R v CA

Sentence 1 HIS HONOUR: Mr CA, in your case I propose to impose the sentences in this form: In relation to the possess prohibited weapon charge, with a starting point of three years imprisonment, giving you a discount of 40% for your early plea of guilty, utilitarian benefit of it, and your cooperation, a combined discount in relation to both. My calculator tells me that that is 21 and a half months. In relation to that sentence, because it has a standard nonparole period I am required to fix a nonparole period, even though the sentence will be largely absorbed by the sentence for the supply drugs matter. So in that matter I propose to fix a nonparole period of nine months, and on my calculation the balance of the sentence will be 12.5 month. The commencement date of the nonparole period will be 1 March 2011 and the sentence should expire, on my calculation - and your counsel or the Crown Prosecutor can correct me if my sums are wrong. My calculation would be the expiry date of the nonparole period 30 November 2011. 2In relation to the supply prohibited drug matter, the starting point of that sentence will be four and a half years. Again, I give you a discount of 40%. That bring me to a figure of two years 8.5 months. That sentence will be accumulative upon the nonparole period for the first matter. I propose to fix a nonparole period of 13 months. On my calculation that should date from 1 December 2011 and should expire on New Years Eve 2012, that's New Years Eve at the end of this year. The balance of sentence as I would calculate it is one year 8.5 months. I don't know the date for that. Someone will tell me that because they'll have plenty of time to calculate it as I'm giving my reasons. These sentences, as I say, represent a discount of 40% upon the otherwise appropriate sentence. Now I will give my reasons for that decision. 3CA appears today for sentence in relation to two offences committed on 1 March 2011, the date he came into custody, to which he pleaded guilty at the Local Court and which pleas were adhered to in this Court last Friday, 20 April 2012. The two offences to which he adhered to his pleas of guilty given in the Local Court were, firstly, that he on 1 March 2011 at Surry Hills in the State of New South Wales did supply a prohibited drug, to wit heroin. The particulars state that the quantity of heroin was 7.1 grams. 4The second offence to which he adhered to his plea of guilty was an offence committed on 1 March 2011 at Darlinghurst, of possessing a prohibited weapon (to wit a taser) without being authorised to do so by a permit. 5The supply heroin charge is an offence brought pursuant to s 25(1) Drug Misuse and Trafficking Act. It carries a maximum penalty of fifteen years imprisonment and/or a fine of $22,000. There is no standard nonparole period for that offence. 6The possess prohibited weapon offence is one contrary to s 7(1) Weapons Prohibition Act 1998. It carries a maximum penalty of fourteen years imprisonment and has a standard nonparole period of three years imprisonment. 7The offender asks me to take into account four matters on a Form 1 to which he has admitted his guilt in this Court. Those offences are, firstly, being an owner/occupier knowingly allowing use of premises as drug premises. This was an offence committed on 1 March 2011. There is a "goods in custody" charge relating to the possession of a coat previously unlawfully obtained, again committed on 1 March 2011, and an offence of possess prescribed restricted substance, again committed on 1 March 2011. These were all offences for which the offender was detected at the time of his arrest in relation to the principle offence. There is a fourth offence of goods in custody, committed on 26 December 2010. The facts of those various matters will be outlined in a moment. 8In relation to the matters on the Form 1, I am required in sentencing the offender for the principal offence, which is the offence of supplying a prohibited drug, in the light of the guideline judgment of the Court of Criminal Appeal in relation to taking into account matters on a Form 1 ((2002) 56 NSWLR 146). The guideline judgment and the judgments therein cited, and subsequently given by the Court of Criminal Appeal in relation to consideration of Form 1 matters, reflect upon the fact that matters on a Form 1 may properly put the principal offence in context. It does not always occur that way. Sometimes matters on a Form 1 are very minor matters of really no consequence whatsoever. Sometimes matters on a Form 1 may simply be there as a matter of administrative convenience, in the context of an offender requiring sentencing in relation to a number of serious offences. Sometimes the matters on the Form 1 are similar offences committed at about the same time. 9On one view of it, it might be fairly said here that each of the matters on a Form 1 might, by reference to their maximum penalties dealt with in the Local Court, be seen as relatively minor matters. However, it is to be borne in mind in the sentencing of this particular offender, that the offence of, as an occupier knowingly using premises as drug premises, properly put into context, the supply prohibited drug matter. The Court of Criminal Appeal said that in the appropriate case that taking into account matters on a Form 1 may mean that greater weight should be given to the need for personal deterrence and the community's entitlement to extract retribution. 