R v Mowlawisada

District Court of NSW|2023-07-07|Before: Mr J

JUDGMENT

The offender is to be sentenced in respect of four offences, having entered a plea of guilty at the third arraignment listing following committal for trial. The four offences are as follows: - 1. Count 2 - Supply prohibited drug (not less than the commercial quantity) (417.95 grams of methamphetamine) contrary to s 25(2) the Drug Misuse and Trafficking Act 1985. The maximum penalty is 20 years imprisonment with a standard non-parole period of 10 years. Attached to this offence on a Form 1 is an offence of supply prohibited drug (14.12 g of cocaine) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 and possess prohibited drug (3.6 g of cannabis leaf) contrary to s 10 of the Drug Misuse and Trafficking Act 1985. 2. Count 3 - Knowingly possess proceeds of crime ($87,960) contrary to s 193B(2) of the Crimes Act 1900. The maximum penalty is 15 years imprisonment with no standard non-parole period . 3. Count 4 - Possess pistol (.38 Special Calibre Smith and Wesson Revolver) contrary to s 7(1) of the Firearms Act 1996. The maximum penalty is 14 years with a standard non-parole period of 4 years. Attaching to this offence on a Form 1 are offences of possess unregistered firearm (.38 Special Calibre Smith & Wesson revolver contrary to s 36(1) of the Firearms Act 1996 and possess firearm in contravention of firearms prohibitions order contrary to s 74(1) of the Firearms Act 1996. 4. Count 7 - Possess pistol (.455 Webley Revolver) contrary to s 7(1) of the Firearms Act 1996. The maximum penalty is 14 years with a standard non-parole period of 4 years. Attaching to this offence on a Form 1 are the offences of possess unregistered firearm (.455 Webley Revolver) contrary to s 36(1) of the Firearms Act 1996; possess firearm in contravention of firearms prohibition order contrary to s 74 (1) of the Firearms Act 1996; possess ammunition for a firearm without being authorised to possess that ammunition by license or permit contrary to s 65(3) of the Firearms Act 1996 (s 166 related); possess ammunition while subject to a firearms prohibition order contrary to s 74(3) of the Firearms Act 1996 (s 166 related).

Agreed facts

At the time of the offending the offender was living alone in a two-bedroom unit at Percy Street Bankstown. The offender had been the subject of a firearm prohibition order ("FPO") issued on 14 December 2016. The offender was also the subject of a "notice of suspension of authority to drive in New South Wales" issued on 21 October 2021.
The offender was detected by police on 22 November 2021 driving a vehicle in the vicinity of Bankstown Centro shopping centre. CCTV footage subsequently revealed the offender walking to and from his car in the vicinity of Percy Street Bankstown.
At 6:10 am on 24 November 2021 police attended the offender's unit to search the premises in accordance with the FPO. Entry was forced into the unit following a lack of response. The offender was found to be the only person present in the unit asleep in the main bedroom. Police identified multiple prohibited drug offences within the premises and accordingly an application was made for a crime scene warrant. The offender was arrested and placed in custody and declined the subsequent opportunity to participate in an interview.
At 9:56 am on the same day, police resumed the search of the unit in accordance with a Crime Scene Warrant granted earlier that morning.

Sequence H84728732/2 - Section 166 related offence process prohibited drug (3.6 g cannabis leaf)

3.6 g of cannabis leaf was located on the dining room table comprising of 0.4 g loose in a bowl and 3.2 g in two separate resealable plastic bags. A bong was also located by the police on a table.

Count 1 (Form 1 attaching to count 2) - Supply prohibited drug (14.12 g cocaine)

A total of 14.12 g of cocaine was found in the following locations: 1. 5.8 g in clear plastic bag beside the bed in the main bedroom. Subsequent forensic testing identified DNA consistent with that of the offender on one of the plastic bags. 2. 7.70 g in a plastic freezer bag located in a kitchen drawer. 3. 0.54 g in a knotted plastic bag located on the dining room table.
The trafficable quantity is 3 g and the indictable quantity is 5 g.

