R v Foster

District Court of NSW|2020-10-14|Before: Spigelman CJ

Introduction

The offender was born on 4 August 1981 and so is presently 39 years old. The date of the offending is 13 November 2019 so that the offender was 38 years old at the time of the offending. The offender has been in custody since his arrest on 13 November 2019. He was at that time on parole in respect of firearms offences and an offence of drug supply, which also describes the offences he is being sentenced for now.

Charge, maximum sentence, SNPP

The offender appears the sentence in respect of four charges with a further three charges to be dealt with on a form 1. The charged matters are sequences 1, 6, 9 and 10 and the form 1 matters are sequences 2, 5 and 7. Sequences 1, and 10 are offences under section 7 (1) of the Firearms Act with each having a maximum penalty of 14 years imprisonment and a standard non-parole period of four years. Sequence 6 is a charge under section 7 (1) of the Weapons Prohibition Act with a maximum penalty of 14 years imprisonment and a standard non-parole period of five years. Sequence 9 is a charge under section 25 (1) of the Drugs Misuse and Trafficking Act which has a maximum penalty of 15 years imprisonment and/or 2000 penalty units. There is no standard non parole period. The three form 1 matters are possessing an unauthorised pistol, possessing a prohibited weapon and possessing a prohibited weapon; the two weapons are a slingshot and a taser.

Form 1 procedure

In regards to the Form 1 procedure it is important that the focus remains on the principle 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.

Standard non-parole period

The standard non-parole period is to be considered a guidepost in the same way as the maximum sentence may be considered a guidepost. I note that at [29] of Muldrock it was said that Division 1A requires sentencing judges to state fully the reasons for arriving at the sentence imposed. In discussing what was required by section 54B(4) which was to the same effect as the current section 54B(3), the Court said that "the obligation applies in sentencing for all division 1A offences regardless of whether the offender has been convicted after trial or whether the offence might be characterised as falling in the low middle or high range of objective seriousness for such offences". The obligation being referred to was the central purpose of division 1A, to require sentencing judges to state fully the reasons for arriving at the sentence imposed.
In complying with the obligations of Division 1A there will be noted the fact of the early guilty plea and the range of other matters considered below, both objective and subjective.

The facts

The Crown bundle was tendered without objection and became exhibit A. It included a statement of agreed facts. Those agreed facts disclose the following. On the day of arrest police attended the offender's residence on an unrelated matter. They entered the premises and looked around. They found in those premises the six items which make up three of the charge matters and the three form 1 matters. In respect of the charged matters the three relevant items were an airgun which has the appearance of a pistol in respect of sequence 1, a crossbow which was the prohibited weapon in respect of sequence 6 and another airgun in respect of sequence 10, which I would describe as having the appearance of a semiautomatic weapon, albeit somewhat plastic looking. I should add that these descriptions are based on photographs in the agreed facts which range in size from approximately 3 cm x 4 cm to 3 cm x 5 cm. The whole of the six photographs appear on less than half a page. In particular item 1 relevant to sequence 10 has a particularly plastic look to it on the photograph, it being the item that I described as something like a semiautomatic weapon. The point being the evidence does not clearly depict the items.
In respect to the form 1 matters sequence 2 is another airgun, sequence 5 is a slingshot and sequence 7 is a prohibited weapon said to be a taser. In evidence led from the offender on the sentencing hearing these items were given a very different characterisation as being toys.
Also when in the premises the officers found a plastic bag containing a substance later analysed and found to be 4.39 g of methyamphetamine which constitutes the sequence 9 section 25 charge.
In relation to the firearms and weapons the offender said he had them for a long time and they were just toys and that he bought them online.
The offenders phone was seized which showed a series of SMS messages of communications clearly showing that he was being asked to provide drugs with him agreeing to do so.

