R v Reyne Jude Hunt

District Court of NSW|2017-03-17

REMARKS ON sentence

On 26 October 2016 the offender was arraigned on an Indictment containing 20 Counts. He entered a plea of guilty to Counts 1-8, and to Counts 19 and 20 on that Indictment. After a judge alone trial at Bathurst, the offender was acquitted of Counts 9-18 on the Indictment.
Counts 1-6 concern offences pursuant to s 51(2) of the Firearms Act 1996, which occurred on 24 July 2014.
Count 7 is an offence pursuant to s 36(1) of the Firearms Act 1996, that occurred on the same day, namely, 24 July 2014.
Count 8 is an offence pursuant to s 25(1) of the Drugs Misuse and Trafficking Act 1985 ("DMTA"), of supplying 28.35 grams of amphetamine on 28 August 2014.
Count 19 is an offence pursuant to s 193B(2) of the Crimes Act 1900, that he dealt with proceeds of crime in the sum of $6,440.00.
Count 20 is an offence pursuant to s 25(1) of the DMTA, of supplying 42.36 grams of methylamphetamine on 29 October 2014.
The maximum penalties for each of the offences are as follows: Counts 1-6 - pursuant to s 51(2) of the Firearms Act 1996 - maximum penalty of 5 years imprisonment. Count 7 - supply unregistered firearm pursuant to s 36(1) of the Firearms Act 1996 - maximum penalty of 5 years imprisonment. Count 8 - supply prohibited drug (28.35 grams amphetamine) pursuant to s 25(1) of the DMTA - maximum penalty 15 years imprisonment and/or 2000 penalty units. Count 19 - deal with the proceeds of crime ($6,440.00) pursuant to s 193B(2) of the Crimes Act 1900 - maximum penalty of 15 years imprisonment. Count 20 - supply prohibited drug (42.36 grams methylamphetamine) pursuant to s 25(1) of the DMTA - maximum penalty 15 years imprisonment and/or 2000 penalty units.

The circumstances of the offending

The agreed facts in respect of Counts 1-7 may be summarised as follows. On 24 July 2014, an undercover operative met the offender at a restaurant in Bathurst and arrangements were made for the offender to supply the operative with a number of firearms. During recorded conversations, the operative stated that he had gone through the list of firearms provided by the offender and asked the offender if he had them all. The offender stated that he had already sold four of the firearms listed, and was uncertain about some of the other items listed.
The offender asked the operative what he was going to do with the guns, and was informed that the operative had friends who liked to go fishing and shooting, and some had had "AVO's slapped on them and had had their guns confiscated".
The operative asked the offender whether he could get him some "ice", and the offender informed him that he did not have any at the moment, that he would have to go to Sydney to get it, but that he could not do so because of his curfew, a condition of his bail.
Further discussions took place between the offender and the operative to arrange the supply of firearms. An arrangement was made for that supply to take place in Kelso. The offender attended that place, and after a discussion, sold seven rifles to the operative in a large white bag for $3,500.00.
A discussion then took place about the purchase of ice, in which the offender suggested the use of different codes when talking about drugs. That discussion resulted in an agreement to supply the operative with an ounce of speed on 28 August 2014, which became Count 8 on the Indictment.
Of the seven firearms supplied six were registered (Counts 1-6) and one had no record of registration (Count 7).
The firearms supplied were: .222 Remington calibre BRNO model Fox Mod 2 bolt action repeating rifle Serial number 23499 with scope. Determined to be a firearm pursuant to section 4(1) Firearms Act 1996 and registered at the time of the offence (Count 1) .22 Winchester Magnum Rimfire Calibre Browning model BPR-22 Pump Action repeating Rifle Serial number 34668RP176 with scope. Determined to be a firearm pursuant to section 4(1) Firearms Act 1996 and registered at the time of the offence (Count 2) .270 Winchester calibre CZ model 600 ZKK Bolt action repeating rifle Serial number A9548 with scope. Determined to be a firearm pursuant to section 4(1) Firearms Act 1996 and registered at the time of the offence (Count 3). 12 guage Mavi De Salvinelli single barrel shotgun Serial number 78239. Determined to be a firearm pursuant to section 4(1) Firearms Act 1996 and registered at the time of the offence (Count 4). .22 Hornet calibre Lithgow model 24 bolt action repeating rifle Serial number 35689 with scope. Determined to be a Firearm pursuant to section 4(1) Firearms Act 1996 and registered at the time of the offence (Count 5). .22 Winchester Magnum Rimfire calibre KRICO bolt action repeating rifle Serial number 508438 with scope. Determined to be a firearm pursuant to section 4(1) Firearms Act 1996 and registered at the time of the offence (Count 6). 7mm Mauser calibre Spanish manufactured bolt action repeating rifle Serial number C5147. Determined to be a firearm pursuant to section 4(1) Firearms Act 1996 and with no record of registration at the time of the offence (Count 7).
At the time of the supply of firearms the offender was not a licenced firearms dealer, and the supply was not arranged through a licenced firearms dealer, according to the regulations. Nor was the supply witnessed by a police officer authorised by the Commissioner, where a licenced firearm dealer was not reasonably available.

