R v Williams

Case •

[2022] NSWDC 189

•

07 June 2022

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Williams [2022] NSWDC 189
Hearing dates: 26 May 2022
Date of orders: 07 June 2022
Decision date: 07 June 2022
Jurisdiction:Criminal
Before: Priestley SC DCJ
Decision:

(1)   Of the offences stated on the indictment and on the section 166 certificate the offender is convicted.

(2)   In respect of count 1 and the section 166 certificate matters I impose in each case a Community Correction Order for a term of 2 years to date from today, and with the standard conditions.

(3)   In respect of the remaining eight counts on the indictment, and with the Form 1 matters having been taken into account in relation to count 6, for the reasons set out herein the offender is sentenced to an aggregate term of imprisonment of 7½ years to date from 16 September 2020 and expiring on 15 March 2028, and with a non parole period of 4 years to date from 16 September 2020.

Catchwords:

CRIME — Firearms offences — Unauthorised use/possession of firearm 

CRIME — Drug offences — Manufacture prohibited drug

CRIME — Drug offences — Cultivate prohibited plant 

CRIME — Participate in Criminal Group

Legislation Cited:

Firearms Act 

Drug Misuse & Trafficking Act

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1900 (NSW)

Cases Cited:

Muldrock (2011) 244 CLR 120

Redfern v R [2012] NSWCCA 178

MAK [2006] NSWCCA 381

Mill v The Queen [1988] HCA 70

Cahyadi v R [2007] NSWCCA 1

R v Mangano [2006] NSWCCA 35; (2006) ACrimR 480

R v Cook [2022] NSWDC 157

Texts Cited:

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

Category:Sentence
Parties: Regina (Crown)
Edward Williams (Offender)
Representation:

Swift Crown Prosecutor for the Director of Public Prosecutions for NSW

Boulten SC Counsel for the Accused
Randall Legal Solicitors for the Accused
File Number(s): 2020/00269638
Publication restriction: Unrestricted

table of contents

Introduction

The facts and objective seriousness

Count 1

Count 2

Count 3

Counts 4-7: background

Count 4

Count 5

Count 6

Count 7

Count 8

Count 9

Form 1 matters

Section 166 certificate matters

Aggravating factors

Subjective case

Sentencing considerations

Purposes of sentencing

Totality

Parity / Comparables

Special circumstances

Determination

Table of indicative sentences

Orders

Judgment

Introduction

  1. Edward Williams, the offender, appears for sentence in respect of 9 offences. Those offences, their maximum penalty, and the standard non parole period, if any, are set out in the following table:

No

Section

Offence

Max Pen

SNPP

1

Firearms Act s7A(1)

Use unauthorised firearm (shotgun)

5 y

No

2

s23(2)(a) DMTA

Knowingly take part in cultivating prohibited plant of LCQ

20 y & or 5000 pu

10

3

Firearms Act s36(1)

Possess unregistered firearm (pistol; 9mm)

14 y

No

4

s24(1) DMTA

Attempt manufacture prohibited drug no less than indictable quantity; 72g meth

15 y & or 2000 pu

No

5

24(1) DMTA

Attempt manufacture prohibited drug no less than indictable quantity; (70g meth)

15 y & or/ 2000 pu

No

6

24(2) DMTA

Attempt manufacture prohibited drug no less than commercial quantity; (250g meth)

20 y & or 3500 pu

10

7

24(1)

Attempt manufacture prohibited drug no less than indictable quantity; (70g meth)

15 y & or/ 2000 pu

No

8

24(1)

Attempt manufacture prohibited drug no less than indictable quantity; (60g MDMA)

15 y & or 2000 pu

No

9

93T(1)

Participate in criminal group

5 y

No

  1. The standard non-parole period and the maximum penalties are legislative guideposts to assist in arriving at the appropriate sentence. I note that at [27] of Muldrock (2011) 244 CLR 120 the High Court made the point that the standard non parole period is “a matter to be taken into account by a court in determining the appropriate sentence”; even where the offence is not at the middle of the range of seriousness, the SNPP, like the maximum penalty, serves as a legislative guidepost as to the seriousness of the offence in question.

  2. In addition to the above 9 offences, in relation to the sixth charge, attempting to manufacture no less than a commercial quantity of methylamphetamine, there are 4 matters to be taken into account by way of the Form 1 procedure. Those 4 matters are 3 counts under s25(1) of the Drug Misuse & Trafficking Act (DMTA) and a further attempt to manufacture prohibited drug charge. In regards to the Form 1 procedure it is important that the focus remains on the principal offence 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.

  3. There are also 4 related matters before the court by way of a s166 certificate. One is of receiving stolen property, namely a caravan. The other 3 counts are of goods in custody .

The facts and objective seriousness

  1. The offender was born on 3 May 1979 so is now 43 years old. The first count, the unauthorised use of a firearm occurred on 26 April 2020. The other 8 charges were committed in the period 6 February 2020 to 16 September 2020, the date the offender was arrested. At that date the offender was 41. The offender has been in custody since his arrest, a period of 20 months and approximately 2 weeks. Any custodial sentence will date from 16 September 2020. At the time of his arrest the offender was on a Conditional Release Order as a consequence of driving whilst disqualified.

  2. Forming part of the Crown bundle which was exhibit A was a statement of agreed facts. There are a total of 17 matters that need to be addressed. The following descriptions are taken from the agreed facts.

Count 1

  1. The first charge on the indictment is described in the cover sheet of exhibit A, and in the agreed facts, as “use unauthorised firearm”. The offence provided for by s7A(1) of the Firearms Act is relevantly that a person must not use a firearm unless the person is authorised to do so by a licence or permit.

  2. This offence occurred on a property (“the property”) owned by the accused. It is not overly clear but it appears the property was occupied by a man named Funnell who assaulted a woman named Blewitt and then fired shots at her house. Ms Blewitt complained to the offender and to a co-accused named Mr Boyes. The offender told Mr Funnell to vacate the property.

