R v Green

EVENTS OF 11 FEBRUARY 2021 2. At around 1.50am on Wednesday 11 February 2021, the offender was seen by police driving a white sedan into the 7-Eleven service station in West Gosford. Police conducted checks on the vehicle. 3. Police followed the vehicle and pulled it over in Wall Street, West Gosford. 4. Further checks were conducted on the vehicle. The offender and passenger were identified as having warnings in relation to drug supply in the Central Coast area. 5. Police formed a suspicion that the offender may be in possession of prohibited drugs and instigated a search of the offender and the vehicle.

H81135786 Sequence 1 supply prohibited drug, more than indictable quantity, less than a commercial quantity, s 25(1) Drug Misuse and Trafficking Act 1985 (s 166 related offence). 6. When asked by police if he had anything in the vehicle that should not be there, the offender stated, "I've got a little bit of shit in my pants." He was then asked to exit the vehicle, at which point he confirmed that he had some MDMA in his possession. The offender then produced a plastic bag wrapped in a material bag from the front of his trousers, that contained a brown, powdered substance. 7. The contents of the bag were later confirmed via forensic testing to be methylenedioxymethamphetamine (MDMA) and weighing 3.25 grams. This is over four times the trafficable quantity of MDMA, and over 2.5 times more than the indictable quantity of 1.25 grams. [It is of course considerably less than a commercial quantity.] 8. During the course of searching the vehicle, police located and seized an A5-sized Quill paper notebook and some loose A5-sized pieces of paper that appear to have been torn from the notebook. Contained within these items were several pages titled "Tick List", with handwritten names and corresponding figures next to them. Another book seized from the vehicle included a page divided into columns with the headings "Names", "Quantity", "Price" and "Paid". Fingerprint analysis later detected the offender's fingerprints on two of the lists and the front cover of the Quill-branded notebook. 9. Police located a black-coloured Gucci-branded bag in the vehicle, which the offender confirmed belonged to him. A large number of small, resealable plastic bags, often used in the process of drug supply, were found inside this bag.

H81135786 Sequence 2 Possess Prohibited Drug, s 10(1) Drug Misuse and Trafficking Act 1985 (Form 1) 10. Inside the black Gucci bag, police also located a clear plastic bag containing green vegetable matter. When asked about this, the offender confirmed, "It's mine." Another black plastic bag with more green vegetable matter was also found inside the Gucci bag. When asked about the contents of the black plastic bag, the offender said, "Yep, it's mine. It's pot." 11. The combined contents of both bags of pot (cannabis) were later weighed in the presence of the offender and found to total 5.67 grams.

H81135786 Sequence 3 possess prohibited drug s 10(1) Drug Misuse and Trafficking Act 1985 (Form 1) 12. Police searched the contents of the offender's wallet where they located a small resealable plastic bag with a residue of white powder in it. When asked about the contents of the bag, the offender confirmed that it was cocaine and that it belonged to him. 13. The combined weight of the drug and residue was later confirmed to be 0.15 grams [As the weight of the bag and its contents was slightly over one‑tenth of a gram, it is apparent that the bag itself was responsible for most of the weight, and the cocaine content must have been effectively the residue of what had been at some stage in the bag. I would infer that, having been found in the offender's wallet, it was the result of the offender having on some previous occasion or at some previous time consumed himself the content of the bag and left the plastic bag with the residue in his wallet. In my view, in the circumstances of there only being residue left in the bag, it is not a significant offence.]

H81135786 Sequence 6, Unauthorised possession of a pistol, s 7(1) Firearms Act 1996

Sequence 7, Not keep firearms safely, s 39(1)(a) Firearms Act 1996 (Form 1)

Sequence 9, Possess unregistered pistol, s 36(1) Firearms Act 1996 (Form 1) 14. While searching the offender's vehicle, police found a pistol‑shaped firearm under the driver's seat. The weight of the pistol was indicative of it being loaded. 15. When asked about the firearm, the offender stated, "It's mine." When asked what it was, he said: "No comment." When asked whether the pistol shot real bullets, the offender again said, "No comment." 16. The firearm was seized and transported to Gosford Police Station where it was rendered safe by removing the magazine which contained six .22 calibre bullets. 17. Examination of the firearm by a ballistics expert confirmed that it was operational and that it met the definition of a prohibited pistol per the definition at s 4C of the Firearms Act. 18. Enquiries confirmed that the pistol found in the offender's possession was not registered in accordance with the requirements of the Firearms Act. 19. The offender was placed under arrest and transported to Gosford Police Station where he declined the offer to participated in a recorded interview, as was his right. However, he consented to a forensic procedure. The offender's mobile telephone was seized at the time of his arrest and the contents examined.

