[2005] NSWCCA 355
Veen v The Queen (No 2) (1988)164 CLR 465
Texts Cited: Nil
Category: Sentence
Parties: Regina (Crown)
Source
Original judgment source is linked above.
Catchwords
[2005] NSWCCA 355
Veen v The Queen (No 2) (1988)164 CLR 465
Texts Cited: Nil
Category: Sentence
Parties: Regina (Crown)
Judgment (2 paragraphs)
[1]
Judgment
In 2010 Randy Lawson, who is now 44 years of age, was sentenced by his Honour Judge Coolahan to eight years imprisonment with a five year non‑parole period for offences involving the supply of methamphetamine. His custodial record indicates that he served the balance of about seven months of parole after parole was revoked in 2017 following his release.
On 5 October 2018 he was arrested and now faces sentence for a number of charges including supplying methamphetamine. There are a number of Form 1 matters to be dealt with, and a number of separate offences on a section 166 Certificate which I will relate.
The first count (sequence 001) to which he has pleaded guilty is supply prohibited drug being a total of 77 grams of methylamphetamine contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985, which carries a maximum penalty of 15 years imprisonment with no standard non‑parole period.
The second count (sequence 013) of possess a Taser being prohibited weapon contrary to s 7(1) of the Weapons Prohibition Act 1998, carries a maximum penalty of 14 years imprisonment with a five year standard non‑parole period.
The third count (sequence 019) of possess a shortened firearm being a loaded .22 rifle contrary to s 62(1)(b) of the Firearms Act 1996 which carries a maximum of 14 years imprisonment with no standard non‑parole period.
Attached to the supply count, (sequence 001) are four matters:
1. Sequence 008 dealing with the proceeds of crime ($5450),
2. Sequence 010 possess prohibited drug (90 grams cannabis)
3. Sequence 011 supply prohibited drug (1.57 grams of methylamphetamine) and
4. Sequence 012 possess prohibited drug (methadone).
I take into account the maximum penalties as set out in the Crown bundle.
There are five Form 1 matters to be attached to the possessing a prohibited weapon (the Taser) charge (sequence 13), namely
1. Sequence 006, possessing prohibited weapon without a permit (pepper spray);
2. Sequence 007, using a prohibited weapon contrary to prohibition order (pepper spray);
3. Sequence 014, possessing a weapon without a permit, (body armour);
4. Sequence 015 using a prohibited weapon contrary to prohibition order (Taser); and
5. Sequence 016 using a prohibited weapon contrary to prohibition order (body armour).
I take into account the maximum penalties as set out in the Crown bundle.
The three section 166 matters, related to sequence 019, the principle count of possess shortened firearm contrary to s 62 (1)(b) of the Firearms Act 1996. These matters are:
1. Possess an unregistered firearm, contrary to s 36(1) of the Firearms Act 1996 with a maximum penalty of 2 years imprisonment;
2. Not keep a firearm safely, contrary to s 39(1)(a) of the Firearms Act 1996 with a maximum penalty of 12 months imprisonment; and
3. Acquire firearm subject to a prohibition order, contrary to s 74(1) of the Firearms Act 1996 with a maximum penalty of 2 years imprisonment.
Pleas have been entered in circumstances which attract a 25% discount on any term of imprisonment, and Mr Swain of counsel concedes that a term of fulltime custody is required. It is unnecessary for me to consider any alternatives when carrying out the sentencing exercise in accordance with the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.
The offender has been in custody since his arrest on 5 October 2018, but six months of that time was referrable to a term of imprisonment of six months for supply prohibited drug. It is agreed that in the exercise of my discretion the term of imprisonment to be imposed for this offending may commence at any time between 5 October 2018 and 4 April 2019.
A number of Form 1 matters are to be dealt with in the way suggested by the Chief Justice in the guideline judgement on Form 1 matters (Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146), that may result in a substantial increase in sentence, and the offences may demonstrate the need for greater emphasis on personal deterrence and retribution.
Mr Lawson was on conditional liberty at the time of the offending. He was on bail for certain offences and was also subject to section 9 bond. He was also subject to a firearms prohibition order and weapons prohibition order, both issued on 19 January 2017 and served on 1 February 2017. His offending was uncovered on the afternoon of 5 October 2018 when a search warrant was issued for the premises at Wongarra where he lived in the garage, while his brother and his brother's family lived in the main residence. That evening the offender went to Toukley Police Station and met Constable Farrell who seized his phone and asked him to empty his pockets. The Police uncovered on him, or in his Volkswagen outside, a total of about 25 grams of methylamphetamine.
During the search at the Wongarra residence Police located underneath the couch where the offender slept a shortened .22 calibre pump action rifle loaded with six 22 calibre bullets. Also found were electronic scales, a ten gram canister of pepper spray, $5,450 in fifty dollar notes and there was a further total of about 50 grams of methylamphetamine located in various places around the garage. They also located 1.57 grams of MDMA which is the subject of one of the Form 1 matters, 90 grams of cannabis and some methadone which are also the subject of Form 1 matters, as well as Taser and the body armour. Police also found a tick list composed of names and numbers on the fridge. He was taken into the Police station and declined to participate in an interview.
