Regina v Baxter

District Court of NSW|2006-04-28

CATCHWORDS: Criminal Law - Sentence - ongoing supply methamphetamine - possess firearms.

Drug Misuse and Trafficking Act 1985 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996

Thomson & Houlton (2000) 49 NSWLR 383 Regina v Bacon [2000] NSWCCA 549 Attorney General's Application Number One (2002) 56 NSWLR 147 Veen (No 2) v The Queen (1988) 164 CLR 465 CASES CITED: R v Smiroldo [2000] NSWCCA 120 Regina v Kalache [2000] NSWCCA 2 R v Way [2004] NSWCCA 131 Regina v Pearce (1998) 194 CLR 610 Regina v Mill (1988) 166 CLR 59

PARTIES: Regina Alan John Baxter

SOLICITORS: DPP (Wagga Wagga) Mr D Barron, Barron Law (Australia) Pty Ltd

1 HIS HONOUR: Just stand up Mr Baxter, my practice whatever the result is, is to tell people in advance what I am going to sentence them to, so they know, they are not left in suspense. In your case I propose to impose the following sentences. For the possess firearm matter I propose to sentence you to three years imprisonment, that sentence will date from 27 August 2005 and expire on 26 August 2008 and I take that to be the correct commencement date from my notes Mr Crown is that right?

2 CROWN PROSECUTOR: Yes I checked again today and I think that is correct your Honour.

3 HIS HONOUR: Yes I do not have a transcript still from Wagga so I have to rely on my notes. In relation to the offence of ongoing supply of methylamphetamine I propose to sentence you to a term of imprisonment of six years comprising a non parole period of four years and one month and a balance sentence of one year, eleven months and that sentence will commence eighteen months into the sentence for the firearms offence. So that means your total sentence will be seven and half years imprisonment with on my calculation a five year and seven month non parole period. Just take a seat thanks very much.

4 The prisoner Alan John Baxter appears today for sentence in relation to two principal offences to which he pleaded guilty at the Wagga Wagga District Court on 31 March 2006. The first charge to which he pleaded guilty is an offence alleging that he between 1 June 2005 and 30 June 2005 at Wagga Wagga in the State of New South Wales did on three or more separate occasions during a period of thirty consecutive days supply a prohibited drug other than cannabis for financial or material reward. This is an offence brought pursuant to s 25A Drug Misuse and Trafficking Act and carries a maximum penalty of twenty five years imprisonment.

5 In relation to that offence I am required to take into account three other offences, two offences of ongoing supply of a prohibited drug namely methylamphetamine for financial or material reward pursuant to s 25A Drug Misuse and Trafficking Act. One offence alleging twelve separate supplies between 1 May 2005 and 30 May 2005 and a second offence under the same provision of the Drug Misuse and Trafficking Act alleging fifteen separate supplies within thirty consecutive days of a prohibited drug namely methylamphetamine for financial or material reward committed between 1 July 2005 and 30 July 2005.

6 The third charge is an offence of supply methylamphetamine committed on 26 July 2005 and arises out of the circumstances of the arrest of the prisoner and his possession of an indictable quantity of methylamphetamine at that time.

7 The second offence to which the prisoner has pleaded guilty is an offence alleging that on 26 July 2005 at Currawarna in the State of New South Wales, he did possess a prohibited firearm, namely a replica Smith and Wesson pistol not being authorised to do so by licence or permit. Three offences are disclosed on a further Form 1 which are to be taken into account in sentencing the prisoner for this second offence and those three offences are two offences of selling a firearm and one further offence of possessing a prohibited firearm, namely another replica Smith and Wesson pistol.

8 The offence of selling a firearm committed between 25 May and 2 June 2005 was disclosed to the investigators during their investigation of the offender's activities in relation to the sale of methylamphetamine and likewise the further offences of selling a firearm committed between 23 June and 25 July 2005 arises out of that investigation.

9 The offences of possession of a prohibited firearm, the principal offence and the offence on the Form 1 are offences that are disclosed from the circumstances of the prisoner's arrest. The principal offence of possessing a prohibited firearm is an offence which carries a maximum penalty of fourteen years imprisonment. It is an offence for which there is disclosed a standard non parole period under the Crimes (Sentencing Procedure) Act, that standard non parole period is three years and I will deal with that aspect of this case shortly.

