R v Janezic; R v Presbury

District Court of NSW|2020-04-08

Director of Public Prosecutions (NSW) (Crown) Aboriginal Legal Service (Offender - Janezic) Swan and Associates (Offender - Presbury) File Number(s): 2019/00130512 (Janezic); 2019/00130522 (Presbury)

INTRODUCTION

These are sentence proceedings in respect of two young men, Benjamin John Presbury and Zachary Steven Janezic. Both young men were arrested by police on 27 April 2019 in circumstances where they were found in possession of firearms, and in the case of Mr Presbury found in possession of the firearms together with prohibited drugs, ammunition, and a prohibited weapon.
Mr Janezic has only one offence to answer and I believe that I should deal with his case first of all. The facts provided are common to each of the offenders though, and I shall separate consideration of the outcome of the proceedings when I come to the subjective case that has been presented on behalf of each of them.

THE FACTS

The facts, as I say, are common to both of these offenders, subject to the confinement of them to the weapons only in the case of Mr Janezic.
On 26 April 2019 the Narrabri police received information that the offenders were travelling in a motor vehicle in possession of illegal firearms. The Baradine police began monitoring the offenders and the motor vehicle at premises within that town.
On 27 April 2019 about 4.30pm the police at Baradine informed the Narrabri police that the offenders were leaving Baradine and travelling towards Narrabri in the vehicle. About 6.30pm, Narrabri police observed the vehicle travelling towards Narrabri. They stopped the vehicle about ten kilometres south of the town. They approached. The vehicle was driven by the offender Presbury. The police had access to a drug dog for the search they conducted of the motor vehicle. Mr Presbury was removed from the driver's seat and Mr Janezic from the front passenger seat. They were cautioned. They were asked whether there were any illegal firearms or illicit drugs in the vehicle; they both replied no. They were searched. There were two other occupants in the rear seat of the vehicle. They were both juveniles and both were removed from the car.
The police informed Mr Presbury that the vehicle was to be searched, making use of the drug detection dog. The police opened the rear door of the vehicle and saw many luggage bags. They removed the luggage and placed it on the ground. They then saw a number of firearm barrels protruding from a multi-coloured crocheted blanket. The police cautioned Mr Presbury and then questioned him in relation to the firearms. He said that he had not seen them before. When questioned further he said, "No comment. I don't want to say anything". The police removed the blanket with the firearms and place them on the blanket on the roadway at the back of the vehicle. The firearms remained untouched. Using the blanket the police put them into a police vehicle and then embarked upon a more thorough search of the vehicle using the drug detection dog.
Indications were made by the drug dog within the vehicle. The police continued the search of the vehicle and property within it. There was a blue Esky with an IGA brand of plastic bag inside in the rear of the vehicle. This had a red locked box and a quantity of cannabis. The IGA plastic bag contained a quantity of ammunition. The police secured the Esky and its contents for further examination.
The police located a suitcase with paperwork relating to Mr Presbury, along with a butterfly flick knife. That item was seized. The search was recorded by police wearing body video and they took a series of photographs of what they found in the course of the search. Both men were arrested and taken to Narrabri police station where they were entered into custody.
Mr Janezic spoke to the Aboriginal Legal Service. He declined to be interviewed and indicated that he did not want a support person. Mr Presbury also declined the opportunity to be interviewed. They were taken to the Moree police station.
Upon their return to Narrabri police station, the police searched the property removed from the vehicle and this was also video recorded. Inside the blue Esky the police found cannabis leaf in resealable bags weighing in total 133.3 grams. There were two boxes of resealable plastic bags and a set of scales. The ammunition found in the IGA plastic bag consisted of 1343 rounds of .22 ammunition, 35 rounds of .223 ammunition, 13 rounds of 12‑gauge shotgun shells and 15 rounds of .410‑gauge shotgun shells. Australian currency in the amount of $4,095 was discovered inside a small, lockable security box inside the Esky, and currency to the value of $535 was found in Mr Presbury's wallet. The total amount of $4,630 was seized. Also discovered in the small, lockable security box were cannabis seeds in resealable bags with a total weight of 1.8 grams.
The blanket was unwrapped revealing four firearms. There was a shortened 12‑gauge Belgian double-barrelled shotgun, a .223 calibre Remington bolt action repeating rifle, a shortened .410 bore Baikal single barrelled shotgun, and a shortened .22 long rifle calibre Lithgow bolt action single shot rifle. The offenders were charged.
The offender Janezic was charged with possession of the four unregistered firearms only. He was not authorised by a licence or permit to possess such firearms.

