R v Whitley

[2024] NSWDC 184

District Court

New South Wales

Medium Neutral Citation:

R v WHITLEY [2024] NSWDC 184

Hearing dates:

26 April 2024

Date of orders:

24 May 2024

Decision date:

24 May 2024

Jurisdiction:

Criminal

Before:

Lerve DCJ

Decision:

Sentenced – see [74]–[79]

Catchwords:

CRIME – drug offences – supply prohibited drug – cocaine

CRIME – firearms offences – possess unregistered, unlicenced and prohibited firearms – acquisition and possession of firearms in contravention of firearms prohibition order

SENTENCING – risk of reoffending – need for drug rehabilitation on release – aggregate sentence

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act, 1985

Firearms Act, 1996

Cases Cited:

Laspina v R [2016] NSWCCA 181

Nabalarua v R [2020] NSWCCA 68

Parente v R (2017) 207 A Crim R 412

R v Lachlan (2015) 252 A Crim R 277; [2015] NSWCCA 178

R v Smith & Campbell [2019] NSWCCA 1

Taylor v R [2018] NSWCCA 50

The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999, No. 1 of 2002 (2002) 56 NSWLR 146

Category:

Sentence

Parties:

Rex
Marcus Glenn WHITLEY

Representation:

Counsel:
Mr F Laurance for the Crown
Mr R Keller for the Offender

Solicitors:
Office of the Director of Public Prosecutions
Barron Law

File Number(s):

2023/58981

Publication restriction:

No

remarks on sentence

1. Having pleaded guilty before a Magistrate at the Wagga Wagga Local Court on 24 January 2024 and having adhered to his pleas of guilty at the Wagga Wagga District Court on 26 April 2024 the offender appears for sentence in respect of the following charges, namely that he:

H79443167:

Sequence 1: On 12 January 2023 at Currawarna in the State of New South Wales did supply a prohibited drug namely 69 grams of cocaine being more that the indictable quantity but less than the commercial quantity, contrary to s 25(1) of the Drug Misuse and Trafficking Act, 1985; and further

Sequence 2: Between 11 November 2022 and 18 January 2023 at Tatton in the State of New South Wales, did possess more than three firearms, namely five firearms that were not registered, one of which was a prohibited firearm and one of which was a pistol and was not authorised by a licence or permit to possess those firearms, contrary to s 51D(2) of the Firearms Act, 1996; and further

Sequence 3: Between 11 November 2022 and 18 January 2023 at Tatton in the State of New South Wales, did possess a firearm namely a pistol in contravention of a firearms prohibition order that was in force, contrary to s 74(1) of the Firearms Act; and further

Sequence 4: Between 11 November 2022 and 18 January 2023 at Tatton in the State of New South Wales, did possess a firearm namely a prohibited firearm, in contravention of a firearms prohibition order that was in force, contrary to s 74(1) of the Firearms Act.

2. As pleas of guilty were entered to all matters at an early stage the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty.

3. The maximum penalty for the Supply Prohibited Drug charge is 15 years imprisonment. The maximum penalty for the offence contrary to s 51D(2) of the Firearms Act is 20 years imprisonment. Parliament has specified a standard non-parole period of 10 years in respect of that offence. The maximum penalty for both charges of Possess Firearm in Contravention of a Firearms Prohibition Order is 14 years imprisonment. There is no standard non-parole period specified in respect of those two matters.

4. When passing sentence in respect of the offence contrary to s 51D of the Firearms Act the offender asks that I take into account a further charge of Possess Firearm in Contravention of a Firearms Prohibition Order that attaches to a Form 1 document. In passing sentence I will need to give proper regard to and apply the principles enunciated by the Court of Criminal Appeal in The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999, No. 1 of 2002 otherwise known as the Guideline Judgment on Form 1 Matters reported (2002) 56 NSWLR 146.

Facts

5. The facts are before the Court by way of a set of agreed facts. For the purpose of proceeding to sentence I am satisfied of the following beyond reasonable doubt.

6. The offender was born in 1999. The facts referred to a co-offender namely Max Lee. Lee has not been sentenced and accordingly there is no issue of parity to be considered in this matter.