Count 2 - Supply prohibited drug commercial quantity (417.95 g methylamphetamine)

A total of 417.95 g of methylamphetamine was found in the second bedroom wardrobe in the following amounts: 1. 218.1 g (73% purity) in a plastic container. 2. 144.1 g in five knotted plastic bags. 3. 2.19 g in a plastic container. 4. 3.46 g in a plastic container. 5. 50.1 g in two knotted plastic bags.
Police also located a Cryovac sealing machine, multiple sets of scales, clear resealable bags, disposable rubber gloves and freezer bags in the spare bedroom being indicia of supply.

Count 3 - Knowingly possess proceeds of crime ($87,960)

During the search of the unit police located a total of $87,960 in Australian currency in cash in the following locations: 1. $47,700 in the main bedroom divided into multiple bundles. 2. $40,260 in the linen press divided into multiple bundles.

Count 5 (Form 1 attaching to count 4) - possess unregistered pistol

Count 6 (Form 1 attaching to count 4) - possess prohibited firearm

During the search of the second bedroom the police located a .38 special calibre Smith & Wesson model 10 - 7 revolver. The gun was wrapped in a blue cloth, placed inside a plastic freezer bag which was inside a yellow and white plastic bag. It was located sitting in plain sight on the table in the centre of the room. Subsequent expert ballistic examination identified the gun to be a prohibited pistol in that the barrel length of the revolver was measured at less than 100 mm. The gun was test fired and found to be in working order. An examination of the firearm identified the serial number had been obliterated.
Subsequent forensic analysis identified DNA consistent with that of the offender on the yellow and white plastic bag in which the pistol was found.

Sequence H84728732/10 (Form 1 attaching to Count 7) - Possess ammunition without license

Sequence H847283732/11 - Section 166 related offence (Form 1 attaching to Count 7) - possess ammunition subject to FPO

Within the packing of the .38 special calibre Smith & Wesson revolver police located nine .38 special calibre cartridges in a plastic bag. Subsequent expert ballistic examination confirmed the bullets were within the definition of ammunition contained in s 4(1) of the Firearms Act 1996 and suitable for use in the Smith & Wesson revolver with which they were found.

Count 8 (Form 1 attaching to Count 7) - Possess unregistered pistol

Count 9 (Form 1 attaching to Count 7) - Possess prohibited firearm

While searching the second bedroom police located a .455 Webley Calibre MKV Revolver in a brown paper bag on a shelf in the wardrobe. The gun was wrapped in a pink T-shirt which was inside a plastic Woolworths brand shopping bag. Subsequent ballistic examination identified the gun to be a prohibited pistol in that it had a calibre of more than .38 inches. The gun was test fired and found to be in working order. Subsequent forensic analysis identified DNA consistent with that of the offender on the brown paper bag in which the pistol was found. Inside the paper bag containing the .455 Webley revolver, police located a ground bullet case containing twenty .45 Colt calibre cartridges. Subsequent expert ballistic examination confirmed the bullets are within the definition of ammunition contained in s 4(1) if the Firearms Act 1996 (Sequence 10 and 11 continued).

The offender's criminal history

The offender has a criminal history dating back to 2014, initially with offences including carrying cutting weapon upon apprehension and dangerous driving occasioning grievous bodily harm. In 2016 the offender committed offences of goods suspected stolen not otherwise entitled to, furnish false information/ statement to licensee and goods in custody. In 2017 the offender was convicted of attempt to prescribe restricted substance. In 2018 there were further serious motor vehicle offences including driving whilst license suspended and drive dangerously. In 2019, the offender committed number violence offences including assault, as well as affray, steal from the person, and destroy damaged property. In December 2020 the offender committed the offence of possess prohibited drug.
Whilst the offender's criminal record does not constitute an aggravating factor, it does disentitle the offender to leniency to which the offender would otherwise have been entitled to.

