R v Roth Mony

Agreed Facts

1. On 24 September 2014, the Offender was served with a Firearms Prohibition Order which prohibited him from acquiring, possessing or using a firearm, firearm part and ammunition. The Offender was explained the conditions of the order at the time.
2. On 18 February 2020, police responded to a concern for a male who was unresponsive in a vehicle located outside Bulla Road, Wakely. At the scene, police located the Offender asleep in the driver seat. The police knocked on the driver's side window and the Offender woke up immediately and appeared disorientated and confused. When police spoke to the Offender it became apparent that he was under the effect of prohibited drugs. Police observed drug paraphernalia within the vehicle then proceeded to conduct checks which revealed that the Offender had a history of possession of prohibited drugs as well as having a Firearm Prohibition Order placed upon him. A search was conducted of the car and a black bag was found sealed with duct-tape in the boot of the vehicle amongst other personal items of the Offender. Police seized the following: 1. Two shortened homemade firearms (Sequences 4, 5 & 10 (H 73975033) being: 1. One shortened .22 Long Rifle calibre Fabrique Nationale Model .22 automatic self-loading rifle, serial number 72511 being a shortened firearm as defined in the 1996 Act. Further the firearm is also a prohibited firearm as defined in Clause 2 of Schedule 1 of the 1996 Act (Sequence 5). The firearm was test fired and is in working order. It is capable of propelling a projectile by means of an explosive. 2. One shortened Stirling Model 20 self-loading rifle, serial number obliterated being a shortened firearm as defined in the 1996 Act. Further the firearm is also a prohibited firearm as defined in Clause 2 of Schedule 1 of the 1996 Act (Sequence 4). The firearm was test fired and is in working order. It is capable of propelling a projectile by means of an explosive. 1. One unknown manufacture silencer being a prohibited weapon as described in clause 4(3) of Schedule 1 of the 1998 Act. This silencer is designed for attachment to a firearm for the purpose of muffling, reducing, or stopping the noise created by firing the firearm. The body of the silencer is capable of forming a friction fit by being pressed onto the muzzle of the shortened self-loading rifle (Sequence 9 on Form 1B). 2. One 6mm Airsoft calibre detachable box magazine is a Firearm Part as defined in s.4(1) of the 1996 Act (Sequence 2 on Form 1D). The detachable box is designed to suit a 6mm Airsoft calibre air gun. 3. Twenty-nine 6mm diameter plastic and steel pellets being ammunition as defined under s.4(1) of the 1996 Act (Sequence 7 on Form 1C). These are airgun pellets. 4. Fifteen .22 Rifle calibre cartridges, which are ammunition as defined under s.4 (1) of the 1996 Act (Sequence 3 and 6 Form 1D. The cartridges are designed to be used in weapons chambered for .22 Long Rifle calibre cartridges and are suitable to be used in shortened .22 Long Rifle and shortened Stirling.
3. On 18 February 2020, police attended at 93 Bulls Road Wakeley and entered the premises to execute the Firearms Prohibition Order. The second bedroom in the property belonged to the Offender and it contained several items in his name. During the search of the premises, the police seized : 1. An Imitation silver and black self-loading pistol which are an imitation pistol described in Section 4D(2)(a) of the 1996 Act (Sequence 1). 2. Within the fridge were Testosterone, trenbolone, epherdrine and cannabis leaf which are prohibited drugs listed under Schedule 1 of the Drugs Misuse and Trafficking Act. (Sequences 10 (H77091451), 11, 12 and 13).
4. At 2.45pm police conducted a Firearms Prohibition Order search of the Offender's residence at Anderson Avenue, Mount Pritchard. The Offender resided in a townhouse with his mother. Police searched the Offender's bedroom and located: 1. A .22 round of ammunition on his bedside table. This round of ammunition is identical to the rounds located in his car. 2. A thick book within the bedroom with a number of holes in the cover that were consistent with gunshot rounds. Within the book were .22 rounds of ammunition/slugs wedged into the inner pages. 3. Blue/green and chrome balls identical to the ones located in the black bag and a 'Autoloading Pistol' box that was empty.
5. The Offender's DNA matched that of a firearm part located within the vehicle and his fingerprints were located on the Unknown Silencer (Sequence 9) which was also located in the black bag located in the boot of the vehicle. The Offender was arrested and conveyed to Fairfield Police Station.
6. The Offender participated in an electronically recorded interview. During the interview, the Offender confirmed that he purchased the car a month prior and kept his belongings and personal effects inside. He denied all knowledge of the black bag containing the firearms and firearm parts, despite admitting to putting his clothing, other bags and the sling shot in the boot where the black bag was found. He stated that he did not know the .22 round was on his bedside table and was unaware of the book. He made full admissions as the possession of the prohibited drugs and the silver self-loading imitation pistol which he stated that he ordered from an online store. He stated that he had a remote to access the property at Bulls Road and that he had been staying there on and off for about a week.

