R v Jones

FACTS

1. At the relevant time, the offender was living at an address in Maraylya. He had lived there for a number of years and was the caretaker of the property. There is another person who is said to be a co-offender in relation to the drug offence and that is Mr Benjamin Gafa. At the relevant time he lived in two places, the first one in Blacktown and the other one in Hebersham. Mr Gafa and the offender were friends. They had attended school together and had reconnected about ten years ago. On 31 October 2022 police conducted surveillance of the property at Maraylya, and saw there a large shed at the rear of the property. At about 6pm that night they saw Mr Gafa entering the shed and about 40 minutes later it was noted that the door was closed and remained close for about one hour. The light was then seen to come on inside the shed. At about quarter past 8 that night this offender Mr Jones arrived. He walked to the shed and opened the door and stood at the door for a moment before closing the door behind him. As a result both he and Mr Gafa were inside the shed. At about 8.30pm, that is about fifteen minutes later, the shed door opened and the two men left the shed. Shortly after this a police officer Detective Senior Constable Cheung ran forward and stood in front of the shed to prevent the co-offenders from re‑entering it. Police formed the suspicion that there was prohibited drugs being manufactured, and Detective Cheung attempted to arrest the co‑offenders. He yelled out to them "police police" while another detective yelled out words to the effect of "police get on the ground, police don't move". The offender Mr Jones turned around to face Detective Cheung, and Detective Cheung, it is noted in the facts saw that the offender had a startled look on his face. Detective Cheung again yelled "police". The offender then swung a closed fist at Detective Cheung's face, however Detective Cheung stepped backwards and avoided being hit. Detective Cheung then swung his own closed fist at the offender which connected with his face. At the same time another detective used the butt of a firearm to strike the offender to the back of the head, causing him to fall to the ground and then the two police officers jumped on top of the offender. As they fell to the ground with the offender, police were yelling words to the effect of "police put your arms behind your back", however the offender resisted arrest by thrashing his body and refusing to comply with police orders. He was eventually handcuffed. I note however that the resist aspect of the facts is not the subject of any charge and the charge is one that is limited to assault police, that being sequence 7. Following his arrest Mr Jones, the offender, was spoken to by police under caution regarding any firearms at the property. In that questioning he said "I didn't think I had any firearms left up there, I don't, I don't know why they are here".
2. Turning then to the facts concerning sequence 1 knowingly take part in manufacture of a large commercial quantity of prohibited drug offence. The facts note that the role of the offender in taking part in the manufacture was limited to allowing the use of the shed by the co-accused Mr Gafa. The offender acknowledges that he knew that drugs were being manufactured because he had previously entered the shed for short periods and observed the co-accused on a few occasions and he continued to allow the co-accused to operate out of the shed. The facts go on to acknowledge that the offender did not have knowledge of what specific drug was being manufactured other than that it was in a crystal-based form. On the night of the arrest the offender entered the shed and while in the shed had handed items used in the manufacturing process to the co-offender Mr Gafa. The facts note however that there is no evidence that this offender obtained a financial benefit from any manufactured drugs. On the morning after the arrest, police attended the property and undertook a processing of the scene. They located a clandestine, that is hidden laboratory inside the shed and conducted an examination. Well, indeed the facts refer to clandestine laboratories in the shed and conducted an examination of them. Multiple items were forensically tested and items that tested positive for prohibited drugs were seized and sealed as exhibits. Police found a number of air purifying respirators, and DNA testing detected that the offender's DNA could not be excluded as a contributor to a sample taken from of those masks.