His record involves significant periods in custody as I have indicated, commencing with a three month sentence of imprisonment for driving while cancelled in 1999; further driving offences and introducing drugs into prison, lead to a sentence of 12 months imprisonment with a nine month non‑parole period in 2005; a six months sentence for driving while disqualified in 2004; a one month sentence for possessing prohibited drug in 2011; and the lengthy eight year sentence that I have indicated imposed by Judge Coolahan and the six month sentence served after his arrest here.
I have taken account of the matters set out in the judgment of the Court of Criminal Appeal in Mr Lawson's earlier appeal in 2012 (Lawson v R [2012] NSWCCA 56). Of significance there appears to have been a psychologist report containing a relevantly similar history to that contained in the report to which I will turn shortly. As McCallum J said at [32] - [33],
"The only contested evidence was that he was subject to prolonged and sustained sexual abuse at the hands of his step-father, the most troubling was the evidence that he had first been introduced to cannabis by that man as a tool of seduction or form of bribery for his silence."
"The history of that evidence recited at length in the psychologist report is extremely sad and assuming the allegations were true, which was not doubted at the proceedings on sentence, I have no doubt that those events would have had an extremely detrimental impact on Mr Lawson and in particular the development of his dependence on illicit drugs."
Whilst Judge Coolahan was not persuaded that that history of sexual abuse leading to his addiction to illegal drugs had any real effect on his offending at that time, McCallum J noted that it may be acknowledged that others may have reached a different conclusion on that issue.
A number of certificates have been tendered, attesting to Mr Lawson's attempts at rehabilitating himself and obtaining qualifications while in custody. They are consistent with the history that he gave to the psychologist Sarah Brann leading to her lengthy report of August 2019.
In addition to the history of his step-father perpetrating penetrative child sexual abuse on him between the ages of 12 and 15, his step-father was a drug dealer and his mother served time in custody and he had very few happy memories of a childhood. He had some employment in farm and factory work throughout his life. There was a period of unemployment between 30 and 35. He commenced alcohol at an early age and then, as I indicated, he was introduced by his step-father to cannabis aged 12 or 13, and then progressed onto a range of opioids including heroin and methadone, infrequently in custody, but a significant consumer of what is referred to as "bupe" which he was using regularly and indeed the day prior to the assessment he had his last intake.
He used crystal methamphetamine while in custody for his earlier lengthy sentence and became dependent. On his release he was smoking half to one gram a day. He was also using non-prescribed benzodiazepines when he was able to obtain them. He said that ice made him feel invincible. He did participate in MERIT and EQUIPS programs while in custody previously and most recently.
To his credit, he acknowledged that the offending was consistent with the facts supplied and he acknowledged that he was selling ice to fund his own substance habit and the rest of the substances that were found for his personal intake. He said this period of his life was a big blur due to the quantity of substance he was abusing. He indicated he was in possession of the weapons because he had a disagreement with a young man he felt was a loose cannon, who had taken offence, and threatened to kill him.
I should say that although the Crown correctly points to cases such as R v Qutami [2001] NSWCCA 353 and Imbornone v R [2017] NSWCCA 144, highlighting the caution with which one should approach such histories, given that significant parts of the history are against his interest, have also been unchallenged and to some extent recognised by Judge Coolahan and the Court of Criminal Appeal. I am comfortable in proceeding to sentence on the assumption that the history is a reasonable one, even though not tested or adopted.
He had been treated by a psychologist, Ms Walker, for a lengthy period of time and I accept the diagnosis reported of a major depressive disorder and post-traumatic stress disorder. It is suggested that some of his current offending such as sleeping with a loaded gun under his bed indicated that he was experiencing dysfunctional and dangerous behaviours associated with hyper-vigilance and paranoid expectations. I accept that with the history described he may well have experienced depressive symptoms, low mood, feelings of worthlessness and social difficulties isolation since adolescence. He has been taking a prescription anti-depressant for six months but he has been unable to obtain Melatonin, which was recommended by the psychologist to regulate his sleep patterns. Given that he has been attending that psychologist on and off for 15 years I accept that, although not psychiatrically qualified she has sufficient experience to proffer the diagnosis that she has done.
In her psychological assessment report Ms Brann says, that the current offending was committed in the context of his long term difficulties with PTSD and major depression and severe stimulant use disorder. His mother had died in the months before the offending and these issues were exacerbated as his coping declined. She recommended a range of treatment and medication be provided by Justice Health and I would support that recommendation and request that the report of Ms Brann accompany the offender when he returns to custody so that the Justice Health authorities may peruse appropriate steps towards his rehabilitation.
It is common ground that the principal supply prohibited drug count is below the mid-range of objective seriousness, taking into account the number of bags containing methylamphetamine, indicating his involvement as a street level dealer or a user dealer and taking into account his own admissions to the psychologist of his dealing. The amount was approximately 15 times the indictable quantity. There were electronic scales and other indicia of dealing consistent with his admissions and the money as he has admitted is indicative of supply.