  3. On 26 April 2020 the offender sent Mr Boyes a message stating “I’m going out to fuck Eric off”. I infer Eric is Mr Funnell. Later that day the offender sent another message to Mr Boyes saying he was going to confront Mr Funnell.

  4. The offender in one vehicle then, and later others, including Mr Boyes in another, attended the property. The offender yelled out that Mr Funnell had to leave. Mr Funnell was in bushes hiding and said he was not going anywhere and started shooting at the offender. The offender obtained a shot gun from inside the premises to arm himself.

  5. Mr Boyes and another co-accused Mr Welsh then arrived at the premises armed with a sawn off shotgun and a long hunting style rifle.

  6. The offender, Mr Boyes, Mr Welsh and another person named Irvine were standing on the front porch of the premises when Mr Funnell drove up and stopped 20 m from the house, whereafter shots were exchanged between Mr Funnell and the offender and co-accused. The offender in his interview maintained he was acting in self defence. Mr Boyes suffered injuries to the side of his body from bullets. When Mr Funnell was later arrested there was a bullet hole in his car bonnet and facial injuries consistent with shotgun pellets.

  7. The offender sent a text on 28 April 2020, two days after the shooting, to Mr Boyes stating “old mate is spinning shit, because I shot him in the face”.

  8. The agreed fact is that the offence was committed in circumstances of excessive self defence.

  9. The offender submits that the focus in assessing objective seriousness is on the use of the firearm, not on its result. That it is agreed the conduct was in self defence, albeit excessive, favours a low assessment of seriousness. Whilst the offender attended for the purpose to remove Mr Funnell, about which his entitlement to do so is unclear, and based on the facts, was in any event likely to result in confrontation, he did not attend with a firearm. The use of the firearm was opportunistic; it happened to be there at a time he happened to be being shot at. That Mr Boyes attended with a firearm might cause one to wonder whether armed conflict was anticipated, however no such finding to that affect can be made adverse to the offender. I find the objective seriousness of this offence to be low.

Count 2

  1. Count 1 is quite a separate event to the remaining matters. Count 2 is the offence of cultivating a large commercial quantity of cannabis. Between 12 May and 16 September 2020 the offender and Mr Boyes and Mr Welsh cultivated a large commercial quantity of cannabis on a property owned by the offender at 168 Horseshoe Road Thora, which I note is a different property to that where the events of count 1 occurred.

  2. The offender’s role was to provide the land for the cultivation and assisting in planting, watering and tending to the plants together with the co-accused. Surveillance identified three distinct plots on which there was later determined to be 720, 1304 and 1246 cannabis plants which together with a further 26 cannabis plants located close to the main residence gave a total of 3296 individually potted cannabis plants. They ranged in height from 20 to 80 cm. Irrigation systems with connectors and timers were in place.

  3. The police attended and searched this property on 16 September 2020.

  4. The offender was significantly involved in this cultivation. It was his land on which he permitted the cultivation to occur, and he was involved throughout, given that he was involved in planting the plants, and the subsequent watering and tending to them. Yet it cannot be said that he was directing this operation, a concession made by the Crown, and supported by the fact that count 9, which relates to both the cultivate and manufacture charges, is a charge of participating in, not directing, a criminal group.

  5. The number of plants is significantly more than what is required for a large commercial quantity of 1000. There is of course no upper limit so clearly far greater numbers of plants can fall within this offence.

  6. The cultivation was well planned; the plants were individually potted or bagged, with irrigation connected to each bag, and with timers used.

  7. In my view this offence is in the mid range. I note the parties assessment was to the same effect. In that regard the Crown submitted the assessment should be “above the mid range”, which I take to mean into the mid range, and not into the high range. Should that be wrong, then in my view where it cannot be said that the offender was “in charge” of or “directing” the operation, the higher assessment should not be made.

Count 3

  1. When the police further searched the Thora property on 19 September 2020 they found a 9 mm black pistol hidden in a tree stump away from the main dwelling. The item contained DNA of the offender on the pistol grip. The pistol was located in a black garbage bag and contained a loaded magazine. The pistol was not registered and was possessed by the offender for the period 26 April 2020 to 16 September 2020, being his date of arrest.

  2. The offender in his written submissions argued that the period of possession could not be identified, yet the indictment states the period just mentioned. The offender’s written submissions argued there was no evidence that the pistol was used for any illegal purpose in relation to the drugs, yet in oral submissions conceded the matter was more serious due to the gun being located at a place of cultivation and attempted manufacture of drugs.

  3. This offence is complete by the mere possession of the pistol. The fact it was loaded, concealed, and located where other illegal activity is ongoing adds to its seriousness, and places the offending into the mid range of objective seriousness.

Counts 4-7: background

  1. In the same period as the offender was cultivating cannabis, the offender together with Mr Boyes, Mr Welsh and a Ms Warman attempted to manufacture methylamphetamine at the offender's property.

  2. The offender asked the co-accused to arrange the purchase of various equipment and ingredients. When the police attended the property on 16 September 2020 they found equipment and tools consistent with the manufacture of prohibited drugs. Analysis showed the presence of scheduled items on some of this equipment including pseudoephedrine, hypophosphorus acid and salts and iodine and the opinion was expressed that the manufacture of prohibited drugs is likely to be made from that equipment. No methylamphetamine was found. The opinion was also expressed that the manufacture of prohibited drugs cannot be made from those substances; see [35] of the facts. In other words the equipment was in place for the manufacture of prohibited drugs but not all of the necessary substances.

Count 4

  1. The indictment refers to 72 g, an allegation stemming from messages sent by the offender to Mr Boyes stating he believed he had made that much methylamphetamine. He referred to his manufacture attempts as a lottery win believing he had in fact manufactured methylamphetamine. Further texts showed he believed he had manufactured 148 g. Photos were sent referring to the cooking process.

