R v McALLISTER

FACTS - substantive sentence matters

1. The facts are before the court by way of a set of agreed facts found at tab 4 of the Crown tender bundle exhibit A on sentence. The facts are set out not in the same order as the offences on the cover sheet.
2. The offender was served with a Weapons Prohibition Order on 29 May 2019 and the conditions were explained to him on service of the Order. On 30 April 2020 police attended the offender's home at 3 Lambie Street, Tumut and executed a search warrant looking for prohibited drugs and firearms. Police entered the main bedroom and encountered the offender coming from that bedroom. Both were searched and nothing of interest was located on the person of the offender or his partner, Megan Baker. Both were informed they were not under arrest but they elected to remain.

Sequences 8 and 12 (substantive matters) and sequences 9 and 13 (Form 1)

1. Upon commencing to search the main bedroom police located two knuckledusters on the floor of the bedroom near where the offender had existed. Knuckledusters are prohibited weapons. Megan Baker told police that she owned the items but she did not know that they were prohibited weapons. Both the offender and Ms Baker were placed under arrest.
2. The substantive charges (sequences 8 and 12) relate to one set of the knuckledusters and the form 1 matter relates to the other set.

Form 1 offences - sequences 10 & 11 - Possess Prohibited Weapon; sequences 14 & 15 - Possess Prohibited Weapon in Contravention of Weapons Prohibition Order

1. Police continued to search and located two further knuckledusters.

Sequences 1 & 2 - Possess Prohibited Weapon; Possess Prohibited Weapon in Contravention of Weapons Prohibition Order.

1. Also in the main bedroom police located a charged and operational hand held anti-personnel device (commonly known as a Taser) designed to administer an electric shock on contact. This is also a prohibited weapon in New South Wales. The Taser together with the knuckledusters were found in a zippered bag on the bedroom floor.
2. Later the offender agreed to participate in a record of interview at the Tumut Police Station and admitted to ownership of all four knuckledusters and the Taser. The offender also confirmed in the interview that he was subject to a Weapons Prohibition Order. He told police that he had come into possession of the items the previous day.

Sequence 3 - Possess Prohibited Drug with Intent to Supply; Sequence 5 - Deal with Proceeds of Crime

1. Police continued to search the main bedroom and located two resealable bags containing what on analysis was found to be 4.02 grams of methyl amphetamine in a tin on a seat in the corner of the main bedroom. In a small cupboard behind the chair police located a set of digital scales in a black and orange case and a wallet containing $725 in Australian currency comprising of fourteen $50 notes, one $20 note and one $5 note. The wallet also contained a number of unused small resealable bags. In a set of drawers police located a large number of unused small resealable bags.
2. Police also located a locked safe concealed on the top shelf of a linen cupboard in the hallway. One of a set of keys found on the bedroom floor opened the safe. Inside the safe were three white envelopes. One of the envelopes contained what on analysis was found to be 17.46 grams of methyl amphetamine. One of the other envelopes contained $5000 in cash and the other $1000 in cash. $4900 of the cash was in bundles of $50 notes. Sequence 3 relates to the combined total of 4.02 grams found in the bedroom and the 17.46 found in the same making a total of 21.48 grams.
3. The facts also recite that .73 gram of methyl amphetamine was found in a tin on the coffee table and 0.05 gram (i.e. half a "point") of methyl amphetamine was found in a tin in the top drawer of a chest of drawers.
4. The offender told police in the interview the offender told police that most of the methyl amphetamine was for the personal use of him and his partner as they both had heavy drug addictions. He estimated that there would have been approximately half an ounce. There was three-quarters of an ounce.
5. Further in the record of interview the offender told police that he purchased an ounce (28 grams) on "tick" (credit) approximately two weeks prior to the search. He then sold the drug at $50 per point (0.1 gram). He also said that the he sold enough to recoup the $6,000 which he would have to repay to his drug dealer. He went on to tell police that the $6,000 found in the envelopes in the safe was to pay his dealer and that it was mainly the proceeds of previous drug supplies. He also told police that the $725 found was partly doing some odd jobs but also selling "a couple of bags".
6. In the interview the offender also told police that as he had the money to pay his dealer the remainder of the substance was for him and his partner given their very serious drug addictions. He maintained that his partner was not aware of him selling the drug.
7. The total net weight of the methyl amphetamine found inside the said and other areas inside the house was 22.26 grams. The offender claimed that all of the methyl amphetamine left inside the house both inside the safe and the other areas of the house was for the personal use of him and his partner. The facts recite that "by his admissions the (offender) has acknowledged that he was going to share the methyl amphetamine with his partner, itself constituting an intent to supply to another".