3. Fingerprints matching the offender were found on the exterior surface of a metal pot and a glass funnel found in the shed. The facts note that subsequently an opinion was obtained from a forensic analyst who expressed the conclusion that a large commercial quantity of methylamphetamine was manufactured by refinement at the property. The contents of a pot or pan at the scene was found to be indicative of the process occurring, that is the process of manufacturing, as it was found to contain some liquid with a crystalline sediment. That sediment was methylamphetamine with a purity of 77%, and the liquid which was found was methylamphetamine with a 46.5% purity.
4. The total amount of successfully refined solid methylamphetamine hydrochloride located at the property was 1,484 grams, that is just over 1.4 kilograms, but a further 4736 grams of methylamphetamine which was in the process of undergoing refinement was also located. The total amount of methylamphetamine at the property was found to be 6220 grams.
5. The agreed facts then go on to speak about some other items that were found by police. At the relevant time, the offender was the holder of a category AB firearms licence which was registered to an address in Triangle Flat in New South Wales and with a storage address being at the Maraylya property. During their search of the dwelling house at that property, police found the following three firearms in the offender's room. Firstly, a twelve gauge Italian made double barrel "under over" shot gun. This offence is sequence 5 and is to be taken into account on a Form 1 document. Secondly a .22 calibre self-loading rifle which was also a prohibited firearm, this is the sequence 14 offence for which the offender is to be sentenced pursuant to s 167 of the Criminal Procedure Act 1986. Thirdly, a 16-gauge forehand arms single barrel shot gun, this is the subject of sequence 3 which is one of the matters on the Form 1 document. None of these three firearms were registered or stored correctly and the fact that they were not kept safely I note is the subject of the sequence 6 offence to which I have earlier referred.
6. Following the discovery of these three firearms the offender's firearms licence was suspended. Also on 1 November 2022 police attended the Triangle Flat address in order to seize any firearms that were registered to the offender under his firearms licence. On arrival police found the rear door of the premises to be open allowing access directly into the house. Inside they found a safe which was located in a bedroom or study. The facts are silent as to whether the safe was open or locked, but it was agreed in submissions in the hearing today that I should approach the matter on the basis that the safe was locked which I will do.
7. Inside that safe there were found to be ten firearms which were registered to the offender. It is not necessary for me to set out the precise details of those weapons but the first five of those were rifles, four of which had scopes attached, and there were two shotguns and three air rifles. However, as I have said, those were firearms that were registered to the offender. The police seized the firearms and they also found a large amount of ammunition, including ,1400 x .22 calibre rounds, 800 twelve gauge shot gun cartridges and over 150 x .223 calibre rounds. The cupboard in which those items of ammunition were found was unlocked.
8. In addition to the firearms and ammunition that were located it was identified that the offender had failed to change the safe storage address from the Maraylya property to the Triangle Flat road property. I note that this is the subject of the sequence 9 offence which is to be taken into account on the Form 1 document. The offender participated in an interview with police in which he said the following; that he had been a caretaker at the Maraylya property for five years, that as to the three firearms found in his room, he found these in the shed a number of years earlier and had planned on handing them in or getting them registered. He told police that he was kicking himself that he did not hand them in straight away or get them registered and had thought he would get them tidied up and then get them registered and that it was 100% his intent to do that. In relation to the activities in the shed, he told police that he did not know what was going on in the shed, although he did add that he "handed him a couple of things. I have only been in there for short periods of time and left and I just don't want anything to do with it. But I know what's going on in there". He told police that Mr Gafa had wanted to rent the garage from him and that he wasn't happy about it and that he did not know what it was that he was actually doing in it and that he had effectively distanced himself from it because he wanted nothing to do with it.
9. He further agreed that he may have handed Mr Gafa some stuff but other than that he took no part in the drug manufacture. Finally he apologised to police that the whole thing had happened and said he did not mean to assault a police officer. Those in summary are the agreed facts.

