117 A Crim R 326
R v Amurao [2005] NSWCCA 32
R v AZ (2011) 205 A Crim R 222
Source
Original judgment source is linked above.
Catchwords
117 A Crim R 326
R v Amurao [2005] NSWCCA 32
R v AZ (2011) 205 A Crim R 222
Judgment (5 paragraphs)
[1]
Solicitors:
Maguire McInerney (for the offender)
Mr M Rollestone (for Director of Public Prosecutions)
File Number(s): 2020/00072349
[2]
sentence - ex tempore revised
In January 2018 Matthew Oliver was riding a motorcycle in Mangerton when it was involved in a collision. He suffered injuries and required treatment. Ambulance officers and police found on him, or in the bag he was carrying, drugs, ice pipes, ammunition and the parts of a dismantled handgun, an unauthorised prohibited firearm. He pleaded guilty and was sentenced to a short term of imprisonment in the Local Court. He was released to parole on 28 October 2019.
It would appear from all the material before me that on release Oliver initially maintained some good behaviour. For a short period he kept to a medication regime that had been prescribed to deal with substance abuse problem. But after a short period old habits took over. He started using drugs and returned to the lifestyle associated with such drug use. He did not continue to engage with the Community Corrections Service. A warrant for his arrest for breach of parole was issued on 4 March 2020.
That warrant was prescient. On 5 March in Koonawarra, he pulled up coincidentally at premises where police were attending for an unrelated matter. Having seen the police he drove away too quickly. He dropped his motorcycle and ran. The police chased and caught up to him. He punched Sergeant Brown in the arm with a closed fist. He was then tackled to the ground. This action resulted in charges of assault police and resist police.
As they tackled him police noticed that he had a firearm down the front of his trousers with the barrel, it was found, facing upwards towards his face. It was a Baikal 410 shortened single barrel shotgun. It had been shortened. It was loaded. Oliver was charged with possess loaded firearm and not keep firearm safely.
In his bag were found two satchels containing a bit over 77 grams methylamphetamine. Also found were ammunition for the shotgun and $2,700 in cash. The motorcycle he was riding had false license plates and was not registered. Oliver had been disqualified from driving.
Pleas of guilty were entered in the Local Court and the charge resolution process led to three matters being sent to this court on Indictment:
Possess shortened firearm not pistol: s 62(1)(b) Firearms Act 1996; maximum penalty 14 years.
Supply a prohibited drug, indictable quantity: s 25(1) Drug (Misuse and Trafficking) Act 1985, 15 years imprisonment; maximum penalty.
Deal with the proceeds of crime: s 193C(2) Crimes Act 1900; maximum penalty three years imprisonment.
There are also related offences to be dealt with; drive while disqualified, assault officer in the execution of their duty and drive unregistered motor vehicle.
Attached to the assault officer charge is a Form 1 for the resist police. In relation to the shortened firearm offence there are three matters on a Form 1 -Possess ammunition, possess loaded firearm, and not keep a firearm safely. The matters on the Form 1 do operate to increase the sentence that would otherwise be imposed but as those Form 1 matters are essentially intrinsic to possession of firearms and at least one of the matters only carries a fine it would not be a significant increase.
Because Oliver accepted responsibility for his actions in the Local Court I will reduce each sentence indicated for by 25% to reflect the utilitarian value of those pleas. Guilty pleas can on some occasions have other value but it is hard here to quantify what that value might be other than to acknowledge that he accepted responsibility at an early stage.
The maximum penalties are important guides to the exercise of my discretion. I have to formulate an appropriate sentence for each matter. I have to formulate a total sentence which reflects his overall criminality. I have to formulate the minimum term he must spend in custody and I have to deal with the fact that this offence was committed after he made a promise to be of good behaviour prior to his release to parole; a promise he breached. The sentences are aggravated because they were committed while on parole and there also should be some independent punishment for the fact that he breached parole.
When I come to accumulate the sentences I have to structure them appropriately. I have to ensure that the benefits of the guilty plea for each are not eroded by any process of accumulation. Here all the indicia of drug supply are present. If someone is supplying prohibited drugs is common that the proceeds of their crime will be found on them. The amount of any proceeds and the quantity of drugs found may vary depending on when in the commercial cycle a person is arrested.
The fact that an offender is in possession of a shortened firearm and ammunition and drugs is important to my assessment of the objective seriousness of each of the offences: Thalari v R [2009] NSWCCA 170. Possession of a firearm raises the risk level of any drug transaction given the potential for serious harm that might result if the firearm is used. Drug use often causes those affected to act irrationally. Where a firearm is possessed in an unsafe, unsecured, unregulated environment; where drug affected people, this offender but also his clients have access to it, it increases the potential for serious harm. It should be obvious but if weapon is possessed it might be used.
The offender was not thinking about himself. This is obvious from the way he was riding a motorcycle, which he subsequently crashed, while carrying a loaded shotgun with the barrel facing his head. He is lucky to be alive. I do not need to say any more except to say shotguns can go off particularly in motor vehicle accidents.
Drug users and dealers notoriously associate with those who operate outside the law. Violence is common. Theft and rip-offs are common. The risk of serious harm to the community and others makes the firearms offence a particularly serious example of its type.
Supply of drugs, as this offender well knows, also causes considerable harm in the community.
Oliver's record does not entitle him to leniency, in fact the commission of similar and more aggravated forms of offences for which he is on parole mean that when I sentence him greater weight has to be given to both personal and specific deterrence.