10 In relation to the pleas of guilty that have been entered by the prisoner in relation to the two principal offences, those pleas of guilty were entered on arraignment. As I understand the matter the prisoner was committed for trial, however it should be fairly pointed out that the arraignment occurred within seven to eight months of the arrest of the offender. I have taken into account what has been put by the learned Crown Prosecutor in relation to this matter, as well as the matters raised on behalf of the accused. I note that the investigation of this matter was a complex matter with many, many telephone intercepts and listening device recordings forming part of the material available to the Crown. The pleas that were entered at the District Court, after committal, occurred in the context of ongoing negotiations between the defence and the Crown. Having regard to the form of the indictment and the number of matters on the Form 1 I am satisfied that bearing in mind the pleas were entered on arraignment, that the pleas of guilty were entered in reality in a practical sense at the first reasonable opportunity. Although it might be a matter of slight degree to the contrary on a full analysis of the information available to me, I am of the view in the circumstances bearing in mind the fact that there was a paper committal and the plea was entered on arraignment and given what I was told about the progress of the matter, that the prisoner should receive a discount of twenty five percent upon the otherwise appropriate sentences for each of the principal offences, having regard to the utilitarian value of the pleas that have been entered. A great deal of court time has been saved by the manner of the conduct of the proceedings, both at the Local Court and before this court. The committal for trial has not delayed the matter or added to the burden in reality of the Court, both at this level and at the Local Court. In the circumstances given what I understood to be a general concession in relation to this aspect, I am of the view that the prisoner is entitled to the discount I have indicated in accordance with the guideline judgment in Thomson and Houlton.

11 The detection of the prisoner in relation to the principal offences and the matters on the Form 1 arose out of an operation which commenced in the Wagga Wagga area in around April 2005. Between 29 April 2005 and 10 June 2005 telephone intercept warrants were issued for the prisoner's mobile phone and telephone calls to and from that telephone were monitored and recorded. The prisoner was arrested on 26 July 2005.

12 The Crown case against the prisoner in relation to the supply prohibited matters, both the principal offence and the two ongoing supply matters on the Form 1 was that the prisoner was supplying amounts in what were called point quantities or .1 of a gram for which he would receive $50 for each such supply. He may, on occasion, have supplied more than one point to the one person but as I understood the matter, notwithstanding something suggesting to the contrary in the Statement of Facts, the prisoner supplied as far, as the police investigation was concerned, in those quantities. The Crown case was that the prisoner had been purchasing the relevant amphetamine supplied by him in larger amounts and breaking it up into small amounts for sale. Some of the amphetamine was purchased for his own use and the use of a co-offender Catherine Murphy, a person with whom the prisoner was living during the relevant period of time.

13 The first offence disclosed in the facts is the principal offence and it relates to the supply of methylamphetamine in these quantities within a thirty day period on fifteen separate occasions. The Statement of Facts chronicles each of the supplies which were detected either by way of telephone intercept or by way of dealing between the prisoner and an undercover operative.

14 The facts reveal the circumstances of supplies on 1 June, 9 June, 12 June, 14 June, 15 June, 19 June. On some occasions the prisoner was either in company with Catherine Murphy at the relevant times or used her as an agent for the supply of the drugs. The arrangements for the supply of the relevant drugs involved supplies at various places, both near Currawarna and elsewhere. As the facts disclosed to me after a supply on 20 June 2005, on 28 June 2005 the prisoner was approached early in the evening of that day by a police undercover operative wearing a listening device. The prisoner and the operative met in Morgan Street, Wagga Wagga near as I understand it the Wagga pool. The prisoner was initially suspicious of the undercover operative and asked that person to supply him with drugs to prove that he was not an undercover police officer. After some further discussions the prisoner agreed to supply the undercover operative with amphetamine in the future. He instructed the undercover operative not to talk on the phone and to use a code by talking about fishing or football. The prisoner in this conversation or meeting boasted to the undercover operative about how busy he was selling drugs and at the end of the conversation the prisoner told the undercover operative that whenever he wanted anything to ring the prisoner and meet him at the same place. The prisoner told the operative that he would give him what he had. The prisoner further supplied amphetamine to another party on 29 June 2005 and then on 30 June 2005, the prisoner again met up with the police undercover operative, again wearing a listening device.

15 The relevant conversations on 30 June 2005 and 28 June 2005 were, as I understand it, recorded. This meeting was also the subject of some surveillance. Catherine Murphy was in attendance at the relevant time. The undercover operative on this occasion was involved in conversation with the prisoner, who during the course of the conversation spoke to two other people who arrived at the carpark and the undercover operative witnessed the prisoner undertake two transactions apparently supplying the prohibited drugs whilst he was talking to these two other people. The prisoner said in the course of this conversation with the undercover operative: "I've run for twenty months man and I haven't even looked like coming undone because I'm not stupid".

16 He also said to the undercover operative: "I can do the crystal that will blow your fucking head off mate. I can get you the best crystal you've ever seen in your fucking life".

17 The prisoner later said: "I will put it to you like this right, I can get you anything you fucking want, anytime you fucking want it and as much as you want".