SUBJECTIVE MATTERS FOR THE OFFENDER JANEZIC

The offender Janezic was born in 1994 and so this year will reach his 26th birthday. He has a record of antecedents that began in August 2015 when he was charged with contravening an apprehended violence order. He was convicted without penalty. Then in August 2015 for a series of offences of larceny, he was once again convicted without penalty. In August 2015 for affray he as imprisoned for 15 months with a non-parole period of three months, also for common assault, two charges, and one for demanding property with menaces. The non-parole period of three months commenced on 13 May 2015 in each case and the head sentence in each case was 15 months' imprisonment.
In April 2017 he was charged with being armed with intent to commit an indictable offence, common assault and intimidation, and for each of those he was required to enter a bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999 for a period of two years. In October 2014 - which is out of date sequence - he was before the Court for damaging property, armed with intent to commit an indictable offence and intimidation. He was convicted without penalty for the damage charge; he was imprisoned for 15 months for the offence of being armed with intent to commit an indictable offence, suspended pursuant to s 12 Crimes (Sentencing Procedure) Act. The same outcome followed the intimidation charge with the sentence of 15 months imprisonment suspended.
In August 2015 he was called up in respect of the suspended sentences and they were implemented with concurrent periods of imprisonment, including non-parole periods of three months in each case. These were concurrent with the earlier sentences of imprisonment to which I have referred.
In August 2015 there was a series of offences of break, enter and stealing for which he was sentences to fixed terms of imprisonment for three months. Again these were concurrent with his earlier sentences.
In November 2016 there were offences of driving without a licence and riding without a helmet, middle-range PCA, and using an unregistered motor vehicle, for which he was fined and disqualified; additionally in respect of the drink driving offence he was required to enter a bond pursuant to s 9 Crimes (Sentencing Procedure) Act.
In March 2019, he appeared for riding or driving without a licence, a middle range prescribed concentration of alcohol; he was convicted without penalty for the unlicensed driving offence and fined upon conviction for the drink driving offence and in each case suffered a period of disqualification.
There is a record of antecedents from Tasmania. These were between April 2012 and April 2013. The offences were respectively stealing, possessing tobacco, failing to comply with a direction, trespass, motor vehicle stealing and again trespass. The outcomes using the provisions in that state involved determinations without conviction and conditional release.
Janezic gave evidence. I found him a reliable witness and I accept the truth of what he had to say to me.
He has had a challenging life. He was born in Bundaberg in Queensland and lived there with his parents until the age of about 3 or 4 when his mother left the relationship because of domestic abuse. The offender's father was violent towards him. His mother took some of his siblings with her, but left the offender and a brother behind. The father, upon the evidence before me, was quite brutal, using corporal violence and on occasion locked the offender in a room. He suffered injury in the course of this mistreatment, including a hairline fracture of his jaw and a fractured vertebra. This occurred when he was about eight. His father was in and out of gaol, he was a heroin user, and he drank excessively. He father introduced the offender to alcohol and encouraged him to drink to the point of intoxication. He gave him access to cannabis.
He was moved from where his father kept him to live with an aunty and his father's mother, in Brisbane. His aunty was living in Bundaberg. This occurred when his father when in and out of custody.
When 16 he left and ran away to reconnect with his mother in Hobart. He was 17 and 18 when he was living with her. He ultimately separated from her once again.
He became a drug user as a consequence of the approach taken to his formative years by his father. The conduct upon which his father engaged, I find, normalised antisocial behaviour for this young man. I am including the misuse of prohibited drugs and alcohol.
He has from time to time sought to rehabilitate himself, not successfully. He is anxious to pursue rehabilitation once he is released back into the community, building upon the achievements he has been able to make in custody, limited though his opportunities are.
He formed a relationship before he went into gaol on this occasion and there is a daughter born to that union. The relationship has failed, but the offender is still friends with his daughter's mother and he has telephone contact with his daughter from where he is in custody.
He has been to Namatjira House for residential rehabilitation on more than one occasion. He relapsed in the course of one of those programs and he was excluded. He has built a relationship with his mother and his mother's mother.
He recognises, he said, the stupidity of engaging upon the conduct that has put him before the Court. He explains the misconduct in the following way. He and his co-offender Presbury were out hunting with a dog, pursuing goats and pigs which they had intended to bring down using their dog. Whatever the view one might take of that conduct, for it might well be in breach of other provisions dealing with animal cruelty, I do not bring that to account at the moment.