10The Court of Criminal Appeal said that it may be the case that the "entire point of the process" is to impose a longer sentence or to alter the nature of the sentence that would have been imposed if the principal offence for sentence stood alone. Sometimes the resultant "additional penalty", although it does not have to be specifically identified, will be substantial. It was wrong, the Court said, to suggest that it necessarily should be small. 11However, the Court pointed out that the sentencing process was only concerned with the principal offence, not to determine appropriate sentences for matters listed on a Form 1, or to determine an overall sentence that would be appropriate for all the offences, and apply a discount giving appropriate weight to the matters referred to above in the judgment. The Court said that deterrence and retribution are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. 12As to increasing the sentence for the primary offence, the Court observed that there are matters which limit the extent to which this may be so. The maximum penalty for the primary offence is one, the principal of totality is another. It would be "rarely appropriate for a sentencing judge to attempt to quantify the effect on the sentence from taking into account Form 1 offences". 13In this particular matter, it was submitted in the course of submissions by learned counsel for the accused, that a relevant matter in relation to the supply prohibited drug offence is that the quantity of prohibited drug, the subject of the charge of supply, was 7.1 grams which is, as I am well aware, a very minor amount of heroin in the context of an indictable supply, given the limits for trafficable and indictable quantities relation to heroin. But it is quite clear, not just from the facts of this case and the matters on the Form 1, that by reference to the admissions adopted by the prisoner in the course of supplying a history to the social worker, the prisoner has been involved in the business of supply prohibited drugs for some period of time in varying ways and was, most importantly, so engaged at the time of his arrest on 1 March 2011. 14In fact, he has admitted, as I have pointed out, to an offence of knowingly allowing his own apartment at The Connaught building, near the corner of Wentworth Avenue and Liverpool Street, to be used as a premises from which heroin could be supplied. He had in his possession items that had, on his version of events, been provided to him as payment for prohibited drugs obviously no longer in his possession as at 1 March, including, I hasten to say, the prohibited weapon which gives rise to the charge contrary to s 7(1) Weapons Prohibition Act 1998. 15The facts reveal that when the police, on execution of the search warrant for his premises, entered the unit that he occupied, that is, unit 1205 in The Connaught building, where they found other indicia of drug supply. They found a 2010 diary with what appeared to be a ledger containing a series of numbers that police believe related to drug supply. The ledger was located in a plastic bag containing a number of bail reporting slips in the name of CA. Police located on a bedside table several small clear resealable plastic bags containing a total of twentyfive used Vodaphone SIM cards. The facts state, but it is well known to the courts that this is so, that SIM cards are frequently swapped in order to avoid electronic surveillance of mobile telephones by people conducting illegal activities such as drug supply. 16I point out in relation to the statement of facts, and what might be fairly described as some of the opinions therein described, that no issue was taken with the facts by the prisoner when he gave evidence in relation to these proceedings. When police secured entry on 1 March to the premises occupied by the prisoner, some time after 12.30pm, there was another person in the apartment, PC, a person with whom the offender had a relationship, to which I will refer in a moment. She was charged with a number of offences and sentenced in relation to those matters. The sentences imposed upon her I have taken into account, but no strict issue of parity arises given the character of those matters, and of course, her background compared to that of the prisoner, as I understand it. 17The taser was found in a black bag in a bedroom. This taser, I point out, is not the same type of taser as issued to police. As I understand it, it is not a taser capable of firing a projectile which could generate an electrical charge through wires attached to the "gun". It produced a "bright arcing blue light". Thus, it was a hand held weapon with limited capacity to incapacitate. I have no doubt that it is capable of some form of incapacitation, that obviously is its purpose. But it does not have the potential lethal effect of the tasers that are issued to front line police and, as I understand the facts and from discussion of the matter with the parties, there is no suggestion that it is a "lethal weapon" in the character of weapons that are otherwise capable of being covered by s 7 Weapons Prohibition Act 1998. 18In searching the premises police found other items that give rise to the Form 1 matters. They found eleven Serepax tablets which, as I understand it, is the possess restricted substance matter. They found a black new vinyl threequarter length women's jacket size twelve with a price tag still attached to it. This, as I understand it from the sequence numbers, is the second matter on the Form 1. They found the heroin to which I have referred, as I understand it, found in a Louis Vuitton sunglass case in separate plastic bags. There was other heroin found. As I understand it, police found a plastic takeawaystyle container filled with coloured water balloons and on top of the container were two plastic freezer bags tied to the top containing approximately ten balloons. There were also four loose balloons filled with a substance. The total weight of the balloons was 6.1 grams. The facts are a little unclear but the total weight of heroin found in different places was 7.19 grams. 