18 The undercover operative arranged to meet the prisoner the next week. Crystal is a term used to describe a particular form of methylamphetamine. The facts revealed the circumstances of further supply by the prisoner on this day to other people. The undercover operative during the course of this meeting saw the prisoner remove a number of plastic resealable bags from a plastic "Kinder-Surprise" container, each containing a small quantity of powder, and hand them to a male person. The prisoner received cash from that male person. There was a further supply to another party on 30 June 2005 to two other persons, the particulars of which are set out in the Statement of Facts. Later on 30 June 2005, the police undercover operative rang the prisoner and asked him for what are described in the facts as "four big sinkers". The prisoner apparently became confused and asked the undercover operative if he wanted "Ossie, Oscars" being the code word for ounces. The prisoner, according to the facts, agreed to do this but wanted money up front. The undercover operative clarified that he wanted four weights or four grams and the prisoner told the undercover operative that he could do that for him and that the undercover operative would be looking at about three hundred and fifty dollars to purchase each gram. The undercover operative was told to ring him back the following day.

19 The Form 1, as I said, discloses two offences of ongoing supply, one in May, the other in July 2005 and I have set out briefly the particulars of those offences from the Form 1. They follow the same pattern of ongoing supply to a number of people over a period of time. It should be noted in the evidence of the prisoner that he gave before me, when he described the amount of methylamphetamine that he was using and the extent of his supply, that he claimed during this period of time he was using up to seven points, as I have defined it, of amphetamine a day. He told me that amphetamine cost about three hundred and fifty dollars a gram, he was spending about three hundred dollars a day on amphetamines up to two thousand dollars a week. He told me that he was selling these drugs to fund his amphetamine addiction. It should be noted in relation to his own account as to his dealings in methylamphetamine and as was disclosed in the examination of him, that he was by his own mathematical calculation selling a hundred deals of methylamphetamine a week. Thus it might be said on his own admission that the specific instances of supply, particularised in the facts represent just a portion of the supplies undertaken over that period of time, even bearing in mind what has been said in submission about the extent of supply increasing as the prisoner's tolerance to methylamphetamine may have increased.

20 The third offence on the Form 1, as I said, was an offence relating to the offender's possession of a quantity of methylamphetamine, two point six one grams, at the time that he was apprehended. The police found in the course of the search of the prisoner, twenty-five plastic resealable bags each containing methylamphetamine in the total quantity that I have described. Six hundred dollars was located in the prisoner's wallet, and a further one hundred and fifty dollars was located in the front pocket of his bum bag, there is no evidence of any other cash being found upon him.

21 In relation to the second offence on the indictment, the possess prohibited firearm offence, the facts in relation to this matter, being a breach of s 7 Firearms Act 1996, are that when the police executed a search warrant on the prisoner's home at Kurrawarner, police located a replica Smith and Wesson 3.57 Magnum pistol, buried in a carry bag within a plastic barrel in the rear yard of the property. The prisoner said that the replica pistols, there was another one found at the same time which appears on the Form 1, were given to him, he put them in the bag and into the barrel and buried them as he did not know what to do with them. In his evidence before me, he told me that these replica firearms were provided to him by his brother. However when directly confronted by the Crown as to why they were secreted in the manner that they were seen by the police, he was not able to give any sort of coherent explanation. It seems quite clear on the facts that these firearms, from whatever source he received them, were within his possession for his purposes, and I do not accept his account that he simply put them away without knowing what to do with them.

22 In relation to the matters also appearing on the Form 1, the first offence in time arose from what appears to be an intercepted telephone call on 1 June 2005, when the prisoner rang another person and offered to sell what is described as an under and over for $300. An "under and over" is a commonly used term to describe a double barrelled shotgun where one barrel sits on top of the other. The male to whom the prisoner spoke did not have the money and they arranged to meet up later. This matter arises under the extended definition of "sell" under the Firearms Act. The second offence of selling a firearm pursuant to s 51 Firearms Act arose out of a conversation where a male person not known rang the prisoner, and told the prisoner to keep his lookout for a "Betsy". As I understand the matter, the term "Betsy" refers to a firearm. The prisoner said to this male person, "I've got something for you but it will cost you". He then described a full length self-repeater with a scope and bayonet, he described it as lever-action.

23 On 24 July 2005 at 3.30pm the prisoner rang the male back and told him that he was coming to see him. During that conversation the prisoner said:

25 The firearm in question, if it was ever in the possession of the prisoner, was, as I understand it, not recovered by police. In relation to the prisoner's evidence in respect of these offences, particularly the selling of the firearms, the prisoner said in his evidence to me that at least one of the firearms he was selling was to a man he had met in gaol. He gave evidence before me that he had made no enquiry as to what that person was going to do with the firearm and that fact is a very disturbing matter indeed.