In the course of that activity, they found the firearms under the blanket in bushland. His evidence is that he and his co‑offender took these items. They did not know how best to deal with them. They were intending to take them to Mr Presbury's father for his guidance. They were concerned that if they went to the police with these weapons they would not be believed and might face the consequences of having them in their possession, including for other purposes. There is no evidence before me that they had the weapons for any purpose other than as described by the offender.
The police, for whatever reason, have not provided the Crown with the product of any investigation of the weapons, or of the capacity that the weapons might have had, and I am left with a description given in the agreed statement of facts. But it is the fact that the weapons were there available to them. There was a significant quantity of ammunition available for use in these weapons, and accordingly the seriousness of the offence is informed.
That said, I am satisfied that the offending upon which Mr Janezic has engaged is to be seen towards the lower end of the range of objective seriousness, clearly well below the mid-range. It is conceded on his behalf in written submissions that the so called line in s 5 Crimes (Sentencing Procedure) Act 1999 is crossed, but I am reminded of what has been significant deprivation in his childhood and adolescence. I am reminded of the length of time he has already spent in gaol pending the determination of these proceedings. I am reminded of his plea of guilty and the benefit that accrues as a consequence of that.
The description of the weapon described as a shortened .12 gauge Belgian double‑barrelled shotgun is said to be qualified by the fact that the shortened state of the weapon is the product of a broken stock. That is not challenged by the Crown, but there are still another three weapons, including a shortened .22 bolt action single shot rifle and a shortened .410 single-barrelled shotgun. As pointed out in the written submissions, the functionality of each of the weapons was not tested and is not known, nor is the provenance of the weapons, or whether it might be shown that they have been used in any other nefarious activity.
The background experienced by this young man is described in the submissions, including his exposure to domestic violence, his father's use of drugs and alcohol, the lack of care provided by his father through his formative years, the constant movement between his grandmother and aunt, physical abuse leading to injury as I have described it, the lack of stability in any relationship until he restored his connection with his mother, his access to cannabis and alcohol by way of his father normalising such behaviour. He in due course evolved into the use of methylamphetamine but has attempted rehabilitation, not entirely successfully.
I am reminded of the guidance provided by Simpson J in R v Millwood [2012] NSWCCA 2 at para 69, what has been said by the High Court in Bugmy v R [2013] HCA 37, and the significance of drug dependency as a relevant subjective consideration as described in the judgement in R v Henry [1999[ 46 NSWLR 346 at para 397. The moral culpability is said to be assessed at a lower level, in light of what those authorities have said, against the background described in the evidence given by the offender, which I accept.
There are prospects of rehabilitation, notwithstanding his history as submitted of me. I accept that he is sincere in his wish to change his life. History does not support him though, but one hopes that he has the strength, together with the assistance that is to be provided by his mother, to realise his ambitions. Time will tell. Although I could not hold his prospects to be good or strong, I am satisfied that they are sincerely held wishes as expressed to me.
His record of antecedents does not include previous firearms offences, but it is the fact that he has an unfortunate record. He is still a relatively young man and this opportunity I am going to give him today I hope he will exploit in full measure, that he will take the advantage that is going to come to him by way of his mother and her partner, and that he will build his life, including the development of his relationship with his daughter, so that he might, from this point on, prove to be a worthwhile member of the community.
I agree that there are special circumstances requiring a lengthy time on parole and I propose to reduce the custodial component and increase the length of the parole period beyond the ratio specified in s 44 Crimes (Sentencing Procedure) Act.
I heard from his mother, not in ideal circumstances because of the present arrangements in the Court as a consequence of the coronavirus, which has precluded the Court conducting its work in the usual fashion, but she spoke clearly and persuasively, I might say, in her evidence that was received by way of a telephone. She impressed me as someone who will, to the extent that she is able to do so, take the offender in hand and keep him to the straight and narrow. She made it clear that if he brings any drugs or alcohol into the house he will be excluded, and if he is detected in the possession of or in the use of drugs she will march him directly to the nearest police station and hand him over to them.
He should understand that any use of prohibited drugs would be a breach of his parole and he will end up going back into gaol.