Objective seriousness

The Crown submitted that the objective seriousness of this matter was between the low and mid range is and put it closer to the mid-range. The offender submitted that the court could not be satisfied that the drugs were not being held for his personal use. The SMS messages count against this submission. The case has proceeded on the basis of the offender having a history of substance abuse and it seems likely to me that there was a dual purpose for any drugs in his possession namely to supply and also for his own use. The SMS messages portray a very low level, unsophisticated ad hoc operation and indeed to call it an operation is perhaps to overstate it. Any supply is at a very minor level and in my view that offence should be viewed as being in the low range.
In respect of the weapons and firearms offences it was submitted that there was no suggestion of possession for sinister purposes. That seems to me to be a submission with greater force in relation to the possession of the crossbow and the slingshot which strike me as unlikely weapons to possess for the purpose of criminal activity. The offender's evidence as to the air guns was that these were toys and are what are referred to as "gel blasters" in that they do not fire bullets but fire small plastic balls containing some kind of gel analogous perhaps to a paintball activity. The offender says he had possession of these by buying them over the Internet and having them delivered to his door and made the point that they are legal in Queensland. None of this was gainsaid by the Crown. The offender further said that he was trying to bond with his son and this was a more affordable way of engaging in some activity rather than paying to go to a paintball facility. The text messages reveal communications between the son and the father relating to drug supply and the father/offender conceded in his evidence that he had introduced his son to ice. There must be serious reservations about the suggestion that a father with the history of the offender and with a history of introducing his own son to the use of ice in his teenage years is the selfsame father jumping around the backyard playing gel blasting games.
That said I would consider the weapons and firearms offences to be low in terms of objective seriousness for the reason that they do not fire bullets and I consider there is insufficient evidence for me to make an adverse determination to the offender as to just what the items were used for. Whilst I am not convinced about the gel blasting games, nor am I convinced they were used for criminal activity though I consider that the more likely reality. The difficulty with that is that at least at the time of this arrest the criminal activity of the offender was so lowbrow. I would consider all the three charged offences involving firearms and weapons as being in the low range and with the sequence 7 being the crossbow the lowest of the three.

Section 21A.

The Crown relied on two aggravating features. The first is the offender's criminal history which as will be demonstrated when I refer to it below is one that contains offending of the same nature as the current offending. The second is that this offending occurred whilst on parole as noted above. The offender was on parole in respect to a sentence which was imposed on 14 September 2017 of four years and six months to commence on 19 July 2016 and concluding on 18 January 2021. The non-parole period was two years and three months and thus expired on 18 October 2018. In March 2019 he was in fact convicted for an offence committed in December 2018 and went back to prison and was then released a second time on parole on 26 July 2019 and then committed these offences in November 2019. I have taken these matters into account.

Subjective case

A sentencing assessment report dated 12 October 2020 formed part of the Crown bundle. It shows that Mr Foster has the support of his mother where he was living at the time of his arrest and who is still prepared to support him. He has a place to go upon release. It also shows that he does have an employment history and was in fact working after his most recent release from prison. Consistent with what he said in evidence work dropped off and he became bored and became involved in substance abuse again. The offender reported a long history of substance abuse and says this has reduced but acknowledges he needs help to prevent relapse. He referred to negative associates leading to drug use. In terms of his mental health there was reference to past traumas but there is really no evidence to suggest that there has been any significant social disadvantage experienced by the offender. The report does note that the offender had some insight into his offending behaviours and identified areas where he needs interventions and that he needs to address. On the other hand the report notes that there has been resistance in the past to engage with intervention services. He was willing to undertake community service work and to undertake interventions.
His offending history whilst on parole referred to above shows a poor response to supervision. That and his criminal record would not give any confidence of there being a low likelihood of reoffending and for that reason there is much merit in the medium high risk of reoffending arrived at by the report. The counter case to this was put by the offender in his evidence before the court. He gave evidence of suffering numerous assaults and an extortion attempt in this current term of imprisonment the likes of which he has not experienced before.
With all due respect to the offender I found much of his case very unpersuasive such as to suggest these items were simply toys and the crossbow was an item he would like to hang on his wall, and that he was playing with his 19-year-old son to whom he had introduced drugs. I also found unpersuasive that he attributed relapsing into drug use, having not long before been in prison for some two years and three months, due to boredom. This does not augur well for his prospects. Having said all that however the manner in which the offender told of his experiences in prison in the past 11 months was compelling. Despite all the indicators against the reliability of what the offender was saying in other respects I accept that he has a greater determination to avoid going back to prison and whilst I have my reservations I am prepared to accept that he is at a point where at the age of 39 he would like to enjoy a life free of the stresses of custody. In short I consider his resolve is possibly greater now than it was at any other time. That together with the support of his mother and his previous ability to find employment suggest that his prospects are better than poor.
Consistent with that view was a letter from the chaplain of the Clarence corrective centre who first met the offender in 2012. He refers to a "very serious experience" the offender had in January 2020 being a reference to one of these gaol incidents and says he believes this has helped the offender come to a point that he wants to make a change in his life.