26 In relation to the objective facts concerning the ongoing supply of methylamphetamine as revealed in the principal offence and in the Form 1, there can be no doubt that over the period of time particularised in the charges, the prisoner was engaged in the business of supplying methylamphetamine to people who might approach him for the purchase of those drugs. He claimed in his evidence before me that he only sold to those people whom he knew were methylamphetamine users. It seems to me with the greatest of respect that his dealings with the undercover agent reveal to the contrary and whilst he may have sought to establish in his own mind the bona fides of the undercover agent, as a methylamphetamine user, the facts of the matter are that he had no knowledge of the identity of that undercover agent and had no means of knowing that he in fact was a user. I believe it is quite clear on the evidence the prisoner was prepared to sell methylamphetamine to whoever would approach him and seek to purchase methylamphetamine from him. The prisoner was clearly involved in the business of ongoing supply of amounts of amphetamine of a point on each sale although, as the evidence before me reveals, he was able to sell more than one point at the one time to the one person. There is no evidence as to where the prisoner obtained his methylamphetamine from, there is no clear evidence even from the prisoner in his evidence before this Court as to the amounts of methylamphetamine that he purchased for ongoing supply. There is no evidence of the prisoner making vast profits, if I could use that expression, from this business in which he was engaged over this period of time, but clearly he was making a profit from it and I do not accept that the prisoner was only in the trade of methylamphetamine for the purposes of satiating his own addiction or dependence upon the drug and that of his partner Ms Murphy.

27 With regard to the firearms offences, I bear in mind in determining an appropriate penalty for the principal offence that the firearm is a replica firearm. Although it is a prohibited firearm under the Firearms Act, it was not a firearm capable of directly causing injury to another. There is no suggestion of the prisoner using the firearm in perpetration of the crimes involved in the sale or supply of methylamphetamine. Such evidence would have obviously required a more stern view to be taken of the objective facts of those matters although they are serious in themselves. As I have said, the prisoner's own account of being prepared to sell a rifle or a shotgun to a person that he knew in gaol, in circumstances where he had no knowledge as to what purpose the firearm was to be used, is disturbing indeed. There is no evidence of course that the prisoner planned to sell the replica firearms, but again as I said earlier, I do not accept the account that he gave as to the reasons for the firearms being in his possession. The extent of the prisoner's supply of methylamphetamine was clearly revealed in the evidence he gave before me when he sought to explain the quantities of methylamphetamine that he was using over the relevant time covered by both the principal offence and the offences disclosed in the Form 1.

28 In relation to the prisoner's background, as I understand the matter, the prisoner was born on 27 March 1969 and thus at the time of the commission of these offences, he would have been thirty-six years of age. He has a lengthy criminal history, the full detail of which I need not reveal. He first appeared at the Children's Court in 1984 at Wagga Wagga and thereon after had a number of appearances in Children's Courts for largely offences of dishonesty. The first term of imprisonment imposed upon him was as I understand it, in June 1992, when he was convicted of receiving in respect of four charges as the record seems to reveal. These were offences committed on or about April 1990, 5 July 1991, 12 July 1991 and 21 July 1991. As I understand the total sentence imposed upon him, or effective sentence imposed upon him in relation to the principal offence for which he was sentenced, some of the offences of receiving were dealt with on what was then described as a Form 2, was a minimum term of one year four months and an additional term of three years six months, that is a total sentence of four years and ten months and clearly a finding of special circumstances.

29 The criminal history before me reveals on the same date he was dealt with at Wagga District Court he was also sentenced at the Moree District Court in relation to two charges of breaking, entering and stealing, I assume that that is an error in the record and it would seem as though he was also, in effect, given terms of imprisonment again amounting to four years and ten months for those two offences of breaking and entering and stealing.

30 In any event the prisoner was in breach of his parole at a later time and that parole was revoked in circumstances which will be revealed in the Probation and Parole Service Report. The prisoner had some other appearances in the Local Court after his release from gaol, including a conviction at Cootamundra Local Court on possessing property stolen outside the State for which he was sentenced to six months imprisonment.

31 In October 1997 he appeared again at the Wagga Wagga District Court and was convicted of supplying heroin and he was sentenced to a minimum term of three years with an additional term of one year with an offence of receiving taken into account in respect of that matter. An appeal against the severity of that sentence was unsuccessful. After being sentenced at Wagga Wagga District Court, he was next sentenced at the Wagga Wagga Local Court on 15 March 2000 to a term of sixteen months imprisonment with a minimum term of twelve months for an offence of breaking, entering and stealing and in March of 2000 his parole was revoked.