Agreed facts in respect of Count 8 on the Indictment

On 28 August 2014 at premises in Bathurst, the offender was monitored and recorded as he agreed to supply 28 grams (or one ounce) of speed for $3,000.00 to the undercover police operative. The offender told the operative that he expected to make "a couple of hundred bucks" from the sale. "Speed" is a commonly used street term for the prohibited drug amphetamine.
On 29 October 2014, police executed a search warrant at the offender's residence in Bathurst. During the search, police utilised a firearms detection dog and an explosives detection dog. Following an indication from the drug detection dog, police located numerous invoices identifying the offender in a rear bedroom. On a bedside table police located a clear plastic resealable bag containing methylamphetamine. Subsequent analysis identified that it weighed 1.56 grams (this comprised sequence 16, possess prohibited drug on the Form 1).
Also located on the bedside table was a yellow post-it note titled "Firewood", which contained several names and monetary amounts, and resembled a "tick book", meaning a list used to record monies owing in drug transactions.
During the search of the offender's bedroom, a plastic resealable bag was located which contained a mixture of blue-coated green tablet fragments and purple powder. Subsequent analysis revealed it was 0.33 grams of Flunitrazepam (sequence 30 possess restricted substance on the Form 1).
Police also located a small plastic bottle containing 11 tablets which were subsequently analysed to be Sildenafil, commonly referred to as Viagra (sequence 31 possess restricted substance on Form 1).

Agreed facts on Count 19 on the Indictment - deal with proceeds of crime

During the search of the offender's bedroom, police located a locked safe containing $1,650.00 in various denominations. In the top drawer of the bedside table, police located $245.00 and secured within a small lock safe within the bedroom, police located $2,900.00. A black wallet located in the bedroom contained $1,345.00. The wallet also contained a NSW driver's licence in the name of the offender. In a motor vehicle outside the premises, which was registered in the name of the offender, police located $300.00. The total amount of cash located by police was $6,440.00.

Agreed facts in respect of Count 20 on the Indictment - supply prohibited drug

Another vehicle owned by the offender was an unregistered Mitsubishi flat‑tray truck, registration BE 88DT, parked on the front grassed lawn area of the premises. In a box on the tray, police located several clear resealable bags containing amphetamine in a rock/crushed format. Subsequent analysis identified the drug to be 36.2 and 6.16 grams of methylamphetamine being a total of 42.36 grams.
Also within a storage container on the same truck, police located a blue plastic container with six rifle bolts inside. In the front cab of the truck, police located one .22 calibre round of ammunition (sequence 19 possessing ammunition without permit on Form 1).