  2. The nature of this offence is to attempt to manufacture the prohibited drug. The attempt had not reached the stage of having all the necessary supplies to achieve the manufacture of the drug. The period in which this offending is said to have occurred according to the indictment is approximately one month from June to July though the facts refer to a longer period. On one view the longer the period the less significant the attempt due to the continued lack of success, albeit prolonged; on another view the lesser period may show a less serious involvement. The variation in dates is not used adversely to the offender. What can be said from the facts is that the offender was enthusiastic in his attempts, but those attempts were doomed to never succeed. I accept the submissions of the Crown, namely that the absence of the drug by itself does not mean the offending is not serious; the nature of “attempt” clearly allows for no drug. Yet, as the Crown fairly allowed, the purity of what is sought to be manufactured, if it could be assessed, is a factor to consider. Here the purity was nil, and I take that into account.

  3. On the other hand all the equipment was in place. A serious attempt was being made to achieve the manufacture.

  4. The charge is under s24(1) due to the quantity being 72g. The next “level” of quantity is a commercial quantity, which is 250g. On that basis, whilst weight is neither the sole nor determinative factor, the offence is towards the bottom of the range.

  5. As to the offender’s role, it seems to approximate his role with the cultivate charge. That is, it is a significant one, but again, as supported by the s93T count, it is not alleged that the offender was directing this activity, but was participating in it.

  6. Taking all these matters into account, this offending is in the low range of objective seriousness.

Count 5

  1. On 11 and 12 August the offender again sends messages to Mr Boyes saying he had made around 70 g of methylamphetamine. The same reasoning applies here as to count 4. I make the same assessment of objective seriousness as being low.

Count 6

  1. On 14 August the offender sent another text to Mr Boyes claiming success with his manufacture and believing he had made as much as half a kilo of ephedrine. If that amount is used as much as 250 g of methylamphetamine is possible to produce.

  2. Again, the same analysis as with count 4 largely applies here. The point of difference is that the quantity involved is the bare amount sufficient to be in the commercial quantity range and for that reason I would place it at a slightly lower level of objective seriousness, bearing in mind the offence is charged under s24(2), not 24(1). In making that assessment I take into account that quantity is not the sole or determinative factor but is nevertheless a relevant matter to consider in this case.

  3. Count 6 is the matter that the Form 1 matters relate to.

Count 7

  1. This is the same offence as with counts 4 and 5 and again the quantum is based on text messages referring to 70 g. The offender sent a series of texts to Mr Boyes showing great enthusiasm for their drug activities including a text saying “now we go huge”. The same considerations apply here as with counts 4 and 5 and I make the same assessment, low.

Count 8

  1. This offence occurred between 6 and 14 September 2020 and is attempting to manufacture 60g of MDMA. It has the same characteristics as with the methylamphetamine attempts. That is, prohibited drugs could likely be made from the available equipment, but it was not possible to make MDMA from the substances found on the property. The offending is again very enthusiastic. The basis of the quantity agreed is texts from the offender to Mr Boyes. That quantity is comparable to the quantities in the other s24(1) counts.

  2. The amount is more than the indictable quantity by a significant margin but well less than the commercial quantity of 125 g. The role of the offender is as with the earlier offending. The difference between a commercial quantity of MDMA and methylamphetamine is noted, yet in my view the objective seriousness is as for the other s24(1) counts, low.

Count 9

  1. The last charge on the indictment is participating in a criminal group in breach of section 93T(1) of the Crimes Act. The offence is founded on the offender and others acting together to purchase items in relation to the manufacture and cultivation of prohibited plants, which given the submissions concerning manufacture, I take to be a reference to manufacture prohibited drugs, and cultivating prohibited plants.

  2. In assessing the seriousness of this matter I note the submission of the offender that the group was not particularly well organised. I accept that submission when the manufacture charges are considered; the facts of the cultivate offence support the opposite conclusion. The group does not appear to be that sophisticated; their communications were basic and detectable, and the offender appears to be well out of his depth with the manufacture aspect. The objective of the group however is the manufacture and cultivation of prohibited drugs, be they plants or chemicals, and on a significant scale involving plants, and high ambitions concerning chemicals.

  3. The role of the offender in this group is as described for counts 2, and 4-8.

  4. Logically, the objective seriousness of this offence should approximate or mirror that of the offending carried out by the group, which in this case have been assessed as largely low, and mid for the cultivate charge. The objective seriousness of this offence is high low.

Form 1 matters

  1. There are 4 Form 1 matters to take into account in relation to count 6. The facts for each, particularly the supply charges, are very brief. There are three offences in breach of section 25 (1) DMTA of supplying prohibited drugs. The first is the supply of 453 g of cannabis in exchange for half an ounce of methylamphetamine. The supply was by the offender to Mr Boyes, in exchange for half an ounce (14g) of methylamphetamine. I note the traffickable quantity of cannabis is 300 g and the indictable quantity 1 kg. I would assess this as being in the low range of objective seriousness.

  1. Next is the fact that Mr Boyes organised the purchase of half an ounce of methylamphetamine on behalf of the offender so that the offender could supply it. The amount (28g, an ounce) is more than the indictable quantity (5g) but far less than the commercial quantity (250g). This is low in objective seriousness, but more seriousness than the cannabis matter.

  2. Next is the purchase with the intent to supply of 10.5 g of methylamphetamine which was organised with Mr Boyes and Ms Warman. Again this is low in objective seriousness and the same findings as for the 28g, or one ounce, matter, are made.

  3. The last Form 1 matter is a further attempt at manufacturing methylamphetamine. Unlike the indictable matters it is not said whether these substances were able to make the drug but it would seem likely that was not so. The quantity was not able to be determined. The objective seriousness is low.

  4. As noted above, the Form 1 procedure allows for greater weight for deterrence and retribution than may otherwise be the case. Notably each of the Form 1 matters occur in or about the period of the other offending. It emphasises what is already clear, that the offending of the offender was varied and ongoing. The modest, but not minor nature of the Form 1 offences (with the arguable exception of the cannabis supply) is noted, and these matters will be taken into account in determining the sentence for count 6, the attempt to manufacture a commercial amount of methylamphetamine.

Section 166 certificate matters

  1. The s166 procedure allows as a matter of efficiency, this court to deal with summary matters. In doing so the same jurisdictional limits apply as if the matter was dealt with in the Local Court; see s168(3) of the Criminal Procedure Act.