OBJECTIVE SERIOUSNESS

1. Turning then to my assessment of the objective seriousness of the various offences. Firstly, the objective seriousness of the sequence 1 offence is marked by the maximum possible penalty which as I have said is one of life imprisonment and the fact that a standard non-parole period of 15 years is specified. As I have said those are important yardsticks in the sentencing exercise to which the Court must have regard.
2. The Courts have spoken for many decades about the damage that illicit drugs cause to individuals and to the community generally. It is for that reason that serious punishment must ordinarily be imposed so as to meet the important requirement of general deterrence as well as the other purposes of sentencing.
3. The quantity of drugs is an important consideration in assessing the relative seriousness. In this case the total quantity was just over six kilograms which represented more than 12 times the large commercial quantity. The drugs were also of reasonably high purity. While the quantity is an important consideration, it is however more important to examine the role that the offender actually performed in carrying out the offence, in other words just what he did.
4. In this case, the Crown accepts that the offender essentially performed the role of a warehouseman. While that sort of role is usually regarded as being towards the lower end of the scale of any "drug hierarchy", the Courts have repeatedly said that intermediaries must ordinarily expect significant sentences see for example Toole v R [2014] NSWCCA 318. That is because without people prepared to carry out these essential roles, drug manufacture and drug syndicates would not be able to operate. Although the statement of facts notes that the offender's role was limited to allowing the use of the shed by his co-offender, the facts also accept that the offender knew that drugs were being manufactured, and that he had previously entered the shed for short periods and observed the co-offender on a few occasions. Also, and while the statement of facts says that the offender did not have knowledge of what specific drug was being manufactured, his plea of guilty and the written submissions on his behalf acknowledge, appropriately, that he knew the quantity to be not less than the large commercial quantity. And, while it was at one stage suggested that the offender "turned a blind eye" to what was going on in the shed, this is not in my view an appropriate description of his level of knowledge, given the matters to which I have already referred, namely the fact that he knew some sort of drug was being manufactured, given that he had been in the shed at times with the co-offender, and given that his fingerprints were found on a metal pot and glass funnel that were located in the shed. Also while the offence was detected on a single day, it would be artificial to conclude that the offender's actions in providing the premises were limited to that one day, because it is accepted by the offender that he had allowed the co-offender to use the shed for some months, and that he had been into the shed at previous times with the co-offender. None of this increases the objective seriousness of the offence, but it means that I cannot approach the offence on the artificial basis that the offender's actions in allowing the premises to be used was restricted to a single day. On the other hand, it cannot be said that there was any sophistication or planning involved in the offender's commission of the offence.
5. I also accept, as was submitted on behalf of the offender, that there is no evidence that at the time he agreed to allow the co-offender to use the shed that he had knowledge that it was intended to use the premises to manufacture drugs. I also accept that there is no evidence that the offender stood to make any financial benefit and there is no evidence of unexplained wealth. It is also relevant that the offender did not bring any particular skill to the manufacturing process. As I have said, his involvement was limited to providing the premises, although admittedly at a later stage with some level of knowledge of what was being done in those premises.
6. Having regard to all of these matters I assess the objective seriousness of this offence as being below the mid-range and towards but not within the lowest range.
7. As I have said there are three offences to be taken into account on a Form 1 document. Although not relevant to the objective seriousness of the substantive offence, the fact that I am to take into account those matters on a Form 1 document is something that ought to apply some degree, although a limited degree, of upward pressure upon the sentence to be imposed for the sequence 1 offence, given the importance of personal deterrence, the community's entitlement to extract retribution for serious offences. The weight to be given to these factors is of course a matter for myself the sentencing Judge. See Lloyd v R [2022] NSWCCA 18.
8. The matters on the Form 1 document all relate to firearms, and two of the matters to be dealt with under s 166 also relate to firearms. The possession of firearms of course is calculated to lead to substantial damage. The legislative purpose behind provisions such as those under which the offender has been charged is the elimination of unauthorised firearms from the community, except insofar as their possession is expressly authorised, and the control of the warehousing and storage of such firearms, to ensure they do not fall into the wrong hands. See for example R v Mahmud [2010] NSWCCA 219. It is for these and other reasons that general deterrence is an important feature in sentencing for such offences.
9. Turning then to the objective seriousness of the sequence 6 offence of failing to take all reasonable precautions to ensure firearms were safely kept. As I have said this relates to the three firearms that were found at the Maraylya property which were not stored properly. Each of these were potentially lethal weapons. In my view it is a moderately serious example of this type of offence, but one that falls below the mid-range. I note that there is no evidence that any of those weapons was loaded with any ammunition and I have taken that into account of course also.
10. Turning then to the sequence 7 offence of assaulting a police officer. This involved the throwing of a punch at the face of one of the arresting officers. Although the punch did not connect, it was clearly the offender's intention to strike the officer. This assault occurred after police had identified themselves more than once. Offences committed against police trying to exercise their duties need of course to be taken very seriously. I assess this particular offence however as being towards the lower end of objective seriousness.
11. Turning then to the sequence 14 offence, which relates to the offender's possession of a prohibited firearm, being the .22 self-loading rifle. Weapons like this must of course be taken seriously given their capacity for rapid fire. While the offender was at the time the holder of a firearms licence, that licence did not permit him to possess this prohibited item. The offender had on his own admission been in possession of the item for a lengthy period. While the weapon was not loaded, there was compatible ammunition nearby which was unsecured. I find this offence as being below the mid-range and towards but not within the lower range of objective seriousness.