ADDITIONAL CHARGES 20. Further police investigations revealed that the offender had signed a standard self-storage agreement form using his driver's licence as identification to take out a lease of a storage shed at the Storage King facility at Lisarow on 20 January 2021. A review of the security system at Storage King showed that the offender had entered the facility on a number of occasions between 20 January and 1 February 2021, having been captured on CCTV carrying various items in.

H81222278 Sequence 1, Possess more than three unregistered firearms including pistol or prohibited firearm, s 51D(2) Firearms Act

Sequence 2, Not keep firearm safely - prohibited firearm, s 39(1)(a) Firearms Act (Form 1)

Sequence 3, Not keep firearm safely, not pistol/prohibited firearm, s 39(1)(a) Firearms Act (Form 1) 21. At 3.15pm on 1 March 2021 police executed a search warrant at the storage shed leased by the offender. In addition to finding a large cardboard box containing a range of documents in the offender's name, they located a brown rifle bag containing the following firearm: a .22 calibre Savage bolt action rifle model 246 (serial number C175587) fitted with a Nikko Stirling Mountmaster waterproof scope and a silencer. An empty shell case was removed from inside the chamber of the rifle. The ballistics investigation section of New South Wales Police later confirmed that, with the silencer fitted, the rifle met the definition of a prohibited firearm pursuant to the Firearms Act. The rifle was determined to be in working order. Police also found a large grey‑coloured bag with the word "Tentworld" printed in white letters on the side. This bag matched the one that the offender was captured on CCTV carrying into the storage facility on 21 January 2021. Inside this bag, three separate vacuum-sealed bags were found containing the following firearms: 1. Winchester Model 370 break action shotgun (serial number 374265). The ballistics investigation section later confirmed that this gun met the definition of a firearm pursuant to the Firearms Act and it was determined to be in working order. 2. A.22 long calibre Fabrique Nationale model trombone pump action rifle (serial number 134749). The ballistics investigation section later confirmed that this gun met the definition of a firearm pursuant to the Firearms Act. The rifle was not found to be in working order. 3. A short .22 long rifle calibre Lithgow model 1A bolt action rifle (serial number 119007). The ballistics investigation section later confirmed that the rifle met the definition of a shortened firearm pursuant to the Firearms Act 1996. [There is no evidence contained in the facts as to whether it was in working condition or not. As to the long calibre Fabrique Nationale trombone pump action rifle, there is no information as to what fault meant that it was not in working order, and accordingly, how readily that may have been corrected.] 22. Fingerprint and DNA analysis conducted at the storage shed, and on the contents, confirmed that the offender had been present at the shed and had handled a number of the items seized. 23. The manner in which the firearms were stored in the facility did not comply with the requirements for safe keeping as detailed in the Firearms Act 1996. [I note that each of the four weapons located in the storage shed was found to have a serial number. No information has been placed before the Court as to any investigation of the police authority's data bases to determine any relevant information in relation to any of those weapons which may or may not have been recorded by way of their serial number.) Also tendered as part of the Crown bundle were a number of photos of the firearms. As to the .22 calibre long rifle Lithgow model 1A bolt action referred to as "shortened," it is apparent from the photograph of it that the stock had been shortened as well as the barrel, to give it the appearance of a bolt action pistol.]

H81222278 Sequence 4 Possess ammunition without holding licence or permit or authority s 65(3) Firearms Act 1996 (Form 1) 24. A plastic resealable bag containing assorted ammunition was also found in the grey Tentworld bag. Ballistic investigation section later confirmed that the bag contained 155 cartridges of different sizes/calibres all meeting the definition of "ammunition" pursuant to the Firearms Act. (There is no information contained in the facts as to what particular calibres, sizes or shotgun cartridges may have been found and their suitability for any of the weapons.) 25. The offender does not possess a licence or permit to possess ammunition.

