knuckle dusters	17.10.22	14y	n/a	Low	1y	9m
5	s7(1) WPA; poss proh weapon; expandable baton	17.10.22	14y	n/a	Low	1y	9m
11	s10(1) DMTA; 8.5g cannabis oil	17.10.22	2y	n/a	Low	s10A
12	s10(1) DMTA; 13.96g THC	17.10.22	2y	n/a	Low	s10A
14	s10(1) DMTA; 62.76g methandienone	17.10.22	2y	n/a	Low	s10A
16	s10(1) DMTA; .12 meth	17.10.22	2y	n/a	Low	s10A

62. Taking all of the above matters into account the aggregate sentence arrived at is 5 years.

63. I make a finding of special circumstances for the reason that this is the offender’s first time in custody, and because an extended period of supervision is necessary to assist him to gain the intervention he needs to address his childhood trauma and drug addiction. The justification for this finding is well supported with his age, and his past showing pro social attributes, and the rehabilitative steps he has already taken, plus the other supports he has in the community. The offender’s case is one that permits justified albeit guarded optimism that his rehabilitation will continue, and the sentence should be one that fosters that, not impede it. The reality that relapse will undo any progress made has been taken into account, as has the need to avoid his anti social connections.

64. For those reasons the non parole period will be 2 years and 8 months, a period which is the minimum time to be spent in custody to reflect the seriousness of the offending.

65. In respect of counts 1 and 2, where there is a standard non parole period, the indicative non parole period is 7 months and 5 months respectively, which approximates the ratio of the non parole period overall. Those non parole periods differ to the standard non parole period because of the 25% discount on sentence, and because the offending has been assessed as below the middle of the range of objective seriousness, and because of the matters relied on for the finding of special circumstances.    

66. The argument for the offender had been for the imposition of an ICO. With respect the range of offending, and the seriousness of the s25A charges and involvement of weapons, meant that it was always unlikely that the sentence would be one that was less than 3 years. That likelihood having been realised, section 68 CSPA prohibits the imposition of an ICO.

Orders

67. Of the 5 counts on the indictment, and in respect of each of the 9 summary matters, the offender is convicted.

68. Noting the indicative sentences set out in the above table, in respect of counts 1, 2, 3, 4 and 5, and summary matters sequences 3, 4 and 5, and applying the 25% discount on the indicative sentences, the offender is sentenced to an aggregate term of imprisonment to date from 25 October 2022 with a non parole period of 2 years and 8 months, expiring on 24 June 2025 and with a balance of term of 2 years and 4 months, expiring 24 October 2027.

69. In respect of the summary matters being sequences 1, 2, 11, 12, 14 and 16, pursuant to s10A CSPA convictions are recorded with no further penalty.

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Decision last updated: 20 June 2024