32 In March of 2003 he was convicted of possessing a prohibited drug as he was in February of 2004, which is consistent with his account of the use of drugs prior to 2005. In February of 2003, he was again sentenced to terms of imprisonment, twelve months imprisonment for an offence of breaking, entering and stealing and a number of sentences of three months imprisonment for assaulting police, possessing housebreaking implements and larceny. With regard to his parole history, the Probation and Parole Service states that after the four year and ten month sentence to which I earlier made reference imposed in 1992, when released on parole, the prisoner was returned to custody in September 1995 to serve the balance of parole and it was during that period of time he received the term of imprisonment earlier mentioned, apparently at Cootamundra.

33 In relation to the sentence imposed in 1997 of supplying a prohibited drug, his parole was revoked in the year 2000 by reason of the offence of breaking entering and stealing and he was required to serve a term of nine months and several days for that balance of parole. That period however was subsumed by the sentence for the breaking entering and stealing matters. The report notes that he was not given a parole period in relation to the twelve months sentence which was imposed in 2003.

34 With regard to the background of the prisoner, as I understand the evidence, the prisoner was largely raised in the Wagga Wagga area, certainly his early appearances at the Children's Court appear to be at Wagga Wagga Children's Court. He is one of a family of six children in what is described as a blended family. He was apparently disowned by his father when he was a very small child. His mother married her partner when he was four and the prisoner states that he was subjected to abuse from his stepfather for a period of time. His behaviour is described in his teenage years as being "rebellious" and "hostile" and that much would appear to be self evident from the criminal history which has been provided to me. The prisoner has two children. One child lives in Queensland, the other child whose mother lives in the Wagga district was in the care of the prisoner and his partner at about the time of his arrest. Apparently the mother of that child is a person herself with drug dependency problems and the prisoner has, to his credit, taken responsibility for the care of that child when he has been at large. The prisoner has a history of drug dependence and drug usage. He previously was addicted to heroin but stated to the Probation and Parole Service that he had stopped using this substance in 1996. On his release from custody after the term of imprisonment imposed in 1997, he used what are described as mood altering substances in addition to amphetamines and was drug dependent up until the time of his arrest. He gave evidence before me that he was able to rid himself, at least temporarily, of his dependence on methylamphetamine by going cold-turkey during a period of time that he was in custody. He was released to bail and in fact there are broken periods of custody up until the time that he was finally returned to custody full time in November 2005. The reason for those broken periods of custody arose out of the continuing nature of the police investigations and the laying of more serious charges over a period of time. The prisoner gave evidence to me and provided some documentary evidence to show that in November 2005 he was making enquiries about a rehabilitation program that he might undertake and also making enquiries and about then showing a willingness to undertake urinalysis which I have taken into account.

35 In his discussions with the Probation and Parole Service, there was discussion about the need for a residential rehabilitation to be effective in assisting him in avoiding drug usage in the future. There are various suggestions in the Probation and Parole Service report about how this might best be effected. Some of those suggestions of course are based upon an assumption that a non-custodial order would follow although, realistically, the Probation and Parole Service report states, in the assessment of the suitability of the prisoner for supervision, that at this time the programs offered by the Correctional Services Centres offer the prisoner the best start to personal renewal and that any courses and programs he undertakes in custody and are completed, may offer him a sound start to community rehabilitation. As to whether there is a need for residential rehabilitation outside of a custodial setting, that would be a matter for the prisoner and the parole authorities.

36 In sentencing the prisoner, I have taken in account the handwritten note that he wrote to me and that is supplemented, as I said, by the evidence that he has given. I note that he has been placed on some medication whilst in custody, which might assist him, although there is no evidence before me that he suffers from a mental illness, notwithstanding a claim in his handwritten note that he suffers from what he describes as paranoid schizophrenia.

37 With regard to the steps he took in November and perhaps beforehand to pursue some form of rehabilitation program, it must be fairly said that what he did was far too little, far too late. It was submitted to me in the course of the submissions of his counsel who skilfully represented his interests that I should regard the prisoner as a person who voluntarily desisted from the supply of drugs in a manner which should be taken into account to the credit of the prisoner. In my view the circumstances of the prisoner ceasing to supply drugs is quite different to that set out in the decision of Kane Bacon [2000] NSWCCA 549. In my view the voluntarily withdrawal of the prisoner from supplying methylamphetamine arose out of his detection in relation to these offences and not because of any self-motivation on the prisoner's part and in any event, his ceasing to supply methylamphetamine after 26 July 2005, is not in my view, strong evidence of rehabilitation.

38 The facts of the matter are the offences the prisoner has committed are very serious offences indeed, and whilst there must be some credit given to the prisoner for steps he has taken in the intervening period, both in custody and whilst on bail to address fundamental issues that relate to his offending, those matters are not of great significance when one considers the objective facts.