19There was some other prohibited drug found there, such as a small quantity of methylamphetamine, but PC was charged in relation to this matter. There was also found $2,800 in a beige bumbag that PC admitted to being her bag. There were other items found relevant to PC giving rise to charges brought against her in due course. 20The facts state that the tenancy agreement relating to the unit was completed in the name of BC, and they found a photocopy of a New South Wales drivers licence in the name of BC. It is clear from the evidence the prisoner gave as to the identity of his father, that BC is a name that he uses, his father being a deceased criminal by the name of BC who was apparently murdered many years ago. The police allege against both the prisoner and PC that they were operating a joint drug supply business from the address, and it was also indicated in the facts that anyone entering the premises would be aware of the activities going on inside the premises. 21The other goods in custody charge with which I am concerned relates to an Armani jacket which had previously been brought against the accused when he was charged, according to the Court attendance notice on 19 January 2011, that is, prior to his arrest in relation to this principal drug supply matter. The Armani jacket was of a value of $849. Apparently it was, in appearance, consistent with an item that had not been used at that particular point of time. The prisoner has given evidence that the taser and the two jackets were provided to him as payment for drugs supplied by him. I have already pointed out the significance of that in the assessment of the objective facts. 22There can be no doubt, on the admissions made by the prisoner and the objective evidence, that the prisoner was substantially involved in the business of the supply of heroin for profit or for commercial purposes. It may be fairly said, having regard to the quantity in his possession at the time of his arrest, that he could be classified on the basis of the evidence, without entering into any speculation, as a street dealer, albeit one quite well set up as the facts reveal. It may be the case that he was dealing in relatively small amounts from time to time, but there can be no doubt that his possession of this particular quantity of heroin was not a "one-off" event. 23The prisoner was born, as I understand the evidence, on 5 September 1963. He has developed over the years, having regard to his age, a substantial criminal history, and most particularly in relation to the possession and the supply of prohibited drugs. He first appeared at Court in 1986. Admittedly, to his credit, at twentythree years of age there is not a history of juvenile or young adult offending consistent with what could be fairly described as an antisocial personality or proclivity. He was first convicted of possessing a prohibited drug, particularly heroin, and fined, and thereafter was later convicted at the Downing Centre Local Court of possessing a prohibited drug and selfadministration of a prohibited drug, et cetera. 24He was, significantly, in March 1996 convicted of what was described as "deemed supply prohibited drug" and sentenced by his Honour Judge Court QC to a minimum term of three years with an additional term of one year. This sentence was varied on appeal, with the minimum term being reduced to two years with an additional term of two years, thus, as I would understand it, a finding of special circumstances in the prisoner's favour under the old "Sentencing Act". 25He has a series of other convictions consistent with drug usage: obtaining property by deception, making false statements, goods in custody, over the next few years. In 2001 he, in fact, was imprisoned in relation to offences of this character at the Downing Centre Local Court. He appealed to the District Court, either against conviction or sentence, I do not know, and the convictions and orders of the Court below were confirmed. On release from prison he was again convicted of making a false instrument, or having a false instrument with intent to use, I assume for financial benefit, and was sentenced in the Sydney District Court on 28 March 2003 to various terms of imprisonment, as best I can calculate it, totalling no more than twelve months. But these sentences of imprisonment were suspended pursuant to s 12 Crimes (Sentencing Procedure) Act. 26Unfortunately, he came back before the District Court on 6 August 2004 and was, having in 2003 received a twelvemonth good behaviour bond for goods in custody, sentenced to two years and eight months imprisonment with a nonparole period of two years in relation to supplying prohibited drugs on an ongoing basis. I have been supplied with the remarks on sentence, brief as they are, of his Honour Judge Joseph Gibson QC, delivered on 6 August 2004. 