Sentence hearing

The sentence hearing took place on 17 March 2017. Previously, the Crown had tendered, by consent, the agreed facts and criminal antecedents and custodial history of the offender which became Exs A and B on the sentence hearing. Those documents were incorporated into the Crown Sentence Summary, which became Ex C.
The criminal antecedents of the offender recorded offending from 2000, which was dealt with in the Bathurst Children's Court. From 2001, the offender had a history of offences involving dishonesty up until 2006, which were dealt with by way of community service orders, short suspended terms of imprisonment, and periodic detention. In 2006, the offender was sentenced by way of a s 9 Bond to be of good behaviour on conviction of an assault occasioning actual bodily harm.
In 2008, for further offences of obtain money by deception, the offender was sentenced to a community service order of 100 hours and 12 months imprisonment, suspended pursuant to s 12. A breach of his community service order resulted in that order being extended for 12 months in 2011.
On 23 February 2015, the offender was sentenced to two terms of imprisonment of four months for offences of goods in custody and shoplifting, to be served concurrently.

The offender's evidence on sentence hearing

The offender tendered a report of Dr Richard Furst, psychiatrist, dated 2 March 2017. The offender also relied on an affidavit in which he affirmed that he had met with Dr Furst on two occasions on 12 January and 15 February 2017, and had been truthful with him. The offender further deposed that, upon his release, he intended to consult with a GP in the Bathurst region in order to comply with Dr Furst's recommendations, that he was able to live with his mother who continued to support him and that he intended to resume full time employment with his tree lopping business. He otherwise agreed with Dr Furst's recommendations as set out in his report. The offender was not required for cross-examination on his affidavit.
Dr Furst set out the offender's family, educational and employment history. At school he had problems with inattention, restlessness and boredom, that were suggestive of Attention Deficit Hyperactivity Disorder ("ADHD"), however, he was not treated for any disorder. He left school during year 11 and worked a number of unskilled jobs, but was unemployed between 2000 and 2009. He then worked for two to three years in a demolition company, before starting work in the tree lopping industry in 2011. He started his own business subsequently.
The offender had been diagnosed with an Obsessive Compulsive Disorder ("OCD") in 2002. He suffered from anxiety but denied having panic attacks.
At the time of the offending, the offender was on bail, which included as a condition, a curfew. However, the charges the subject of that grant of bail were ultimately dismissed in 2015. He was under financial stress and his business activities were curtailed by the imposition of his curfew. He reported to Dr Furst that the drug supply and firearms offences took place at a time when he was looking to supplement his income. He had begun to use drugs himself between March and October 2014. His 13 year relationship with his partner broke down that year and his drug use spiralled out of control. His use of amphetamines in particular, affected his thinking and judgment when he committed the firearms supply offence. It was also borne of his relaxed attitude to guns when he was growing up.
The offender has a close relationship with his mother who has visited him regularly whilst he has been in custody. He was concerned about the welfare of his seven year old daughter, as his former partner has now moved to Newcastle. The offender's mother informed Dr Furst that the absence of his father had a significantly negative impact on the offender's childhood. As a result, he lacked a positive male role model in his life.
In Dr Furst's opinion, the offender met the criteria for a diagnosis of the following mental disorders: 1. Attention Deficit Hyperactivity Disorder ("ADHD") 2. Obsessive-Compulsive Disorder/Traits ("OCD") 3. Amphetamine abuse (now in remission)
Dr Furst noted that the offender accepted his guilt and expressed regret for his offending and his drug use. His past history of criminal offences, including dishonesty offences and break and enter offences, placed his risk of re‑offending in the low-moderate range. Dr Furst was of the opinion that the use of psychotropic medication may be useful in addressing his ADHD and OCD. In Dr Furst's opinion, the offender's insight and attitude meant that he had good prospects of being successfully rehabilitated. Although he did not appear to have a drug addiction at the current time, the offender would also benefit from drug and alcohol counselling, with a focus on relapse prevention. Engagement in vocational training and/or a return to the workforce would also be beneficial for the offender.
Dr Furst recommended a referral to the Mental Health nurses of Justice Health and psychiatric assessment. Input from a clinical psychologist would also be of assistance, together with participation in drug and alcohol relapse prevention programs such as EQUIPS.