39 There are, arising out of this matter, several important legal issues that require some attention. Firstly, in respect of each principal offence as I have outlined, I am required to take into account matters on two separate Forms 1. The separate Forms 1 disclose offences that are of a relevant character to the relevant principal offence. In the guideline judgment in relation to Form 1 matters, Attorney General's Application Number One (2002) 56 NSWLR 147, the Court of Criminal Appeal held that the fact that there are matters to be taken into account on a Form 1, means the greater weight should be given to the need for personal deterrence in the community's entitlement to extract retribution. The entire point of the process, as the Court pointed out, is to impose a longer sentence or to alter the nature of the sentence that would have been imposed if the primary sentence stood alone. It is wrong to suggest the additional penalty should be small, sometimes it will be substantial, but the sentencing process is only concerned with the principal offence, not to determine appropriate sentences for matters listed on a Form 1 or to determine an overall sentence that would be appropriate for all the offences.

40 As to increasing the sentence for the primary offence, the Court observed that there were matters which limit the extent to which this is so, specifically the express division set out in s 33(3) of the Act, the maximum penalty for the primary offence being one matter, the principle of totality being another. The Court said it would be "rarely appropriate for a sentencing judge to attempt to quantify the effect on the sentence for taking into account Form 1 offences".

41 It was also noted that the offences included on a Form 1 will have a significantly lower salience in the sentencing process. For various reasons however, a judge must be careful to assess whether it is appropriate to proceed to sentence on a basis where the administration of justice could be brought into disrepute by sentencing the offender for criminal conduct on a "manifestly inadequate, unduly narrow or artificial basis". That is the situation here as I have noted by my reference to the objective facts.

42 The other important legal issue or principle in sentencing that arises in this matter, relates to the course of conduct of the prisoner and the context of his criminal history. Here the antecedent criminal history is relevant to show that the instant offences are not an uncharacteristic aberration and to some extent, the commission of the instant offences show on the part of the prisoner a continuing attitude of disobedience of the law. In this latter circumstance, as the High Court said in Veen (No. 2) v The Queen, (1988) 164 CLR 465 at 477: "Retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind".

43 Of course the principal offence of ongoing supply of methylamphetamine carries a maximum penalty of twenty-five years imprisonment. Allowing for the weight to be given to the significance of offences on the Form 1 as they reflect upon the prisoner's conduct over a period of time, at the same time, even allowing for the calculation of up to a hundred supplies in a given week, one must have one's feet on the ground when one considers the quantities that were being sold and when one bears in mind, even being prepared to accept the prisoner's evidence, that there was a substantial quantity of the drug sold to finance the prisoner's use of the drug and that of his partner. This provision has been discussed a number of times in authorities from the Court of Criminal Appeal. One such authority is R v Smiroldo [2000] NSWCCA 120. The facts of that case and the ultimate outcome are not important here but it might be fairly said that this matter is somewhat similar in one sense, by reason of quantities sold "small scale" yet "systematic drug dealing". It would appear this prisoner's criminality however is somewhat greater than Mr Smiroldo's and it should be borne in mind that Mr Smiroldo had no convictions for drug matters. The Court cited an earlier decision in Kalache [2000] NSWCCA 2 which said: "The provisions of the Drug Misuse and Trafficking Act and other statutes making possession and supply of drugs illegal have been enacted in the belief that the use of drugs is harmful and manufacturing and supplying them contributes to this harm. Other things being equal, doubling the quantity is calculated to double the illegal profits of those engaged in such enterprises and if not to double, at least substantially increase the harm. When an offender knows the quantity in which he is participating a fortiori when his earnings or profit are proportional to or vary with that quantity, considerable weight must be given to assessing his criminality."

44 Further in Kalache Justice Hulme had said in relation to this provision:

45 "Parliament has indicated with unmistakeable clarity the seriousness with which it regards trafficking in drugs. Experience in this Court, and as a member of the community, makes it equally clear that the penalties imposed by the Courts to this time have not been sufficient to preclude an increase in the trafficking which occurs".

46 In that case of Smiroldo, it was held that the statistics for single supplying charges provided little guidance in determining appropriate sentences under s 25A. Of course, the legislation provides for the prohibition of ongoing supply over thirty day period for financial reward in any number of quantities so long as there are three such supplies in the relevant period, and of course one can always envisage more serious examples of the offence than this one, but this offence is a significant offence by any measure.

47 With regard to the firearms offence, apart from the earlier comments I have made, I note as I have said earlier, that this is an offence for which there is a standard non-parole period. In this matter the prisoner pleaded guilty, and as was held in Regina v Way, the standard non-parole period directly comes to consideration after trial and to answer the question that was posed in paragraph 117 of their judgment: "Are there reasons for not imposing the standard non-parole period".