H81222278 Sequence 12, Supply prohibited drugs on an ongoing basis, s 25A(1) Drug Misuse and Trafficking Act 26. Examination of the contents of the offender's mobile telephone seized by police upon his arrest on 11 February 2021 identified the following instances of the offender supplying prohibited drugs between 11.19pm on 22 January 2021 and 12.04pm on 6 February 2021, a period of less than 30 consecutive days, being approximately 13 days. a) From 11.19pm on 22 January 2021 to 7.19am on 23 January 2021 the offender communicated with a James Chappell via Facebook Messenger. Chappell instigated the communication, asking what the offender had available and for what price. The offender indicated that he had "just got some quality M" (MDMA) priced at 150 a gram. Chappell asked the offender if he "does capsules." The offender confirmed that he does for $20 each and then agreed to supply and deliver six capsules for $150, including $30 for fuel. The offender later indicated that he could not provide the capsules but could only supply the same amount in a bag. Chappell asked how much was in the bag alternative to a capsule and the offender responded .6. Six capsules would contain 3.6 grams of MDMA. b) Between 7.01am and 7.09am on 23 January 2021, the offender exchanged messages with mobile telephone number ending 742. The offender asked the other party, "What you need?" to which the other party said, "Just one bag bro." Delivery to a Shelley Beach address was then discussed. The facts indicate that it is accepted that the communications related to a bag of cocaine weighing one gram. c) Between 8.03am and 8.37am on 23 January 2021, the offender engaged in a Snapchat conversation with a Jai Treadwell. Treadwell said, "Just the two bags of coke" and "Don't worry about the MDMA." The offender offered to drive Treadwell to an ATM and Treadwell asked the offender, "How much cash?" Delivery was then facilitated to the bottle shop at "Copa" (Copacabana being a suburb on the Central Coast). d) Between 12.54pm and 2:46pm on 1 February 2021, the offender offered, "$120 for a G of cracka M" (MDMA) to a Karma Graham on Facebook Messenger. Graham responded that she did not have the funds available, but otherwise would "be onto it." e) Between 8.08am and 11.17am on 2 February 2021, the offender communicated with a Nick Cook via Facebook Messenger. The conversation started with the offender asking, "You know anyone keen on M?" (MDMA). Cook asked the offender, "Got much or limited stocks?" and indicating his intention was to on-sell what he obtained. The offender offered to supply a "Q" (seven grams) to Cook for "650." Cook replied, "I'm happy to do that and I can push it easy. I'll do 150 grams." The offender agreed to provide the drugs on "tick," that is, credit. There was further communication about delivery to Cook's house in San Remo. At 11.17am Cook said, "You nearly here?" In ongoing communications between the offender and Cook, the offender sought payment for the drugs that had been supplied on tick. [I note that the offender was offering to supply MDMA at $93 per gram, understanding that Cook was proposing to sell it at $150 per gram, meaning that the offender must have understood that Cook was proposing to sell it for a total of $1,050 at a $400 profit. This indicates that the offender was not simply supplying to users but supplying to others who he anticipated would on-supply the drug to others.] f) Between 10.14am and 12.04pm on 6 February 2021, the offender exchanged a series of text messages with mobile telephone number ending 202. When asked what he had available, the offender said, "500 for quality 600 for pearl." (The offender sent a photograph of the pearl, being small bags of white crystal understood to weigh one gram each.) The other party agreed to purchase the two bags. "If it comes as rock, not powder." The offender delivered the bags to an address in Watanobbi. At 22.58 on 6 February 2021, the purchaser sent a further message to the offender, saying, "I don't really rate that stuff bro. It keeps you up, but I reckon it's more speedy than coke. Definitely been cut. It's not straight up pearl." 27. On each of the occasions when the offender supplied the prohibited drugs it was for financial reward. 28. On 12 April 2021, the offender was charged with the above additional offences whilst being held at the Metropolitan Reception and Remand Centre at Silverwater.