Assessment - substantive sentence matters

1. The offences to which sequences 1 and 8 relate carry standard non-parole periods. Section 7(1) of the Weapons Prohibition Act contemplates weapons of a far more serious nature than those found in the possession of the offender. However the weapons the subject of the charges are easily transported and readily hidden or secreted and are capable of inflicting serious injury. Noting the nature of the weapons in particular I assess that the offending in both sequences 1 and 8 - i.e. the possession of the knuckledusters and Taser is moderately below mid-range. I did not understand either party to dissent from this when I gave that indication at the sentence hearing.
2. Although the offences contrary to s 34(1) of the Weapons Prohibition Act (sequences 2 and 12) do not carry standard non-parole periods I would make identical findings as to the seriousness of those matters.
3. If necessary I would make the same findings in respect of the offences on the Form 1 documents.
4. In respect of sequence 3 noting the quantity of the drug was 21.48 grams, that some of the quantity obtained was sold to fund the drug habits of the offender and his partner and the commercial (meaning money making) nature of the enterprise the matter is moderately below mid-range.

Section 166 Certificate Matters

1. Noting the amount of cash to which sequence 5 (Deal With Proceeds of Crime) relates and the admission by the offender that the money came from the sale of drugs at $50 per "point" that matter is within the mid-range. Noting the small quantity of cannabis involved in sequence 6 (6 grams) that matter is very much towards the bottom of the range. The Goods in Custody charge relates to prescription medication for erectile dysfunction. That matter is towards the lower end of the range of seriousness.

Breach matters

1. I will deal with the breach offences in the order in which they appear on the cover sheet on exhibit B on sentence in the current sentence proceedings. The first charge is Supply Prohibited Drug (Cannabis) in the amount of 83.2 grams. This relates to a quantity of cannabis found in the "man cave" at the offender's property outside of Tumut. Various quantities of cannabis totalling 83.2 grams along with various indicia of supply including resealable bags were found.
2. The charge of Deal with Proceeds of Crime relates to $1850 also found in the man cave. An examination of a mobile phone indicated that the offender was supplying cannabis.
3. The next matters are four counts of Possess Military Style Weapon. Located inside a locked box bolted to the wall were a total of four home-made explosive devices. Three of the devices consisted of 90 millimetre PVC pipe painted black with caps and each end. A length of safety fuse protruded through one end cap. The fuse was attached to a detonator and then to an industrially produced ammonium-nitrate emulsion explosive. The fourth device consisted of an outer skin of two metal tins secured with silver tape, inside in which was a roll of wire that was attached to an industrially produced ammonium nitrate emulsion explosive to enable electronic detonation. I found these matters to be very much towards the bottom of the range of seriousness.
4. The remaining charges relating to possession of pistols relate to replica western style revolvers located on the bottom shelf of the bar in the man cave area and pistols in a display case inside the house. I note that the weapons in the display cases were brought legally into Australia from the United States in the year 2000. The Crown conceded at the original hearing and I found that the matters relating to the pistols in the display cases were at the bottom of the range of seriousness.
5. The findings made as to the objective seriousness of the matters dealt with by way of s 9 bonds indicate why those bonds were imposed rather than terms of imprisonment. It is conceded by counsel for the offender in the current sentence proceedings that the bonds should be revoked and a sentence of imprisonment to be a component of an aggregate sentence be imposed. The Crown made a similar submission in respect of the breach of bond matters.
6. The last of the breach matters noted to be sequence 14 in the original proceedings relates to an agreement to supply 35.5 grams of cannabis, which offending was detected by means of examination of a mobile phone found in the man cave.