7. The offender has never held a firearms license. He was served with a Firearms Prohibition Order on 14 December 2019. Lee has never held a firearms license. From October 2021 to 3 February 2023 Lee was the sole tenant and occupant of xxx Tamar Drive Tatton, a residential suburb to the south of the CBD of Wagga Wagga. A firearms safe was not installed at that address.

8. The facts then include a very short description together with a photograph of each of the firearms with which this matter is concerned. That table is reproduced hereunder.

Firearm 1 - Silver break action
pistol

‘Pistol’ per s 4(1) Firearms Act.

Firearm was test fired and is in
working order.

X0004546423

Firearm 2 - Shortened single
barrel shotgun

‘Shortened firearm’ per s 4(1)
Firearms Act.

X0004546426

Firearm 3 - Black two- handled
'tee 9' style firearm

‘Shortened firearm’ per s 4(1)
Firearms Act. AND

‘Prohibited firearm’ per clause
2 schedule 1 Firearms Act

X0004546422

Firearm 4 - Black 'Pointer'
branded pump action shotgun

‘Shortened firearm’ per

s 4(1) Firearms Act.

X0004546418;
X0004546424
(stock)

Firearm 5 - Bolt action type rifle
with a scope and wooden
stock

9. In summary the firearms are a silver break action pistol that was in working order, a shortened single barrel shot gun, a black two handled “TEE 9” style firearm, which is a shortened firearm, a black “pointer” branded pump action shotgun which is also a shortened firearm and a bolt action type rifle with scope and wooden stock.

10. On 17 November 2022 police seized the mobile phones belonging to this offender and Lee in respect of an unrelated matter.

11. On the phone belonging to Lee police found a Facebook message that had recently been sent from a profile with the username “Marcus Whitley” to Lee. The message included the pricelist for cocaine. In another message an associate of Lee’s asked him if he could “get”.

12. While Whitley was in custody he made a number of calls from the jail during which he alluded to storing drugs in a safe at the home of his parents at Currawarna. Police sought and obtained a search warrant to search those premises for drugs, safes, and related items.

13. The mobile phone seized from Whitley was digitally analysed and after that process was received at the Wagga Wagga Police Station on 12 January 2023. Police found several videos and images of drugs and firearms on the phone.

14. At about 4:10am on 12 January 2023 police executed a search warrant at the home of the offender’s parents. They located 69 g of cocaine contained within the safe. Whitley’s fingerprints were located inside the safe.

15. Further, videos and photographs on Whitley’s phone included:

1. video of Whitley opening a safe inside of which were bags of white substances and cash,

2. videos of Whitley in possession of cocaine,

3. videos of Whitley snorting cocaine,

4. a photograph of cocaine in a Ziploc bag captioned “straight off a brick”; cocaine $200 hg [half gram] $400 g [gram] $700 hb [half ball] $1300 b [ball] $2500 q [quarter ounce],

5. a video of Whitley using a digital scale.

16. It is my understanding from dealing with matters relating to prohibited drugs that the expression “ball” relates to the quantity of 1/8 of an ounce, namely 3.5 grams.

17. Other photographs located on Whitley’s phone included “tick lists” (lists of people and the amount of money that they owe in respect of the supply of drugs) and a photograph showing dollar figures under titles including “cocaine price”.

18. Further analysis of the offender’s phone was conducted and videos and images were located relating to the firearms charges. Many of the images and videos were saved in the application “Snapchat”. GPS coordinates were attached to the images and videos and police determined that almost all of the photographs and videos of the firearms using “Snapchat” returned a location of xxx Tamar Drive Tatton, which police knew to be the address of Max Lee.

19. From about November 2022 to sometime before 18 January 2023 Whitley possessed the five firearms details of which are earlier set out in these reasons. From around November 2022 to sometime before 18 January 2023 Lee stored those firearms at the Tatton address. Lee admitted to police that he stored the firearms on behalf of the offender.

20. Specifically relating to the silver break action pistol, a video was located on Whitley’s phone showing him holding the firearm. Tattoos on the offender’s hand are visible as are white shoes he is seen wearing in other videos. Firearms 2, 4 and 5 are also plainly visible in this video.