  2. There are four offences on the certificate, and not 2 as may have been suggested by counsel for the offender in submissions, though not a great deal turns on that.

  3. The 4 offences are:

  1. receiving stolen property, namely a caravan found on the offender’s property with enquiries showing it had been stolen.

  2. three counts of goods in custody namely a 2012 Toyota Yaris motor vehicle, a 2014 White Isuzu utility and a jet ski together with a jet ski trailer. All these items are suspected of having been stolen.

  1. The facts of these offences state little more than the items were located on the offender’s property. No values are stated for the items, nor any other description of any detail. For that reason they would all be considered low in objective seriousness.

Aggravating factors

  1. The only aggravating factor relied on by the Crown was that the offender was on conditional liberty at the time of the offending, as he was placed on a CRO for the period 9 October 2019 and expiring 8 January 2021 for an offence of drive whilst disqualified. This has been taken into account.

Subjective case

  1. There was a significant amount of material relied upon by the offender. The offender relied on a letter he wrote to the court dated 19 May 2022. In it he expresses regret, disappointment and sorrow in his conduct. The offender refers to his drug and alcohol dependence since the age of 10 and particularly highlights his use of “ice” as destroying his life. He refers to sexual abuse suffered by him from his stepbrother and physical abuse by his stepfather.

  2. He describes gaol as the best thing that has happened to him due to his attendance at various courses and Narcotics Anonymous meetings. He also refers to having become a Christian in gaol.

  3. He describes his life as a 10-year-old being involved indirectly with cannabis due to his father’s growing of it leading to his experimental use of it at that age and it then progressed to become an everyday thing.

  4. He says he left home at 14 due to the beating by his stepfather culminating in a beating that he describes as beating him nearly half to death.

  5. On his account he lived rough for several years and indeed he says he lived like that for most of his life. Yet he now on the agreed facts owns property.

  6. He has re-established a connection with his natural father. He has a son who is eight years old.

  7. Whilst in gaol he has suffered a stroke and has had a stent put in his carotid artery. He is now blind in his left eye and has a weakened right hand.

  8. His time in custody has been hard with lockdowns, I infer due to Covid. He refers to the offence of unauthorised use of a firearm and maintains his self defence position. He concludes by saying he is worthy of rehabilitation and is changing and will not offend again.

  9. Consistent with that letter there are a number of certificates from courses in custody including a program of re-engagement through music, a course called “a country called heaven”, an addictions course requiring attendances on three occasions and activities in his cell on four other occasions. It acknowledges attendance at a 12 step meeting.

  10. The offender relied on a psychological report by Patrick Sheehan dated 18 May 2022. The report is detailed and the following is intended as a summary of the main points. There was an interview of some two hours which was the main source of information for the report. In terms of his behavioural observations from the interview the view expressed is that it was consistent with a person affected by trauma. There was some suggestion of impairment based on neurological complaints in variable memory but nothing definitive and otherwise intellectual functioning was average.

  11. The history recorded was in line with what is set out in the offender's letter. The offender’s parents' relationship was dysfunctional with his mother coming in and out of the offender’s life and then his father going out of his life about age 5. The offender lived in basic circumstances at times without electricity in an environment where cannabis was grown and its use normalised. His stepfather was violent, often beating him and ultimately breaking his skull, whereafter he did not return to home. He was subject to sexual abuse by a stepbrother 10 years his senior. His accommodation was unstable and surrounded by serious substance abuse.

  12. The relationship with his mother is not a good one. His stepfather is now dead as is his older step brother. His relationship with his natural father has improved whilst in custody to the point of his father being a stabilising influence. His father attended the Court on this sentencing hearing to provide support. The offender has contact with his sister who is a nurse.

  13. The offender left school at year nine and has rarely had conventional employment. There is something of a work history but it is varied and unconventional.

  14. The offender’s lifestyle and social connection has had as its focal point substance abuse. The offender can appreciate now it was destructive and led to his downfall. He says he has severed connections to the past and must take a new direction. He has some interests such as playing music and enjoying visual art.

  15. The offender has two children aged 25 and 22 and a third child from another relationship aged 7 (now 8). The elder children are not presently in contact with him though the youngest is.

  16. Drug use began at 10 with cannabis and continued till his present arrest. Alcohol has been abused by him at different stages of his life. Use of cocaine and MDMA commenced at about age 23. Use of methylamphetamine began at about age 35 (remembering that he is presently 43). He did not realise how damaging this drug was to him. He described his attempts to synthesise the drug which I take to be a reference to the attempt manufacture charges as being disorganised and delusional, something which is consistent with not having the necessary ingredients to actually make the drug.

  17. The offender has been abstinent since incarceration. It is his first period of sobriety since age 10 though I would interpret that as meaning being substance use free.

  18. His medical history is of varying weight but focuses on his recent concerns as set out in the affidavit of Ms Randall.

  19. Mr Sheehan expressed the view that the traumatic experiences of the sexual and physical abuse shaped a desire to avoid any experience of his emotions which he gives effect to by the substance abuse. In Mr Sheehan’s view the offender clearly meets the diagnostic threshold for substance use disorder and I accept that, with the full diagnosis being polysubstance use disorder, (severe, in sustained remission in a controlled environment). There is however no documented history of any psychotic disorder though there was one reported incident that is reported by the offender of putting a shot gun to his mouth but then receiving support from his father.

  20. Whilst in custody his enforced withdrawals badly affected him emotionally and he attempted to garrotte himself with a telephone cord. He had a fragile psychological state made worse by lockdowns. His health issues have added to the stress. He was extorted at knifepoint by other inmates and was then placed into protective custody. The offender said that he was ideologically averse to antidepressant medications. This is fairly bizarre given that ideology has not prevented a lifetime of substance abuse and it is also adverse to the case being put in the other evidence of being deprived such medication by the gaol authorities.

  21. The offender acknowledges the facts that have been agreed and said he made a lot of bad choices and he regretted it. He said he did not want to be who he had become over the last few years.