Guilty plea

I find the offender is entitled to the 25% discount for entering his plea at the earliest time. There is no dispute on this point.

Criminal history

An incomplete summary of the offender's criminal history reveals the following: Year Nature of offence Sentence 2000 Common assault 2009 Threaten violence 4 months susp 2011 Possess drugs, Firearms and suspected stolen goods; also assault; call up; Bond 2012 Possess unregistered firearm; 6 months imp 2012 Manfacture drug 20 months; npp 1 year 1 month 2014 Manufacture drug 14 weeks? 2015 Possess firearm 6 months 2016 charges Supply drug more than indictable quantity; possess unauthorised pistol; possess prohibited weapon without permit; possess ammunition (form 1); possess prohibited drug (form 1); not keep pistol safely (form 1) 4 ½ y ending 18.1.21; npp 2 y 3m ending 18.10.18 2018 Possess drug 4 months And various non fingerprint matters Includes 4 months for assault susp in 2014

Favourably for the offender this record suggests that he managed to reach the age of 28 before committing to an antisocial lifestyle. Adverse to him is that since that time he has repeatedly engaged in serious criminal conduct involving drugs and firearms. With this record it is a difficult proposition to accept that it is only now that he realises that being incarcerated is not a pleasurable way to lead your life. He says his "lightbulb" moment has come due to the assaults that he has suffered in that time.

Prospects

I have commented on the likelihood of reoffending and as to the offender's prospects above. The offender read to the court a letter he had written which I consider was heartfelt although perhaps born as much as of self interest in wanting to get out of prison as it was as any apology for his offending. Again despite my reservations there is something in the evidence and demeanour of the offender that I consider does display remorse and contrition and perhaps a better understanding of the inappropriateness of his antisocial behaviour than existed before.