Dr Kim Dilati - clinical and forensic psychologist

The offender was assessed by Dr Dilati on 17 June 2023 via audio-visual link. Dr Dilati also had available the offender's criminal record and agreed facts.
The offender presented with restricted affect and depressed mood. His speech was slow and monotonous yet reactive. He displayed poverty of speech and thought and difficulties with expressive and receptive language. Whilst he displayed some insight into his offending conduct, there were difficulties with his cognitive functioning in the area of processing speed, recall and speech.
The offender gave a history of being born in Perth to Afghani parents who immigrated to Australia as refugees. Both parents had experienced trauma in their native country.
The offender described a difficult and transient childhood, in part due to domestic violence perpetrated by his father. The violence was directed at himself and his mother. The offender reported a history of recklessness, risk-taking and impulsive behaviours during childhood and adolescence including truancy, cannabis use, fighting at school, suspensions, expulsions, criminal activity from the age of 15, gravitation towards antisocial peers, juvenile detention as well as an extensive criminal record. The offender reported being sexually abused by a male youth officer at Cobham detention centre during his detention for which he was pursuing compensation. In 2018 his friend was killed although the circumstances were not otherwise described. Whilst the offender had maintained close relationships with his siblings and mother, he had been estranged from his father for some years.
The offender had an unstable education and employment history attending 3 to 4 primary schools and two high schools in Sydney before leaving school in year 10. Whilst he had a lengthy history of unemployment, there were brief periods of employment in unskilled positions.
The offender reported a history of problematic and chronic illicit drug use commencing at the age of 13 with cannabis. He commenced using MDMA at the age of 13/14 and by 16 was using methamphetamines almost daily, as well as misusing prescription medications. He would separately engage in recreational use of LSD, cocaine, ketamine, magic mushrooms, and GHB with an overdose on two occasions. Whilst the offender had abstained from drug use for the previous 18 months, he had not attended any rehabilitation or counselling to assist. In June 2021 the offender commenced the Remand Addictions Program (EQIPS) from which he had learnt a lot.
The offender reported a complex medical history arising from risk-taking and reckless behaviour. This included multiple car accidents as well as being a victim of an assault and kidnapping at the age of 18.
At the age of 16/17 the offender had commenced counselling in Blacktown to assist in resolving drug use and mental health difficulties. Whilst he did not believe he had been diagnosed with any mental health disorders, he reported symptoms of anxiety, persisting worry about the safety of family, depression, suicidal ideation, self-harming, speech difficulties, mood swings, problems with emotional regulation, nightmares since childhood, anhedonia, social withdrawal, interpersonal difficulties, hopelessness, helplessness, difficulties concentrating, paranoia, social anxiety, and confusion and shame in relation to his sexual identity following the sexual assault.
He reported a history of referential delusions and visual/auditory hallucinations during periods of heavy drug use. On the depression, anxiety, and stress scale (DASS) the offender scored within the extremely severe range of depression, anxiety and stress indicating major difficulties in these areas.
As to the circumstances of the offending, the history provided to the psychologist was somewhat brief, particularly given the range of offences for which the offender faces sentence and the circumstances of the offending. The offender simply reported that he was having difficulties with unstable accommodation and "saw some old friends" who offered him a place to stay in Bankstown. He recalled being raided by police who found drugs, weapons and ammunition. In respect to remorse for his offending conduct, the offender simply stated that he was "embarrassed" by his actions and that his "mother raised me better".
Dr Dilati accepted that at the time of commission of the offences the offender was suffering from mental health impairment although was not a mentally ill person within the meaning of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. Dr Dilati diagnosed major depressive disorder, generalised anxiety disorder and cannabis use and stimulant use disorder. The psychologist also noted that the offender complained of prodromal symptoms of psychosis which were early warning signs that may occur before the onset of a full-blown psychotic episode.
Dr Dilati concluded that the offender's history of trauma (sexual and physical abuse) had had a profound and complex effect on his functioning including offending behaviour. This led to implementing coping mechanisms, self-destructive behaviours, substance abuse as a form of self-medication and disrupted self-regulation. Trauma had significantly impacted on the offender's social environmental circumstances and had led to strained relationships, isolation, and association with high risk peer groups, all of which increased his likelihood of engaging in offending and drug use behaviours.
In the circumstances, Dr Dilati considered it was essential that the offender approach these areas of concern from a trauma informed perspective in accessing mental health specialists, trauma therapists, and support groups which could be beneficial in addressing the underlying trauma and providing the appropriate treatment and support to minimise the risk of engaging in harmful behaviours. In respect to rehabilitation prospects, the psychologist noted that if the offender complied with a proposed treatment plan, his prognosis would be "promising" regarding mental health issues, substance use relapse and risk of recidivism.
Dr Dilati considered that the offender was future orientated, motivated to work and attend treatment and had a stable and prosocial family support. However, the psychologist concluded that whilst the offender did appear amenable to treatment, he would require prompting to ensure he attended psychological therapies and substance use treatment.