Submissions on behalf of the offender

Learned Counsel for the offender referred the court to the Court of Criminal Appeal's decision in Raniga v R [2016] NSWCCA 36, for relevant principles to be applied by the court in respect of firearms offences. It was submitted that the present case could be distinguished from Raniga, which, by virtue of that offender's known association with an outlaw motorcycle group, made the facts of that matter far more sinister.
On the facts here, it was submitted the purpose for the sale of the firearms was disclosed, namely, that the firearms were to be used for persons with an interest in hunting. The offender had entered a plea of guilty on the first day of the trial, however, it was submitted, and not contested, that a Crown Prosecutor had not been appointed in this case until one week before the trial, and that following negotiations, the final Indictment was not settled until the week of the trial. In those circumstances, the appropriate range for utilitarian discount of the sentence for the offender's plea of guilty on Counts 1-7 was between 10 and 15%.
Learned Counsel acknowledged that the offender's criminal history neither assists nor should it aggravate his sentence, however, it deprived him of leniency.
As recorded by Dr Furst, the offending conduct had arisen first because the offender had grown up with a relaxed attitude to guns, and secondly, because in 2014, he had been suffering underlying anxiety which led to his escalating drug use. According to Dr Furst, the absence of a positive male role model in his life was a relevant factor, and in any event he had reasonable prospects of rehabilitation. The offender's mother was very supportive of him.
It was further submitted that the offender had expressed remorse and regret to Dr Furst for his offending conduct. Whilst he had been in remand in custody, the custodial record indicated that he had travelled across the State, and had not been eligible for courses, or work, whilst in custody.
In relation to the drug offences (Counts 8 and 20), the objective seriousness of the offending was at the lower end of the scale for offences pursuant to s 25(1) of the DMTA. The amounts supplied were small, and whilst the proscribed indictable quantity was 5 grams, a commercial quantity was 250 grams, which was far greater than the amount supplied in each case. Further, the offender stood to make a small amount of money from the supply, namely, $300.00. The supply offences were borne of the fact that he was a user and whilst there were some indicia of a supply operation, for example, the tick book referred to above, the amounts of money found were relatively small and he was clearly at the lower end of any organised distribution or trafficking.
It was conceded that it was an aggravating feature that the offender was on bail at the time of the offences, however, those charges have been withdrawn and dismissed. The serious offending here was in the supply of firearms, however, it was submitted that the time spent by the offender in custody since 24 July 2014 would adequately suffice as a non-parole period of any sentence imposed.

The Crown submissions

The Crown submitted that in relation to the entering of the plea of guilty on the first day of the sittings, the appropriate range was between 10 and 15%, although the lower end of that range was appropriate here.
The Crown acknowledged that the offender had been in custody for 2 years and 5 months, however, on 23 February 2015, he had been sentenced to 4 months imprisonment in the Bathurst Local Court, and therefore 2 years and one month were solely referrable to this matter. Pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"), it was a circumstance of aggravation that the offender was on conditional liberty at the time of the offending here.
The Crown submitted that in assessing the objective seriousness of the offending here, the court should take into account not only the individual offences, but the offending as a whole. Of particular relevance was the combination of firearms and drugs, relying on Raniga at [41].
The Crown submitted that there should be some accumulation between the firearm and drug offences, however, the court should not double count in sentencing.
In respect of the seven firearms offences, the agreed facts demonstrated that the offender had previously sold at least four firearms. This showed the context in which the transactions took place, namely, they were not isolated offences. The Crown submitted that there needed to be some accumulation to reflect the overall criminality of the supply of seven firearms.
In respect of Count 8, the supply of 28 grams of amphetamines, the Crown acknowledged that there was no drug actually supplied. However, the amount was not insignificant and the sale was made for profit.
In respect of the supply charge in Count 20, the Crown submitted there was a level of planning involved. The offender had suggested codes be used for the various drugs, and there were present in the house when searched some indicia of a drug supply operation. Not only was there an agreement to supply 28 grams of amphetamines, but 43.6 grams was found in the house. Therefore, the offending conduct in Count 8 did not reflect just bravado, and was more than street level dealing.
The Crown submitted that the court would have regard to s 21A(2)(j) as an aggravating factor that the offender was on conditional liberty for drug offences at the time of the offending. General deterrence was an important sentencing principle in drug offences, and specific deterrence was important here too, for example, the offender's statement to the undercover operative that he could not supply ice because he would have to go to Sydney and could not do so because of his curfew.
It was submitted that an aggregate sentence pursuant to s 53A was appropriate here, with a slight level of accumulation required for the offending.
Finally, having regard to Dr Furst's report, there was no causal connection made by Dr Furst to the various diagnoses outlined by him, and the supply of firearms or drugs by the offender. The offender was therefore still an appropriate vehicle for both general and specific deterrence.
In response to the submission made on behalf of the offender that he had no positive male role model, it was submitted that he did have a close relationship with his mother, and therefore was subject to appropriate moral guidance.