27Various other offences were taken into account when he was sentenced, including possessing a prohibited drug, unlawfully possessing a prescribed restricted substance, goods in custody, very similar of course to the circumstances of the current matter, except in relation to the findings of his Honour. He concluded that the offender was a "runner" selling drugs for his own "habit". The prisoner in his evidence before me and in the history given to the social worker, who provided a very extensive report, reflected upon his own usage of prohibited drugs and his drug dependency, which I accept to be one of the contributing factors to his offending on this and previous occasions. 28It would be difficult to accept, however, any assertion that the only reason that the prisoner was involved in the supply of drugs was to obtain money to provide drugs to himself and/or his girlfriend. Certainly this would have been a partexplanation of his involvement, and I accept that he is a user "dealer". But given the location of his premises and what one would expect to be the reasonable expenses involved in the lifestyle that he was leading, I have little difficulty accepting that at least part of the profits, such as they may have been, from the sale of drugs were used by him for his lifestyle. That having been said, the police did not find in his possession large sums of cash, and apart from the character of his premises that he was renting there is no evidence of acquired wealth or assets consistent with what my earlier findings were. 29I note in relation to his criminal history, to his credit, that these offences were not committed while subject to conditional liberty. Of course, the prisoner does not get a tick or a reduction for that. If he had committed the offences with which I am concerned while subject to conditional liberty, an aggravating factor. But in the context of his background, set out in his evidence adopting the social work report and in the background of his criminal history, it is to be fairly noted that there has been a significant or substantial gap between his last conviction and release from prison, and the commission of this offence. 30That having been said, as I said earlier, in the social work report he provided an extensive history of his drug dealings over a period of time and his history of substance abuse. It reflects upon, of course, his attempts in the past to undergo drug rehabilitation programs, particularly in 2007, and the failure of those attempts. 31The prisoner has in his evidence before me and to the social worker expressed a high motivation to participate in a rehabilitation and drug program and lead a drugfree life. At his age now, given his lengthy history of drug use, he will find that, as he well knows, a very significant challenge, one which will need to be guided very closely by the Probation and Parole Service. 32The prisoner's background is a very sad one. It would be fairly said, in summary, that his mother, who raised him in some circumstances of difficulty, had misled him as to the identity of his father. He believed that he was the second son born to his mother and the man that he thought was his father. In fact, his father was another man. His biological father, as I said earlier, was murdered in 1987 and is described, fairly accurately, I believe, in the social worker's report, as a "wellknown underworld figure". He thought that Mr B, his mother's longest partner, was his father. His elder brother, or a person that is described in the social work report as his "eldest halfbrother", Stephen, was a product of his mother's relationship with Mr B. Sadly, Stephen died, apparently at the age of thirtytwo, from a drug overdose. Mr B (Snr) left the prisoner's mother when the prisoner was seventeen. 33I have taken into account a very detailed account of his upbringing and he basically says, and I do not repeat this to humiliate his mother, that his mother was a person who led a peripatetic lifestyle. She was described by him as an alcoholic. She worked in illegal gambling casinos and apparently had a relationship with a number of people that she met through her work and other sources who were members of what used to be called the criminal element. The prisoner was greatly neglected and spent a lot of his teenage years and early adulthood roaming the street unsupervised, introduced to prohibited drugs at an early age. He described his mother as associating most of the time with "old time gangsters and drug dealers". 34It would seem in these circumstances, having regard to the social circumstances of the prisoner, that his fate as a drug user and possibly a drug supplier, as his criminal history shows, was sealed. His mother permitted drug use in the house and the prisoner hung out with people with whom he associated. He had a troubled relationship with his mother. However, obviously when she passed away he came to reflect more upon the difficulties no doubt that she faced in her life and the things that she had to do to survive. 35His employment history is not impressive. He left Maroubra Bay High School at the end of Year 10. He admits that his time at high school was not particularly productive, although he completed his school certificate which he did not pass. He was bored with school and did not perform well there. He had an apprenticeship in carpentry after he left school. Since then he has largely only had casual, unskilled jobs, including forklift driving, painting and labouring. He did some salesmanship work but because of his substance abuse he admits that he has not worked since the early 1990s. 36He speaks of his gambling problems, his use of any money he has for drugs. He has given details of his relationship history. Interestingly, his first couple of relationships with people that were not themselves drugdependent. However, as I understand the history he provided to the social worker which I am prepared to accept, after he had reached his mid twenties he began a number of "co-dependent drug related relationships" including his relationship with PC to whom I earlier referred. He has known her for ten years. He has had a daughter, through one of the prior relationships, who was born, as I understand it, in 2007 but with whom he has little contact. 