Sentencing considerations

A key factor in assessing the seriousness of early forms of firearm offences was considered to be the purpose of the possession. Then in R v Tolley [2004] NSWCCA 165 it was said "the courts must seek to implement the policy of the existing legislation and that is to control the possession and use of firearms in the community by honest citizens and not simply to disarm the criminally minded". In R v Najem [2008] NSWCCA 32 it was said that the rationale behind section 7 (1) of the Firearms Act included at least a recognition that firearms and pistols if possessed are likely to be used and therefore a source of danger.
In arriving at the conclusion that I arrive at I have been influenced by the fact that these weapons do not fire bullets in the sense that that word is commonly understood. There was no submission by the Crown that these were deadly weapons beyond the prospect that should someone be struck for example in the eye an injury of significance could occur. Further whilst I hold a great suspicion as to precisely why such items may be found in the possession of a small-time drug dealer with the criminal history of the offender, the evidence simply is incapable of satisfying me beyond reasonable doubt that the purpose of possessing these items was a criminal one.
At the same time there was no submission that these items were not relevantly firearms or weapons. I note the definition of firearm in the Firearms Act expressly refers to airguns. It is also relevant to note that there is a Paintball Act and a firearm does not include a paintball marker within the meaning of the Paintball Act. Further the Firearms Act catches imitation firearms, that is an object that duplicates in appearance of a firearm. Darestani v R [2019] NSWCCA 248 was a case involving the issue of imitation firearms. In that case upon conviction of two counts of possession of such an object the sentence at first instance was 2 years. In that case the imitation weapons were used to threaten.
I am conscious of the purposes of sentencing set out in section 3A of the Crimes Sentencing Procedure) Act. They are in short: 26.1. to ensure the offender is adequately punished; 26.2. both general and specific deterrence; 26.3. to protect the community; 26.4. to promote rehabilitation of the offender; 26.5. to make the offender accountable for his actions; 26.6. to denounce the conduct; 26.7. to recognise the harm done to the victim and community.
In my view the purposes of sentencing most relevant in this case are personal deterrence and also general deterrence in respect of both the firearms matters and the drug matter. Protection of the community is also clearly relevant, though the purpose of protecting the community in this case seems to me to be somewhat tempered by the nature of the weapons as just discussed. In terms of the drug matter, again deterrence and community protection, as well as denunciation need to be recognised. That said soberly looked at given the nature of the drug supply in question the most likely person to be damaged is the offender and the level of damage or risk to the community of the weapons is of a different character altogether from weapons that fired bullets.
I have considered some authorities listed in the judicial commission website dealing with cases having standard non-parole periods which were appealed to the Court of Criminal Appeal, eg Taha v R [2019] NSWCCA 240, but the factual differences mean little guidance is given.
The nature of the offending however and their seriousness is reflected in the maximum sentences and standard non parole period where applicable, together with the aggravating features persuades me that the matter does reach the section 5 threshold. I propose proceeding by way of an aggregate sentence and in order to do so must first set out the indicative sentences for each of the charges. Each of the indicative sentences allows for the 25% discount. I note that the three form 1 matters are to be taken into account when sentencing for sequence 10 which was the offence of possessing an unauthorised prohibited firearm which by reference to the photographs is the arguably plastic looking semi automatic appearing gel blaster. The indicative sentences are: 29.1. Sequence 1 (possess unauthorised pistol) 9 months 29.2. Sequence 6 (possess prohibited weapon; crossbow) 6 months 29.3. Sequence 9 (supply of 4.39g of methylamphetamine) 9 months 29.4. Sequence 10 (possess unauthorised firearm, and taking into account the 3 form 1 matters) 12 months.
Given the similarity in the character of the weapons and that the possession was all at the same time my view is there should be a significant degree of concurrency reflected in the aggregate sentence. In relation to totality I note that in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27] it was said: "[T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two 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."
Bearing this in mind my view is there should be a total term of imprisonment of two years and three months. As to the start date of that sentence I note the offender has been in custody since 13 November 2019 and that his parole period for his revoke parole does not expire until 18 January 2021. My view is that the present incarceration reflects punishment in part for the current offending and I will set the sentence to commence from 27 April 2020 and expiring on 26 July 2022.

Special circumstances

I accept the submission that special circumstances can be found in this case due to the need for rehabilitation. I am also persuaded to accept that the offender is enduring a more difficult time in prison for the reasons he stated in his evidence which was supported by the fact that he is presently in protection. I therefore set a non-parole period of 14 months to date from 27 April 2020 and expiring on 26 June 2021.
I consider this to be the "minimum period the offender must spend in gaol, having regard to all the elements of punishment, including the objective seriousness of the crime, deterrence and subjective circumstances", as per R v MA [2004] NSWCCA 92 at para 33
I note that the non-parole periods are less than the standard non-parole period for sequences 1,6 and10. The reason for that is due to the 25% discount for the early guilty plea and the particular facts and circumstances outlined above not least of which is my assessment of the matters being less than the middle range of seriousness.
Had I not preceded by way of an aggregate sentence I would have set a non-parole period in respect of sequences 1, 6 and 10 of 5, 4 and 5 months respectively.

Orders

Taking all of the above matters into account, including the Form 1 matters and the 25% discount for the guilty plea, I arrive at a non-parole period of 14 months with a balance of term of 13 months.
I make the following orders:
Joel Michael Foster for the offences charged under section 7(1) of the Firearms Act, under s7 of the Weapons Prohibition Act, and under s25 DMTA you are convicted.
I sentence you to a non-parole period of 14 months to commence from 27 April 2020 and expiring on 26 June 2021 with a balance of term of 13 months expiring on 26 July 2022.

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: 02 November 2020

Drugs Misuse and Trafficking Act 1985(NSW)

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