21. In respect of firearm 2, that is the shortened single barrel shot gun, that is shown in the video referred to in the paragraph immediately above. A further image was located on the offender’s phone showing the firearm resting on a table. Lee told police that he recognised that firearm.

22. Firearm 3, that is the black two handled “tee 9” style firearm is shown in photographs located on the offender’s phone. The photograph shows the offender’s left and right hands holding the firearm and the tattoos on his hand are visible.

23. In respect of Firearm 4, i.e. the Black Pointer pump action shotgun, that firearm is shown in photographs and a video on the offender’s phone. One video shows the offender standing in front of a “Captain America” shield shaped bag behind him. The offender is shown wearing blue shorts and his arm and hand tattoos are plainly visible. The offender is shown moving the firearm around and pretending to load it. The video then pans and shows his face. Lee told police that he took that video.

24. Firearm 5, i.e. the bolt action rifle with scope and wooden stock, is also shown on the video referred to above. The offender is shown moving the firearm around with his arm tattoos plainly visible. Another video shows the offender holding the end of the barrel of the firearm with his tattoos visible. The offender says, “Shine your torch down the barrel” and Lee then does so. The video also briefly cuts to the offender’s face. Another video taken by the offender points down the length of the firearm showing the offender’s blue shorts and white shoes. Further photographs of the firearm are located on the offender’s phone.

25. Sometime prior to 18 January 2023 Lee left firearms 1 to 4 inclusive in a box outside his home. The firearms were collected by persons unknown and taken to an associate of Lee and this offender in Sydney. Firearm 5 was stored by Lee in the roof cavity of his home.

26. On 18 January 2023 the associate was arrested and firearms 1 to 4 inclusive were seized from his house. Those firearms were photographed.

27. Lee participated in an electronically recorded interview with police on 9 February 2023. He told police that firearm 5 was in the roof cavity and police later found that firearm where Lee told them it would be.

28. This offender entered custody on 17 November 2022. After being taken into custody the offender made and received calls which were recorded. The contents of some of those calls are set out on pages 5, 6 and 7 of the agreed facts. The offender was communicating with Brent Whitley, his brother. It is clear enough that Brent Whitley was at least on one occasion dealing drugs on the offender’s behalf. The offender is obviously aware that he is in substantial trouble because of both the drugs and the firearms.

Assessment

29. As I understand the manner in which the Crown case is put in respect of the charge of Supply Prohibited Drug, the offender was in possession of the 69 grams of cocaine for the purposes of supply and the other material such as the photographs, “tick lists” and phone calls indicate that the offender was actively involved in the supply of the drug.

30. I am not informed of the purity of the substance. Sixty nine grams is almost fourteen times the indictable quantity and is twenty three times the traffickable quantity. The quantity is less than a third of the commercial quantity. The offender was actively involved in dealing in the drug. In all the circumstances the matter is below mid-range.

31. So far as the offence contrary to s 54D(2) of the Firearms Act is concerned the offender had 5 firearms, one of which was prohibited and one of which was a pistol. The possession of three firearms is required for the offence. The firearms were kept at Lee’s house but clearly the offender had access to the firearms. According to the description of the firearms in the facts, three of the five firearms came within the definition in s 4 of the Firearms Act as a shortened firearm. Given the number of the firearms and the type of firearms the matter is moderately below mid-range.

32. The remaining charges of Acquisition of a Firearm contrary to a Firearms Prohibition Order relate to a pistol and a prohibited firearm. It is plain from the recorded phone conversations set out in the facts that the offender was aware of the Firearms Prohibition Order and he was well aware that that order prohibited him from having anything to do with firearms. Both of those offences are mid-range examples of those offences.

33. I note that at the sentence hearing I indicated a preliminary view of the seriousness of each of the matters. The indication I gave were as I have found. I did not understand either counsel to dissent from the preliminary view that I expressed.

Criminal History

34. The offender was born in 1999 and accordingly is 25 years of age at the time of sentence and was 23 time of the offending. The offender has a record that does not entitle him to any particular leniency. He has been convicted and sentenced to imprisonment for offences such as damage to property, domestic violence assaults, custody of a knife in a public place, possession of a prohibited drug, serious driving offences including driving in a manner dangerous to the public in a police pursuit, assault police, hinder police, cultivate prohibited plant, taking part in the supply of a prohibited drug and deal with the proceeds of crime.