Report of Jessica Cortes Psychologist

Ms Cortez reviewed the offender in February 2020 in respect to offences for which he was to be sentenced at that time of assault occasioning actual bodily harm in company, steal from persons, intentional recklessly destroy property, affray and drive whilst licensed suspended. The offender provided a history of being born in Perth and being raised by parents who were in a disruptive and abusive relationship. His mother would regularly be verbally and physically abused by his father who was a drug user. He was ultimately kicked out of the house for sticking up for his mother and for periods of time was living on the street. His brother attempted suicide and was hospitalised in 2018 and has since being diagnosed with various conditions including schizophrenia. The offender experienced a disruptive time at school being suspended in his late primary years and multiple times in high school due to physical violence. He ultimately left school in year 11.
The offender provided a history of trying cannabis the age of 13 or 14 which he was smoking daily. He progressed to smoking ice by the age of 16 or 17. He then commenced using cocaine in conjunction with Xanax and GHB as well as MDMA. The offender provided a history of overdosing roughly 3 to 4 times which were unintentional although he was never hospitalised. Whilst he tried to stop drug use, he noted that the people he was associating with at the time made it difficult. The psychologist referred to the various effects of the drugs which the offender was abusing.
The psychologist noted that the relationship between a father and his children has been found to have a major impact on a child's development, especially a male child's development. Further the child's educational success or failure has been associated with the quality of parental and marital relationships and in particular, there is evidence that children who have experienced divorce are more likely to struggle with completing schooling. There was strong evidence that family instability negatively influenced children's social - emotional development and behaviour. The psychologist noted the history provided by the offender that he would be regularly "bashed" by his father and he would also regularly observe his mother being assaulted as well.
Testing revealed that the offender met the diagnosis of PTSD and further that the offender's depression and anxiety symptoms were likely comorbidities of this condition. Indeed, the psychologist considered that the offender, given his reported symptoms, satisfied the criteria for complex post-traumatic stress disorder. The psychologist also noted the testing indicated moderate potential problems with depression, anxiety, personal distress, tension, worry and feeling demoralised. Further, there were likely problems in interpersonal relationships arising from strong needs for control and from potentially inflated self-image. Further there were potential problems with "acting out". In particular, the offender was very likely to be impulsive, sensation seeking, reckless and have a disregard for convention and authority. There was also significant potential for social detachment and discomfort in close personal relationships. Further, the offender was likely to feel unsupported in relationships and may feel that he had been treated unfairly by others. There was also a potential for problems with psychotic symptoms.
Ultimately, the psychologist diagnosed the offender as suffering stimulant use disorder, sedative, hypnotic or anxiolytic use disorder, cannabis use disorder, unspecified anxiety disorder, unspecified depressive disorder, and complex post-traumatic stress disorder. At the time of the offending in 2019, the offender was significantly and adversely affected by his mental health conditions which may have significantly contributed to his offending behaviours. Further there was a possibility that his cognitive functioning had been compromised in that he had difficulties processing information, reacting to stimulus, responding appropriately, self-control and flexible thinking.

The evidence of the offender

The offender gave evidence that during the period of almost two years in custody he experienced considerable difficulties due to COVID-19 lockdowns. In particular, the offender stated that he experienced 200 days of lockdowns, which involved being locked in his cell with no phone calls and no family visits or contact. The offender had completed kids parenting and addiction courses.
The offender confirmed the accuracy the history provided to the psychologists Jessica Cortes and Kim Dilati. He confirmed that since being in custody he had remained drug-free.
As a child he witnessed significant conflict between his parents which included physical and verbal abuse. He described his period at home as "living through hell". He eventually left home at the age of 15 having been kicked out by his father for defending his mother. He spent periods of time "couch surfing" as well as being homeless from the age of 15. He had pretty much been on drugs for his entire period since leaving home.
In respect to the offending for which he was to be sentenced, the offender indicated that he was performing the role of a "caretaker" at the unit. In exchange he received free accommodation and drugs to support his own drug habit of ice and cocaine. He acknowledged that his role was to "keep the stuff safe", no doubt referring to the drugs and cash found on the premises. He felt ashamed and embarrassed as to his involvement. However, he felt compelled to "take orders" from others who were controlling the drug supply operation. He apologised to the community and to the court. He described being in a "vulnerable" situation at the time of the offending. In cross examination the offender conceded that he was the only person living in the unit at the time. However, he indicated that people would visit almost every day.

