R v Forbes

Catchwords: CRIME — Drug offences — Supply prohibited drug on an ongoing basis — Firearms offences — Possess prohibited pistol — Use prohibited weapon to prohibition order — Knowingly deal with proceeds of crime — Supply prohibited drug greater than the indictable quantity, less than commercial quantity — SENTENCING — Relevant factors on sentence — Form 1 offences

Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Firearms Act 1996
Weapons Prohibition Act 1998

Cases Cited: Dungay v R [2020] NSWCCA 209
Redfern v R [2012] NSWCCA 178
Wong v The Queen [2001] 207 CLR 584

Category: Sentence

Parties: Director of Public Prosecutions (Crown)
David William Forbes (Offender)

Representation: Counsel:
Mr D. Pullinger for the Offender
Solicitors:
Director of Public Prosecutions for the Crown
Medcalf Grant Lawyers for the Offender

File Number(s): 2024/00144497027

JUDGMENT

Introduction

1. David Forbes appears for sentence in respect of 7 offences. In respect of three of them there are one or more matters to be taken into account by way of the Form 1 procedure. The offences and the Form 1 matters relating to the primary offences are set out in a table below. That table sets out the maximum sentences of the offences. None of the primary offences has a standard non-parole period.

2. At the commencement of the hearing the Crown drew the court’s attention to the fact that the Form 1 matter to be taken into account in respect of the charge of possessing a prohibited weapon contrary to a prohibition order (sequence 32) was in fact an offence which carries a greater maximum sentence than the primary offence. The Crown accepts that the Form 1 procedure requires any penalty ultimately arrived at to be proportional to the primary offence and accepts that the charge being framed this way was erroneous. Furthermore in the way the matter has been conducted the Form 1 offence of possessing a prohibited weapon without a permit adds no criminality to the primary charge of possessing that very same prohibited weapon contrary to a weapons prohibition order. The Crown frankly accepted that in these circumstances in respect of this charge (sequence 32) consideration of the Form 1 matter will not lead to any increase in the sentence.

3. It is convenient to note here that in respect of 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.

4. In respect of the charge of knowingly deal with proceeds of crime (sequence 34) it was not immediately clear from the agreed facts that those proceeds of $7150 were the proceeds from the sale of drugs the subject of the charges under section 25A. Again, helpfully, the Crown accepted that was the open inference and would not be heard against that inference being drawn. The Crown further accepted that in those circumstances there is no additional criminality to the supplying of the drugs by being in possession of the proceeds. In that regard the decision of Redfern v R [2012] NSWCCA 178 was referred to. For reasons stated below the matter will be dealt with by way of section 10 CSPA.

The offences

| Seq | Section | Offence | Maximum Sentence | | 27 | s25A DMTA; | Supply prohibited drugs on an ongoing basis | 20 y | | 28 | s25A DMTA; | Supply prohibited drugs on an ongoing basis | 20 y | | 29 | s36(1) Firearms Act; plus F1 | Possess unregistered firearm (pistol) | 14 y | | F1 re seq 29 | F1 | 3 matters under the FA; s74(1) x 2 (Possess firearm when subject to a firearms prohibition order; max of 14y if a pistol; otherwise 5y) and s74(3); (max 5y) possessing ammunition when subject to a firearms prohibition order | | | 32 | s34(1) WPA Plus F1 | Possess prohibited weapon contrary to prohibition order; butterfly knife | 10 y | | F1 re seq 32 | F1 | s7(1) of WPA; possess or use prohibited weapon without a permit; butterfly knife; max 14y | | | 34 | 193B(2) Crimes Act | Knowingly deal with proceeds of crime; $7150 | 15 y | | 38 | s25A(1) DMTA | Supply prohibited drugs on an ongoing basis | 20 y | | 41 | 25(1) DMTA Plus F1 | Supply more than indictable, less than commercial quantity of prohibited drug, viz 223g methylamphetamine | 15 y | | F1 for seq 41 | F1 | Supply prohibited drug being 216g heroin; s25(1); max 15y | |

5. I take the maximum sentences into account as legislative guideposts indicating the legislature’s view of the seriousness of the matters so as to assist in arriving at the appropriate sentences.

The agreed facts

6. The offender was served with a firearms prohibition order under section 73(1) of the Firearms Act 1996 on 14 December 2020 and a weapons prohibition order under section 33 (1) of the Weapons Prohibition Act 1998 on the same date.