1. The offender gave evidence on sentence which, in short, indicated that he had been a user of prohibited drugs from a very early age and was exposed to them by his parents prior to that time.
2. As to the offences with which he is charged and in respect of the pistol found under his driver's seat in the car, he claimed that it had been given to him six or seven hours before it was detected and that he was unaware as to whether it was loaded or not. He claimed that it had been given to him for his protection, but because of an outstanding drug debt of $8,000 in respect of which he anticipated he might be kidnapped, and it was given to him for his protection by the person who was responsible for his ongoing drug supply offences.
3. His evidence in that regard was that a person he was not prepared to name was someone to whom he owed $40,000 for past drug supply, and in order to work off the accumulated debt he had taken on the distribution where that individual would refer persons to him, and he would conduct the supply. I note that there is nothing in any of the calls that have been referred to that indicates that the offender was working, as it were, for any more senior figure in a hierarchy, and indeed, at least in relation to para 26(e) above, he was supplying the drugs on credit or tick. There is no indication in any of the supplies referred to that he in any way had to contact any other person or had to defer to any other person in relation to the individual supply as to whether, in particular, it could be supplied on tick.
4. His evidence was that he was, at the age of 19, endeavouring to pay off a $40,000 debt to the person he was working for in this way. I find it unbelievable that any drug dealer would allow a teenager, for their own use, to run up such a substantial debt of $40,000. Particularly in the circumstances where this offender's evidence about his employment after leaving school is that he had worked for a period as a boat hand and, as I understand it, at the time of this offending was not in fact working but was supporting himself through his drug dealings.
5. It is unbelievable that a more significant level offender in a hierarchy would have allowed him to run up a $40,000 debt just for the offender's own use. That would have taken a very considerable period of time to accumulate. The offender pointed at the tick book as evidencing the $40,000 because there were two entries in the tick book apparently, the tick book not having been produced, of Kelly, the offender's first name, $40,000 and Kelly, on another page, $41,000.
6. Whether the offender in fact was working for someone else or had a $40,000 debt as claimed by him, his own evidence indicates that he must have been seriously concerned in the distribution of prohibited drugs in order to have acquired a debt of $40,000 or $41,000 to one person and a further debt for drugs to another supplier of $8,000 in relation to which he believed he was under threat, giving a total of at least $48,000, he being 19 years of age at the time. The size of the debts is much more consistent with an offender who was purchasing significant quantities on single occasions for the purpose of distribution if the debts existed. His evidence was that although he had been a deck hand on boats, he was not working at the time of this offending, and that he was doing this work for the person because they would continue to give him the drugs that he wanted, and they would take money off the money that he owed.

