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[2018] ACTSC 221
Supreme Court of the ACT
2018-08-08
Mossop J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - sentencing - unauthorised possession of a firearm - possessing ammunition - riding a motor vehicle without consent - possession of stolen property - possession of a drug of dependence - possessing a prohibited substance - possessing declared substances - poor criminal history - specific deterrence - general deterrence - sentenced to imprisonment and fines imposed
Drugs of Dependence Act 1989 (ACT), s 169(1), 171
Firearms Act 1996 (ACT), ss 43(1)(a)(iii), 249(1)
Magistrates Court Act 1930 (ACT), s 90B
Legal Aid ACT (Offender)
1. The offender, Cam Massey, has pleaded guilty to a number of charges. Those charges and their maximum penalties are as follows:
2. On 16 January 2018, police were notified that a vehicle - which had been reported as stolen on 8 December 2017 - was parked on the nature strip outside a construction site on Berrigan Crescent, O'Connor. Upon arrival, police saw the offender approaching the vehicle. The offender was arrested, searched and police seized a number of items from the offender or from the bag that he was carrying.
4. Police also found a soft air pistol in the car.
5. The offender's DNA was found on the air pistol and the driving controls of the vehicle.
6. On 5 December 2017, a Toyota Land Cruiser was stolen from a property in Hall. About 5:20pm that day, the offender and another man were seen to exit from the vehicle in the carpark of the Anaconda store in Fyshwick.
7. The objective seriousness of the firearm offence relating to the soft air pistol is at the low end of the range. First, it involves possession rather than use of the item. Second, the nature of the firearm is such that it is less harmful than many other items covered by this offence. The firearm in this case was an air pistol which fired non-metal bullets. Third, the offence covers up to two firearms and there was only one firearm involved in this case.
8. The ammunition charge is at the low end of the range having regard to the quantity and nature of the ammunition.
9. The two offences of riding a motor vehicle without consent are at the low to mid range of the offending conduct having regard to the fact that the charges related to riding rather than driving the motor vehicle.
10. The two charges of possession of stolen property are at the low to mid range of the offending conduct having regard to the fact that the items had some potential to be monetised, but were not readily so.
11. The charge of possessing a drug of dependence is in the mid range of objective seriousness having regard to the quantity and nature of the drug.
12. The possess cannabis charge is in the low range of objective seriousness having regard to the quantity and the limited scope of the offence in question. The charges relating to diazepam, oxycodone and alprazolam are all in the low range of objective seriousness for the relevant offence.
13. The offender is the youngest of his parents' three children. His parents' relationship ended when he was very young. While he did not see his father for many years, he claims to have a good relationship with him now. He reports a good relationship with his mother, brothers and halfsister. Both of the offender's brothers are currently in the Alexander Maconochie Centre. The offender has one child who is now four, or almost four, years old. He is no longer in a relationship with the child's mother. The child is currently cared for by her maternal grandmother due to parental drug use. He is currently in a relationship of some months duration. His current partner had her second child from a previous relationship. Child and Youth Protection Services have been involved with both of her children due to maternal drug use.
14. The offender completed year nine at school. He has qualifications in small motor maintenance. His employment history has consisted of construction and labouring positions, and most recently he has worked for a friend as a roofer. He has employment available to him when he is released from custody. Methylamphetamine use is his principal illicit drug of concern, although he also has a history of cannabis, benzodiazepine, heroin and ecstasy use. He reported that he entered and successfully completed a rehabilitation program over four months at Oolong House when he was released from custody in April 2017, and that he remained abstinent from illicit substances until three weeks prior to being arrested. He has entered and completed the Solaris Therapeutic Community Program since his return to custody.
15. He reported suffering from depression and anxiety. He appears to be motivated to maintain his relationship with his current partner, to remain free of illicit drugs and to putting himself in a position where he can re-establish contact with his daughter.
16. He was assessed by the pre-sentence report author as being at a medium risk of general reoffending, with his principal criminogenic risks being drug use, mental health issues and antisocial peer interactions.
17. The offender's criminal history appears to be largely related to drug use and the need to fund it. He has convictions from late 2014 for using a carriage service to threaten serious harm, interfering with the driver's control of the vehicle, possessing a knife without reasonable excuse, possessing a drug of dependence, driving while licence suspended and two counts of riding or driving a motor vehicle without consent.
18. He has eight convictions of obtaining property by deception which occurred on 17 February 2015. He also has convictions for aggravated burglary, possessing a prohibited weapon, possessing a knife, going equipped for theft and unlawful possession of stolen property which all occurred on 18 February 2015.
19. He then has a series of convictions for offences committed in 2016: possessing a drug of dependence, unlawful possession of stolen property (five counts thereof), unauthorised possession of a prohibited firearm, riding or driving a motor vehicle without consent and unauthorised possession of a prohibited weapon.
20. The offender was charged on 17 January 2018. He pleaded not guilty. He was committed for trial on 18 April 2018 in relation to charge CC2018/3639 (the charge relating to the Land Cruiser). He indicated a plea of guilty to this charge and a variety of more serious charges against him were not proceeded with.
21. He pleaded guilty in the Magistrates Court to the ride motor vehicle charge relating to the vehicle in O'Connor and the possess firearm charges on 16 May 2018 and was committed to the Supreme Court on 5 June 2018. The balance of the charges were transferred as related charges pursuant to s 90B of the Magistrates Court Act 1930 (ACT).
22. I will allow reduction of approximately 25 per cent on each of the charges on which I will impose a custodial sentence. I have taken account his plea of guilty in relation to the sentences where I proceed by way of a non-custodial penalty. Some of the reductions in the custodial penalties will be slightly higher than 25 per cent by reason of the limited periods of imprisonment to be imposed.
23. The offender has been in custody since 16 January 2018. On 3 April 2018, the offender was dealt with for a number of other charges, including breach matters, in relation to which he was given a sentence of one year, four months and 22 days imprisonment. That sentence runs from 9 July 2017 until 30 November 2018 and had a non-parole period of 12 months and 24 days which expired on 1 August 2018. As a consequence, none of the time spent in custody is solely attributable to the present offending. The lengthier than usual non-parole period imposed by the magistrate was in order that offender have the opportunity of completing the Solaris program in custody prior to being eligible for parole.
24. The offender has a poor criminal history. The current batch of offending conduct is consistent with offences related to funding illegal drug use. They were committed at a time when he was on bail. Having regard to the offender's history, the issue is whether or not he can rehabilitate himself sufficiently to permit himself to avoid relapsing into ongoing drug use and associated criminal behaviour. While completion of the Solaris program whilst in prison is a positive sign, whether that can be translated to ongoing abstinence when outside custody is a matter which will have to await his release. Clearly his ongoing association with users of drugs will make that difficult. He has prepared a relapse prevention plan, but whether or not he can implement the strategies therein over a significant period in the real world remains to be seen. The present sentences must provide a significant degree of specific deterrence as well as reflect general deterrence. Having regard to the fact that he is serving an existing sentence of imprisonment, it will be necessary to reset the non-parole period. I will do that so as to allow a shorter than usual overall non-parole period corresponding to just over 50 per cent of his aggregate sentence.
25. The sentences that I will impose are as follows:
I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.
R
Massey [2018] ACTSC 221