  22. Mr Sheehan expresses the view that the offender being abstinent in custody and participating in the remand addictions program are achievements which are encouraging and show good intent. He recommends however a more intensive residential treatment.

  23. The difficulties of coping with his trauma whilst in custody are noted making the custody experience more onerous.

  24. The offender relied on an affidavit of Tracy Randall, his solicitor. That affidavit provides evidence going to custody conditions such as the periods that the offender has been in lockdown whilst in custody and the health issues of the offender. As to his health issues the affidavit confirms from records of Justice Health that the offender suffered a stroke and is now on medication. It confirms the stent was inserted. The stroke occurred on 3 October 2021. On 23 December 2021 the offender had an episode of losing consciousness for several seconds and fell to the floor of his cell. There was a three week period where the offender was not provided his medication. There were difficulties at his time in Junee Correctional Centre shortly after the offender contracted Covid in February 2022. The most recent information as to his artery condition was that it had worsened and not healed properly and could “go” at any time. Apparently a further scan will occur in July.

  25. As to “lockdowns” this refers to a prisoner being kept in their cell for a 24-hour period with usually no access to a telephone. Lockdowns are said to have occurred due to staff shortages due to Covid. Since September 2020 according to the offenders diary he has spent 214 days in lockdown. There have been periods of three, four, five and 10 days without showering.

  26. There was no argument, or evidence, against these matters, and I accept them.

  27. The medical case of the offender was supported by a report of Dr Crozier, a vascular and trauma surgeon dated 26 May 2022. The report was based on medical records from Prince of Wales Hospital and Justice Health and an email of Ms Randall. The report begins by noting the severe consequences including death that may occur following incidents such as those suffered by the offender. More significantly the opinion is given that not accessing prescribed medications for three weeks places the offender at significant risk of such complications.

  28. No specific opinion is given of the offender being more susceptible to an adverse Covid 19 outcome because of his condition.

  29. The accused sought to establish a significant factor of mitigation based on the fact of, and consequences of, the Covid pandemic. Two reports of Dr Ellis dated 9 April 2020 and 29 August 2021 were relied on. Dr Ellis was asked a number of specific questions to give his opinion about. The first was what impact, if any, the Covid 19 pandemic would reasonably be expected to have on the mental health of people in custody. One consequence was infection though at the time of this opinion there had been no direct infection of people in custody. A second was due to isolation or quarantine. Studies show this leads to a greater risk of developing psychiatric disorders.

  30. The second question was whether there were some groups in custody affected more than others and what could be done to address those issues. Uncontroversially those with existing mental health issues are considered more vulnerable and this includes people exposed to early trauma and social disadvantage. There was support for this in the literature. In other words, the offender is likely to be more affected by the Covid situation than people who have not suffered as he has. Early release would help ease the concerns this raises. Dr Elliot considered that lockdowns and restricted visits would lead or is likely to lead to increased distress. Should the virus spread in the prison system, services may be further restricted, heightening isolation and making the position worse, with greater likelihood of worse health for a person such as the offender.

  31. Dr Ellis noted that suicide rates and self-harm rates had already elevated in custody populations.

  32. In his second report Dr Elliott was asked about the effect the recent outbreak of Covid 19 in particular the Delta variant had on the mental health of people in custody. In short, he confirmed his views as expressed in the first report.

  33. Dr Ellis’ view is that the risk of a full-time sentence for a person with an existing mental health condition is increased risk of self-harm or suicidal behaviour. He also comments on the risk of “long Covid” though says the exact effects and causes of the long-term Covid are yet to be determined at population and individual levels so this does not take it far for the offender.

  34. A number of people gave supportive testimonials for the offender. The offender's father recounts the fractured nature of the family unit and the offender’s mothers so-called psychotic episodes. He also recounts the relationship history of the offender. In short the offender's father has earnestly sought to support his son throughout his life and his lack of success in doing so would fairly be attributed to the substance abuse of the offender. It is clear and I accept that the offender's father and his partner would provide support to the offender upon his release.

  35. The offender’s former partner and mother to his two eldest children, Rebecca Dale, is a psychologist. She has not spoken to the offender since 2014 which I note is approximately the time that he commenced his methylamphetamine addiction. She confirms disclosure to her by the offender of sexual abuse from the stepbrother and violence she witnessed from the stepfather. She is unaware of him receiving any counselling or support in respect of these traumas. She considers this would make him more vulnerable or feel more vulnerable in custody and therefore the experience more onerous. I have relied on this material for factual matters, which I accept, rather than for a prognosis.

  36. There is a character reference from a local business owner from Belligen. There is also support from a Mr Phelps, a pastor in a church located there and who is a family friend.

  37. Another family friend Peter Opdenberg recounts providing some care for the offender and his sister when their parents were having difficult times. He refers to the offenders work activity in a bulldozing and building business and also some volunteer work. The offender has also given assistance in maintaining this person’s property.

  38. There is a further testimonial from a Mr Slorach. The offender was friends with his son. He corroborates the violence of the stepfather. He refers to the offender’s substance abuse. He says he found him to be genuinely trustworthy and hard-working. He expresses confidence in the ability of the offender to make a positive contribution to the community.

  39. Lastly there was a reference from the prison chaplain, supporting the offender’s assertion of adopting the Christian faith since incarceration, an assertion that was not challenged and which I accept.

  40. Based on the above material I make the following findings:

  1. I accept the offender is remorseful and regrets his conduct.

  2. I accept the offender has a background of social disadvantage. The unchallenged history set out above makes this plain. This extends to the offender being abused both physically and sexually. The affects of this trauma are ongoing, based on the views, which I accept, of Mr Sheehan.

  3. I accept the offender suffers from polysubstance abuse as concluded by Mr Sheehan. There was no argument to the contrary.

  4. Since being in custody the offender has been abstinent of drugs, and I infer alcohol. The offender has attended a number of courses. These matters support his expressions of remorse and intended rehabilitation. I find the offender has some prospects of rehabilitation and that given his history this will take some time and significant supervision and intervention to be able to be successfully achieved.