7. In December 2023 police began investigations into the offender. This included reviewing phone calls and text messages made from his mobile phone. The offender regularly used that phone to organise and facilitate the supply of illicit drugs.

8. The first section 25A offence occurred between 2 February 2024 and 26 February 2024. He organised and facilitated 15 drug supplies to two purchasers. The total of what was supplied was 5.6 g of heroin, 80 mills of methadone and 8.7 g of methylamphetamine. The quantities supplied ranged from .3 of a gram to 3.5 g. It is accepted the offender was paid money for this supply, but the facts do not state the amounts.

9. The second 25A charge involved 4 supplies of .3, 3.5, 3.5 and .6 g of heroin, methylamphetamine, cocaine and heroin respectively. The supplies were to three purchasers, two of whom were the same as for the first count. Again, money was paid of an unknown amount.

10. The facts and then deal with the third section 25A offence, sequence. On this occasion there were six supplies between 5 April 2024 and 17 April 2024 with the amounts again ranging to similar amounts as earlier specifically from .6 of a gram to 3.5 g with all supplies bar one being methylamphetamine and one being heroin. There were three purchasers, two who were purchasers in the first two counts. Again money was paid but the amount is not stated.

Objective seriousness of the section 25A offences

11. The agreed facts provide no more detail about this offending than just summarised. For the offence to be made out there needs to be three or more supplies within any 30 day period. The argument for the Crown is to say the offender is supplying street level dealers. This argument is based on the quantities of the amount supplied which are said to be greater than what would be expected for street-level supply directly to a user, with the amount of such a supply being suggested to be .1 of a gram, the repeated supplies to the same people, specifically that out of 25 separate applies all but six were to either Anna Amara or Nicole Marsden. I note in some instances, namely 7 out of the total 25 supplies the amount supplied was 3.5 g. Reliance is also based on the fact of the possession of 216 g of heroin and 223 g of methylamphetamine found in the offender's residence (the facts of sequence 41, see below). The suggestion clearly is that a street-level dealer would not hold such an amount but rather that was the stock with which the offender would supply the street-level dealers. Reliance was also placed on the offender holding cash of $7150. It was argued that the frequency and quantity of the supplies, predominantly to two people, was inconsistent with the supplies being for the purchasers own personal use as would be expected of a street-level user.

12. A point was taken by the offender at the outset that the above submission was not open to be made. This was because the case for the Crown had not been expressed this way and that the matters being put were not agreed. The ruling made was that it was open to the Crown to make the submission. It is the facts which are agreed, that is it is open to either party to make whatever submission they would sensibly be able to make based on those agreed facts. There is nothing about the Crown submission that seeks to go beyond the parameters of the agreed facts or the matters charged.

13. There is some merit in the argument for the Crown that the matters just outlined should result in a finding that the role of the offender in these offences is greater than, or to adopt a phrase, “higher up the hierarchy” than that of a so-called “street-level dealer”. The difficulty for the Crown is the need to establish these matters beyond reasonable doubt and whilst I tend to the view that what the Crown is submitting may be true I do not consider the submission satisfies the high onus required. For example in relation to sequence 27, the two supplies of 3.5 g of methylamphetamine to Nicole Marsden occur either seven or eight days apart and it is not fanciful to suggest that she may have consumed 3.5g in 8 days, though I do acknowledge that may require a degree of self-discipline not ordinarily expected of a heavy user of methylamphetamine.

14. Further there was no evidence of what might be expected to be the “ordinary” amount supplied at the street level. To a certain extent the court can take notice of the large number of cases that it deals with concerning facts similar to these but that familiarity does not extend in my view to determining that the street-level supply should be taken to be .1 of a gram and no more. Indeed, in the subjective case for the offender, reference was made to his use of 3.5g per day of heroin, a different drug to methylamphetamine, but the point is still viable, ie that users may use more than .1g at a time, and thus may buy more than that amount at a time.

15. The Crown relied on the significant amounts of methylamphetamine and heroin found in the offender's residence to support its argument of the accused being more than a “street dealer”. These drugs are plainly his “stock”; whether it is stock for street supply directly, or to street suppliers, is not something that can be determined favourably to the Crown beyond reasonable doubt.

16. The agreed facts say nothing as to how the offender came to be in possession of these drugs nor is anything said about any management or other role.

