Citation: Regina v Baxter [2006] NSWDC 178
Court: District Court of New South Wales
Date: 28 April 2006
Judge(s): Norrish QC DCJ
Background
The offender, Alan John Baxter, pleaded guilty to two principal offences at the Wagga Wagga District Court: ongoing supply of methylamphetamine contrary to s 25A of the Drug Misuse and Trafficking Act 1985, and possession of a prohibited firearm (a replica Smith and Wesson pistol) contrary to the Firearms Act 1996. A number of additional offences were included on Form 1 documents to be taken into account on sentence, including two further counts of ongoing supply, a discrete supply charge, two counts of selling a firearm, and a further count of possessing a prohibited firearm.
The offences came to light through a police operation in the Wagga Wagga area commencing around April 2005. Telephone intercept warrants were executed over a period of roughly six weeks, capturing calls to and from the offender's mobile phone. He was arrested on 26 July 2005, at which time police found him in possession of methylamphetamine and the replica pistol.
The Crown case was that the offender had been purchasing methamphetamine in larger quantities, breaking it into "point" quantities of 0.1 gram, and selling each point for $50. Some of the drug was also for his own use and that of a co-offender with whom he was living. The firearms offences, including two sales of firearms, emerged from the same investigation.
Legal Issues
- What discount was appropriate for the guilty pleas, given they were entered on arraignment following a paper committal?
- What sentences were appropriate for the principal offences of ongoing supply and possession of a prohibited firearm, having regard to objective seriousness, the standard non-parole period for the firearms offence, and the Form 1 matters?
- How should the sentences for the two principal offences be structured and accumulated, including the extent of any concurrency?
- What ancillary orders were appropriate in relation to the drugs and firearms found in the offender's possession?
Decision
His Honour accepted that the pleas of guilty, entered on arraignment after a paper committal, were entered at the first reasonable opportunity in a practical sense. The investigation had been complex, involving many telephone intercept recordings and listening device material, and negotiations between the defence and Crown were ongoing up to arraignment. Applying the guideline in Thomson and Houlton, a discount of 25 percent was applied to the otherwise appropriate sentences for each principal offence, reflecting the utilitarian value of the pleas and the court time saved.
For the firearms offence (possessing a prohibited firearm), the offender received three years imprisonment, commencing 27 August 2005 and expiring 26 August 2008. The standard non-parole period of three years was engaged, and His Honour's reasoning addressed the relationship of that standard to the sentence imposed.
For the principal ongoing supply offence, the offender was sentenced to six years imprisonment, comprising a non-parole period of four years and one month with a balance term of one year and eleven months. That sentence was ordered to commence 18 months into the firearms sentence, creating partial accumulation rather than full concurrency or full accumulation.
The resulting total effective sentence was seven and a half years imprisonment, with a combined non-parole period of five years and seven months. Confiscation of the firearms and destruction of the prohibited drugs found in the offender's possession were also ordered.
Orders Made
- Three years imprisonment for possessing a prohibited firearm, commencing 27 August 2005 and expiring 26 August 2008.
- Six years imprisonment for ongoing supply of methylamphetamine, comprising a non-parole period of four years and one month and a balance term of one year and eleven months, commencing 18 months into the firearms sentence.
- Total effective sentence of seven and a half years, with a non-parole period of five years and seven months.
- Destruction of all prohibited drugs found in the offender's possession.
- Confiscation of all firearms found in the offender's possession.
Key Takeaways
- A guilty plea entered on arraignment following a paper committal, in the context of a complex investigation and ongoing defence-Crown negotiations, can still attract the full 25 percent utilitarian discount under the Thomson and Houlton guideline, even where committal technically preceded arraignment.
- Partial accumulation of sentences for distinct offences (drug supply and firearms possession) is available where the offences, while connected through the same investigation, are separate in character and seriousness.
- Under s 25A of the Drug Misuse and Trafficking Act 1985, ongoing supply offences carry a maximum penalty of 25 years imprisonment, reflecting the legislature's view of the gravity of sustained, repeated drug dealing for financial reward.
- The standard non-parole period of three years for possession of a prohibited firearm under the Crimes (Sentencing Procedure) Act 1999 was a relevant sentencing benchmark, requiring engagement by the sentencing judge even where the ultimate sentence reflects individual circumstances.
- Ancillary orders for confiscation of firearms and destruction of prohibited drugs are available and were made in conjunction with the principal sentences.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Firearms Act 1996 (NSW)
Cases:
- R v Thomson and 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
- 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