General Deterrence

1. There is an element of general deterrence to be addressed in all matters relating to the supply of prohibited drugs and the possession of prohibited weapons. Rothman J in his additional comments in R v Campbell & Smith [2019] NSWCCA 1 at [9] said: "The possession and use of firearms in society is an extremely troubling aspect, for which general deterrence and specific deterrence loom large. The possession of weapons generally, by which I include knives, has become far too common in society. The possession of such weapons undermines the fabric of society and, when possessed for the purpose of other criminal activity, puts at risk the rule of law and the appropriate relationship between members of society."
2. The emphasis on the second sentence of the extract immediately above is mine. It is to be immediately observed that the court in R v Campbell & Smith was dealing with far more serious offending than the matter presently under consideration. However the sentence that I have emphasised in the extract relates to weapons generally. In respect of the weapons to which the charges relate it is difficult if not impossible to contemplate a legitimate reason for the possession of either knuckledusters or a Taser by a citizen.
3. So far as the need for general deterrence in respect of the supply of prohibited drugs is concerned I repeat what I said at p 19 of my remarks on sentence of 18 July 2018, namely: "On the issue of the charges relating to the supply of drugs the Court of Criminal Appeal in Parente v R [2017] NSWCCA 284 said at [109]: 'Since at least the 1970s (see the cases referred to above at [63]ff) there has been no doubt about the importance of general deterrence in drug supply cases. An inherent characteristic of most activity relating to illicit drug supply is that participants take steps to ensure it is carried out covertly with the result that significant resources have had to be devoted by law enforcement authorities to detection and successful prosecution. A consistent message of deterrence from sentencing judges is necessary.' Further, as I have often observed when dealing with matters relating to the supply of methylamphetamine, it is no exaggeration or hyperbole to say that barely a day let alone a week goes by in this court where the court does not deal either on indictment or on appeal from the Local Court an offender who has committed serious criminal offending while under the influence of the substance or has committed serious crime to fund the purchase of more of the substance."

Criminal History

1. The offender was born on 31 December 1984 and accordingly is now 36 years of age. Apart from the offending for which the offender was sentenced by this court in 2018 he has been convicted of Drive While Suspended and two separate offences of Drive vehicle With Illicit Drug Present in Blood etc, in respect of which fines were imposed.
2. However, noting the offending for which the offender was sentenced in 2018 the criminal history of the offender does not entitle him to any particular leniency.
3. The present offending however was committed in breach of parole and breach of a significant number of good behaviour bonds. The factor of statutory aggravation in s 21A(2)(j) of the Crimes (Sentencing Procedure) Act, 1999 is clearly made out. I note the present offending is similar to the offending in respect of which the offender was subject to conditional liberty.