35. The offender was not subject to any order of conditional liberty at the time of the offending. There is however an issue of totality noting that the offender was sentenced at the Wagga Wagga Local Court on 17 November 2022 in respect of a number of offences. He was sentenced to an aggregate sentence of 26 months imprisonment with a non-parole period of 16 months which dated from 1 February 2023. At the sentence hearing I suggested that the sentence to be imposed in this matter commence on 17 August 2023. I did not understand either party to take issue with that suggested date.

General Deterrence

36. Exhibit 1 on sentence is a report prepared by Ms Julie Dombrowski, Psychologist. She diagnoses symptoms consistent with post traumatic stress disorder. She notes that the offender was diagnosed with attention deficit hyperactivity disorder as a child. However, as I understand the report there is no suggestion of any causal connection between those conditions and the offending. General deterrence remains an issue in the sentencing exercise.

37. In respect of the supply of prohibited drugs I note what was said by the Court of Criminal Appeal in Parente v R (2017) 207 A Crim R 412 at [107] ff, namely:

“Sentencing in drug supply cases should be approached in a manner consistent with the general principles referred to earlier. Nonetheless, there are some matters that should be emphasised.”

[108] First, it is necessary for a sentencing court to be mindful of the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act which include "(b) to prevent crime by deterring the offender and other persons from committing similar offences" and "(c) to protect the community from the offender".

[109] Since at least the 1970s (see the cases referred to above at [63]ff)there has been no doubt about the importance of general deterrence in drug supply cases. An inherent characteristic of most activity relating to illicit drug supply is that participants take steps to ensure it is carried out covertly with the result that significant resources have had to be devoted by law enforcement authorities to detection and successful prosecution. A consistent message of deterrence from sentencing judges is necessary.

[110] Further, having regard to the social impact of drug use, particularly as an underlying cause of other criminal offending, protection of the community will usually be of significance as well.

[111] Secondly, it is necessary for sentencing judges to remain mindful of the maximum penalty and any standard non-parole period. They are legislative guideposts (Muldrock v The Queen (2011) 244 CLR 120 at 132 [27]; [2011] HCA 39) and for drug supply offences they are set at a high level. Gleeson CJ, Gummow, Hayne and Callinan JJ spoke of the importance of having regard to the maximum penalty in Markarian v The Queen at 372 [31] as follows:

"[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick."

[112] Thirdly, Simpson JA in Robertson v R at [50] was, with respect, correct to observe:

"[I]t may be accepted that examination and analysis of sentencing practices establishes that, where the facts of an offence demonstrate drug dealing "to a substantial degree", a sentence of imprisonment will ordinarily be imposed. Moreover, recognition of the serious social implications of drug dealing (reflected, if in nothing else, in the maximum prescribed sentences) suggests that, in the ordinary case, a sentence other than imprisonment will fail to meet sentencing objectives."

[113] Finally, it is a requirement of the Crimes (Sentencing Procedure) Act that, "A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate" (s 5(1)). This is a consideration of the possibility of options such as a fine, a bond, or a community service order (at present) rather than of the possible alternative ways in which a sentence of imprisonment might be served (presently, by way of full-time imprisonment, home detention or an intensive correction order). As Simpson JA noted in Robertson v R at [97]:

"[T]here is nothing in s 5 that directs a judge, having decided that no alternative to imprisonment is a viable option, then to exclude from consideration any non-custodial means by which the sentence may be served."

38. In respect of the firearms matters I note the following.

39. In R v Lachlan (2015) 252 A Crim R 277; [2015] NSWCCA 178 Gleeson JA (Johnson & Garling JJ agreeing) said at [68]:

“Subsequent cases have emphasised that the possession of firearms, except where necessary and by persons authorised to have them, is calculated to lead to substantial damage. Accordingly sentences imposed for such offences must “operate as real disincentives to those otherwise attracted to the illegal position of firearms”: R v Mahmud [2010] NSWCCA 219 at [71] (R S Hulme J; Giles JA and Latham J agreeing). See also R v Howard [2004] NSWCCA 348 at [66] (Spigelman CJ; Grove J and Smart AJ agreeing); Dionys v The Queen at [47]-[48] (Hoeben J; McClellan CJ at CL and Adams J agreeing).”