37He has had a number of health difficulties. He was diagnosed in 2001 with an anxiety disorder. He has had various illnesses and injuries closely connected to his lifestyle and his drug usage. He has been the victim of a stabbing. He has had various other ailments that I need not reflect upon. He has contracted hepatitis C as a result of his drug use and had various infections and the like. 38He states that he has missed in his life the guidance of a "father figure" and feels aggrieved that much of his childhood was, to use his words, "stolen from him". He is, as the social worker pointed out, sometimes through circumstances beyond his control, predisposed to a life of substance abuse and criminal activity. His criminal activity, other than drug usage, he freely admits to in the social work report. The social worker feels that the prisoner has a number of grief issues really that he needs to address and obviously needs to receive professional guidance in relation to his drug usage, his gambling dependency and also to address issues that might reflect upon the high risk of recidivism to which he is clearly subject as his criminal history makes clear. 39I have taken the opinions of the social worker into account. They state in a reasonable fashion much that would be self evident to any person with any experience of sentencing dealer users in these courts. But I am grateful for the report. As I have earlier indicated, and as it follows from what I have said thus far, I am prepared to accept the evidence of the prisoner as to his subjective circumstances and as to his motivation to reform, although of course I accept that he is prepared to do this but I must approach his claims with some reservations given past history of offending and past history of failure to take full advantage of rehabilitation programs available to him. That having been said, however, that does not mean to say in the context of the criminality with which I am concerned that I am obliged to fix a crushing sentence upon the prisoner. 40There is one other outstanding matter that needs to be addressed in this sentencing exercise. I have an affidavit from a senior police officer reflecting upon material provided to him by other police setting out the extent of cooperation of the prisoner with police since his arrest. My reading of the material provided within the affidavit which is subject to a nonpublication order and which will be placed in a sealed envelope and not opened save for a direction of a judge of this or the Supreme Court, is that the prisoner has provided very extensive cooperation of great value, at least at an intelligence level to investigating police. 41The prisoner has indicated a willingness to continue to cooperate and has frankly stated that his motivation for providing this very valuable information is for a reduced sentence. The prisoner has received no financial reward. The information has been assessed as accurate and of importance. It is clear that but for the prisoner's cooperation and the information he provided, more senior drug suppliers, if I might use that expression, may have continued to operate. 42I have taken that material into account in two ways. Firstly, as with the plea of guilty I accept it reflects evidence of contrition on the part of the prisoner and I also accept that it is worthy of a discrete discount which will be provided as a combined discount to be calculated upon the otherwise appropriate sentence. 43The Courts have power to reduce penalties to recognise assistance to investigating authorities. Section 23 Crimes (Sentencing Procedure) Act sets out specific powers available in relation to this matter justifying the application of a discount. The Court is required to state if a discount is to be provided for assistance to the authorities and to calculate the discount. Although there has been some dispute in the decisions of the Court of Criminal Appeal over a number of years as to whether the discount should be expressed discretely or as part of a combined discount to recognise also the utilitarian benefit of the plea of guilty, the practice nowadays as I understand it, and it was the subject of joint submission by the parties, is to provide a combined discount. This is reflected as much by the High Court in the decision of Markarian v The Queen (2005) 79 ALJR 1048 at [39]. 44Of course, it is the case that since the decision of Thomson and Houlton (2000) 49 NSWLR 383, where the Chief Justice said that a "single combined quantification will often be appropriate", Courts have become more focused on this approach, Thomson and Houlton, of course, reflecting the requirement of courts to fix a discount for the utilitarian benefit of the plea of guilty. 45It should be pointed out of course in this matter that it is agreed by the parties that it is appropriate to provide the prisoner with a discount of twentyfive per cent at least to reflect the utilitarian value of the plea of guilty. It was a plea of guilty entered as I understand it at the first reasonable opportunity entered at the Local Court and continued in this Court. 