Subjective case

1. No oral evidence was called from or on behalf of the offender. However counsel for the offender relied on a report from Mr John Sheppard, Psychologist. Mr Keller, counsel for the offender, also relied on part of Exhibit C, the Breach Report prepared by Corrective Services when the offender was convicted of one of the Drive with Illicit Drug in Blood matters.
2. Mr Sheppard's report sets out that the offender's father died when the offender was 17, his mother re-partnered and now lives in the United States. Because of the travel restrictions relating to the COVID-19 pandemic she has been unable to travel back to Australia.
3. The offender was educated at schools in Tumut where he grew up and he left school towards the end of year 11. He has worked in the timber and horticultural industries before commencing his own business doing landscaping, mowing and tree work. The business closed because of the offender's increased use of methyl amphetamine (ice). More recently the offender has been on Centrelink benefits.
4. The report goes on (p 4) to say that the offender met his first partner when he was 19 years of age and they went on to have two children together who currently live with their mother. He was seeing the children on a regular basis. The relationship ended when his partner had an affair in 2016. More recently he was in another relationship for about 7 months which ended with the offender being taken into custody.
5. Further, the report sets out that the offender was prescribed anti-depressant medication while he was in custody at the Junee Correctional Centre. He is currently at Clarence Correctional Centre near Grafton and is not currently being treated for any mental health issues.
6. The offender gave a history or commencing to use cannabis and alcohol when he was about 14 when he was introduced to them by his father who used them. He commenced smoking ice (methyl amphetamine) when the children were seven or eight. The children are now aged 11 and 13, which means he commenced smoking the substance about 4 to 5 years ago.
7. Further, he was heavily addicted to ice at the time of the commission of the most recent offending. He maintained that he had the weapons i.e. the knuckledusters and the Taser for protection of his partner when he was not around.
8. Mr Sheppard's report sets out at p 5 that the offender indicated that he was extremely remorseful. As I observed at the sentence hearing that expression of remorse is totally untested. In these circumstances I am not prepared to find on balance that the offender is remorseful.
9. At p 6 of the report the following appears: "Mr McAlister appears to have had a reasonably challenging childhood and was exposed by both his parents to the use of drugs and alcohol at an early age".
10. However, I note at p 3 Mr Sheppard notes, "The client stated there was no domestic violence between his parents and he was not subject to any form of abuse as such". Counsel made no submission to the effect that the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 were enlivened. For more abundant caution even if such a submission was made I would conclude that on the material before me I would not be able to find that those factors were enlivened.
11. Be that as it may, I accept that the offender has been presented with a number of challenges in his life. These issues all form part of the overall subjective mix.
12. The report notes and it was appropriately emphasised in counsel's oral submissions that the offender is working in the laundry where he is currently incarcerated. Mr Sheppard's report also notes that the offender wishes to continue to address the issues of his drug addiction upon his release from custody. In this regard counsel submitted that the offender had said in the course of giving instructions that he was engaged in "a fight for my life".
13. Given the breaches of conditional liberty and the fact that the present offending is similar to that for which this court sentenced the offender in 2018, I am not prepared to find on balance that the offender is unlikely to re-offend. For those same reasons I am not prepared to find that there are good prospects of rehabilitation. However, it now seems that the offender has developed some insight into his offending and moreover the need to address the drug addiction. There are now at least some promising signs. While there are positive signs much will depend on what occurs and how the offender engages with the appropriate agencies and authorities upon his release to parole.
14. The breach of parole report, exhibit C on sentence, is dated 3 October 2019 which is well before the commission of the current offending. The report notes that since commencing parole supervision on 28 May 2019 the offender "generally maintained a satisfactory performance both with his reporting and engagement with therapeutic interventions". The Community Corrections Manager noted in comments at the conclusion of the report that the offender "has progressed well since his release to conditional liberty". It was recommended that the offender be given a warning rather than a recommendation be made to revoke parole.
15. As I understood the submissions of counsel it was put that the comments by the officers of the Department of Community Corrections demonstrate that the offender at least has the capacity to respond appropriately to supervision. While that is a valid submission as I have earlier observed much will depend on the manner and extent to which the offender engages upon his release.
16. Exhibit 2 on sentence is a report as to the offender's involvement in the Traffic Offender's Programme in January 2020. The offender was disengaged, argumentative and offensive. My understanding of why this document was tendered was to contrast that with the more positive attitude adopted by the offender as set out in the various reports.