THE SENTENCE

Thus I am at the point of imposing a sentence in respect of Mr Janezic.
He is convicted of the offence to which he has pleaded guilty. I impose a non-parole period of imprisonment of 1 year commencing on 27 April 2019 and expiring on 26 April 2020. I specify a further period of imprisonment, to commence at the expiration of the non-parole period, of 1 year and 6 months. Thus, the overall sentence is 2 years and 6 months, including the non-parole period. The overall sentence will expire on 26 October 2021.
To repeat those dates, the sentence commences on 27 April 2019. The non-parole period is a period of 12 months to expire on 26 April 2020 and there is a parole period thereafter of one year and six months that will expire on 26 October 2021. I will leave the exhibits on file for such purposes as the parties might require.

BENJAMIN JOHN PRESBURY

Now I will come to Mr Presbury. Mr Presbury is in a less favourable position because of the number of the charges that are before the Court. He has confirmed his guilt in respect of two offences, knowingly dealing with the proceeds of crime, contrary to s 193B(2) Crimes Act 1900, for which the maximum penalty is imprisonment for a period of 15 years. There is no standard non-parole period for the purposes of that offence. He is also exposed to the same maximum penalty of ten years for the possession of more than three unregistered firearms contrary to s 51B(1) Firearms Act 1996. When I sentence him for that offence he asks that I take into account additional offences, the first, possession of the ammunition without holding a licence or a permit, for which the maximum penalty is a fine represented by 5,500 penalty units. That is an offence pursuant to s 65(3) Firearms Act 1996.
There are two offences of possess prohibited drug, one in respect of the cannabis leaf and the other in respect of the cannabis seed. Each of them is contrary to s 10(1) Drug Misuse and Trafficking Act 1985. The maximum penalty for those offences is imprisonment for two years and a fine represented by $2,200.
The fourth offence is possession of the prohibited weapon, the butterfly knife. The maximum penalty for that offence is imprisonment for 14 years, and were he to be sentenced for that offence standing alone not having it brought to account other than by way of the Form 1, I would also need to consider the importance of the standard non-parole period of four years specified for the purposes of Part 4 Div 1A Crimes (Sentencing Procedure) Act. The fact of the standard non-parole period of four years is a matter that informs the seriousness with which parliament considers that offence.
He also has to answer for breaches of community correction orders and community conditional release orders to which I shall come. The normal course that can be taken in such matters is that the orders can be revoked by reason of the breach offences that are before me and, as one might do in appropriate cases, upon confirming the conviction, s 10A Crimes (Sentencing Procedure) Act 1999 can be applied and no penalty imposed. The Crown is entitled to be heard upon that point.
I do not have the paperwork before me relating to those other offences. The offender consents to the Court dealing with these breaches and it is sensible that it does so to avoid a multiplicity of proceedings in another jurisdiction, even though these were orders made in the Local Court. Thus I reserve my position with regard to the outcome of those breach proceedings, so the Crown will have the opportunity to address me in due course once the paperwork is located.