The evidence of Lena Mowlawisada

The offender's mother confirmed the offender was one of three boys. The offender was the eldest son. The second son had been diagnosed with schizophrenia and his mother was now a full-time carer. The youngest son was presently aged 14 and generally trouble-free, although he had been experiencing suicidal thoughts given the predicament involving of his older brother.
Ms Mowlawisada confirmed that she was married between 1996 and 2016. She described family life as "very violent", with her husband being a regular drug user. The offender regularly witnessed his mother being verbally and physically abused, including at times with the use of weapons. At times the offender would hide under a table whilst this abuse took place. She confirmed that the offender left home at the age of 16 due to circumstances where he was trying to protect his mother. From the age of eight or nine the offender was doing his best to defend his mother but would only be on the receiving end of his father's physical abuse. She suspected at the time that the offender was using drugs given his demeanour. She considered that the offender had been significantly affected by his experiences during his upbringing.
Ms Mowlawisada was aware of the offences for which the offender was to be sentenced and was also aware that he had served a previous jail term. She considered however that his more recent incarceration had impacted him to the extent that he was more motivated to work towards rehabilitation. Upon his release the offender had a home to return to and his mother expressed her unqualified support for him.
I note the offender became particularly emotional during his mother's testimony.

Crown submissions

The Crown notes that the offender was committed for trial and subsequently entered a plea of guilty at the third arraignment listing. Accordingly pursuant to s 25D(2)(b) of the CSPA the offender is entitled to a 10% discount for the utilitarian value of the plea. The offender agrees with this submission.
The Crown notes that the offender was in possession of a commercial quantity of methylamphetamine which was only 82.05 g shy of a large commercial quantity. Accordingly, the Crown contends that the offender was trafficking drugs rather than merely being in the possession of drugs for the purposes of supply in that he was in possession of an amount almost triple the indictable quantity of cocaine and a small quantity of cannabis leaf.
However, the Crown contended that the quantity of the drug was not the only factor that could be taken into consideration, citing R v Pak [2015] NSWCCA 45. Supporting a submission that the offender was engaged in a drug supply enterprise, the Crown noted that other items found in the unit occupied by the offender included a Cryovac sealing machine, multiple sets of scales, clear resealable bags, disposable rubber gloves and freezer bags. Additionally, the offender was found in possession of a substantial amount of cash in multiple bundles which the offender accepts, by virtue of his plea, to be the proceeds of crime.
Elevating the objective seriousness further was the fact that the offender was found in possession of firearms. Accordingly, the offender could be classified as an armed drug dealer who was in possession of firearms in connection with a criminal enterprise, elevating the objective gravity of the firearm offences: Sumrein v R [2019] NSWCCA 83 at [22] - [45]. Both firearms were found to be in working order and the .38 calibre Smith & Wesson was found wrapped alongside ammunition suitable for use in the firearm. The objective seriousness was further elevated where the ammunition was located in proximity to the firearm: R v Farrell [2015] NSWCCA 68.
In all the circumstances, the Crown contended that the court would be satisfied beyond reasonable doubt that the degree of the offender's trafficking placed him at a level substantially higher than a street level user/dealer. The court would be satisfied that the two firearms in working condition, one within close proximity to the relevant ammunition, was clearly for his protection given the large amount of drugs and cash found in the unit. Accordingly, it was submitted that the drug offence falls within the mid-range of objective seriousness and that regard would be had to the standard non-parole period.
The proceeds of crime offence fell below the mid-range of objective seriousness but not at the lowest end. The firearm offences fell within the mid-range of objective seriousness by reason of their connection to the offender's drug supply criminal enterprise, with count 4 being slightly more objectively serious than count 7 due to its proximity to the ammunition.
The Crown noted the comments of Bathurst CJ in Abbas, Bodiotios, Talev and Amoun v R [2013] NSWCCA 115 in respect to the approach to the Form 1 matters.
The Crown identified aggravating factors pursuant to s 21A (2) of the Crimes (Sentencing Procedure) Act 1999 including the fact that the offence was planned and for financial gain. In respect to the offender's prior criminal record, whilst it would not be considered an aggravating feature, the record disentitled the offender to leniency.
It was further submitted that significant weight would be given to the principles of general and specific deterrence given the consequences of prohibited drugs being circulated in the community, and a signal to drug suppliers that the potential financial reward gained from engaging in such activities was neutralised by the risk of severe punishment. Further, importance needed to be placed upon the need to protect community in circumstances where the offender possessed multiple operational firearms and ammunition rounds. Ultimately it was contended that the s. 5 threshold had been crossed and that, having considered all possible alternatives, no sentence other than full-time imprisonment was appropriate. The Crown reserved its position in respect to a finding of special circumstances pending receipt of any subjective material.
In oral submissions the Crown further noted that the circumstances in which the offender was arrested established that he played a significant role despite his assertions of being a mere "caretaker". The offender's prospects of rehabilitation were guarded given the prior offences, the fact that he had already served a term of imprisonment, and yet returned to his offending behaviour upon release.