SUBJECTIVE MATTERS

1. Before the Court is a psychological report under the hand of Mr Albassit, psychologist, dated 16 June 2022, the offender's criminal history and a Community Corrections Convictions, Sentences, and Appeals Report. In addition, the offender gave evidence on sentence on 17 June 2022, to which I have already referred in part.
2. Subjective matters are drawn from that material. No Sentencing Assessment Report was apparently ever ordered in respect of this matter.
3. The offender was 19 years of age at the time of the offending and is now 21 years of age. It is frequently said that individuals do not necessarily mature at the age of 18 when they are first able to vote and become technically adults, and that is so in particular in relation to young males. It has been said that frequently maturity does not come before their early 20s. I am fully aware of the statements that have been made in that regard in the past in such matters as BP v R [2010] NSWCCA 159 and Bullock v R [2016] NSWCCA 131 and in particular the comments of Hodgson JA at paras 4, 5 and 6. In my view, the offender in this matter was conducting himself more as an adult than a juvenile, but I note that he was however only 19 years of age.
4. His own evidence indicates that he was not naive in relation to drugs and the effects that they have on persons, as he has referred to the significant effects they had had on him from time to time. In respect of his criminal history, and relevant to the offending on this occasion, on 16 November 2019 at Gosford he was charged with a number of offences, being custody of a knife in a public place, first offence, possess prohibited drug and a further offence of possess prohibited drug.
5. Each of those matters was dealt with at the Gosford Local Court on 21 January 2021. He received a fine in respect of the knife and a 12-month Community Corrections Order commencing on the day that the sentence was imposed in respect of one of the possess prohibited drug charges and a fine of $100 in respect of the other, if I did not say it, each of those offences having been committed on 15 November 2019.
6. There were further offences committed on 2 May 2020, also dealt with at the Gosford Local Court on 21 January 2021. They were custody of a knife in a public place, subsequent offence; supply a prohibited drug, more than an indictable, less than a commercial quantity, and deal with property the proceeds of crime, which I understand from his evidence on sentence was the amount of $4,500.
7. He pleaded guilty to each of those offences and on 21 January 2021 he received a Community Correction Order in respect of each of those matters, in each case the order being of 18 months, and to commence on the day that it was imposed.
8. Noting that the Community Correction Orders were imposed on 21 January 2021, it is relevant to note that the ongoing supply offences occurred on dates variously between 11.19pm on 22 January 2021 and 12.04pm on 6 February 2021. That is, they occurred at a time when he had already just been made the subject of the four Community Correction Orders.
9. In my view this indicates that the offender in committing these offences had a completely contemptuous disregard for the law.
10. All of the offences that I am to sentence him for occurred while he was subject to the four Community Correction Orders that I have referred to. Commission of offences while on bail has always been regarded as a serious aggravating circumstance. In this case these were not committed while on bail but while in fact the subject of a series of Community Correction Orders.
11. This reflects not only on the offender's contempt for the law but must be taken into account in relation to such issues as remorse, contrition and the prospect of reoffending. He has been in custody since 11 February 2021. The Community Corrections Convictions, Sentences and Appeals Report indicates that between 14 June 2021 and 3 May 2022, the report being printed on 23 May 2022, he has been in breach of prison regulations on a total of 21 occasions. Four of those have been for possessing drugs, one for possessing a drug implement, all of which occurred on separate days, and two occasions of possessing offensive weapons.
12. There have been a number of other breaches such as disobeying direction, unlawfully use phone or fax, enter other cells, avoid correction centre routine, fail to comply with correctional centre routine, unlawfully deliver/receive article, give false misleading information. Of the 21 breaches only one of those was dismissed, so there are in fact 20 breaches.
13. As I referred to, the offender is now 21 years of age. His parents divorced when he was 16 years of age ,and he has one younger sister, now apparently aged 18, with whom he maintains a close relationship. He informed Mr Albassit that his parents were regular uses of prohibited drugs, that he had witnessed his father chopping up cannabis in the bathroom, kitchen and laundry from a very young age, and said that his father was both violent and aggressive and would use violence against the offender.
14. In that respect his mother would frequently step in to defend him, although he claims to have never experienced any affection or nurturing behaviour from her towards him. The only time that she showed any care for him was when she was shielding him from his father's violence.
15. He informed Mr Albassit that as a child he had been referred to a paediatrician who had diagnosed ADHD and that he has subsequently been diagnosed with obsessive compulsive disorder at the age of 10. He said he was an anxious child who struggled to sleep.
16. He had attended the Coast Christian School from kindergarten to Year 6 before attending Kincumber High School where he completed Year 10. In his schooling he is said to have struggled, and he had a stutter for some time, and he struggled to read and write, and was slow and constantly behind in his schooling. He acted up a lot and had poor focus and was constantly getting into trouble for disrupting his classmates. In high school he described his behaviour as poor, being always mucking up and fighting. He also truanted a lot in high school.
17. In 2014, when he was approximately 13, he slipped down a cliff face, plunging some 15 metres and having to be rescued by emergency services and airlifted to Westmead Children's Hospital, suffering from a fractured hip, broken ribs, cuts and bruises. He spent approximately six weeks in hospital, two weeks in a wheelchair and six weeks on crutches. This is an event in respect of which he regularly experiences flashbacks and intrusive thoughts.