Crown Submission

1. The Crown submitted in assessing the objective seriousness and the gravity of the offences, regard has to be had to the factors in Mack v R; Mack v R. [1] In assessing the objective seriousness of the firearm offences, the Crown drew attention to the following features: 1. The number and types of weapons in possession relying on Branko Balic, NSWCCA 29/9/97. 2. Sequence 1 involved an imitation pistol described as having features including a trigger, frame, trigger guard, slide and hammer and it substantially duplicates the appearance of a firearm. It noted that the firearms in sequences 4 and 5 are capable of being used but in each case they did not contain live ammunition but they were proximate to the ammunition found in the Offenders car which is the subject of sequence 3 on the Form 1D and sequence 6 on the Form 1C. 3. The firearms that are the subject of sequences 4 and 5 were located in the boot of the Offender's vehicle and a black bag with ducted taping which is the same bag as the ammunition and the silencer. The imitation pistol was located in the Offender's house under the kitchen sink. None of the items in sequences 1, 4 and 5 were kept safely. In respect of the purpose of the possession, the Offender stated that this was for his own protection and that of his family in light of an earlier criminal matter in respect of which he was acquitted.
2. Overall, the Crown submitted that the offences that are the subject of sequences 4 and 5 fell in the mid-range of objective seriousness and sequence 1 fell in the lower range of objective seriousness. In respect of sequence 10 (H73075033), the Crown submitted that it fell within the mid-range of objective seriousness bearing in mind that it related to two firearms being those in sequences 4 and 5. In respect of sequence 16, the Crown submitted that this related to the imitation firearm which is the subject of sequence 1 and accordingly fell in the lower range of objective seriousness.

Defence Submissions

1. The Defence conceded that the firearm in sequences 4 and 5 were both shortened and the serial number in sequence 4 was obliterated but the serial number in sequence 5 was not tampered with. Whilst it noted the nature of the possession of the two firearms being located in a sealed (with duct-tape) black bag in the boot of the vehicle, it submitted that relative to where the Offender was sitting, the firearms were not in a readily accessible location. Whilst it acknowledged that the firearms were in working order and ammunition was located in the bag, it submitted that the firearms were not loaded and the silencer was not attached to the firearm and the inference to be drawn was that the firearms were being stored and conveyed as opposed to the Offender having them in his possession for immediate use.
2. The Defence submitted that sequences 4 and 10 (H3975033) fall below the mid-range and sequence 5 fell toward the lower end of objective seriousness. In respect of sequence 1, it observed that this was an Imitation self-loading pistol located in a plastic container under the kitchen sink. It noted that there was no sophistication in concealing the weapon. It drew attention to the fact that the Offender has made full admissions to police in relation to its acquisition from an online store. Accordingly, it submitted that sequences 1 and 16 would be towards the lower end of objective seriousness.