Offender's submissions

Counsel for the offender noted that he was entitled to a 10% discount. In written submissions the offender conceded that the Crown's appraisal of the offending was on the face of it appropriate given the offender's involvement. However, in oral submissions counsel noted the offender's evidence that he was no more than a "caretaker", and therefore his involvement was significantly less than others in the enterprise. However, counsel conceded that the only reasonable inference, given the presence of a substantial quantity of drugs, cash and firearms was that the firearms were available to the offender to use, if need be, in performing his role as caretaker or protector of the drugs and cash. However, it was contended that the court could not be satisfied beyond reasonable doubt that the offender would have used the firearms.
The offender contended that youth was a mitigating factor despite being aged 23 at the time of the offending. It was submitted that the offender's "immaturity" was a significant factor in the commission of the offences and the criminality involved would be less than if the same offence was committed by an adult. Further, there was a reduced need for specific deterrence and enhanced prospects of rehabilitation given his youth. Further, retribution and general deterrence would be given less weight than rehabilitation, and the court would consider the adverse impact of the experience of punishment by way of prison.
It was also submitted in mitigation that the offender suffered from mental impairments as diagnosed by the psychologists. The offender's mental health and drug use at the relevant time reduced his capacity to rationalise and exercise judgement. The court would also consider the offender's drug addiction. Childhood disadvantage was one of the most significant factors in the sentencing process and the principles referred to in Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 were applicable.
It was accepted that the offender's prior convictions disentitled the offender to leniency although it would not be considered an aggravating factor. It was significant that the offender had not previously committed offences involving drug supply, proceeds of crime or firearm offences. It was contended that in terms of prospects of rehabilitation the court would take into account the offender's guilty plea and expression of remorse, the availability of a treatment plan and various "protective factors" including motivation to work, to attend treatment and work towards vocational goals.
However, counsel conceded in oral submissions that the offender's prospects of rehabilitation were guarded given his previous history. However, it was contended that the lengthier period of drug abstinence tended towards better prospects of rehabilitation. The court would consider the harsh conditions whilst in custody, particularly arising from the COVID-19 pandemic.
It was contended in oral submissions that youth remained a significant factor and would be considered in the context of the offenders' tragic upbringing and the risk of institutionalisation if a lengthy sentence was imposed. It was contended that a finding of special circumstances would be made.