46Counsel for the accused submitted that the combined discount to reflect that factor and the assistance to authorities should be forty per cent. The Crown did not demur to that figure. Although I do not have a transcript of the Crown's submissions, it was my understanding that the Crown in fact specifically accepted that that would be a reasonable discount. Although it is a discretionary matter and a range of discount may be appropriate. 47I am mindful of the number of judgments that reflect upon the appropriate quantity of the discount such as SZ v The Queen [2007] NSWCCA 19, El Hani [2004] NSWCCA 162, although that is a Commonwealth matter, R v Z [2006] NSWCCA 342 and a judgment that I know well bearing in mind I was the judge at first instance R v Sukkar [2006] NSWCCA 92. I should point out that in Sukkar I was slightly more generous than I should have been with the discount. So, as I said, I am mindful of that particular judgment. 48In sentencing the offender I am required to have close regard to s 3A Crimes (Sentencing Procedure) Act. I am required to have regard to the need for general and personal deterrence, denunciation and the like, making the accused accountable for his crimes. I am also required, notwithstanding his criminal history and the fact that his criminal history does not entitle him to any particular leniency, I am required to have regard to the promotion of his rehabilitation. His cooperation with the authorities of course is a matter that at least gives some qualified support for his prospects but I am also mindful, given his background and his attitudes in the past, that he is a very vulnerable man indeed. 49By regard to s 21A I note the terms of 21A(1) of the Act. No particular aggravating factor pursuant to s 21A(2) was brought to my attention. Certainly it might be fairly said that the offence of supplying a prohibited drug particularly was committed for financial gain but I have already made findings in relation to that matter which include an acceptance that in part at least the purpose of the crime was to obtain drugs for himself and the prisoner clearly was not enriched by his activities. Ultimately I do not propose to conclude that that is a relevant aggravating factor. 50With regard to mitigating factors that are particularly relevant to this matter, bearing in mind the inherent character of a drug supply, I am prepared to conclude that the offence of supplying a prohibited drug was not part of planned or organised criminal activity. It might be said in the context of the information the prisoner has provided to police that he was part of an "organised" system but I could not fairly conclude that he was necessarily a player in organised criminal activity as that expression is generally understood. Certainly the possession of a prohibited weapon offence does not fall within that category of crime, thus it was not part of planned or organised criminal activity. 51Clearly I cannot find that the prisoner was a person of good character or is unlikely to re-offend or even has good prospects of rehabilitation. I have pointed out that I note his good intentions. Those good intentions will be tested in the future but one must approach this matter with caution given his background and his criminal history. 52That having been said, I find as a mitigating factor that the prisoner has demonstrated relevant remorse and of course his pleas of guilty are a mitigating factor but for which he receives a discrete discount. I have already referred to the relevant matters under s 23 Crimes (Sentencing Procedure) Act. 53Counsel for the accused provided extensive written submissions, which have been addressed in my remarks to this point, as have the submissions of the Crown. I accept that the submissions relating to "aggravating factors" under s 21A of the Act, no disrespect to counsel for the accused, but she set up a number of straw men or women that she proceeded to demolish. I am not prepared to find that his record of previous convictions is an aggravating factor. I am not prepared to find that the offence was relevantly committed in company. In any event, as has been pointed out in other authorities dealing with the issue of planning, the very character of drug supply involves some conjunction with other people. It is not something committed by oneself alone. One needs to get the drugs from other persons. Hence here, to perhaps paraphrase the words of s 21A itself, the Court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence. 54The issue of contrition was not addressed under mitigating features by counsel for the accused but that may well have been an oversight. I have already taken into account many of the matters that she has summarised in her submissions relating to the objective and some subjective facts and as I said on all those issues I am assisted by the submissions of the Crown. 55There are two outstanding matters of substance that I need to address in my remarks on sentence. One is the relevance of the standard nonparole period. I am mindful of the fact that the standard nonparole period for the offence with which I am concerned of possessing a prohibited weapon is three years imprisonment. As it transpires I am fixing a nonparole period of nine months. The reasons for the fixing of that nonparole period in the context of the decision of Muldrock v The Queen [2011] HCA 39 and the scheme of the Act are as follows. 56One, given the character of the weapon not being a lethal weapon I regard the offence, in context, as being an offence at the lower end of the scale and certainly below the "mid range", if that is required to be considered after a plea of guilty. 