18. He claims that thereafter his mental health deteriorated, and he coped poorly. He had unfortunately been associating with the wrong crowd by the age of 14 and carrying out petty crimes such as stealing and using illicit substances. He at first used substances with his friends at the age of 14 and within a year he was also using MDMA.
19. He was apparently regularly getting into fights, and he referred to trouble as "following him wherever he went". People came to his home threatening his family in relation to debts accumulated by him through his illicit substance use. His relationship with his family became strained and eventually he was kicked out of the family home, and at least in part his parents blamed their divorce on him and his behaviour.
20. After being kicked out, he lived with his grandmother for approximately three months, during which his illicit substance use increased substantially and when thereafter living on the streets, he was constantly getting into fights and brawls. He described his grandmother as providing him with the only affection and nurturing he had experienced, but he left her house and began living on the streets before he and his friends discovered an abandoned house and took up residence there, being some 10 to 12 of them, and at this time he was committing petty crimes to support his illicit substance addiction. His grandmother passed away in 2019 and he had difficulty coping with that.
21. He describes himself as having lived his life with reckless abandonment, graduating to the use of cocaine and speed, and using them heavily and irresponsibly. He informed the psychologist that due to his heavy use in particular of cocaine, he developed significant issues with his sinuses and experienced regular excessive bleeding from the nose and also developed major paranoia and hallucinations.
22. He also apparently engaged in gambling significantly in order to assist paying off his drug debts. He claimed that from the age of approximately 16, people had been coming to his family home and harassing and threatening himself and his family.
23. Mr Albassit, as a result of his consultation with the offender, states that he has been exhibiting symptomology of "complex post-traumatic stress disorder for approximately eight years. He has also been exhibiting symptomology of substance dependence for seven years".
24. He otherwise states: "Mr Green described a significantly detailed destructive pattern of substance dependence and exhibited significant psychiatric and psychological impairments that have significantly affected his capacity to make sound judgment with his decision-making behaviour. Mr Green's substance dependence spiralled substantially, which led to him making impulsive and self-destructive decisions..." "...there is a substantial correlation between Mr Green's offending behaviour, mental health issues and his substance dependence. When faced with the risk of experiencing future negative outcomes from his offending behaviour he appeared oblivious to his actions and the consequence of his behaviour at the time. His illicit substance use and elevated moods affected his decision making and judgment. At the time of the offences Mr Green was experiencing significant disturbance in his mental health..." "...Mr Green was overwhelmingly consumed with the need to satisfy his addiction, that he lacked the ability to comprehend the seriousness of his offending behaviour..." "...in my opinion there is a direct and significant correlation between Mr Green's offending behaviour and his significant psychiatric/psychological conditions detailed above. The horrific psychological pain associated with the traumatic physical assaults stemming from his childhood and into his adult life manifested themselves into the symptomology of PTSD, which triggered the hypervigilant behaviour and magnified the perceived threats to his personal safety and significantly impaired his cognitive ability and judgment".
25. I accept the outline provided of the offender's difficult upbringing and I accept that being exposed to drugs and violence at an early age and moving out of home to eventually become a youth living on the streets or perhaps from time-to-time couch surfing indicates that his formative years were significantly marred and that Bugmy v R (2013) 249 CLR 571 and the matters referred to therein apply to this offender, reducing his moral culpability in respect of the offending conduct, diminishing the need for the sentence to reflect both specific and general deterrence.
26. I also accept on the basis of Mr Albassit's findings as to the correlation between his offending behaviour, mental health issues, and substance dependence brings him within those factors referred to in Director of Public Prosecutions (CTH) v De La Rosa [2010] NSWCA 194, again operating to reduce his moral culpability as well as the need for specific deterrence to be reflected in the sentence.
27. I do however have serious concern about the offence involving the pistol located under the seat, particularly, as I have said, in the circumstances where the offender's evidence is that at that time, because of his use of prohibited drugs, he had been suffering psychosis for approximately two weeks and was generally hypervigilant in the belief that he was under threat.
28. I note that his evidence was that he had the firearm to protect himself from the threat that he might be kidnapped, and this in my view was in part to remove himself from the prospect that he had it to protect his drug distribution. Whether he had it to protect his drug distribution or whether he had it to protect himself from a drug related debt seems to me to make no difference to penalty in this matter. In each case he had it because of his conduct in relation to prohibited drugs.
29. Mr Albassit makes the following statements in relation to the offender: "Mr Green's comments and attitude towards his offending behaviour reflected a person who is aware of his behaviours, has taken responsibility for his actions and wanted to make significant changes. Mr Green said that his prolonged illicit substance use was a major contributing factor in his decision-making process. His level of addiction was significantly high at the time of the offences. Mr Green discussed the relationship between his mental health issues, his disordered perception, the illicit substance dependence, the offending behaviour and demonstrated an insight into the link between them..." "...Mr Green's willingness to engage during the initial assessment of a high level of insight in relation to the consequences of his actions lends itself that Mr Green's prospects for rehabilitation is positive should he undertake regular and ongoing psychiatric and psychological therapy".