The possess prohibited weapon matter is a serious matter but as Mr Swain points out, Simpson J said in R v Williams (2005) 156 A Crim R 225; [2005] NSWCCA 355 that a Taser is relatively low in the hierarchy of prohibited weapons. The possession of the loaded .22 is an objectively very serious matter given that it was loaded and located underneath his bed, and presumably ready to be used in the case of threats as acknowledged by the offender. It's possession should also be viewed in the context of his involvement in criminal activity.
His record of previous convictions and the fact that the offender was on conditional liberty are taken into account, as is common ground. The Crown does not point to his previous record as an aggravating factor and Mr Swain correctly points out that in accordance with Veen v The Queen (No 2) (1988)164 CLR 465, the effect of the record is to deprive him of leniency rather than to be regarded as an aggravating factor.
The plea of guilty is recognised as a mitigating factor. Mr Swain also puts that there is no evidence that the drug offences were part of a planned or organised criminal activity, and that there is no evidence of planning beyond what would ordinarily be expected in drug supply. In accordance with what was said in Knight v R [2010] NSWCCA 51, I accept that submission.
General deterrence and specific deterrence are of course very important matters to take into account, both in relation to drug supply and in firearm offences. I accept Mr Swain's submissions that to an extent his moral culpability is moderated by Bugmy ((2013) 249 CLR 571) considerations in the light of the sad and difficult upbringing which has been exposed. It is clear that his exposure to sexual abuse and drug abuse at an early age would have compromised his capacity to mature and learn from experience. It is thus appropriate to moderate the weight which would otherwise be given to general and specific deterrence, and to a modest extent his major depressive disorder and post-traumatic stress disorder make him a less suitable medium for general deterrence, retribution and enunciation.
The prospects of rehabilitation are guarded, although Mr Lawson has made successful attempts to obtain qualifications and complete courses while in custody and with some maturity and the impact of a second sentence to endure, one would hope that he can look forward to a positive pro-social contribution to the community. I do bear in mind as the Crown points out that he was ambivalent at best about ceasing his intake of illicit substances, while he wishes to maintain abstinence from ice, he enjoys smoking pot and does not see it as a problem. He presently lacks insight into the risk of re-lapsing. One would hope that with treatment provided by Justice Health while in custody he may come to a more mature and sensible view about those matters.
The Crown concedes that a finding of special circumstances should be made on a number of bases which are apparent from the evidence. As Mr Swain points out, drug addiction may warrant a finding of special circumstances where the offender requires substantial assistance to overcome drug addiction. As Beazley P said in R v Lulham (2016) 263 A Crim R 287 even if the prospects of rehabilitation are difficult to assess in the case of a significant term of imprisonment the Court may none the less be satisfied that a finding of special circumstances is appropriate to assist or promote an offender's rehabilitation.
Neither counsel took the Court to any statistics, and Mr Swain in submissions specifically eschewed any reliance upon them.
Both counsel point to statements of principle in relation to totality and concurrency from R v Pearce (1998) 194 CLR 610 which require the judge to ultimately fix an appropriate sentence for each offence before considering questions of accumulation, concurrence or totality.
The Crown acknowledged that as all of the offending arose out of the execution of a search warrant on one day there may be a very significant degree of concurrency between the sentences. It is clear that an aggregate sentence may be imposed to include the section 166 matters and that is the most convenient course to take.
Ultimately the sentence should be structured as submitted by Mr Swain mainly to adequately reflect the criminality of the offending and condign punishment for such offending, bearing in mind the Bugmy principles and special circumstances on the basis of totality, drug addiction and rehabilitation. Mr Swain's ultimate submission was that the offender had already served a significant proportion of the non‑parole period,, however that it is not a submission that can be accepted entirely.
The orders that I make are:
1. The offender is convicted of each offence.
2. I impose an aggregate sentence of imprisonment of 4 years, 3 months to commence on 5 January 2019.
3. I impose a non-parole period of 2 years, 3 months expiring on 4 April 2021.
4. The indicative sentences are:
1. Sequence 001, taking into account the Form 1 matters (008, 010, 011, 012): 4 years.
2. Sequence 013, taking into account the Form 1 matters (006, 007, 014, 015, 016): 18 months, with a non-parole period of 12 months.
3. Sequence 019: 3 years, 6 months.
4. Section 166 certificate sequence 003: 6 months
5. Section 166 certificate sequence 004: 4 months
6. Section 166 certificate sequence 005: 6 months
1. I find special circumstances.
Do you understand that Mr Lawson?
OFFENDER: Yes.
HIS HONOUR: Four years and three months with two years and three months non‑parole period and I have backdated it by three months of the six month sentence that you served all right.
OFFENDER: Thank you.
HIS HONOUR: I hope that you can continue your efforts at rehabilitation while in custody, all the best.
OFFENDER: Thank you your Honour, thank you.
HIS HONOUR: Thank you both for your considerable assistance.
Note - These extempore remarks were revised without access to the court file.
[2]
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Decision last updated: 11 March 2020