Findings

1. The Offender's stated purpose in possessing the firearms were for his and his family's own protection which is not a mitigating factor. [2] In any event, there can be no legitimate purpose of possessing shortened firearms of the kind referred to in sequences 4 and 5 let alone a firearm in Sequence 4 that had the serial number obliterated. Both firearms test fired and were in working order capable of propelling a projectile by means of an explosive. Neither the firearms that are the subject of sequences 4 or 5 were safely retained and were proximate to a silencer and ammunition. I accept that neither firearm was loaded or immediately intended for use and the silencer was not seemingly attached. The facts were silent as to the firearms being used in any criminal offending. There is nothing to indicate that the Offender himself arranged the removal of a serial number or shortening the firearms as opposed to acquiring them in this form. Overall, taking into account the objective features affecting relative seriousness, sequence 4 and 5 would fall between the low and mid-range of seriousness.
2. Whilst the Crown drew attention to the number of weapons involved this is a matter properly to be taken into account on questions of accumulation, concurrency and totality.
3. In respect of sequence 10 (H73975033), I note that it relates to two firearms and sequence 16 to the one firearm. In assessing the objective gravity, I bear in mind the breadth of the section as to the number and types of firearms it could relate to. Overall, I would find that sequence 1 (H77091451) falls in the mid to low range and sequence 16 falls within the lower range of objective seriousness.
4. I note that sequences 2 and 7 related to a magazine and pellets for an air gun which was not located in the black bag nor was one located in the Offender's home.
5. In respect of the matters which are subject to sequences 10 (H77091451), 11, 12 and 13, both parties accepted that bearing in mind particularly the quantity of the drug, each of the four offences fell at the low end of objective seriousness, although, the Defence argued that they were in the lowest end of objective seriousness.

Plea of Guilty

1. The Offender has pleaded guilty at the earliest opportunity and is entitled to a 25% discount to each sentence reached upon a synthesis of objective and subjective material including remorse and prospects of rehabilitation.

Prior Record

1. The Crown submitted the Offender's record was such that it was clear that he has a propensity to keep acquiring and possessing unauthorised or prohibited firearms and has not been deterred from the terms of imprisonment thus far and that he has unresolved drug dependency. It was further submitted that the Offender committed the offences before the Court only 16 days after his last parole for possessing prohibited firearms expired and that there is little gap in his offending since 2011. The Crown submits that the record does not entitle the Offender to any leniency. It was further submitted that this was an aggravating factor of sentence pursuant to section 21A(2)(d) of the 1999 Act. The Defence conceded a finding under this section was hard to challenge. I am satisfied that the aggravating factor has been established.

Remorse

1. The Offender is recorded as informing the author of the Sentence Assessment Report that the weapons found in the car were his that he acquired from a friend due to a heightened anxiety and paranoia of a threat from previous associates. The agreed facts also recorded that he admitted to the imitation firearm being something that he had acquired.
2. The Sentence Assessment Report opines that the Offender appears to be able to acknowledge his offending may have made the community unsafe and aligned his history with regular consumption of illicit substances, negative influential peers and his concern about retaliation from previous peers.
3. The Offender is also recorded in Megan Godbee's (Forensic Psychologist) report dated 15 March 2021 as describing that it has not been difficult to obtain firearms because he associates with antisocial people and further that he had been abusing alcohol, Xanax and ice in the lead up to his arrest and he believes these drugs contributed to him becoming paranoid that he was at risk of harm.
4. Overall, the Crown accepted that the Offender was remorseful in terms of section 21A(3)(i) of the 1999 Act and I am satisfied that this mitigating factor has been established.

Background

1. Ms Megan Godbee's report records the background history of the Offender. It notes that in Cambodia under the Pol Pot regime his father was fatally shot by police when he was an infant. Although it is recorded that he had no recollections of him, he stated in evidence that he had vague recollections of his father. He described growing up in Villawood with his mother, stepfather and three younger half-sisters. He did not learn the circumstances of his father's death until his teen years and is recorded as having a distrust of police and was feeling the need to protect himself.
2. Ms Godbee records and the Offender gave evidence before me that his mother was in an abusive relationship with his stepfather involving regular acts of violence requiring police intervention. He also reported that his mother was engaged in heavy alcohol consumption and gambling during his early life and she was not home much. He told Ms Godbee that there was one occasion when he was hit by his stepfather and he did his best to stay away from him and they rarely spoke to one another. He abstained from being in the house for periods and attending with associates which he described as being indigenous friends with few parental constraints and described as being away for days. Ms Godbee records that by the age of ten he had started running away from home and spending time with older antisocial peers. He described liking the camaraderie and the sense of safety he had with these people but noted that they were engaged in substance abuse and offending which he came to view as normal. He described to Ms Godbee that he and his friends were often in fights with other gangs and he witnessed traumatic incidents such as people being stabbed and shot. It has been noted that the Offender has served a six-year custodial sentence from the age of 17 due to offences committed with these peers. The Offender estimated that the longest period in the community since that time has been 6 months and he has always lived with his mother upon his release from prison.