57Secondly, in relation to the sentence for that matter, make a finding of special circumstances in part because of the fact that I am required to accumulate the sentence for the supply prohibited drug matter, in part because I am required to have regard to the decision of Pearce v R (1998) 194 CLR 610, particularly the judgment of the majority in its obiter remarks at [45]. 58In the accumulation of the matters and reflecting upon the totality of the crime, accepting the account given by the prisoner, albeit not entirely discounting the possibility that the weapon may have been in his possession for self defence or for self protection, the prisoner states that he obtained the weapon as part of his drug dealing activities. The weapon is not a lethal weapon as I have earlier said and in any event his possession is very intimately tied up with the circumstances of his detection and arrest in relation to the supply prohibited drug matter. 59I appreciate as follows from Muldrock and later decisions in recent times of the Court of Criminal Appeal, that the standard non-parole period does provide a guidepost to the appropriate sentence. But when one looks at the criminality of this particular offence in context, noting the starting point of any total sentence to be imposed is three years in my view before a discount, the nonparole period should be as I have indicated. 60It follows from what I have just said of course that I have made a finding of special circumstances in the fixing of non-parole periods for both offences. Again partial accumulation is itself a special circumstance but in this matter there are a number of additional matters that need to be taken into account which would further adjust the relationship of the ultimate non-parole period to the total sentence. 61Firstly, in my view, notwithstanding his previous opportunities on parole, which I note have not been breached, noting his drug dependence history and noting what I perceive to be, although the evidence is not entirely clear on this, his relative institutionalisation, the prisoner requires the benefit of professional assistance to adjust to community living. He requires an extended period of supervision to undertake such counselling and rehabilitation programs as would be suitable for him given the myriad of issues that need to be addressed if he is prepared to address them. His grief, which is unresolved, his drug dependency, his gambling addiction and of course his, if he does not mind me saying so, I do not mean this as an insult, his antisocial attitudes. 62The truth of the matter is the prisoner is a person who, by his own account to the social worker, has led a life outside the law for many years and pursuing a lawful lifestyle given the milieu in which he has mixed since he was a teenager or even as a small child is one which may attract him back to a world of crime. 63I should point out, bearing in mind I do not have a transcript of the previous proceedings, but in my reference to Thomson and Houlton I have not neglected the fact that this was the subject of a case conferencing according to the certificate which is exhibit B. Notwithstanding that, given the terms of ss 16 and 17 of the now repealed Trial Case Conferencing Act, the prisoner under that provision is entitled to a discount of twenty-five per cent, irrespective of any other consideration, for the utilitarian benefit of a plea of guilty. 64It does not disturb the calculation I have made. Thus hopefully having covered the field in relation to the relevant matters that need to be taken into account I will move to sentencing the offender. My associate has typed up my proposed orders and Madam Crown, Ms Perera, if you think I am wrong in any material respect please do not hesitate to tell me. 65In relation to the possess prohibited weapon without a permit, you are convicted. You are sentenced to a term of imprisonment which consists of a non-parole period being nine months to commence on 1 March 2011 and to expire on 30 November 2011. The balance of the sentence as I calculate it with some adjustment of a couple of days to give it some symmetry, the balance of the sentence is twelve months and two weeks and on my calculation that balance of sentence will expire on 14 December 2012. 66The total sentence of imprisonment is one year and nine months and two weeks. In relation to that sentence I have made a finding of special circumstances. 67In relation to the supply prohibited drug matter taking into account the matters on the Form 1 you are convicted. You are sentenced to a term of imprisonment which consists of a non-parole period being one year and one month to commence on expiry of the previous non-parole period of, that is 1 December 2011 and to expire on 31 December 2012, that is New Year's Eve this year. The balance of sentence on my calculation making an adjustment of a couple of days to make it more neat, a couple of days in your favour I hasten to say, the balance of the sentence as I calculate it is one year and seven months and two weeks and on my calculation that sentence will expire on 14 August 2014. 68The total sentence of imprisonment on my calculation is two years, eight months and two weeks. As it follows from what I have said I have made a finding of special circumstances. You are eligible to be released to parole on 31 December 2012. 69Madam Crown are those figures right, as best as you can understand it? 70COLLISON: Yes. 71HIS HONOUR: Ms Perera are those figures right? 72PERERA: Yes. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 September 2012