30. I note the offender on sentence gave evidence about his period of time in custody and the fact that it has been more arduous than would ordinarily be the case because of the incidence of COVID. He said that he had spent upwards of five months locked up in the cell as a result of COVID, that at one time he did five weeks straight and for the first three weeks they would not even change the sheets and he was getting bedsores because: "All we did was sleep all day and all night, then after three weeks they would let us out for six minutes each to make one phone call and then straight back into the cell and that was for five weeks at Parklea".
31. Whether that is accurate or not I have no difficulty in accepting that COVID has meant serving time in custody has been far more arduous than it would otherwise have been. As to his contact with family, he said his last contact was over 12 months before he gave evidence on 17 June 2022, and that was with his mother. As to what he thought about his involvement in supplying drugs, he said: "Yeah, I think about it nearly every day because I can't believe how I actually ended up where I did. At the time I had no idea I was in over my head. All I thought about was getting the drugs and I would do anything at that time but now I would never have actually - I can't believe that I actually had firearms. It sort of shocked me because I wouldn't have done that if I was in the state I'm in now...now I sort of feel ashamed because I was helping that cycle".
32. When asked, "Have you given any thought as to how you might ultimately beat this?", relating to his addiction, he said: "Yeah, I'm willing to do whatever it takes. I've been asking for a very long time. I've been on the waiting list for over 12 months to be put into the drug program and I just haven't been given that opportunity here. The waitlists at this place are ridiculous..." "...well, my whole life I've used the drugs as a way to fix my problems and now I've realised that drugs are the problem and they have sort - I've come into gaol, really it's a blessing in disguise because I have seen what it can do and what it has done to me, and I know now there are other ways to fix my problems without using drugs".
33. I find it strange in the circumstances of the history the offender gave of his own life that he was not well aware of the effect of drugs prior to being in custody. As to his use of drugs, according to the breach report, he has indicated in his sentence that on each occasion the drug he was found in possession of while in custody was buprenorphine, a drug prescribed for inmates on a regular basis and in respect of which I have no doubt there is a regular black market, whether it comes from those who have been prescribed it or somehow otherwise finds its way unlawfully into the prison system.
34. The fact that he has continued to use buprenorphine, which on his evidence he said he used as an alternative to using any other of the hard drugs that he has used in the past, which are also available in custody, is of concern. Unless this offender, as indicated by Mr Albassit, can deal with his drug problem which he has now suffered from for an extended number of years it is highly likely that when released he will return to using prohibited drugs and consequently need to find a way to finance that, and in those circumstances return to similar offending. Using buprenorphine in custody is not a way of dealing with his addiction.
35. The offender has expressed remorse as referred to both in his sentence and to Mr Albassit. I am prepared to accept that that is genuine despite the misgivings I have expressed in relation to some of his evidence on sentence. In my view, his prospect of rehabilitation must be guarded until such time as he has ceased to use all prohibited drugs, including those which are generally part of what might be called replacement therapy or breaking the cycle.
36. I believe I have failed to say so before, but in relation to his evidence of only holding the guns in the storage locker for someone else, I note that the charge that he faces is one of possession, not ownership. Several of the guns were in working order. There was apparently a variety of ammunition. One of the weapons was shortened in such a fashion as to make it readily concealable, and one of the weapons had a silencer attached to it. Whether they in fact belonged to him or someone else, he was the one who was in possession of them and concealing them within the premises that he alone was responsible for.
37. In respect of three of the offences for which I have to sentence him there is an attached Form 1. In each case when sentencing him for the principal offence ,the matters on the individual Form 1 will be taken into account by giving additional weight to the principles of specific deterrence and retribution in accordance with the well-established authority Attorney General's Application No 1 of 2002 [2002] NSWCCA 518.
38. For the purposes of sentencing, I have regard to s 3A of the Crimes (Sentencing Procedure) Act 1999. In sentencing an offender, the sentence must reflect the objective seriousness of the offence, and as sentencing judge I must fix a sentence that will ensure the time the offender must spend in custody reflects all of the circumstances of the offence including the objective seriousness and the need for general deterrence and specific deterrence, although I note what I have previously said in relation to the effect of Bugmy and De La Rosa.
39. I am satisfied pursuant to s 5 of the Crimes (Sentencing Procedure) Act, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. I note in that regard the submissions by Mr Barrack of counsel on behalf of the offender, including the following at para 58: "It is respectfully submitted that taking into account all the matters raised above it is open to the Court to conclude that a sentence of imprisonment not exceeding two years is an appropriate outcome".
40. That paragraph is proceeded by a heading: "Intensive Correction Orders and Section 66 57. Section 68 of the Judiciary Act (CTH) allows the Court to consider State sentencing options in dealing with Commonwealth offences".