As Mr Rollestone for the Director of Public Prosecutions, points out, by reference to the guideline judgement, police have a difficult job enough as it is. Offences involving assaults of police officers in the execution of their duty require a significant element of deterrence in the sentences to be imposed. The community is dependent to a substantial extent on the courage of police officers and the courts must support them and their authority in maintaining law and order: Attorney General's Application Under s37 of the Crimes (Sentencing Procedure) Act 1999 No 2 [2002] NSWCCA 515: That judgement has the force of a guideline which has statutory significance.
There was no justification for any of these offences. It would seem that this offender saw crime as his default position. That in itself is a tragedy because the material before me indicates that if he continues on his present trajectory he could spend the rest of his life in gaol. Tragically, even this morning, I have had to deal with other people who have fallen into that pattern.
Oliver's mother and a brother are here today. He was raised by her. His father died by suicide when he was very young. He did not get a chance to know him. His mother did her best but was raised in a poor and deprived environment. He still has a good relationship with her and his step-father.
A report of Mr Jones, psychologist sets out his family history, which is uncontroversial. He has had two relationships and has four children. The breakup of his last relationship occurred during his last time in custody. He is still a young man. He still has responsibilities for his children, but he cannot meet them if he is dealing drugs, possessing firearms or spending significant periods in gaol.
There are matters in his history; including learning difficulties at school, a report of sexual abuse when young, problems relating to school, early uptake of drugs and alcohol, and falling into a party lifestyle where ice use and disrespect for himself and the law became normalised. He has not engaged in treatment programs but he is presently receiving monthly buprenorphine injections, which may have some success.
Mr Jones finds no evidence of any sensory, perceptual or significant cognitive impairment but it is clear that if the offender is to return to the community and not relapse into substance use he needs considerable help. If he can avoid the use and abuse of illicit drugs, if he can keep family support, if he can engage in a treatment plan which involves abstinence, psychotherapy to assist in managing unresolved childhood problems and find himself a job he might learn to lead a life, as a normal member of the community.
If he learns lessons from those he associates with in gaol and returns to his past associates he will either end up dead or hurting someone significantly and spending most of his life in gaol. His background has left him ill equipped to make such moral choices. He is still relatively immature but unless he grows up his future looks bleak. I can have no confidence at the moment that he would respond to supervision except in a superficial way. He may, when he fronts the State Parole Authority, be able to convince them differently.
The submissions of Mr Fraser and the combined submissions for the Director address all the relevant issues which I trust I have touched on in these brief remarks. I have had regard to the extensive list of other cases to which I have been referred. The consistent application of principle must always be considered. Those case include: R v MacDonnell (2002) 128 A Crim R 34; Olbrich v The Queen (2000) NSWCCA 389; 117 A Crim R 326; Cahyadi v Regina (2007) 168 Crim R 41; Thompson & Houlton (2000) 115 A Crim R 104; Callaghan v R [2006] 160 A Crim R 145; R v Lachlan [2015] NSWCCA 178; R v Irwin [2019] NSWCCA 133 [80]; R v Amurao [2005] NSWCCA 32 at [69]; Luu v R [2008] NSWCCA 285 at [32]; R v AZ (2011) 205 A Crim R 222; [2011] NSWCCA 43 at [76]; Krivosic v R [2017] NSWCCA 167 at [63]; R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170 at [88]; R v Brown [2006] NSWCCA 249.
[3]
Synthesis
A background such as the offender's attracts, at least modestly, the Bugmy principles: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. The offences, particularly the possession of a firearm in conjunction with drug supply, requires a significant sentence to signal to both this offender and the community that firearm possession is a privilege restricted to those who obey the law and who are capable of accepting all the restrictions that flow with such a privilege. The supply and proceeds sentences also have to recognise the harm done by the sale of illicit drugs in our community. And the assault officer sentence should, so far as is possible vindicate the dignity of the officer who was doing his job but ended up being punched.
Synthesising all those matters I have formulated that this sentence should start after he has served three months of his earlier sentence, which will be 5 June 2020. The only finding of special circumstances I have made is to account for the aggregation of this sentence the balance of parole. I have otherwise specifically not made a finding of special circumstances because it is not justified by the material presently before me.
[4]
Orders
For the Use unregistered registrable Class A motor vehicle on road, (Seq 9), you are convicted. I dispose of the proceedings without imposing any other penalty pursuant to s. 10A Crimes (Sentencing Procedure) Act 1999
For the Assault officer in execution of duty (Seq 6), with the matter on the Form 1, I indicate a sentence of nine months imprisonment.
For the Possess shortened firearm (not pistol) w/o authority (Seq 1), Taking into account the matters on the Form 1, I indicate a sentence of 3 years 9 months.
For the Supply prohibited drug (Seq 4) I indicate a sentence of 2 years 1 month.
For the deal with property proceeds of crime < $100000- 012 (Sequence 12) I indicate a sentence of 9 months.
For the Drive motor vehicle during disqualification period - 2nd+off (Seq 5), I indicate a sentence of 6 months. There will be a disqualification of 12 months which will be stayed automatically while he is in custody. That means another 12 months at least of the road after you get out Mr Oliver. If you drive while disqualified you will breach parole. You have already been to gaol many times for that offence.
The aggregate sentence will be one of four years and six months imprisonment. There will be a non-parole period of three years and three months to date from 5 June 2020, which means that you will be eligible for consideration for release to parole on 4 September 2023. There will be a parole period of one year and three months which will expire on 4 December 2024. The total time in custody is effectively four years and nine months.
I make a firearm's destruction, and a drug destruction order.
[5]
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Decision last updated: 21 June 2021