17. I note that the offender received payment for the supplies but it is not said in what amount and in my view that does not add to the seriousness of this offending as it can be expected that payment would occur for the supply of drugs.

18. The point for the accused of course is to seek to minimise the role being played by him, and argues these are small supplies at a low level.

19. What the debate highlights is that seeking to attribute labels to the role being played by the offender is not always terribly helpful. What needs to be considered are the actual facts and make a determination of the degree of criminality of the offender. Both parties recognise this. In my view all the factors just gone through and relied on by the Crown show the offender to be significantly involved in the period from February through to April in the ongoing supply of prohibited drugs and in significant amounts. I find that to describe him as simply a street level dealer understates his level of involvement in criminal activity, or simply put, his criminality.

20. I consider sequence 27 to be a serious example of the type of offending given that there were 15 supplies in a three week period. In my view it approaches the mid range (below mid) for that style of offending. The only real distinguishing feature of sequence 27 to sequences 28 and 38 is the number of supplies. Sequence 28 involved four occasions of supply and sequence 38 involved six. I consider the seriousness of the offending of sequences 28 and 38 to be approximately the same as each other, and less serious than sequence 27.

The other charges

21. The offender was arrested on 17 April on an occasion where he had arranged to meet a person to supply methylamphetamine. Upon being searched upon arrest he was found to have in his possession a small clear bag containing methylamphetamine and $130 in Australian currency and a mobile phone.

22. The remaining four charges and the five Form 1 matters arise from the results of a search carried out at the offender’s residence and a storage facility. Found upon the searches were:

(a) A .22 caliber revolver pistol which was separated into pieces and wrapped in a cloth. This founds sequence 29, the section 36(1) Firearms Act matter of possessing an unregistered firearm. This pistol was stated on the facts to not be in a safe working condition; it was conceded at the hearing that it was not in a working condition, be it safe or otherwise. There is no evidence of just what the state of the pistol is, beyond being in 2 pieces and a photograph, and no evidence suggesting it is capable of being repaired. The photo does show the pistol to appear to be intact (which was not the state it was found in), and if shown to somebody when intact, would likely create the impression it was operable. As such it could be of some utility to threaten or defend. The suspicion must be that this pistol (and the musket and butterfly knife) were kept by the accused in connection with his drug activities. Yet the closest the connection of these items to drug activity on the facts is that the pistol and butterfly knife were found in the same place as the more than 400 g of drugs in his possession, namely the offender’s residence (the musket was not). Just whether or not the offender ever did use these items for that purpose would in my view be speculation. I accept the submission for the accused that all that can really be said about the weapons offences is that he was in possession of those items, and the matters must be considered to be low in objective seriousness. Absent the inference of a connection to the drug activities, there is nothing known about sequence 29 (the pistol) other than the possession of an unregistered firearm and so with that in mind I would assess it as being low in objective seriousness. (b) Nineteen .22 long rifle shot shell cartridges, which founds a possession of ammunition offence when subject to a prohibition order on a Form 1 in relation to sequence 29. Also on a Form 1 for sequence 29 are two section 74 (1) charges of possessing a firearm subject to a prohibition order. For one charge, the same pistol is the relevant firearm; for the other the firearm is a blunderbuss style antique musket (“musket”, as referred to above) found upon the search of a storage unit. The musket was identified as an imitation of an antique firearm. I note my comments above concerning the musket. (c) $7150 in Australian currency which founds a knowingly deal with proceeds of crime charge, sequence 34. I note what was in effect a concession by the Crown that this money is proceeds from the drug sales that were being made and which are the subject of the s25A charges, a conclusion that would have been reached on the available facts. An inference on the balance of probabilities favourable to the offender that the money found in his residence was from the previous 2 months, and including the last 12 days, is plainly open. The dealing with proceeds of crime in circumstances such as these is considered to be “part and parcel” of the drug supply offending, and there is no additional criminality; see Redfern, referred to above. Indeed, Redfern at [16]-[17] goes so far as to say that a charge such as this should not be brought in circumstances such as these, and for that reason it will be dismissed under section 10 CSPA. (d) A gold butterfly knife founding sequence 32. The charge is of possessing the butterfly knife contrary to a prohibition order and the Form 1 matter is the possession of that knife. Again, the facts do no more than make out the offence, and is a matter low in seriousness. As discussed above, the Form 1 matter does not add to the seriousness of the primary offence. (e) Inside a concealed floor safe in the accused’s residence, 216.73 g of heroin and 223.14 g of methylamphetamine. It is the methylamphetamine that founds sequence 41, an offence under s25 DMTA, and it is the heroin that is the basis of the Form 1 matter. The amount of methylamphetamine (as is the amount of the heroin) is far closer to commercial quantity (which begins at 250g) than the minimum indictable amount which in respect of both drugs begins at 5g. In all the facts it is plain these drugs are the offender’s stock for his supply activities. Nothing is known as to how the offender came to have these drugs in his possession, nor for how long he had possession of them, nor of whether he needed to first pay for them or paid for them from the proceeds of the onsale of the drugs, or indeed whether the arrangement was for him to pay for them at all, as opposed to accounting for the proceeds. I bear in mind that in respect of the amount of the drug it is well-established that quantity is neither the sole nor even the determining feature of the offending; Leung and Wong; Wong v The Queen [2001] 207 CLR 584. The amount nevertheless remains a factor to be considered. I consider this offence to be a significant one, and would assess it in all the circumstances, namely the connection that I find that it has to the s25A offences, but without engaging in any double counting, as just below the mid range. It is to be remembered that the assessment of objective seriousness is of the primary offence, with the the Form 1 procedure allowing for the sentence to be heavier, but only within the bounds of being proportional to the primary offence, here, the supply charge relating to the 223 g of methylamphetamine.