THE FACTS

The facts that are relevant to the misconduct which is admitted by this offender are as I described earlier. Although they were both present, at the time the police searched the motor vehicle and seized the items, later confirmed in the further more thorough search at the police station, only Mr Presbury is charged with the additional offences.

FORM ONE OFFENCES

The Form 1 offences must impinge upon the offence of possession of the unregistered firearms in accordance with the guideline judgement, Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518. There must be identified a term of imprisonment appropriate to the principal offence of possessing the unregistered firearms, bringing to account the additional offences which he has admitted and in respect of which he has confirmed his desire that they be taken into account.
Having availed himself of this arrangement, he does not face separate punishment for the additional offences, but at the same time he has provided utility and that must also be brought to account. It enables the efficient disposition of all of these charges without multiplicity of proceedings, but there must be impingement upon the sentence that would have otherwise been imposed upon the offence were it standing alone, to reflect the aspects of personal deterrence that must be brought to account and to deal with the extent of the overall misconduct upon which the offender engaged, and to allow the community to have retribution for the full range of his misconduct.
He did not give evidence before me and I am conscious of what was said by Smart AJ in Qutami [2001] NSWCCA 353 and the caution that is required when assessing representations attributed to an offender in such circumstances. But that said there is a large amount of material that is consistent in the documents that have been tendered in his case. Moreover, what is attributed to him by the psychiatrist is consistent with what was said by the other offender in his evidence, and accordingly, I accept that I should deal with this conduct upon the same basis. That is to say, the possession of the firearms and the ammunition should be seen within the same context as described by his co‑offender.