Consideration

The offences for which the offender is to be sentenced arose from a warrant issued on the unit in which the offender was residing. It was the offender's evidence that he was performing the role of a caretaker in exchange for receiving free accommodation and drugs to support his own drug habit of ice and cocaine. He acknowledges that this encompassed keeping safe the drugs and cash found at the premises. The offender's evidence in this respect is consistent with his acknowledged drug habit, apparent lack of financial resources otherwise, the need for accommodation and the location of the various drugs.
Whilst I accept the offender's evidence that this was the circumstances in which he was residing in the unit, this does not detract from the fact that a substantial quantity of drugs and cash were found in the unit, consistent with a drug supply operation being conducted from the premises. Such a finding is reinforced by the presence of a cryo-vac sealing machine, multiple sets of scales, clear resealable bags, disposable rubber gloves, and freezer bags located in the spare bedroom.
The presence of two fully operational firearms and ammunition is consistent with a significant criminal enterprise being operated from the premises. As counsel for the offender quite properly conceded, the only reasonable inference is that the firearms were available to the offender to use, if need be, in performance of his role as caretaker or protector of the drugs and cash, which constitute the first two counts. However, I accept the submission on behalf of the accused that the Court cannot be satisfied beyond reasonable doubt that the offender would have in fact used the firearms. However, this does not detract from the objective seriousness of the offences that operational firearms and associated ammunition were available if need be.
In respect to Count 1, supply prohibited drug not less than the commercial quantity I note that the amount (417.95 grams) is only 82.05 grams short of large commercial quantity. It is readily apparent that the offender was part of a drug supply operation, albeit performing the role of a protector or caretaker of the drugs. I find that the offence falls just below the mid-range of objective seriousness.
In respect to Count 2, knowingly possess proceeds of crime, the amount, whilst not insignificant, is such that the offence falls below the mid-range objective seriousness but not at the lowest end. In respect to the firearms offences, I accept the Crown's submission that they fall within the mid-range of objective seriousness given their connection to a drug supply operation, the fact that they were present to be used if need be to protect a significant quantity of drugs and cash.
I am satisfied that the offender had a significantly disadvantaged upbringing. and was deprived of appropriate support/guidance during his formative years. The evidence of the offender, his mother, and the history provided to the psychologists establish that the offender witnessed physical and emotional abuse of his mother at the hands of his father. In his teenage years, when the offender should have available the support of his parents, he was intervening to protect his mother. This resulted in the offender also being subjected to physical and emotional abuse by his father. I accept that the home environment resulted in the offender commencing to use illicit drugs in his early teenage years. A combination of the home environment, and his drug use, directly led to the offender gravitating towards antisocial individuals, leading to the commission of various offences and juvenile detention. Further the offender was forced to live on the streets, having been kicked out of the family home by his father, at an early age.
I accept the evidence of Dr Dilati that at the time of the commission of the offences the offender was suffering a mental health impairment, consisting of major depressive disorder, generalised anxiety disorder and cannabis use and stimulant use disorder. I further accept the opinion of Dr Dilati that the offender's history of abuse has had a profound and complex effect on his functioning, including his offending behaviour leading to self-destructive behaviours, substance abuse and disrupted self-regulation.
I accept, given the offenders disadvantaged upbringing, and the abuse to which he was subjected whilst in juvenile custody, that his moral culpability is reduced: Bugmy; Hoskins v R [2021] NSWCCA 169.
I accept that the mental health impairments from which the offender was suffering at the time of the offences more than likely contributed to his offending conduct. Accordingly, it is appropriate that the offender's moral culpability in respect of the offences be reduced and general deterrence is less of a factor in the sentencing process: DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] to [178].
I accept the evidence of the offender that during the period of his incarceration he has experienced considerable difficulties due to the COVID-19 lockdowns, including 200 days of being locked in his cell with no phone calls and no family visits or contact. The hardship arising from these circumstances are to be taken into account in considering the appropriate sentence: Rakielbakhour v DPP [2020] NSWSC 323.
Counsel for the offender contended that youth was a factor to be taken into account in the sentencing process. The offender was aged 23 at the time of the offences. Whilst the Court of Criminal Appeal have consistently recognised that emotional maturity and impulse control is not necessarily fully developed at the end of the teenage years (BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159), it is necessary to look at the circumstances in which the offences occurred. I am not satisfied that the offender's youth, any undeveloped emotional maturity, or impulse control, necessarily was a factor in the offending. However, the offender's relative youth is relevant in considering prospects of rehabilitation.