40. Rothman J, dealing with different offending although still relating to firearms in Laspina v R [2016] NSWCCA 181, said at [6] by way of additional comment:

“Nevertheless, for far too long courts have dealt with firearm offences in a way which has had regard to whether the firearms were intended to be used in a criminal offence of another kind. In so doing, in my view, we are underplaying the seriousness of firearm offences generally, including mere possession, but particularly when those firearms are possessed for the purpose of sale to other persons who, for obvious reasons, will not be in possession of them legally.”

41. Again by way of additional comment Rothman J said in R v Smith & Campbell [2019] NSWCCA 1 at [9]:

“The possession and use of firearms in society is an extremely troubling aspect, for which general deterrence and specific deterrence loom large. The possession of weapons generally, by which I include knives, has become far too common in society. The possession of such weapons undermines the fabric of society and, when possessed for the purpose of other criminal activity, puts at risk the rule of law and the appropriate relationship between members of society.”

42. Although dealing with offences of armed robbery, I also note the comments of Beech-Jones J in connection with shortened firearms in Nabalarua v R [2020] NSWCCA 68 at [42], namely:

“…The shortening of the barrel of shot guns allows them to be carried more easily for their use in a robbery. Arguably, the shortening of the barrel has the potential to cause damage over a wider arc than a rifle with a longer barrel”

43. In respect of count 2 I also note what Gleeson JA said at [72] in Lachlan, namely:

“Secondly, and related to the first matter, shortened firearms could have no legitimate purpose. Compact firearms are particularly dangerous because of their capacity for concealment: R v Brown at [23]. This makes them suited for serious criminal activity.”

44. Further, in Taylor v R [2018] NSWCCA 50 [46] in Taylor Johnson J (Hoeben CJ at CL, Price J agreeing) said:

“The question of public safety lies at the heart of the Firearms Act 1996. Section 3 of that Act provides:

‘“3    Principles and objects of Act

(1)    The underlying principles of this Act are:

(a)       to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and

(b)      to improve public safety:

(i)       by imposing strict controls on the possession and use of firearms, and

(ii)       by promoting the safe and responsible storage and use of firearms, and

(c)       to facilitate a national approach to the control of firearms.

(2)    The objects of this Act are as follows:

(a)       to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,

(b)       to establish an integrated licensing and registration scheme for all firearms,

(c)       to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,

(d)       to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms,

(e)       to ensure that firearms are stored and conveyed in a safe and secure manner,

(f)       to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.’”

45. All of this goes to the need for general deterrence to be factored into the sentence imposed in this matter.

Subjective Case

46. The offender gave evidence and a volume of material was tendered in the offender’s case.

47. In evidence he realised the reality was that he has spent a good portion of his adult life in custody, and he accepts that he will be spending further time in custody. He accepts the offences relating to the firearms are very serious.

48. The offender said that upon his eventual release he is planning to relocate to Wollongong in order to remove himself from his associates in the local Wagga Wagga area. He has two daughters, one of which is six years of age and the other is one-year-old. The offender said that his children are an added incentive for him to remain offence free upon his release from custody this time.

49. He said that he was enrolled in drug treatment courses. Towards the end of his evidence in chief the offender said that he is on the monthly bivudal depot injection is and he has kept off drugs. He wishes to remain abstinent. He has had no disciplinary infractions while in custody and wishes to obtain a lower security classification in order that he can work on the farm that is part of the prison complex at the Cooma Correctional Centre, which is where he is presently being held.

50. Earlier in his evidence the offender said that he accepted that there was no excuse for the offending conduct in which he engaged. He did not really think about what he was doing and he accepted that the drugs and firearms are a danger to the community.

51. The offender accepted that he will require assistance and supervision upon his eventual release in order to ensure that he receives the appropriate treatment for his issues.

52. Given the content of the offender’s evidence, taken with what is in paragraph 6 at page 3 of the report of Ms Dombrowski, I accept on balance that the offender is remorseful.