Education and Employment

1. According to Ms Godbee, the Offender stated that his mother never attended school and that his mother did explain to him what school was. It was not until year Four that he realised his peers could read and write and he could not so he tried to learn. However, the report notes that the Offender truanted regularly running away from home and abusing drugs and left school in year 8 which impacted upon his learning. He completed year 10 in juvenile detention as well as completing a number of short courses described as small motors, commercial cookery, and hospitality during his periods in custody. Before me, he confirmed in evidence that he left school at 13 years of age and it was also noted that he completed courses and obtained certificates in warehouse logistics and building. He further confirmed that he would like to pursue studies in personal training. The Sentence Assessment Report notes that he has never held employment which the Offender indicated was due to his criminal past. Ms Godbee records that the Offender indicated to her that his priority is to stay away from drugs before seeking employment and due to his lack of employment history and drug-focussed lifestyle, he is likely to require intensive support to find and maintain stable employment.

Substance Abuse

1. The Offender indicated to Ms Godbee that he first consumed alcohol at the age of 12 with older peers. He recorded that he typically consumed a bottle of spirits most days during his teen years and his drinking continued until he entered custody for the index offence. It notes that medical records refer to symptoms of alcohol withdrawal during his intake assessment. Ms Godbee records that the Offender stated that he began smoking cannabis at age 12 and he used this every day until he transitioned to heroin by age 14. He then began to use methylamphetamine after his release from custody in his mid-20's and he describes this drug as leading to his paranoia and hallucinations. Ms Godbee also records that he began using cocaine and ecstasy on weekends from that time and was misusing Xanax most days. He disclosed that he continued to use drugs through his custodial sentences, with his last use occurring in December 2020. The Sentence Assessment Report records that at the time of the offence, the Offender indicated that he would imbibe alcohol, ice, heroin and more recently Xanax at least three times per day with each serving a purpose to either increase his activity or an attempt to slow down or sleep.
2. Since his incarceration, the Offender has stated that he has been prescribed an anti-depressant to counter feelings of anxiety and this has led to no longer having paranoid thoughts. In reflection, he stated that he appreciates the seriousness of the offences. Ms Godbee records that the Offender completed a drug and alcohol course through the High Intensity Program Unit last year but it is noted that he continued to use drugs during the program. In December 2020, he began another drug and alcohol program and this involved being transferred to a small, segregated wing where he was not able to obtain drugs. This was described as prompting him to decide to stop taking drugs and he reportedly abstained for the last two months. He indicated that he no longer wants to spend time with drug-using peers and has found it helpful to hear from other people who have been in a similar position but have turned their lives around. Ms Godbee reports her opinion that the Offender needs to engage a further rehabilitative programs to learn skills to manage temptation and maintain his abstinence upon release.
3. A report from Braithe Thomson (facilitator) dated 26 March 2021 was submitted in the Defence case which indicated that the Offender had engaged in the Alternative Sanction Program (ASP) for a 10 week course which requires a high level of inmate engagement. This course commenced on 23 December 2020 and was completed on 3 March 2021. The report notes that the Offender attended 14 sessions and also attended 26 sessions of the Remand/Equips Addictions course and 10 Narcotic anonymous sessions that were run by an outside facilitator. Mr Thomson records: "Mr Mony continues to remain engaged in the ASP program actively participating in all groups, providing support to the newer members of the group and taking personal risk by sharing some of his values and beliefs in group discussions. He continues demonstrated a willingness to explore the direct links between addiction and his criminal behaviour by openly reflecting on the impact his addiction has had on himself, his family and friends and the broader community. Mr Money sees his stay in the ASP as an opportunity to make some positive changes in his life".
4. The Offender gave evidence about this course and the impact that it has had on him. He stated that when he entered custody, he was smoking Heroin and Buprenorphine and stopped a week before Christmas after he was caught in November 2020 in a urine test. He described now being over it and wanting to get away from drugs.
5. The Offender further described when he is released from custody; he will reside with his mother stating that he has acknowledged his drug problem to his family whereas previously he was in denial. He's anxious to find work in personal training and cannot obtain a certificate II whilst he is in custody as this is not available. He stated that he is mentoring other inmates. The report of Mr Thomson notes that the Offender voluntarily completed a mentor training session while he was in the ASP. He stated that he has mentored some seven inmates relaying to them his experience with drugs with a view to supporting them in the custodial setting.
6. Ms Godbee records that the Offender is not engaged in any psychological treatment.
7. The Sentence Assessment Report records that the Offender claims that he was diagnosed with Post-Traumatic Stress Disorder (PTSD) following a home invasion in 2014.
8. Ms Godbee's records that the Offender has had some contact with mental health professionals during his time in Juvenile Detention due to difficulties managing his anger. It was after he was on remand being charged with murder that he was diagnosed with PTSD. She records that he saw a psychologist for one session whilst he was in the community before his index offences. The report records that the Offender indicated that he had thoughts of suicide in his teens but provided conflicting accounts about whether he attempted to harm himself. The report recorded that the Offender advised that he never tried to commit suicide but had been admitted to hospital several times for intentionally overdosing on medication.
9. He also reported experiencing symptoms of depression since childhood, including persistent sadness, feelings of worthlessness and sleep difficulties.
10. Ms Godbee records that the Offender said that he has struggled with symptoms of PTSD for the last five years, since the home invasion that lead to him being charged with murder. He endorsed symptoms such as nightmares, intrusive memories, difficulties recalling details of the incident, hypervigilance to potential threat and difficulties with sleep.
11. The Offender stated that his drug use increased at this time, because "there were no more limits" on his behaviour and he "took whatever [he] could to cope with it".
12. The Offender added in evidence that since abstaining from drugs two months previously, his mood has improved being prescribed Avanza - an antidepressant medication. He stated that he has begun talking about his difficulties instead of keeping them to himself. He would like to engage in psychological treatment to further reduce his symptoms.
13. The Defence submitted that the Offender did not have positive role models in his life and his long standing substance abuse problems and his unenviable childhood enlivens the principles in R v Bugmy [3] thereby reducing his moral culpability for his offending.
14. Overall, I would accept that by reason of his childhood deprivation and somewhat dysfunctional upbringing, the Offender's moral culpability is reduced.