The offender acknowledges that his criminal history does not bode well in terms of prospects of rehabilitation. However, the Court cannot ignore the evidence adduced on sentence. To his credit, the offender was prepared to give sworn evidence on the sentencing hearing in which he candidly acknowledged his offending behaviour in the context of significant drug use and an abusive, dysfunctional, and disruptive upbringing. As noted above, the offender was very emotional whilst his mother gave evidence. The psychological assessment by Dr Dilati similarly reflects an acknowledgement of the offender's mental health conditions arising from his upbringing and acknowledgement that the offending behaviour was a further escalation of his criminal activity. I am satisfied having considered all the material on sentence including the offender's evidence and his drug abstinence since being in custody that he has reached a turning point in his life and is likely, upon his release, to take active steps toward his ongoing rehabilitation.
The offender is still relatively young, and despite his criminal history of many years in the context of his youth, I am satisfied that the offender has reasonably good prospects of rehabilitation.
Count 2, supply prohibited drug not less than the commercial quantity, carries a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years. This is an indication of its seriousness and acts as a sentencing guidepost or reference point. I am satisfied that the s 5 threshold has been crossed and that no sentence other than imprisonment is appropriate.
In respect to Count 3, knowingly possess proceeds of crime, the maximum penalty is 15 years imprisonment with no standard non-parole period. Similarly, the maximum penalty is an indication of its seriousness and acts as a sentencing guidepost or reference point. I am satisfied that the s 5 threshold has been crossed and that no sentence other than imprisonment is appropriate.
In respect to Counts 4 and 7 of possess pistol, the maximum penalty is 14 years imprisonment with a standard non-parole period of 4 years. The maximum penalty, and non-parole period, again acts as a sentencing guidepost or reference point. I am satisfied that the s 5 threshold has been crossed and no sentence other than imprisonment is appropriate.
I am satisfied that this is an appropriate matter for the Court to invoke s 53A of the CSPA and impose an aggregate sentence. It will be necessary for me to indicate what sentences would have been made had separate sentences being imposed. In relation to those offences which stipulate a standard non-parole period I will indicate a non-parole period.
In respect to Count 2, supply prohibited drug not less than the commercial quantity, and taking into account the offence on the Form 1, the appropriate sentence is 4 years imprisonment from which is deducted 10% for the plea of guilty, resulting in a sentence of 3 years 7 months with a non-parole period of 2 years 2 months.
In respect to Count 3, of knowingly possess proceeds of crime the appropriate sentence is 18 months from which is to be deducted 10% for the plea of guilty, resulting in a total sentence of 1 year 4 months.
In respect to Count 4, possess pistol, and taking into account the matters on the Form 1, the appropriate sentence is 3 years from which is to be deducted 10% for the plea of guilty resulting in a sentence of 2 years 8 months with a non-parole period of 1 year 7 months.
In respect to Count 7, possess pistol, and taking into account the matters on the Form 1, the appropriate sentence is 3 years 2 month from which is to be deducted 10% for the plea of guilty resulting in a sentence of 2 years 10 months with a non-parole period of 1 year 8 months. I note that the last two offences on the Form 1 (possess ammunition and possess ammunition while subject to firearms prohibition order) are s 166 related offences and accordingly, the jurisdictional limit in the Local Court is to be considered.
Taking into account the need for some accumulation, albeit not significant, a total aggregate sentence of 6 years is appropriate.
The finding of special circumstances ought to be made given the offenders age, the need for drug rehabilitation and mental health support which will be more readily available in the community. As noted, the offender has abstained from drug use during his lengthy period of incarceration (being close to 2 years). He will need an extended period of supervision, support, treatment (for his mental health conditions and drug addiction) and guidance upon his release to enable him to continue his rehabilitation as found. In the circumstances, I find this is a suitable case for leniency in considering the non-parole period; TM v R [2023] NSWCCA 185 at [103] (Yehia J with whom Payne and Stern JAA). In all the circumstances, I fix a non-parole period of 3 years 1 month.
The offender has spent total time of 667 days in custody solely referable to the offence for which he is to be sentenced. Accordingly, the sentence is to be backdated taking into account this period spent in custody.

Orders 1. The offender, having pleaded guilty to Counts 2, 3, 4 and 7 is convicted of those offences. 2. The indicative sentences are set out above. I impose a total aggregate sentence of imprisonment of 6 years to date from 24 November 2021 and to expire on 23 November 2027. 3. I impose a non-parole period of 3 years 1 months to date from 24 November 2021 and expiring on 23 December 2024. 4. The earliest date the offender is eligible to be released on parole is 23 December 2024.

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: 29 September 2023

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (22 paragraphs)

Parties

Cases Cited (14)