Submissions in reply

Learned Counsel on behalf of the offender submitted that there was no combination of drugs and firearms for the court to take into account here, referring to [41] in Raniga. There was just no connection here between the firearm and drug offences, which were separate.

Determination Section 3A of the C(SP)A sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community."

In assessing the objective seriousness of the offending here, in respect of the firearms offences pursuant to s 51(2) of the Firearms Act, of which there was six, and the offence pursuant to s 36(1) of the Firearms Act of supplying an unregistered firearm, I take into account that there were seven firearms sold as part of the same transaction. I accept the Crown's submission that the number of firearms involved is a matter that goes to the objective seriousness of the offending. I do not hold, however, that there was a connection established here, on the balance of probabilities, with drug supply, so as to increase the objective seriousness of the offending. Nor were the firearms loaded - see Raniga, supra at [41]. I therefore find that the objective seriousness of each offence pursuant to s 51(2) and single offence pursuant to s 36(1), were within the mid-range of objective seriousness of offences under each of those sections.
In respect of the offences in Count 8 and 20 of the Indictment, pursuant to s 25(1) of the DMTA, the quantity of drugs supplied is relevant to the assessment of objective seriousness. In each case the quantity supplied was well below the commercial quantity. Although there was some indicia of supply found in the offender's premises, namely, the tick book, I find the offender could be characterised as a street level user/dealer, and the offending in each case is towards the lower end of the range of objective seriousness of offending pursuant to s 25(1) of the DMTA. The offence of dealing with the proceeds of crime pursuant to s 193B(2) of the Crimes Act, (Count 19), similarly fell towards the lower end of the range of objective seriousness for such offences.
I take into account the maximum penalty of five years imprisonment for each of the firearms offences, and the maximum penalty of 15 years imprisonment and/or 2,000 penalty units in the respect of Counts 8 and 20, and the maximum penalty of 15 years imprisonment in respect of Count 19, as guideposts in the sentencing process. Further, although the seven firearms offences were all part of the one transaction, the drug offences were not, and there must be some accumulation between the two.
An aggravating factor is that the offender was on bail in relation to drug related matters at the time of the offences. Those charges were later withdrawn and dismissed on 24 August 2015, which reduces the circumstances of aggravation. I also take into account that in respect of Count 8, there was no drug actually supplied, and therefore no illicit drugs were disseminated into the community.
Both general deterrence and specific deterrence are relevant in the sentencing process here, both in respect of firearms and the supply of drugs. The offender's moral culpability was not diminished in any way by the diagnoses outlined by Dr Furst, who drew no causal connection between those diagnoses and the offences for which the offender is being sentenced. He is therefore an appropriate vehicle for both general and specific deterrence. A clear message must be sent to the community that like-minded persons who are prepared to sell firearms and drugs, which may put many members of the community at risk, will not be treated leniently by the courts. Having regard to the agreed facts here, neither offences were isolated events. The clear inference to be drawn is that other firearms were sold, and the offender was selling other drugs, for example, he clearly knew how to obtain the drug ice.
It is common ground that discussions took place between the legal representatives of the offender and the Crown in the week leading up to his trial. As a result of those discussions, the Indictment was amended and the offender pleaded guilty to each of the offences for which he is now being sentenced, thereby saving considerable community resources. I find, in those circumstances, he is entitled to a utilitarian discount of 15% on sentence.
There are also considerable subjective matters to be taken into account in the sentencing of the offender. The offender swore an affidavit affirming that the matters of history recorded by Dr Furst were truthful, and he was not required for cross-examination or challenged on those matters. I accept that he does accept responsibility for his criminal conduct, and is remorseful for it. Prior to the offending, he had his own business as a tree lopper, and he has the support of his mother, who will provide him with a place of residence upon his release. Further, he has expressed a desire to undergo rehabilitation and to follow Dr Furst's recommendations so as to not relapse into drug use. These are significant matters to be taken into account. On the basis that Dr Furst has found him a low-moderate risk of re-offending, and that he would benefit from undergoing drug relapse treatment, I find that there are good prospects of rehabilitation so as to warrant a finding of special circumstances pursuant to s 44(2) of the CSPA. That will result in a variation of the standard ratio between any head sentence and non-parole period.
I have also taken into account the offences on the two Form 1's, which the offender has asked to be taken into account in relation to Counts 1 and 20. The offender has admitted his guilt to those offences and by doing so, there must be some accumulation to the total sentence as a result of those offences.
Having regard to the principles of totality and proportionality in sentencing, I find that no sentence other than imprisonment is appropriate in all of the circumstances pursuant to s 5 of the CSPA. However, it is appropriate to sentence the offender by way of an aggregate sentence pursuant to s 53A thereof. Before doing so, I am required to indicate what sentences I would otherwise have imposed for each of the individual offences. The indicative sentences are as follows: Counts 1-6 - offences pursuant to s 51(2) of the Firearms Act 1996 - 12 months imprisonment on each Count Count 7 - offence pursuant to s 36(1) of the Firearms Act 1996 - 12 months imprisonment Count 8 - supply prohibited drug pursuant to s 25(1) of the DMTA 1985 - 1 year and 8 months imprisonment Count 19 - deal with proceeds of crime pursuant to s 193B(2) of the Crimes Act - 18 months imprisonment Count 20 - supply prohibited drug pursuant to s 25(1) of the DMTA - 1 year and 8 months imprisonment
I therefore intend to sentence you to a term of imprisonment of 5 years, with a non-parole period of 2 years and 9 months. That non-parole period will be backdated by a period of 2 years and 2 months.