SUBJECTIVE MATTERS

He was born in 1994. He will this year reach his 26th birthday. He has a record of antecedents which do him no service, although it is to be noted that this is the first time he has been incarcerated for any misconduct. His first Court appearance was in Ballina in July 2017 for indecent assault, for which he was given a bond pursuant to s 9 Crimes (Sentencing Procedure) Act for a period of two years. In the District Court of Lismore that was varied to a bond for the same period pursuant to s 10 Crimes (Sentencing Procedure) Act. Thus he was found to have committed the offence, but without conviction and was put on conditional liberty.
He was called up in respect of that in October 2018 and upon conviction he was ordered to enter a conditional release order for a period of two years from 25 October 2018. The matter again came back before the Court in November 2018 and that resulted in a conditional release order without conviction for two years. I note on the watermark copy of the antecedent record there is one charge reference in respect of these sequential entries for indecent assault of a person under the age of 16 years, all in respect of the single offence.
Then we come to the next offence in October 2018 of possessing a prohibited drug. He was ordered to enter a conditional release order with conviction for a period of 12 months. For an offence dealt with in July 2017 of goods in custody he was convicted without penalty.
In October 2018 for supplying a prohibited drug he was ordered to enter a community corrections order of two years, and for possessing a prohibited drug he was convicted and ordered to enter a conditional release order of 12 months; there is also an offence of possessing a prohibited weapon, for which he was given a community corrections order of two years commencing on 25 October 2018.
There are breaches for two community corrections orders and two conditional release orders that he has to answer.
The question is, why do we find him before the Court engaged upon conduct that at first blush would have him in gaol for a significant period of time beyond that which I'm ultimately going to impose.
I have a report from Dr Christopher Bench, forensic psychiatrist. The first observation I would make is that his assessment and evaluation was conducted by way of an audio visual link from his office, with the offender at the Cessnock Correctional Centre. Clearly, it is not the ideal medium in which to engage with a patient for consultation for a provisional report of such importance, but that said, the report is comprehensive, it is thorough, and upon my reading it does not appear to reflect any difficulty or misunderstanding communicated by either the psychiatrist or the offender.
His background is described in some detail. He is the fourth eldest of a blended family. His parents separated when he was five. His father volunteers with the State Emergency Service. His mother is a "stay at home mum" with many medical issues. He denied that there was any domestic violence in that relationship, but his mother formed a relationship with another man, now his stepfather, and throughout his childhood and adolescence he suffered violence from him, as did his mother.
There was said to be some attempt by his stepfather to kill his biological father, but that is not further described. He suffered verbal, emotional and physical abuse from his stepfather, but outside that relationship, as I understand the report, he enjoyed good relationships without any physical, sexual or emotional abuse through his childhood or his adolescence. He enjoyed an array of sports. He completed year 10 and reached his school certificate. Her continued on until year 11 and then left. He was suspended once for trespass, it appears, but he denied ever having been expelled.
He has had employment from time to time, but was unemployed for some years prior to his arrest for these offences. He was in receipt of disability support from the Commonwealth for what was said to be a brain disorder, cognitive delay and a learning disorder. He has had one relationship of five years in the past, and no domestic violence was involved. He has a history of asthma.
He suffered head injuries with loss of consciousness as a result of the physical abuse he suffered as a child and as an adolescent at the hands of his stepfather. He has siblings who are challenged: a sister has a learning disorder and his brother has attention deficit hyperactive disorder and schizophrenia. His mother was an alcoholic and abused cannabis. Two of his brothers were described as alcoholics. One of his brothers abused drugs including cocaine, MDMA, methamphetamine, LSD and cannabis.
The doctor had access to his criminal history. There is no history of past incarceration. His drinking began at the age of 12, extending to alcoholic blackouts. He used cannabis early on, but that commenced after the age of 12 for a period of time until about ten years ago when he ceased. He denies any abuse of any other illicit substances.
He was born with a brain disorder so described, as the consequence of a suction delivery, leaving him impaired. His developmental capacity has not extended beyond his mid-teens. He has poor literacy skills. He can read and write, but poorly. He reported a diagnosis of attention deficit hyperactive disorder as a child and there is reference to a Dr Ingall, to whom I shall come. There is reference to the physical abuse witnessed in the domestic setting between his mother and stepfather. He has recurrent nightmares as a consequence, consistent with post-traumatic stress disorder. He is having difficulty with depression and some anxiety and anger. He is suffering from insomnia and has been prescribed medication to address the symptoms of depression.
There were no symptoms consistent with past episodes of hypermania or psychosis, and there is no history of any deliberate self-harm or suicide attempts. He suffered some difficulties as a consequence of his brother having been charged with a manslaughter offence toward the end of 2018, and the publication of that event in circumstances that exposed him to comment in the community as I understand the document. There is reference to his sisters having been placed in the Department of Community Services' care in late 2018. The doctor could elicit no symptoms consistent with psychosis or hypomania at the time of the index offences.
He is attributed with a description of how the came to be in possession of these weapons, and I shall quote from p 4 of the report: "...the defendant noted, 'I have a dog in Baradine. We went out hunting...my dog was paying a lot of attention to a log...I found the firearms wrapped in a blanket. There was plastic under the blanket. There was ammunition in there...my girlfriend's stepfather left a bullet in my car and the police found it...the police officer in Baradine was hassling us...I grabbed them 'the firearms', we took photos and shit 'posing with the various firearms'."