Subjective case

23. Due to the timing of his plea the offender is entitled to a 25% discount.

24. The offender’s criminal history is extensive and begins some 37 years ago. Despite that, this is the first time he has been dealt with at first instance in the District Court (though there were 2 occasions in the Drug Court). On a positive side it suggests his offending is fairly low level; on the negative side, it suggests his prospects may be guarded, and also means this offending is a significant escalation in his criminal activity. The record is largely of driving and larceny offences, though there were weapons offences in 2020, which was also the first time a drug offence (possession) is recorded. The present offending is the first occasion of supplying prohibited drugs.

25. There was a sentencing assessment report dated 10 September 2025. Overall that report is fairly unfavorable for the offender. It refers to the offender having a self entitled attitude and prioritising his needs over the safety of the community. He downplayed the weapon related offences, though on the facts found above that maybe a reasonable position. More concerningly it states that he expresses a desire to discontinue his current pharmacotherapy upon his release. That treatment is the buvidal programme. The report notes that when under supervision in 2022 he did not participate in interventions as directed by his supervising officer. The report assesses him as a medium risk of reoffending. On the positive side it notes he does have pro social associates in the community as well as antisocial associates. He does recognise the impact of his behavior on the community and acknowledged the need to change his behavior and said he was willing to have supervision. It also states that despite not engaging as directed his time under supervision 2022 was classified as satisfactory.

26. The offender told the report writer he was using up to 3.5 g of heroin a day; yet he also argues in mitigation of any sentence the need for him to care for his 95-year-old mother. Without doubting his intentions, it is obvious that engaging in the former reduces his capacity to attend to the latter.

27. The offender relies on a report of a psychologist named Ms. Kris North and dated 3 September 2025. The history given is of a traumatic childhood with domestic violence and psychological abuse by his father and then sexual abuse at age 13 from a teacher at school. Also at this time his father died. The sexual abuse is said to have contributed to substance abuse from the age of 14. In the consultation with the psychologist he accepted responsibility and expressed regret for his offending and identified his substance abuse issues as a major criminogenic risk factor, which in turn he attributed to a maladaptive means of avoiding memories and emotions relating to past trauma.

28. The report states he expressed remorse saying he was horrified at the way he was carrying on leading up to his arrest in respect to the amount of heroin he was using and saying that he was not thinking past the next shot but has since considered the impact of these offences on the community.

29. As to his development he describes being locked in a dog kennel with his mother by his father and having seen significant violence. The report states he was locked in the kennel for up to a week at a time. Whilst it is noted elsewhere that there is an issue of the reliability of the offender, I accept this evidence to establish that being locked in a kennel was not a one off occurrence, but rather a method of punishment. His father was an alcoholic who died from lung cancer when the offender was 13. He witnessed his father break his mother’s arm and saw her miscarry and then his father refused her medical attention.