Submissions

1. Mr Keller on behalf of the offender conceded that the threshold in section 5(1) of the Crimes (Sentencing Procedure) Act had been crossed and submitted that the matter was appropriate for the imposition of an aggregate sentence.
2. It was put that one of the issues with which the court will have to grapple is the issue of totality. The offender has been in custody since his arrest on 30 April 2020 and parole has been revoked. In the course of taking submissions at the sentence hearing I suggested that the sentence to be imposed should commence on 30 August 2020. Neither party took issue with that suggestion and accordingly I will commence the sentence from that date.
3. Counsel submitted that although there was no "formal evidence" the court could find remorse using the plea of guilty and what was said to Mr Sheppard. As I have already observed the expressions of remorse are untested.
4. Further, it was put and I accept that the offender has at least gained some insight into what he has to do, i.e. undertake a course of rehabilitation. Counsel accepted that the court would be guarded about findings as to being unlikely to re-offend.
5. Counsel went on to submit that the offender has been promoted to team leader in the laundry at the Correctional Centre where he is presently incarcerated. Upon his release he intends to return to Tumut where he hopes to gain employment either in the construction of a new hospital facility or in the laundry of that facility once it is complete. The submission continued that the offender has shown through his work history that he can turn his hand to "pretty much anything".
6. At pp 22-23 of my remarks on sentence of 18 July 2018 I referred to the involvement in community activities previously undertaken by the offender. There is no reason why he could not re-engage with some of those organisations including the Hut Association (maintenance work on huts and historical buildings in the high country) and the Brumby Association. However the offender's criminal history would prevent him from further involvement with the Rural Fire Service.
7. As with any person in custody there is the issue of the COVID-19 pandemic. I accept without hesitation that the offender has not had any personal visits. The distance between his partner in the Gundagai-Tumut area and the offender in Grafton would make that extremely difficult even in ordinary circumstances. He has been able to have AVL contact with his partner and children about once per fortnight. I take into account the principles enunciated by the Court of Criminal Appeal in Valentine v R [2020] NSWCCA 116 at [59]-[62].
8. Mr Keller submitted that the court should find special circumstances. As I understood the submission it was put on the basis of partial accumulation of sentences but moreover the need for an extended period of supervision to ensure that the offender undertake an appropriate course of residential rehabilitation.
9. The Crown submitted that although the breach report (exhibit C) set out that the offender was generally responding well the offender nevertheless developed a serious drug addiction while he was subject to parole by the time police attended his premises on 30 April 2020. The submission continued that although the offender was engaging with Community Corrections he continued to take and supply prohibited drugs.
10. Further, the Crown reminded the court that with the previous sentence imposed there were different episodes of offending, some committed while the offender was on bail. I understood the submission to be that the court would be reluctant to find on balance that the offender is unlikely to re-offend. For reasons already given I simply could not make that finding on the material before the court. The Crown reminded the court that the expressions of remorse are untested.
11. The Crown had no issue with a finding of special circumstances on the basis of the offender undergoing a course of residential rehabilitation. I am prepared to make a finding of special circumstances on the basis of partial accumulation of sentence and the need for an extended period of supervision to ensure that the offender undertake an appropriate course of rehabilitation.

General Remarks

1. I will need to comply with and give proper regard to ss 3A and 5 of the Crimes (Sentencing Procedure) Act, 1999. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
2. Section 5 provides in effect that a court should not impose a sentence of imprisonment unless, having considered all possible alternatives, no other sentence is appropriate.
3. Given the offending, the maximum penalties provided and the breach of parole clearly there must be a sentence of imprisonment imposed. For those same reasons the period of imprisonment must be served by a sentence of full time custody. No contrary submission was made by counsel.
4. This is an appropriate matter for the invoking of s 53A of the Crimes (Sentencing Procedure) Act and the imposition of an aggregate sentence. There are also the issues of accumulation and totality. If separate sentences were imposed there would need to be some meaningful accumulation of the sentences for the breach of bond offences and the most recent offending. With the breach of bond offences there would be need for some but not significant accumulation to recognise the different offending and the different types of weapons. With the most recent offending there would also need to be some but not significant accumulation to recognise the different offending.
5. I will set out the sentences that would have been imposed had separate sentences been imposed in table form.