41. I can only assume that paras 57 and 58 were in fact included in his written submissions as a result of some past submissions made in relation to a Commonwealth matter, as all of the matters before me are State matters. In any event Intensive Correction Orders, where there is more than one offence under New South Wales law, can be imposed providing the sentence is no longer than three years.
42. If Mr Barrack's suggestion that this matter could be dealt with by way of a sentence of imprisonment not exceeding two years was a serious proposition rather than simply an error in those circumstances, then it is at least unrealistic. I note that in his oral submissions he continued to advocate for an ICO. In my view any suggestion that an ICO could possibly be applied in the circumstances of these matters is a total failure to deal with the seriousness of the offending and the circumstances in which it occurred.
43. Defence Counsel are entitled to aim for the bottom of any appropriate sentence range; however, it does not assist the sentencing process to have a submission made on behalf of an offender which in my view is entirely unrealistic. I use that term to avoid any more offensive description.
44. Having considered all of those matters, including the discount that I have previously referred to of 25% in relation to each matter, I intend to proceed by way of an aggregate sentence, in which case I am required to provide an indicative sentence in relation to each of the offences, as well as in relation to those which have a SNPP, an indicative non-parole period.
45. The indicative sentences will be as follows:
46. In relation to H81135786, Sequence 6, possess working pistol, s 71 Firearms Act, also taking into account the two matters on the Form 1, being Sequences 7, not keep firearm safely, s 39(1)(a) and possess unregistered - prohibited firearm s 36(1) of the Firearms Act, the indicative sentence is three years with an indicative non-parole period of one and a half years.
47. That is, I have found special circumstances in relation to particularly the offender's age, the prospects of rehabilitation, and would provide for a more significant period than would otherwise be the case if the statutory relationship of the balance of term to the non-parole period applied. That is, I have reduced the non-parole to 50% instead of 75% of the term of imprisonment.
48. In relation to H81222278, Sequence 1, possess more than three unregistered firearms, including a prohibited firearm, s 51D(2) Firearms Act, including the three matters on the Form 1, Sequence 2, not keep safely, s 39(1)(a), Sequence 3, not keep safely, s 39(1)(a), and Sequence 4, possess ammunition, s 65(3), in each case contrary to the Firearms Act, the indicative head sentence is three years, and again the indicative non-parole period is one year, six months.
49. In relation to H81222278, Sequence 12, being supply of prohibited drug on an ongoing basis contrary to s 25A(1) of the Drug Misuse and Trafficking Act, the indicative head sentence is two years, three months.
50. In relation to H81135786, Sequence 1, supply prohibited drug being more than an indictable quantity and less than a commercial quantity contrary to s 25(1), and taking into account the two matters contained on the Form 1, being Sequences 2 and 3, in each case possess prohibited drug contrary to s 10(1), the indicative sentence is one year, six months. I note that that offence was contained on a s 166 certificate in relation to which, it indicates, the prosecution believed it could be dealt with in the Local Court where the maximum would have been two years rather than 15 years referred to on the Crown sentence summary.
51. Taking all of those matters into account and accepting that there is some overlap, the sentence will be one of five years' imprisonment with a non-parole period of two years, six months, which is of course 50% of the aggregate sentence.
52. The sentence will commence on 11 February 2021, which is when the accused first went into custody. He will accordingly be first eligible for parole on 10 August 2023.
53. The balance of term is two years and six months. The total sentence of five years will expire on 10 February 2026. Mr Crown, to the extent that you are familiar with this matter, are you able to inform me as to whether there are any egregious errors that I've made? ALLAN: Your Honour, the only notation I didn't take down was a non-parole period for Sequence 12. HIS HONOUR: That's because there is no standard non-parole period in respect of that matter ,and I'm not required to specify one. ALLAN: Thank you, your Honour. The only other matter was that defence were to provide to the Court the signed Form 1s. HIS HONOUR: Yes. I have a signed copy and the Court's working copy and I have already asked my associate to ensure that I am given the Court copy of the Crown bundle, being Exhibit 1, so I can sign each of the Form 1 documents. ALLAN: Thank you, your Honour, there's nothing further from the Crown. HIS HONOUR: So that is under control. Mr Green, I have significantly taken into account your age at the time of this offending, although as I have said, you were really acting as an adult and in a serious fashion, not only being in possession of the drugs car with a live firearm under the seat and also doing so while the subject of four separate Community Correction Orders recently imposed when you elected to supply drugs on an ongoing basis. In my view, your prospect of rehabilitation is guarded, but I have put that aside in order to provide a significant period that you may be on parole, that is, two and a half years. You should take whatever assistance you can get while in custody and cease using prohibited drugs. You need to stay away from using any drugs which may have made their way improperly or unlawfully into custody, and also from using those replacements that are sometimes used in custody by other prisoners but which I understand become available by way of trade within the prison system. If you are still a user of prohibited drugs by the time you leave custody, in my view your rehabilitation will not occur, and you will unfortunately rapidly find yourself back in the same situation you were in when you committed the offences on this occasion, particularly taking into account-- OFFENDER: Thank you, your Honour. HIS HONOUR: That you ignored the Community Correction Orders so recently imposed. That puts very much in doubt the question of rehabilitation, but I've given you, despite that, a significant period in the hope that now being, by the time you are released, I think approximately 24, you will realise that you do not want to be returning to gaol. All right, thank you. OFFENDER: No, thank you.

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