30. Prior to the sex abuse in year 7 he enjoyed school and the psychologist suggests he viewed school as a safe place away from home. The sexual abuse occurred on two occasions where the teacher forced him to give oral sex. Following this he refused to return to school and was sent to a behavioural school. He disclosed this within the last six years and there is a civil matter pending.

31. The offender worked in the roof tiling industry from the age of 15 but that has been impacted by his drug use. The offender has been on a Disability Support Pension since 2021 due to back and leg injuries.

32. So far as his drug use is concerned it began with cannabis at age 14 and then amphetamines in his mid 20s and heroin in his mid-40s and I note he is now in his mid-50s. There has been intermittent use of methylamphetamine. He has been on a methadone program since 2010 and has had two occasions of residential rehab. He says he has not been on opioid maintenance since September 2024. This corresponds to the assertion that he has been on the Buvidal programme for about 10 months.

33. Prior to arrest he was using up to 3.5 g of heroin per day (despite being on the methadone programme) plus using methylamphetamines and it was the need to support this habit that led to the offending.

34. The offender told the psychologist that after the childhood sexual abuse he felt shame and became somewhat withdrawn. He has intrusive memories of his trauma both due to his father’s conduct and the sexual abuse and this contributed to drug use.

35. To assist him in dealing with these traumas he has received counseling through victim services. Whilst at Clarence Correctional Center he was segregated and the significant isolation he experienced led to a decline in his mental health and also triggered memories of the dog kennel experiences. The offender’s claims of this being for 4 months were contradicted by records from the Clarence Correctional Centre put in evidence by the Crown, which showed he was only at the centre for 2.5 months, and the time in segregation there was at his request.

36. He has a 32-year-old son from a 10 year relationship in his 20s and is presently in a relationship that began in 2020. There was also in attendance at the hearing his ex wife and a daughter, who I infer is the stepdaughter referred to in Ms North’s report.

37. A psychometric test placed the offender in the middle range for anxiety symptoms. Further testing placed him in the moderate range for depressive symptoms.

38. The report notes he has spent up to 10 years in custody for past offending. The opinion voiced unsurprisingly is that drug use is the main criminogenic factor and as such that must be addressed.

39. As to his mental health it is not said that he is diagnosed with PTSD though the psychologist suggests that his intrusive memories and social withdrawal allow for a provisional diagnosis pending further assessment.

40. His future plan is to maintain his current abstinence and to engage in treatment and to live with his partner and nearby his elderly mother to provide her with care. The offender accepted he would benefit from a period of extended support in the community, which he was willing to undertake, and the service provided by Samaritans is suggested as well as continuing with a victims services counsellor.

41. In addition to the provisional PTSD diagnosis he was also diagnosed with an opioid use disorder and stimulant use disorder in sustained remission in a controlled environment.

42. The offender also relied on a letter he had written to the court (exhibit 2). In that letter he states he has had drug addictions for over 20 years, and his current period of abstinence is his longest in that time. He refers to the counselling he has undertaken and submits this reflects his commitment to change. He states he realises the damage his behaviour has caused, and seeks a result other than a full time custodial sentence. He expresses regret for his behaviour, and says he will not offend again.

43. The offender also relied on medical records from Justice Health (exhibit 3). These records refer to his spinal condition, and reference is made to compression of the thecal sac, and to suspected infection of certain facet joints. Those records were dated March 2024. The next record is dated February 2025 and refers to a knee and hip operation and consequent soreness. A final record from April 2025 refers to his buvidal injection and a previously broken femur.

Consideration

44. Section 3A CSPA provides that the purposes of sentencing are as follows:

(a) To ensure the offender is adequately punished (b) To prevent crime by deterring the offender and others from committing similar offences (c) To protect the community from the offender (d) To promote the rehabilitation of the offender (e) To make the offender accountable for his actions (f) To denounce the conduct of the offender (g) To recognise the harm done to the victim of the crime in the community

45. I accept the submission for the offender that the history he gives, if accepted, establishes a deprived background so as to attract the principles of Bugmy. Although there is reason to be guarded in accepting what the offender has asserted when not on oath because of the disparity between his claims and the facts relating to his time at Clarence Correctional Centre (see exhibit C), I do not consider that his claim should be rejected. On that basis there is a history of an alcoholic father who was violent which pervaded his life until the age of 13. In addition to that at about that age he suffered two occasions of sexual abuse. Not long after misuse of drugs began. It is obvious that this background and abuse has had an impact on the direction of the offender’s life.