Current or most recent offending - H 7491731 Seq. Offence Description Maximum penalty Indicative sentence 1 Possess Prohibited Weapon Possession of the Taser 14 years NPP 13 months, balance of term 7 months, total sentence 20 months (starting point 2 years 3 months) SNPP 5 years 2 Possess Prohibited Weapon in Contravention of Weapons Prohibition Order Possession of Taser in contravention of Weapons Prohibition Order 10 years Total sentence 12 months (s/p 16 months) No SNPP 3 Possess Prohibited Drug with Intent to Supply Possess 21.48 grams methyl amphetamine for supply 15 years Total sentence 18 months (s/p 2 years) No SNPP 5 Deal With Proceeds of Crime Possess $6725 in case Jurisdictional limit 2 years Total sentence 12 months (s/p 16 months) s 166 Certificate 6 Possess Prohibited Drug Possess 6 grams cannabis 2 years s 10A s 166 Certificate 7 Goods in Custody Possess prescription medication 6 months Total sentence 1 month s 166 Certificate 8 Possess Prohibited Weapon Possess 14 years Taking into account Form 1 NPP 15 months, balance of term 7 months (total 22 months) starting point 2.5 years Knuckledusters SNPP 5 years 12 Possess prohibited Weapon in contravention of Weapons Prohibition Order Possess 10 years Taking into account Form 1: NPP 15 months, balance of term 7 months (total 22 months) s/p 2 yrs 6 months Knuckledusters in contravention of Weapons Prohibition Order No SNPP

Breach of Bonds offending 1 Supply Prohibited Drug (83.2 grams cannabis) Supply 83.2 grams of cannabis 10 years Total sentence 12 months No SNPP 3 Deal With Proceeds of Crime $1850 cash from drug transactions 2 years Total sentence 6 months 4 Possess Military Style Weapon Possess explosive device found in locked box 14 years NPP 6 months, balance of term 3 months (total 9 months) SNPP 5 years 5 As above As above As above As above 6 As above As above As above As above 7 As above As above As above As above 8 Possess Unauthorised Pistol Possess Pistol found on premises 14 years As above SNPP 4 years 9 As above As above As above As above 10 As above As above As above As above 14 Supply Prohibited Drug Supply 35.5 grams of cannabis 10 years Total sentence 9 months

Orders

1. The offender is sentenced to an aggregate sentence of 3 years with a non-parole period of 1 year 8 months (20 months).
2. The non-parole period is to date from 30 August 2020 and will expire on 29 April 2022. The balance of term of 1 year 4 months will commence on 30 April 2022 and will expire on 29 August 2023.
3. The offender will be eligible for release to parole at the expiration of the non-parole period.
4. I recommend in the strongest possible terms that any release to parole contain a condition that the offender obey all reasonable directions of the Department of Community Corrections relating to ongoing treatment and counselling for substance abuse including but not limited to the participation in a full time residential rehabilitation programme.
5. The sentence indicates a finding of special circumstances the reasons for which were enunciated within the reasons. The non-parole period is approximately 55% of the total sentence. Ordinarily such a generous finding of special circumstances would not be justified particularly in view of the breach of parole by further offending. I have made this generous finding of special circumstances to take into account the offender participating in a full time residential rehabilitation programme in respect of his substance abuse issues and therefore being subject to quasi custody.
6. With the revocation of parole the total effective sentence will be 3 years 4 months from 30 April 2020 to 29 August 2023 and the period in actual custody will be 2 years from 30 April 2020 to 29 April 2022, if the offender is released at the expiration of the non-parole period. That period in actual custody is 60% of the total effective sentence.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 May 2021