53. I now turn to the report. The offender said to the author that he had been abstinent from substances for about five months and was attempting to avoid antisocial peers before this offending. However he began to experience conflict with his partner and returned to using cocaine and methyl amphetamine. So far as the firearms are concerned the offender told Ms Dombrowski that he believed leaving the firearms with his co-offender constituted satisfactory disposal of those items. It was at this point of the report that the remorse is expressed.

54. Towards the end of the report (paragraph 24 on page 9) Ms Dombrowski opined that the offender is at risk of becoming institutionalised. At paragraph 7 of the report she sets out that the offender told her that he previously did not experience prison as a particularly adverse environment but rather an exciting place where he idolised other offenders. However, he had grown tired of being in prison and he wished to make sufficient changes to ensure that he would remain offence free when living in the community. She noted that he has recently been transferred to the Cooma Correctional Centre in order that he could complete the criminogenic treatment programs.

55. The offender reported that at five years of age police raided the family home and his father was incarcerated for a series of property offences. His mother worked in retail positions and she struggled to adequately provide for the family while his father was in custody. Between the ages of 7 to 10 years of age a school principal sexually abused him on a regular basis at school.

56. When his father was released from custody the offender was 12 years of age and experienced conflict with his father. Both parents subjected the offender to excessive corporal punishment.

57. The offender has poor literacy skills; for example he would require assistance to complete a Centelink form today. He has had limited employment experience.

58. Substances have been an issue for the offender since he was 14 at which age he commenced intravenously using methamphetamine. He has used that substance daily and has also used cannabis and cocaine.

59. The offender has previously accessed counselling in respect of alcohol and substances and attended a drug rehabilitation program at the Ted Noffs foundation when he was 18, however, he was excluded from the program after an altercation with staff. He has since accessed counselling from Pathways Murrumbidgee between 2018 and 2020. Typically the offender returned to substance use shortly after his release from custody but on the last occasion was able to abstain from all substances use for 5 months.

60. Between the ages of 10 and 20 the offender had a number of hospitalisations relating to suicide attempts and drug overdoses. He sustained a head injury during a motor vehicle accident but did not sustain any brain injury.

61. The offender was diagnosed with attention deficit hyperactivity disorder (ADHD) as a child and was medicated. He stopped taking the medication after leaving home about the age of 12. At paragraph 20 of the report Ms Dombrowski notes the offender continues to experience symptoms associated with ADHD today, noting that the symptoms were readily observable during the assessment.

62. Ms Dombrowski opines the childhood experiences of the offender including the childhood sexual abuse at school and whilst in youth detention have given rise to long-standing emotional/psychiatric symptoms consistent with post-traumatic stress disorder. She goes on to opine that given the offender’s history his personality structure appears most in keeping with a cluster B (dramatic/erratic) personality type with antisocial features. I do not read the report to indicate that there is any causal connection between any of the conditions suffered by the offender and the offending.

63. After noting the offender is at risk of becoming institutionalised, Ms Dombrowski notes that the offender would benefit from receiving pre-release planning and treatment that commences in a custodial or secure residential context and transitions into the community to better support his reintegration. Further, she recommends a relatively lengthy period of professional monitoring or supervision in the community directed towards treatment for his ADHD and substance abuse.

64. Clearly, there should be a generous finding of special circumstances in this matter. There is the issue of partial accumulation of sentences, but moreover there is need for a longer period of supervision so that the offender can be intensively and extensively supervised to ensure that he receives appropriate treatment and counselling for his substance abuse issues and his ADHD. Further, the offender will need substantial assistance with reintegration into the community.

Sentencing assessment report (SAR)

65. The Court is also assisted by a sentencing assessment report under the hand of Julie Adams from the Cooma – Queanbeyan Community Corrections office. The report notes that whilst at the Cooma Correctional Centre the offender has held employment in the textile unit prior to entering the high-intensity program unit. The offender’s antisocial behaviour as a juvenile is noted.

66. Ms Adams notes the offender’s juvenile history and opines that the offending behaviour appears influenced by drug use and financial gain.

67. So far as the offending is concerned, the SAR notes that the offender took full responsibility for his drug offences but maintained that the firearms were not in his possession. This is not the position adopted by the offender at the sentence hearing. In all the circumstances I remain of the opinion that the offender is entitled to a finding that he is remorseful. I note that the offender said to Ms Adams, “if I could turn back time, I would have done things differently”.