46. The Crown accepted that there was a causal link between his childhood background and abuse and dissent into drug use. The Crown referred to Dungay v R [2020] NSWCCA 209 at [139] which makes the point that whilst full weight needs to be given to Bugmy factors in each case, that is full weight to the background of disadvantage and/or abuse that is not to say that those factors are given the same weight in every case. The Crown’s argument was that the effect of any reduction in moral culpability as a result of the offender’s background on the ultimate sentence may be affected by other considerations. I accept that is the correct approach.

47. Accordingly in arriving at the appropriate sentences, the lesser moral culpability will be taken into account along with all other factors such as the seriousness of the offending and the various purposes of sentencing.

48. The accused's primary submission was that this was a cross roads moment for the offender. At first blush one would think that argument is somewhat ambitious given his age and extensive history and the multiple opportunities he has had in the course of his long history of offending to contemplate a change of life. Perhaps put another way, what the offender is arguing is that there are a number of factors present at the moment not previously present which gives a basis to consider that his prospects are more favorable than previously. The one significant change is his ability to have remained abstinent for a lengthy period in custody due I infer to the success of the buvidal programme. Yet left unexplained is his assertion to the report writer that he wished to discontinue pharmacological support when in the community. That is such an odd remark in the scheme of this case that one is tempted to put it aside as an anomaly yet there were no submissions that he had not said that to the report writer. Perhaps it suggests a desire to remain abstinent without support, yet there was no evidence to elaborate on the length of the buvidal programme, and it is plain the offender needs much support. There are other negative remarks made by him recorded in that report as has been set out above. Favourably for the offender he would appear to have the support of friends and family given the references to his mother, ex-wife and daughter. In my view the offender is a person who looked at as positively as reasonably can be realises he has to change his lifestyle and deal with his drug addiction but who at the same time is so entrenched in that way of life has difficulty in appreciating what he needs to do to affect meaningful change.

49. The offender seeks a finding of special circumstances which the Crown does not oppose and with the debate being as to how significant an allowance that should be. The reasons given for the finding of special circumstances are the need for an extended period of supervision to assist him to remain abstinent in the community in the way he has been able to remain abstinent in a controlled environment. There is also argued to be unusual difficulty for him in custody. Whilst he has been shown to be inaccurate concerning his periods of segregation he has been segregated on his account due to his concerns about retribution from those he was dealing with in committing the crimes and in particular those to whom the quantities of heroin and methylamphetamine relating to the section 25 (1) charge belonged. There is also his health condition as reflected by the medical records. Those health records do not show necessarily severe physical difficulty but there is reference to infection near the spine and to compression of the thecal sac which are matters which I accept could cause significant discomfort and there is also his history of a broken leg with possibly rods and screws in place. I accept the finding of special circumstances should reflect these matters. I do not consider that his desire to care for his mother should be given much weight; whilst the report states he has been his mother’s carer, suggesting he cared for her and perhaps resided with her, I find it difficult to accept that he has been of much assistance in the past given his heavy drug use; the more likely scenario is that his mother has been able to provide him with a place to stay. Nevertheless, as just stated it will be given some, though limited, weight.

Conclusions

50. I have made various findings above both favourable and unfavourable as to the offender’s subjective case. The main argument put was a “crossroads” argument. On balance I am not satisfied that the offender is at a “crossroad” based on my above considerations, particularly given my finding that on the evidence the offender has difficulty in appreciating what he needs to do to effect meaningful change to his lifestyle.

51. Whilst I have accepted much of what was argued for the offender the case needs to be looked at more broadly than simply focusing on his rehabilitation and other subjective matters. The process is one of instinctive synthesis, taking into account all relevant considerations. The submissions of the accused of course suggest that his prospects and the risk of reoffending should be viewed favourably to him. I accept that there is a need for emphasis on his rehabilitation. However given his lengthy criminal history and my finding that the offender appears to be a person lacking a full appreciation of what is required of him to change his lifestyle any assessment of his prospects must be guarded as should any favourable view of the likelihood of reoffending. In this regard the Crown argued that there was need for an emphasis on specific deterrence.

52. In drug offences such as these it is necessary for there to be a significant component of general deterrence, allowing for any relevant subjective features of the offender, and the need to recognise the harm done to the victims of the crime and the community. This extends to the section 25(1) charge for although those drugs did not reach the market it is the engaging in that type of activity that sees drugs in the community. There is also a need for the offender to be held accountable and for his conduct to be denounced.