SUBJECTIVE MATTERS

1. Turning then to subjective matters relating to the offender himself. He is now aged 42. He has no real criminal record to speak of. He was previously married and has four children, although none were in his direct care at the relevant time.
2. The offender's subjective circumstances have been placed before the Court by means of some written material, including a psychological report. That report indicates that he grew up in the Eastern Creek area. His family upbringing was good and it did not involve domestic violence or exposure to drug or alcohol abuse. The offender completed school to Year 10 and then took up an apprenticeship in plumbing. He worked as a licenced plumber from about age 21 to 28 and then moved into civil and mining work, eventually becoming a site supervisor. At age 35 he started his own excavation business, which he managed until aged about 40 but this business appears to have ceased, apparently due to the stresses of separation from his former wife and custody disputes over the children. After this he worked at times in a gold mine in Orange as well as contracting through his own business and also did some property maintenance work. He has a history of some drug use and also a history of some excessive alcohol abuse but neither of these appear to be ongoing problems that have affected his daily functioning to any significant degree. The psychologist notes that the period leading up to the offender's separation from his wife and children as well as the subject events of these offences was a period of very significant stress and trauma for him.
3. I was informed during the sentence hearing today that this separation occurred earlier in 2022. I have therefore taken into account that this period of stress and turmoil was something that the offender was experiencing in the lead up to the offences before the Court. While this does not excuse his offending in any way, it provides some context and goes some way to explain what appear to be otherwise out of character offences.
4. The psychologist notes that the offender expressed significant remorse and has been motivated to use his time in custody productively. The psychologist concluded that the offender is a man with a strong sense of duty as a provider and has suffered significantly as a result of separation from his children to whom he is dedicated. She further concluded that the offender is experiencing moderate levels of anxiety and depression. I note also that the offender has a number of physical problems that have and will likely continue to make his time in custody more difficult. These include struggles with his weight, migraines and also the fact that he is currently awaiting surgery for an inguinal hernia.
5. Turning to questions of remorse. The psychologist notes that the offender expressed significant remorse, and this is consistent with the content of the Sentencing Assessment Report which notes that the offender showed clear insight into the seriousness of his drug offence. It is also consistent with remorseful remarks he made to police upon his arrest. I accept therefore that in this case there is genuine remorse.
6. Turning to questions of risk and the offender's prospects of rehabilitation, I make the following findings. The offender is noted as a low risk in the Sentencing Assessment Report, and the psychologist came to the same conclusion. I note also that the offender has practically no criminal history. He has a long standing history of employment, and good prospects of employment on release, and he also has the support of his parents and family, some of whom were in Court this morning and who are here in Court this afternoon. There is also the fact that while in custody he has involved himself in work and to training, and is determined to use his time in custody productively. In my view he is a relatively low risk of re-offending, and I assess his prospects of rehabilitation as being fairly good.