68. The offender told Ms Adams that he is willing to participate in interventions to address his drug use. He is willing to attend the Calvary Riverina Drug and Alcohol Rehabilitation Centre upon his release.

69. Ms Adams assesses the offender at being at a high risk of re-offending. The recommendations for ongoing treatment are essentially what Ms Dombrowski recommends in her report.

General Remarks

70. Given the criminal history of the offender and his inability thus far to remain offence free after being released from custody and the contents of the sentence assessment report, I am not prepared to make a finding that he is unlikely to re-offend. Essentially for those same reasons I am not prepared to make a finding on balance that the offender has good prospects of rehabilitation. There are however, some positive signs in that the offender at last appears to have some insight into the causes and consequences of his offending. Much will depend on how the offender engages with the appropriate agencies upon his release from custody.

71. In passing sentence I will need to ensure that I give proper regard to sections 3A and 5 of the Crimes (Sentencing Procedure) Act 1999. Section 3A sets out the purposes of punishment, namely:

1. to ensure that the offender is adequately punished for the offence,

2. to prevent crime by deterring the offender and other persons 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 or her actions,

6. to denounce the conduct of the offender, and

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

72. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the offending, the criminal history, the need for general deterrence, the maximum penalties provided and the standard non-parole period that applies to the offence contrary to s 51D(2) of the Firearms Act, clearly there is no other penalty other than imprisonment which is appropriate. Mr Keller counsel for the offender made no contrary submission.

73. There does not appear anything to differentiate the criminality in respect of the two charges of Possess Firearm in Contravention of a Firearms Prohibition Order. Given the nature of the charge attaching to the Form 1 document that charge must have some impact on the ultimate sentence.

74. This is an appropriate matter for the imposition of an aggregate sentence. It will therefore be necessary for me to set out what sentences would have been imposed had separate sentences been imposed. Those sentences are:

In respect of the charge of Supply Prohibited Drug, a total sentence of 1 year 10 months indicating a starting point of 2 years 6 months;

In respect of the charge contrary to s 51D(2) of the Firearms Act, i.e. Possession of more than three unregistered firearms, one being a prohibited firearm and one of which was a pistol, taking into account the Form 1 document a total sentence of 3 years with a non-parole period of 2 years, indicating a starting point of 4 years; and

In respect of the charges of Possess Firearm in Contravention of a Firearms Prohibition Order on each matter a total sentence of 2 years 3 months indicating a starting point of 3 years.

75. If separate sentences were imposed there would need to be some meaningful partial accumulation so far as the matter relating to the Supply Prohibited Drug is concerned to recognise the different offending. Although the firearms to which sequences 3 and 4 relate, i.e. the charges of Possess Firearm in Contravention of a Firearms Prohibition Order, there would still need to be some degree of partial accumulation to recognise the different offending, but the degree of accumulation would be less than in relation to the Supply Prohibited Drug matter.

Orders

76. In respect of the offences to which the offender has pleaded guilty he is convicted.

77. The offender is sentenced to an aggregate sentence of 5 years imprisonment with a non-parole period of 3 years. The non-parole period will commence on 17 August 2023 and will expire on 16 August 2026. The balance of term on parole of 2 years will commence on 17 August 2026 and will expire on 16 August 2028.

78. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.

79. Although it is entirely a matter for the parole authorities I recommend in the strongest of terms that any release to parole be conditioned that the offender be subject to supervision and guidance from the Department of Community Corrections and that he obey all reasonable directions relating to ongoing treatment and counselling for substance abuse.

80. The offender has been in continuous custody since 17 November 2022. The total effective sentence (17 November 2022 to 16 August 2028) is therefore 5 years 9 months. The actual period in custody, presuming that the offender is released to parole at the expiration of the non-parole period I have specified today, dates from 17 November 2022 to 16 August 2026, a period of 3 years 9 months. The actual time in custody is approximately 65% of the total effective sentence.

81. I direct that a copy of the report of Ms Dombrowski, exhibit 1 on sentence be forwarded to the Department of Corrective Services with the relevant warrant.

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Decision last updated: 28 May 2024