Prospects of Rehabilitation and Likelihood of Reoffending

1. I have noted that the Offender has long standing mental health and substance abuse issues which he has relatively recently progressed into addressing. I accept that he has made some progress abstaining from substance abuse over the last few months reducing his depression and PTSD symptoms. I further accept that he is motivated to engage in psychological therapy.
2. Ms Godbee records that the Offender's post specific treatment needs relates to substance abuse, antisocial attitudes, antisocial peers and an offence focussed lifestyle. She further records that he could be considered for a comprehensive program such as the Violent Offender Treatment Program which would address these treatment needs. As far as his mental health treatment is concerned, she records that if his PTSD remains unaddressed he may continue to feel the need to obtain firearms and that his mental health and offending would be addressed concurrently through a referral to a Corrections psychologist. Ms Godbee records that the Offender needs intensive support to transition to the community and avoid a relapse into substance abuse and offending. It is suggested the he is to be assisted to develop a realistic release plan that outlines strategies for avoiding old associates, seeking ongoing counselling and working towards education and employment.
3. The Sentence Assessment Report notes that the Offender has previously been supervised by Community Corrections. However, a breach action was required on a number of occasions with his parole being revoked several times during the parole period. It records whilst the Offender engaged adequately, he failed to follow through with interventions to address AOD and mental health. It further records that the Offender was deceptive in his interactions with his Community Corrections Officer, especially in regard to illicit substance use and testing. The Offender pondered that if he had responded in a positive way he would not be in his current circumstances.
4. Overall, I accept the assessment made in the Sentence Assessment Report that the Offender is at Medium-High risk of reoffending. The Sentence Assessment report recommends a supervision plan by Community Corrections upon release as follows:

• Assess Mr Mony's suitability to engage in the EQUIPS Addictions to address anti-social attitudes and AOD use. If it is evident that Mr Mony requires additional support in the community, then direct and assist him with a referral to a residential rehabilitation centre.
• Referral to an appropriate service for an AOD assessment and ongoing counselling, with a focus on managing craving and relapse prevention.
• Third party checks will occur to monitor for any AOD use or to canvass for any concerns with treatment.
• Direct Mr Mony to attend his General practitioner or a mental health treatment plan to address mental health issues.
• Engage in activities and interventions that focus on recognising triggers, relapse prevention strategies and pro social relationships.