  5. Conditions in custody are more onerous now in the circumstances of Covid than previously. Largely this is due to staff shortages, leading to increased periods of lockdown. The health condition of the offender also adds to the harshness of custody, and also places his personal well being in jeopardy due to the evidenced inability of the gaol to provide adequate care.

  6. I find that custody is particularly onerous at the present time, and is likely to be so for some time into the future. The major reason for this is staff shortages, which cause the increasing periods of lockdown. The spread of Covid in the prison community also adds to this, with a need for isolation. This is a factor that assists any offender being sentenced, and it has added force here given the background of trauma and the physical health conditions experienced by the offender in custody. It is no exaggeration to say that the offender is more likely to die due to his present health conditions if he stays in gaol than if he was released. That is a powerful factor for special circumstances.

  7. Based on the report of Mr Sheehan, the offender does not describe symptoms of any psychological or psychiatric condition. The diagnosis of polysubstance use disorder was considered appropriate, but the standard symptoms of PTSD were not described. The point is made however, and I accept, that those traumatic experiences would have stayed with the offender. Thus whilst Dr Ellis speaks of people with mental illness experiencing greater adverse affects due to Covid, I find that the offender, without a diagnosed mental illness beyond the substance abuse, is more likely to be adversely affected due to his trauma background.

  8. The testimonials relied on by the offender I consider show that he has some community support. I take into account that there is a pro social side of the offender, but given his lifestyle can only conclude that to date his anti social tendencies, principally his drug lifestyle, dominate him. That said, it adds to his prospects that he has a pro social aspect.

  1. There is no dispute that the offender is entitled to a 25% discount on account of his guilty plea.

  2. The offender is now 43 years old. His criminal record shows offending in 2003 when he was 23 years old with a drive with mid-range PCA. The same offence was committed in 2009 and again in 2014. In 2018 there was driving with illicit drug present and then in 2019 drive whilst disqualified and then in 2020 a speeding offence and driving with low range PCA. In other words the entirety of his offending prior to these offences was driving related matters though perhaps tellingly all involving the abuse of either alcohol or drugs.

  1. The Crown says this is not a significant record, and the offenders submits it is “quite minor”. Relatively speaking that can fairly be said. His current custody is his first custody. I accept his record does not disentitle him altogether to some of the leniency a good record would justify. The approach I take to support this conclusion is that given his background and long term substance abuse, to reach the age of 41 without having a more significant record is to his credit.

  2. By reference to s21A(3), based on the above, the following matters assist the offender:

  1. Apart from count 1, there was no actual damage caused apart from the damage of the supply matters and matters involving stolen goods (the owners were deprived of their goods). With count 1 the injuries should not be taken wholly into account for De Simoni reasons. The cannabis being cultivated had not been harvested and had not reached the community.

  2. Overall, apart from count 1, there were varying degrees of planning. In respect of the manufacture charges the conduct was not sophisticated. The same cannot be said for the cultivate charge.

  3. There was provocation in respect of count 1, but not for any of the other offences.

  4. I note my findings above as to the offender’s criminal history.

  5. I also note my findings as to remorse. As to prospects, I find the offender has some prospects of rehabilitation. There is some cause for optimism in assessing the likelihood of reoffending also. This is because of the steps taken towards rehabilitation already, and also because of the support he appears to have from family and friends. That said however, these prospects have the significant qualifier of being dependent on continuing abstinence, something which cannot be assumed.

Sentencing considerations

Purposes of sentencing

  1. 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 in the community

  1. The nature of the offences being sentenced is varied. The use of unauthorised firearm matter is separate to the other offending and arises from a set of circumstances much different to the other offending. Section 5 requires that a term of imprisonment only be imposed where no other sentence is appropriate. Each offence needs to be considered separately in this regard.

  2. Both parties expressed the view that count 1 may not reach the s5 threshold. At first blush that would seem ambitious, however on reflection, when the result of the use of the firearm is treated warily so as to not offend De Simoni, and where it is accepted that the conduct was excessive self defence, that submission is justified. That is because there is a lesser need for deterrence, denunciation and retribution, and a lesser need to protect the community.

  3. The section 166 certificate matters, given their lesser maximum penalties (they range from a maximum of 6 months to 3 years), are not considered to be significantly serious. That, matched with their brief facts, means the section 5 threshold is not reached, and a community based order is appropriate.

  4. The other firearm offence of possessing an unregistered firearm is more serious, and moreso in the context of the other offending going on at the time of its possession. It is deterrence here which is predominant, along with protection of the community.

  5. The six drug offences are made up of the five attempt manufacture counts and the one count of cultivate prohibited plant. In my view the cultivate offence is a far more organised and considered venture than the attempt manufacture offences, for reasons discussed above. There is a significant need for deterrence, protection of the community and denunciation in respect of the cultivate offence.

  6. With the attempt manufacture charges, there is a need for deterrence and protection of the community, but it cannot be ignored that the attempts could never have succeeded due to the absence of the necessary chemicals. With count 6 the Form 1 matters above will be taken into account.

  7. The last offence on the indictment is participation in a criminal group. On a stand alone basis again there is the need for deterrence, denunciation and protection of the community. Any sentence will however be largely if not entirely concurrent because in order to have partaken in the other drug offences it would go without saying that there would be group involvement. In that regard see Redfern v R [2012] NSWCCA 178 at [17] where that approach was taken to the offences of drug supply and dealing with proceeds of crime; the latter was considered to be part and parcel of the former, with no added criminality.

  8. I have accepted the matters relied on by the offender in his subjective case. Whilst his background and long abuse of substances lessens the weight given in the sentences for deterrence, it does not obviate the need for the sentence to contain significant weighting for deterrence both general and specific.

  9. The rehabilitation of the offender which on the evidence has commenced needs to be promoted and encouraged. In my view this purpose is served by a finding of special circumstances and a significant period of supervision upon release.