Sentence

I therefore sentence you as follows: 1. You are convicted of the six offences of supply firearm without licence pursuant to s 51(2) of the Firearms Act 1996. 2. You are convicted of the offence of supply unregistered firearm pursuant to s 36(1) of the Firearms Act 1996. 3. You are convicted of the offence of supply prohibited drug, being 28.35 grams of amphetamine, pursuant to s 25(1) of the DMTA. 4. You are convicted of the offence of dealing with proceeds of crime in the sum of $6,440.00, pursuant to s 193B(2) of the Crimes Act 1900. 5. You are convicted of the offence of supply prohibited drug, being 42.36 grams of methylamphetamine, pursuant to s 25(1) of the DMTA. 6. You are sentenced pursuant to s 53A of the CSPA to an aggregate sentence for all of the above offences. 7. I sentence you to a non-parole period of 2 years and 9 months to commence on 6 February 2015, and to expire on 5 November 2017. The balance of term will be 2 years and 3 months commencing on 6 November 2017 and expiring on 5 February 2020. 8. I have certified each of the two Form 1's.
I note that the 15 outstanding matters, subject to the Certificate pursuant to s 166 of the CPA, being sequence numbers H 56708571/2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 22 and 29, are withdrawn and dismissed.
You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.

Further Orders 1. Drugs to be destroyed. 2. Firearms to be destroyed. 3. Make Orders 1.1 and 1.2 in accordance with the Short Minute of Order dated 6/4/17 in relation to the monetary proceeds. 4. I recommend that the Offender be referred to Justice Health for assessment of his mental health condition. I further recommend that the report of Dr Furst dated 2 March 2017 be forward to Justice Health for that purpose.

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: 06 April 2017

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