1. Whilst the Offender does have a poor track record, I am prepared to accept that he may have turned the corner. His progress in recent months has been impressive to the point that he has engaged positively with programmes offered to him and demonstrated incite. Whilst there is some need for caution in a matter of this nature, I would overall assess the prospects of rehabilitation as reasonable subject to him continuing on the path he has taken.

Special circumstances

1. The Defence submitted that I should find special circumstances to allow for ongoing treatment of the Offender in relation to his drug addiction and his mental health and also to address the risk of institutionalisation by ensuring there is a sufficient period of conditional and supervised liberty to improve his prospects of sustained rehabilitation.
2. The Crown accepted that special circumstances can be found however indicated that the ratio ought not to be moderated to a substantial degree on the basis that the Offender has had multiple opportunities to rehabilitate in the past.
3. I accept that a finding of special circumstances should be made bearing in mind the Offender's relatively young age, the need for an extended period on parole, his health issues and the risk of institutionalisation.
4. Both parties accepted that the sentence should have commenced from 18 February 2020 when he first came into custody. I would accept the Crown submission that a level of concurrency should be allowed whilst also providing a level of accumulation to reflect the difference of the separate acts of criminality involved.

SENTENCE

1. In sentencing the offender, I have borne in mind the maximum penalties for each offence and the applicable standard non-parole periods as statutory guideposts.
2. The non-parole periods for the sequences 4, 5 and 1 depart from the standard non-parole. This takes into account my findings on objective seriousness and the subjective matters I have referred to.
3. In sentencing the Offender, I bear in mind the matters on the Form 1B, Form 1C and Form 1D in accordance with the Attorney-General's Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002. [4] In so doing, I am mindful of the fact that sequences 6 and 7 has been factored in the assessment of sequence 5. Sequence 9 has been factored into the objective seriousness of Sequence 4. I also bear in mind that personal deterrence has already been factored by reason of the Offender's record.
4. The sentence also needs to provide for general and specific deterrence, denunciation, punishment, accountability and the Offender's rehabilitation. The sentence also needs to provide for community protection although that can also be fostered by the Offender's rehabilitation.
5. I propose to proceed by aggregate sentence and will indicate the following sentences as follows: 1. Sequence 4: Taking into account matters on the Form1B. 3 years 6 months imprisonment with a non-parole period of 2 years and 3 months. 2. Sequence 5: Taking into account matters on the Form1C. 3 years and 6 months imprisonment with a non-parole period of 2 years and 3 months. 3. Sequence 10 (H73975033): Taking into account matters on the Form1D. 18 months imprisonment. 4. Sequence 1: 18 months imprisonment. 5. Sequence 16: 9 months imprisonment.
6. In setting an aggregate sentence I bear in mind principles of concurrency, accumulation and totality.
7. Overall, I would set an aggregate term of 5 years and 9 months imprisonment commencing on 18 February 2020. I would set a non-parole period of 3 years and nine months form 18 February 2020 to 17 November 2023 and thereafter an additional term of 2 years from 18 November 2023 to 17 November 2025 during which the Offender shall be eligible to be released to parole.
8. In respect of sequences 10 (H77091451), 11, 12, 13. I would enter convictions but order no penalty pursuant to s 10 A of the 1999 Act.
9. The Offender is to be referred to the Drug Court for consideration of eligibility into the Compulsory Drug Treatment Programme.
10. The Offender's earliest possible release date is 17 November 2025.

Endnotes

1. [2009] NSWCCA 216 at [40].
2. See R v Kristic (2005) NSWCCA 391 and R v AA (2006) NSWCCA 55 at [46] and Thalari v R [2009] NSWCCA 170 at [88].
3. (2013) 249 CLR 571
4. (2002) 56 NSWLR 146 at [66]. 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: 21 May 2021