53. The offender had a traumatic childhood in his home due to his violent father, compounded by being sexually abused. Those factors, and the causal link they have to the path to drug use, and so in a broad view the link they have to the offending in question, result in the sentence being less than it would otherwise be. I have accepted the submission for the offender that Bugmy principles apply.

54. The subjective case of the offender suffers due to his long term involvement in crime and drugs, which suggests, and I find, the rehabilitation is not more than likely. The inconsistencies in his case are troubling; he is plainly wrong in his assertions as to his time in segregation in custody, and the asserted desire to remain on buvidal is contradicted by the Sentencing Assessment Report. These matters raise a need for caution in accepting the offender’s statements of remorse and assertions that he has reached a cross roads. That said I accept the offender is remorseful.

55. On the other hand, he is presently on the Buvidal programme, and has in fact been abstinent for a lengthy period, albeit in a controlled environment. The offender has also performed satisfactorily when under supervision in 2022. The offender has been on a disability support pension since 2020, and the medical evidence does show that it is likely custody would be more difficult for him for that reason.

56. The conclusions I reach as to the offender’s subjective case is that the assessment of his prospects of rehabilitation must be guarded, and the likelihood of his reoffending is at best in line with the assessment in the Sentencing Assessment report, namely a medium risk.

57. Set out below is a table indicating the various offences and summarising my findings as to objective seriousness, and setting out the maximum sentence and the indicative sentences I have arrived at for each charge both before and after the discount. The discount of 25% on account of the timing of the offender’s plea has been applied to the indicative sentences and the indicative sentences for sequences 29, and 41 take into account the relevant Form 1 matters that relate to those sequences. It is to be noted that I do not consider that sequences 32 and 34 pass the section 5 threshold. This is because of the reasoning of Redfern referred to above in the case of section 34 and in respect of section 32 it is because so little is known about the weapon in question and the facts simply demonstrate possession. In the circumstances where there will be a significant term of imprisonment I have dealt with sequence 34 by way of section 10A noting that the Crown conceded in that matter that no additional criminality arose from the Form 1 matter relating to that offence.

58. The aggregate sentence reflects a significant degree of concurrency in line with the principles set out in Cayhadi. The offending occurs in a period of approximately three months and in my view should be viewed as a continuing course of conduct. Viewed in a broad way four of the six offences (if the proceeds charge is put to one side) represent his conduct in the one activity of drug supply. It is appropriate to apply the principle of totality.

| Seq | Section | Offence | Obj ser | Max | Ind | After disc | | 27 | s25A DMTA; | Supply prohibited drugs on ongoing basis | Below mid | 20 | 4 y | 3 y | | 28 | s25A DMTA; | Supply prohibited drugs on ongoing basis | Similar but less than seq 27 | 20 | 3 y | 27 m | | 29 | s36(1) FA | | | | | | | +F1 x 3 | Possess unregistered firearm | Low | 14 | 18 m | 13 m | | | 32 | s34(1) WPA | | | | | | | +F1 | Possess prohibited weapon contrary to prohibition order; butterfly knife; max 10y | Low | 10 | s10A | s10A | |

59. The result arrived at is that there should be an aggregate term with a non-parole period of 4 years and with a balance of term of three years. This provides for a period of special circumstances which when reduced to an actual period of time as opposed to a percentage allows an additional 15 months under supervision and that much time less to endure the more than arduous custody conditions given the facts found. It will mean that there will be a total of three years under supervision to give the offender a lengthy period under supervision that is plainly called for given his long-term drug abuse and his present age.

Orders

1. In respect of sequence 34 the charge is dismissed under s10 CSPA.
2. In respect of sequence 32, pursuant to section 10A of the CSPA a conviction is recorded without any further penalty.
3. In respect of sequences 27, 28, 29, 38 and 41 the offender is convicted.
4. The indicative sentences in respect of sequences 27, 28, 29,38 and 41 are set out above after the application of the 25% discount and taking into account the relevant Form 1 matters for sequences 29 and 41.
5. The offender is sentenced to an aggregate term of imprisonment with a non parole period of 4 years to date from 17 May 2024 and expiring on 16 May 2028, and with a balance of term of 3 years expiring on 16 May 2031.

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