48 In this matter, yes there are. Primarily the plea of guilty of the prisoner I do not propose to enter into a discussion as to whether this particular offence, taking into account the matters on the Form 1, fits within the middle of the range of offences of this type but it is to be fairly said as I observed earlier that the relevant firearm in the possession of the prisoner was not one capable of being discharged and was not used apparently for the prisoner's trade in drugs, which to my mind are relevant matters in fixing the appropriate sentence.

49 Still, having said that, the maximum penalty is one of fourteen years imprisonment, the prisoner's record does not assist him and of course as the Court of Criminal Appeal said in Regina v Way, the standard non-parole period may still take a place in sentencing for offences of this type as a reference point, a benchmark, a sounding board as much the same way as authorities, statistics and other matters may be taken into account.

50 In sentencing the prisoner, I have taken into account of course s 3A Crimes (Sentencing Procedure) Act and the various purposes of sentencing that arise. To my mind, all of which arise in this particular case. In relation to s 21A, so far as relevant aggravating factors pursuant to s 21A(2) are concerned, I do no believe that one need here treat that as a check list, however the specific aggravating factor that I believe arises in the offence of ongoing supply of methylamphetamine is that it was clearly planned activity over an extended period of time. I have already dealt with the relevance of the criminal history of the prisoner in my reference to Veen (No. 2).

51 In relation to mitigating factors, there are very few. It seems to me that although the prisoner has expressed remorse for the commission of these offences, which is noted, the genuineness of that expression of remorse is difficult to gauge. I note the plea of guilty to each of the charges by the prisoner. So far as the prisoner's remorse is concerned, it would appear on the evidence available to me that he displayed very little remorse, in fact no remorse, about his involvement in the ongoing supply of methylamphetamine during the course of the commission of the offences and clearly, caught unguarded of course, he was boastful about his capacities. Now whether he was talking up the situation to impress the undercover agent is one matter to be taken into account, but frankly his disclosures and his actions in the presence of the undercover agent, do him no credit.

52 With regard to the issue of special circumstances, I am of the view clearly that the ultimate result to be imposed, which would involve a partial accumulation of sentence, is a special circumstance which will require some adjustment of the relationship of a non-parole period to the total sentence for the offence of ongoing supply of methylamphetamine. I am of the view that the criminality involved in the two principal offences is to be regarded as separate, although of course that does not, by reason of the principle of totality, lead to a total accumulation of one sentence upon another.

53 In sentencing the prisoner I have had regard to the decision of the High Court in Regina v Pearce (1998) 194 CLR 610 particularly, what the majority observed at paragraph 45 that the Court is required to fix an appropriate sentence for each offence then have regard to issues of concurrency or accumulation and of course, totality of sentencing as for example, has been discussed in Pearce and also in the earlier decision of the High Court in Regina v Mill (1988) 166 CLR.

54 With regard to the bigger picture though, of whether there are special circumstances in a general sense warranting an adjustment of the non-parole period greater than that necessary simply to accommodate accumulation, I am not of the view that such special circumstances exist in this matter. Of course the purpose of parole is to assist in the rehabilitation of the prisoner but in my view the balance of sentence that will arise after the expiration of the non-parole period I will fix will be sufficient time for the prisoner to show that he is capable of addressing those issues that might lead to his rehabilitation. So far as his background is concerned, he has twice previously breached the opportunity of parole. On one occasion when a finding of special circumstances was made in his favour. Of course this is not conclusive I have on a number of occasions, fixed non-parole periods recognising special circumstances when persons have previously been in breach of parole.

55 That having been said and noting everything that has been put on behalf of the prisoner by Mr Barron, I am of the view that notwithstanding his background of drug dependence, notwithstanding some steps, tentative though they may be of seeking assistance, particularly whilst on bail, notwithstanding the need of the prisoner to have professional assistance to assist him to adjust to community living and obviously the need for him to get some professional guidance to avoid drug usage in the future, I do not believe the various circumstances I have identified and were identified by Mr Barron are circumstances that are special and warrant the exercise of the discretion available under s 44(2) Crimes (Sentencing Procedure) Act. As I said ultimately the parole period I have provided for will be sufficient to enable the prisoner to get the benefit of that parole supervision.

56 I have had close regard of course to the various submissions put by the parties. I note in passing that many of the submissions raised particularly by the offender I have dealt with as I have gone through the facts and other issues relevant to this case. In sentencing the prisoner in relation to the ongoing methylamphetamine I note what previous decisions of the Court of Criminal Appeal have said about amphetamines being in the middle of range of the seriousness of prohibited drugs, it is a matter about which I need not make any decision. There are many wiser judicial comments about this topic in many decisions of the Court of Criminal Appeal. So far as the submission that if the prisoner is drug free he will not be a burden on society, that may be so, but of course given his background and given the circumstances of these offences, notwithstanding anything that he has done in the last seven or eight months, one would have to be very, very circumspect about the prognosis for the prisoner's ability to avoid offending in the future. Ultimately I have accepted, with the exception of the need to recognise the partial accumulation affect of the sentences, that this is not a special circumstances case, as submitted by the Crown. Whilst I agree the offences require condign punishment in the circumstances of the matter, that must be assessed by proper assessment of the objective facts by regard also to the relevant subjective matters and what was put by the Crown about this being a commercial enterprise, albeit, not necessarily a particularly profitable enterprise, I accept.