  10. Also in that regard I consider the offender has a good argument as to the onerous nature of custody. There is evidence in this case of the likelihood of lockdown by which is meant 24 hours a day in a cell. There is evidence of basic hygiene issues such as showering not being made available for up to 5 days. It perhaps has reached the point that judicial notice may be taken that in our economy at present due to Covid a great number of businesses suffer from staff shortages. Logically, and the evidence supports this, this impacts on the prison system just as much as it does the general business community.

  11. In reaching my determinations as to the appropriate sentence for each of the matters I have considered the particular features of the offender's life. The nature of his background and traumas is sadly not uncommon but that does not mean that viewed in its own right it should not be properly recognised. In practical terms that recognition is to offer some general element of leniency due to the impact those factors may have had on his moral culpability and also by emphasising the need for promoting rehabilitation.

  12. In respect of count 6, as noted above I have taken into account the Form 1 matters. That necessarily adds to the sentence that would otherwise have been imposed; they are each serious offences with significant maximum sentences. That offending results in the circulation of drugs within the community, or an increased likelihood thereof when the Form 1 attempt matter is considered. At the same time I note the quantities concerned are modest at worst. It will be seen below that the indicative sentence for count 6 is the same as for counts 4, 5 and 7. The logic to this is that it is what might be termed a less serious case but of a more serious offence, and with consideration of the Form 1 matters not impactly beyond modestly, giving an approximately same result as for the lesser offences.

  13. There were also the summary matters to be sentenced, the facts of which were very brief. The concern here is that they show another limb to the offending conduct of the offender extending to property crime. I have referred to the range of their maximum sentences above, and I consider the objective seriousness of each of them to be low simply because there is very little on the facts to make any other determination. Ultimately the view I come to is that viewed separately to the other offending a community based order is appropriate for that offending.

  14. That is the outcome with the use firearm matter also. In this regard I accept the submission of offender that the fact that a community based order will in effect have no effect because of the offender being in custody for other matters is not a reason to impose a harsher sentence. If the matter does not reach the section 5 threshold, then no prison sentence should follow. That said, a sentence could be constructed that sees a prison term wholly concurrent with other sentences, yet that does no more by way of punishment or deterrence than a community based order also being wholly concurrent, and would give a false indication as to how serious the offending was considered to be.

Totality

  1. The concept of totality was relevant in a recent sentence I determined in a matter of R v Cook [2022] NSWDC 157. The following brief outline of totality is taken from that judgment. On the question of totality I proceed on the basis that the sentence should reflect the overall criminality of the offender in the way discussed in R v MAK [2006] NSWCCA 381 at [15]-[18]. Those passages make the point that the aggregation of all the sentences is “a just and appropriate measure of the total criminality involved”. The point is made that the severity of the sentence is not simply linear.

  2. The principles regarding totality were reviewed by RA Hulme J in Hall v R [2021] NSWCCA 220 at [52] et seq. At [54] R v Holder [1983] 3 NSWLR 245 was referred to which makes plain that what is required is for a sentencing judge to evaluate the overall criminality involved in all of the offences and to adjust the aggregate sentences “to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences”. Put perhaps even more simply his Honour referred to Mill v The Queen [1988] HCA 70 where it was said the Court “must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences”.

  3. In the present matter count 1 and the summary offences are quite distinct from the balance of the offending. In that regard I note the well-known passage of Cahyadi v R [2007] NSWCCA 1, where the question was posed as being whether the sentence for one offence can comprehend and reflect the criminality for another offence. Importantly in the present case that passage (at [27]) includes the following;

“this is so regardless of whether the offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that where the offences are discrete and independent criminal acts the sentence for one offence cannot comprehend the criminality of the other. Similarly where they are part of a single episode of criminality with common factors it is more likely that the sentence for one of the offences will reflect the criminality of both”

  1. In the present case as I have determined that count 1 and the s166 matters can be dealt with by community based orders, this is not so problematic. The need however to ensure that the overall sentence is reflective of the overall criminality remains for the balance of the offending. The attempt manufacture charges particularly need significant concurrence; on one view those matters could have been charged as one offence, though then the total amount involved would have exceeded 500g, or just less than that if the MDMA was separately dealt with. More persuasively perhaps is that whilst the offending is varied and ongoing, as noted at [49] above, the attempt manufacture and the cultivate charges, the possess gun charge, and the participate charge, all form a course of conduct over the period February to September 2020, and with 4 of the matters occurring approximately in the period of just one month prior to arrest. In arriving at the sentences set out below I have taken these matters into account.

Parity / Comparables

  1. Three co-offenders have been sentenced in connection with the matters the subject of these reasons. One of them was Mr Welsh. The facts on which he was sentenced were so far different to those on which the offender is to be sentenced as to be of no assistance, nor to raise any parity considerations. A second was a Ms Warman. She faced just two charges being one attempt manufacture and another of supplying 35 g of methylamphetamine. Her role in the attempt matter was to purchase certain equipment as requested by Mr Boyes. At the time she was the girlfriend of the offender. Neither party relied on this matter as a comparison, nor to found a parity argument.

  2. The third co-offender was a Mr Mackie. He faced one charge of knowingly take part in the cultivation of the commercial quantity of a prohibited plant. On the facts in that matter the quantity concerned was expressed as in excess of 250 plants and his involvement was for a period of approximately two weeks. Again any comparison is inapt. There is little role for the principle of parity to play here as the offender would not have any justified sense of grievance, nor would his co-offenders, given the much more broad offending that the offender is being sentenced for, and given that even when the charges relate to the same activities the facts are not the same.

  3. The offender relied on a number of cases to provide some assistance by way of comparables, whilst recognising the limitations in doing so. One was a case of R v Mangano [2006] NSWCCA 35; (2006) ACrimR 480. That was a case of cultivating not less than the commercial quantity of cannabis plants. In that case the amount of plants was 10,000 and there was a Form 1 matter involving cultivation of 6000 plants. At first instance with a 50% discount for a guilty plea and assistance the sentence was 14 months non-parole with a balance of term of 10 months. On appeal it was said that undue leniency had been accorded and a new sentence of a non-parole period of two years five months was set with a balance of term of two years.