He noted that after doing so he became afraid as his fingerprints were now on the firearms. He stated, "I didn't want to just leave them there...I didn't want to call him, Sean 'the police officer in Baradine' because he would put it on us...I was afraid what to think. I contacted my father and told him I'm coming to you'."
He then spoke of the day before the offences when his girlfriend's father found a bullet and placed it in his car, of which he was unaware. The police officer pulled him over and when searching the car found the bullet. He told the police officer that he knew nothing about it and the police officer did not pursue any charges. The next day when they were out looking for goats when hunting, is when he found the firearms. He played football, he said, and said that the police waited for them in Narrabri, and it was then that these items were found in the car.
It would have been of assistance to have some clarification of that paragraph and try and unpack some of those facts, but it would seem the representation is to the effect that his girlfriend's father put a piece of ammunition in the car, which was found by a police officer who did nothing further.
The following day, after football, he was stopped by police and found in possession of the items. There is a consistency between that and what was said in the facts about information that the police had regarding the items. It is not possible to say whether that is the correct inference, but it is quite apparent that the police had targeted him, perhaps for the reasons he has given to the psychiatrist, and consequently he was arrested.
He is attributed with shame and remorse. He was given the opportunity to describe his risk mood, which he said was really down. His ongoing difficulties with intrusive thoughts and images of physical abuse and domestic violence daily have seemed to dissipate in more recent times, but not entirely.
Dr Bench was asked to respond to various questions and in the section dealing with his opinion and reasoning he noted the difficulty in obtaining the developmental history of an individual without having access to primary sources. Cognitive disorders and learning disorders could not be formally diagnosed without psychometric testing, but based on subjective reports given by the offender, the criteria offered suggest specific learning disorder with impairments in reading, written expression and mathematics, alcohol use disorder in enforced remission and post-traumatic stress disorder.
The learning disorder would be considered to be a lifelong condition and the use of alcohol would be likely to aggravate his learning disorders. He has had psychotherapy for the post-traumatic stress disorder, but could not provide any details. Participation in psychotherapy, targeting or addressing the post-traumatic stress disorder, would be likely to improve his prognosis.
There is some lack of clarity or inconsistency with regard to his report. He does not use illicit substances such as cannabis and yet was found with a large quantity of cannabis as well as scales and bags. If he does not use it, the purpose of having those items, one might infer, was for the purposes of supply, and would explain why he had the money, which he admits knowing was the proceeds of crime.
Although there is no direct evidence and no admission made by the offender, it would seem to me that the appropriate inference to draw upon the material I have is that he money was connected with his possession of the cannabis in the quantities described, together with the scales and plastic bags and the packaging in which the cannabis leaf was found.
The discovery of these weapons, in the circumstances described according to the psychiatrist, would have no link to his cognitive or mental health difficulties that are described in the report.
I accept what has been said on behalf of the offender regarding his state of impairment. What is suggested is supported by the document provided by Dr Ross Wylie from the Family Medical Centre. He has been the offender's GP since August 2016. He has seen him some 20 times, most were to manage his asthma and for his respiratory health. He has also been the general practitioner for his father and a sister and brother, and he is aware of the persistent harassment which the offender has suffered over the past 12 months since his brother, Bradley, was in Court for the case that was published in front page news.
Dr Christopher Ingall, a consultant paediatrician, has provided a document written on 19 June 2019. The offender was previously under his care. He had moderate problems with inattention, impulsivity, hyperactivity and oppositionality such that he fulfils the criteria for attention deficit disorder, hyperactivity and oppositional defiance disorder. He had mild to moderate cognitive impairment as well as moderate language delay. Effectively he is operating at a mid-teen level of capacity, that is, at approximately 15 or 16 years of age.
The problems compound, according to Dr Ingall, to produce moderate learning difficulties for him, both academically and socially. He fully supports any application for funding for psychological support to assist the offender to achieve optimally in the social, personal and professional environments.
This document is addressed To Whom It May Concern. It was clearly not prepared for the Court, but it would seem to be for some application that might be intended or was intended for assistance, perhaps through the NDIS.
He has the opportunity for employment. Sue Astley has provided a document written on 20 February 2020, giving him the opportunity to work at Summerland Continuous Guttering. Thus, he has the prospect of work upon his release.
There are various certificates that are before me, one on 28 February 2017 for the course for Residential Service Aged Care, Infection Control Basic Principles. There is a certificate of completion dated 28 February 2017 for Work Health and Safety Fundamentals. There is one from 5 December 2019, the Positive Lifestyle Program by way of the Salvation Army, one from 17 January 2011 for a Senior First Aid course. That has expired. It did so on 17 January 2014. There is a statement of attainment for various items of equipment in Occupational Health and Safety, Rescue and for the Maintenance and Test of Response Equipment. That was issued on 20 February 2011. Another on 2 March 2011 for Operating Communications Systems and Equipment and then one on 29 March 2011 for basic emergency life support, first aid, communication in the workplace and other skills there listed.
Thus there is some capacity that has been demonstrated by the offender, which would seem to qualify him for the work that is available to him upon his release.