57 Thus, hoping I have covered all the relevant matters that were raised in the course of the plea, I will move to the orders.

58 In relation to the offence of possess firearm committed on 26 July 2005, taking into account the matters on the Form 1, you are convicted. Taking into account all time spent in custody, you are sentenced to three years imprisonment. That term of imprisonment is to date from 27 August 2005 and to expire on 26 August 2008, that is a fixed term sentence.

59 In relation to the offence of ongoing supply of a prohibited drug, namely methylamphetamine committed in June 2005, you are convicted, you are sentenced to a term of imprisonment by way of non-parole period of four years and one month, that sentence is to commence on 27 February 2007 and expire on 26 March 2011. The non-parole period of one year eleven months will expire on 26 February 2013. In sentencing you for that offence I have taken into account the matters on the Form 1.

60 HIS HONOUR: Mr Crown is there anything in the character of a correction of an error in the calculation?

62 HIS HONOUR: There are the backup charges, I will deal with those shortly.

63 CORR: No I get that his non-parole period ending on 26 March 2011 and the total sentence finishing on 26 February 2013.

65 CORR: Seven years and six months with a five years seven months non-parole period.

66 CORR: Yes I get that as seventy-four and one-half percent.

67 HIS HONOUR: Yes it is just slightly below seventy-five percent and he has got the benefit of two weeks on my calculation. It is not inconsistent with what I found. It is difficult when you are doing a calculation in half-years to get to a figure which is precisely on track.

68 CORR: No there is no difficulty with that point your Honour.

69 HIS HONOUR: Yes Mr Barron, is there anything you wanted to raise of a technical matter?

70 BARRON: The only thing in relation to the supply there was a four years one month minimum term from 27 February, what was the additional term on the other--

71 HIS HONOUR: That's correct and a balance of sentence is one year eleven months. It means a total sentence of six years and it means an effective sentence of seven and one-half years with a non-parole period of five years and one month which is just slightly less than seventy-five percent.

76 HIS HONOUR: Mr Baxter do you understand the sentence I have imposed?

78 HIS HONOUR: All the back-up charges on the certificate provided by the Crown pursuant to s 166 are dismissed. There are fifty-two such charges.

80 HIS HONOUR: Do you want to speak to your client?

81 BARRON: I will see to my client downstairs, I will see him down there very shortly. The only thing is I don't know whether or not it is in your Honour's power to make a recommendation that he be held at Junee - I'm uncertain as to whether or not you can make that recommendation.

82 HIS HONOUR: Well to be truthful, if I was sitting at Wagga and there was a need for him to come back to Wagga I would make that recommendation but in light of the sentence I have imposed he is going to have to be classified by the authorities.

83 BARRON: Yes he will be. Also he has a matter that is part heard that was to have been before Wagga Court yesterday, that is the only difficulty. Unfortunately he wasn't able to be there and he--

84 HIS HONOUR: I will ask for the warrant to be marked that I recommend that he be, in the short term until final classification, be held at Junee.

86 CORR: Yes your Honour also confiscation and destruction orders.

87 HIS HONOUR: I see, are there prohibited drugs to be destroyed?

88 CORR: Yes, those are the ones found on him, the discrete supply.

89 HIS HONOUR: I order the destruction of any prohibited drugs.

90 CORR: Yes the Kinder-surprise drugs I think your Honour.

91 HIS HONOUR: Yes and when you say confiscation, are you talking about the firearms?

93 HIS HONOUR: I order confiscation of the firearms.

95 BARRON: I have got nothing to press on that. I understand other items were seized by police. We will be making an application in relation to those. I think there was a TV set and things like that--

96 HIS HONOUR: My order does not affect any personal property of your client, that is a matter for other places.

97 BARRON: Yes if my friend is making no application, thank you your Honour.

99 BARRON: It is not subject of any charge your Honour.

101 HIS HONOUR: It has been seized as an exhibit though by the police hasn't it?

102 BARRON: I will be making an application for the return of that your Honour.

103 CORR: I think an application similar to detinue would be appropriate.

104 HIS HONOUR: There are specific provisions in the Criminal Procedure Act that deal with the issue of the cash but at the moment there is no application before me so the only thing I will order is the destruction of any prohibited drugs found in the possession of the accused and confiscation of any firearms found in the possession of the accused.

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