DETERMINATION

1. In determining the appropriate sentence in this matter I have had regard to the purposes of sentencing set out in section 3A of the Crimes (Sentencing Procedure) Act 1999, which include of course the importance of adequate punishment, the need to protect the community from the offender, to make him accountable for his actions and denounce his conduct, and to recognise the harm done to the community. Those purposes also include the importance of general deterrence which in my view is a matter of considerable relevance in this case. In terms of personal deterrence, I consider that that is of considerable importance in particular with respect to the firearms offences, but perhaps of somewhat less importance in relation to the drug offence given that the offender's involvement in that drug offence appears to have been somewhat of an aberration. I have also of course had regard to the importance of promoting to the extent that any sentence can, the rehabilitation of the offender.
2. I am satisfied for the purposes of section 5 of that same Act that no penalty other than imprisonment is appropriate.
3. I intend to impose an aggregate sentence, given that there are four offences for which sentence must be imposed. It was submitted that the Court might conclude that an overall head sentence not exceeding three years is appropriate or at least within range. It was however correctly stated that this was a somewhat bold submission. I have considered this submission and a number of cases to which my attention was drawn, but I am unable to accept that such a head sentence is appropriate, especially given the range of offences and the maximum penalty for the sequence 1 offence and the existence of the Form 1 matters.
4. Given that I am imposing an aggregate sentence I am required to set out the indicative sentences that I would otherwise have imposed. I stress that these are not a final sentence, these are as I have said the indicative sentences. I will make it clear the final aggregate sentence in a couple of minutes.
5. The indicative sentences are as follows: For sequence 1 which is the drug offence, after the 25% discount for the plea of guilty and after taking into account the matters on the Form 1 document, a head sentence of three years six months. I specify a non-parole period of two years. For the sequence 6 offence of not storing firearms safely and after a 25% discount the indicative sentence is four months imprisonment. For the sequence 7 assault police offence after the 25% discount the indicative is three months imprisonment and for the sequence 14 possess prohibited firearm and after the 25% discount he indicative is 15 months imprisonment. Of course in determining those indicative sentences for the section 166 related offences, I have had regard to the maximum penalties but of course also the jurisdictional limit imposed upon the Local Court.

TOTALITY AND ACCUMULATION

1. I have had also regard to totality principles in determining the ultimate aggregate sentence. That principle of course requires a Judge to ensure that the total effective or aggregate sentence is derived through a process of accumulation or concurrency of individual sentences so that the ultimate sentence appropriately reflects but does not exceed the overall criminality of the multiple offences: Porter v R [2019] NSWCCA 117.
2. The offending involved in the 166 matters involved separate acts to those that are the subject of the main offence of knowingly take part in manufacture of a prohibited drug. In my view it is necessary therefore for there to be some degree of notional accumulation on penalty for those matters so as to acknowledge this aspect. I note also that two of the matters on the Form 1 document relate to two of the firearms found at the Maraylya property, which are also the subject of the sequence 6 offence of failing to keep firearms safely. While these are two different types of offence there is some degree of overlap in the criminality involved, and so I have been careful not to double count that criminality.
3. I make a finding of special circumstances given that this is the offender's first period in custody, and also on the basis that any time in custody is in my view rendered more difficult due to the offender's distress about losing contact with his children and his inability to pursue that contact while in custody.
4. The sentence I impose is as follows;
5. I impose an aggregate head sentence of three years nine months. I specify a non-parole period of two years and two months. Taking into account the agreed period of 334 days that the offender has already been in custody, I direct that the sentence commence from 29 July 2023. The head sentence therefore will expire on 28 April 2027. The non-parole period will expire on 28 September 2025.
6. Ms Crown and Mr Bhutani anything in those numbers or anything else that needs to be raised?
7. ROMELINGH: No your Honour.
8. BHUTANI: Not from us thank you your Honour.
9. HIS HONOUR: All right thank you. The Court will adjourn.

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