SUBMISSIONS

The submissions that have been made on his behalf I have reviewed. Objective seriousness is once again to be seen at the low end of the range, in my assessment. The circumstances with regard to his possession of the firearms were of short duration, upon the description of the misconduct given to me. There is no evidence that the subject firearms were used by the offender or his co‑offender in any criminal activity. It is not known whether there is any nefarious activity connected with the firearms because the police have not informed the Crown of any enquiries made in respect of the weapons, If there were any made.
It is noted that the amount of money seized was not insignificant, but it is not an enormous amount of money. That offence is also below the mid-range in my view, but I find that the knowledge that it was the proceeds of crime must rest within the context of the cannabis, the way it was packaged and that the scales and plastic bags found in the possession of the offender.
There is no evidence otherwise of the source of the money, and there is no evidence to accurately identify the criminal activity that allowed the money to be in the possession of the offender, but it is an available inference, in the absence of direct evidence, with regard to the cannabis as to the source of the money, which the offender has acknowledged he knew was the proceeds of crime.
The offence was not part of any planned or organised criminal activity. I would say that applies to the offence concerning the firearms, and I have come to the view that the planning or organisation that was involved in the cannabis possession, if one was to find there was some planning, must be at a very low level in the circumstances.
I am reminded of the findings of Dr Bench with regard to his state of psychological challenge. It is conceded that there is no nexus to be found between his offending behaviour and the symptomatology that were described by the doctor.
I accept that for this offender limited weight should be given to general deterrence, although there must be some weight attributed. Specific deterrence has also to be addressed in light of his record of antecedents, but again it is modified by the cognitive disability with which the offender is burdened. His state of psychological challenge must be given appropriate weight in the assessment of the sentence I am about to impose.
It was submitted to me that punishment by way of an intensive corrections order might be considered as within range. I disagree with that submission. I am satisfied that the line, so called, in s 5 Sentencing Procedure Act was crossed, and accordingly nothing less than a custodial sentence is to be imposed.

THE SENTENCE

For the offences of knowingly dealing with the proceeds of crime and for possessing more than three unregistered firearms, in each case the offender is convicted.
For the proceeds of crime offence, allowing a discount of 25% for the guilty plea, which is applied to the sentence achieved upon the synthesis of objective and subjective facts, including what I find to be appropriate remorse and contrition, I have identified an indicative sentence of 1 year 8 months and 7 days.
For the possessing of the three unregistered firearms without a licence, the indicative sentence I select for that, bringing to account the Form 1 offences and applying a discount of 25%, is one of 2 years and 3 months.
I specify an aggregate sentence that consists of a non-parole period and an extended period of parole. The overall head sentence is one of 3 years and 3 months, commencing on 27 April 2019. It includes a non-parole period of 1 year and 8 months that shall expire on 26 December 2020.
To repeat, the indicative sentences are, for knowingly deal with the proceeds of crime, 1 year 8 months and 7 days, for possessing the firearms 2 years and 3 months, for the aggregate sentence, a non-parole period of 1 year 8 months commencing on 27 April 2019 and expiring on 26 December 2020. The head sentence of 3 years and 3 months shall expire on 26 July 2022.
I shall adjourn Mr Presbury's proceedings for the breach of the community corrections order or orders and the conditional release order or orders to a date convenient to the parties.
Subject to submissions to the contrary by the Crown I would consider the application of s 10A Crimes (Sentence Procedure) Act 1999 in the determination of that matters.

ADDENDUM

On 27 April 2020 after further material was provided dealing with the breaches of conditional liberty to which the offender Presbury was subject I made the following orders: 1. No appearance by the parties by prior arrangement via email with His Honour's associate and by consent. 2. In each case the conditional liberty by way of CCO and CRO is revoked. 3. Convictions are confirmed. 4. For the matter with file number 2017/00035341-001 the offender is convicted. 5. In each case pursuant to s 10A Crimes (Sentencing Procedure) Act, 1999, I impose no penalty in light of the sentence in aggregate which I imposed upon sentence proceedings determined by me.

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At a glance

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Judgment (14 paragraphs)

Cases Cited (4)