  4. A co-accused, Mr Greco, in respect of the same 10,000 plant crop, which had not reached the stage of harvesting, at first instance was sentenced to a non-parole period of three years and three months with a balance of term of two years three months. Mr Greco was a major player in the operation. On appeal that was not disturbed.

  5. Another co-accused was a Mr Valensise, who had played a role in respect of the crop of 6000 plants on the earlier Form 1 matter which in this case was a crop of 6765 plants. At first instance the sentence was a non-parole period of eight months and 30 days of a balance of 21 months and one day. The sentence took into account one month and one day of presentence custody. The role of Mr Valensise was to set up camp on the site, and plant, water and fertilise the crops and set up facilities for cutters when the crop was to be harvested, and extended over a period from approximately August 2002 to March 2003. On appeal the sentence imposed was a non-parole period of two years with a balance of term of one year, 4 months.

  6. The Crown provided a table of comparable matters which was marked “Aide Memoire 1”, a collection of cases with far more severe outcomes than those just mentioned. A feature of the cases in the Crown table is that for cultivate offences involving between 100 and 300 plants, head sentences of 5 and 8 years were imposed.

  7. I take these cases to give some indication of what type of sentence may be imposed for the cultivate charge. At the same time it must be realised that the facts are different and it is at very best an indication of the type of sentence that might be imposed in respect of the same charge but different facts. That each party can identify precedents which favour their argument perhaps simply highlights that each case turns on its own facts.

Special circumstances

  1. In my view there is a need for special circumstances In this case, a proposition not argued against by the Crown. Such a finding is justified due to the fact that given the offender’s background an extended period of supervision in order to assist him adapt to and adopt a pro social life is needed by aiding him in dealing with his childhood trauma and almost lifelong abuse of substances. Furthermore I consider the case making out custody as being more than unusually onerous due to the Covid situation is well-established, a factor strengthened further by the particular state of health of the offender concerning his recent stroke, and also his state of mind albeit that there was no diagnosed mental health condition beyond the substance abuse finding. I also note that this is the first time in custody for the offender and take that into account.

Determination

  1. I set out below a table showing the offence, my assessment of objective seriousness, the maximum penalty and any standard non parole period, and the indicative sentence both before and after the 25% discount. Before doing so, I note the submission of the offender as to the categorisation of objective seriousness of offending as being somewhat semantic, and, where there is no standard non parole period, unnecessary. I agree with that submission; descriptions of “high low” or “low mid” abound, and may tend to a process leaning towards a two phase process, rather than a holistic one of instinctive synthesis. That said, if that pitfall is avoided, the process can assist in the overall determination of the appropriate sentence, and help to expose the reasoning behind the sentence.

Table of indicative sentences

Count

Offence

Date

Obj ser

Max

SNPP

Ind

Less 25%

1

Use unauthorised firearm

26.4.20

Low

5 y

No

CCO 2y

CCO 2 y

2.

Cultivate LCQ of cannabis

12.5.20 - 16.9.20

Mid

20 y

10 y

4 y

3 y

3

Possess unregd firearm

19.9.20

Mid

14 y

No

30m

22.5 m

4

Attempt to manufacture prohibited drug; (meth) 72g.

26.6.20 - 21.7.20

Low

15 y

No

2

18 m

5

Attempt to manufacture prohibited drug; (meth) 70g

11.8.20 - 12.8.20

Low

15 y

No

2

18 m

6

Attempt to manufacture prohibited drug; (meth) 250g (and taking F 1 matters into account)

14.8.20 - 23.8.20

Low

20 y

10

24m

18 m

Form 1;

There are three charges under section 25 (1) of supplying prohibited drugs.

All low range

7

Attempt to manufacture prohibited drug; (meth) 70g

24.8.20 - 8.9.20

Low

15 y

No

2 y

18 m

8

Attempt to manufacture prohibited drug (MDMA); 70g

6.9.20 - 16.9.20

Low

15 y

No

2 y

18 m

9

Participate in a criminal group

6.2.20 - 16.9.20

High low

5 y

No

16 m

12 m

s166

There are four summary matters to be dealt with. One is of receiving stolen property (a caravan), and 3 counts of goods in custody

16.9.20

All low

Various

No

CCO

4 x CCO 2y

  1. For the offences other than count 1 and the s166 matters I proceed by way of an aggregate term. The aggregate term will be 7½ years imprisonment to date from 16 September 2020 and expiring on 15 March 2028. There will be a non-parole period of 4 years to date from 16 September 2020.

  2. In accordance with the provisions of the Crimes (Sentencing Provisions) Act I note that had it been necessary to impose a non-parole period for the standard non-parole period offences, those non parole periods would have been 20 months for count 2 and 10 months for count 6, so that the ratio of those non parole and parole periods approximates the ratio of the overall aggregate non parole and parole (or balance of term) periods. The reason these non parole periods are at variance from the standard non-parole periods is the subjective case of the offender overall, and more particularly the reasons given for the finding of special circumstances, and in the case of count 6 because of my assessment of objective seriousness being below the middle of the range of seriousness. For a combination of those same reasons the statutory ratio of the aggregate sentence to the non-parole period varies from the statutory ratio.

Orders

  1. Of the offences stated on the indictment and on the section 166 certificate the offender is convicted.

  2. In respect of count 1 and the section 166 certificate matters I impose in each case a Community Correction Order for a term of 2 years to date from today, and with the standard conditions.

  3. In respect of the remaining eight counts on the indictment, and with the Form 1 matters having been taken into account in relation to count 6, for the reasons set out above the offender is sentenced to an aggregate term of imprisonment of 7½ years to date from 16 September 2020 and expiring on 15 March 2028, and with a non parole period of 4 years to date from 16 September 2020.

**********

Decision last updated: 07 June 2022

Cases Citing This Decision

0

Cases Cited

9

Statutory Material Cited

4

Du Randt v R [2008] NSWCCA 121
Redfern v R [2012] NSWCCA 178
R v MAK [2006] NSWCCA 381