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District Court 22 October 2010

R v Jason Joseph JOHNSON

[2010] NSWDC 242

DrugsFraud & dishonestyFirearms & weapons
CRIMINAL SUPPLY PROHIBITED DRUG FIREARMS OFFENCES PROCEEDS OF CRIME OPERATION SCHOALE

Citation: R v Jason Joseph Johnson [2010] NSWDC 242
Court: District Court of New South Wales
Date: 22 October 2010
Judge(s): Haesler DCJ SC

Background

In February 2007, police executing a search warrant on residential premises in Bonnyrigg, Sydney, found a substantial quantity of cocaine, cash, and firearms. The offender lived at the premises with family members, including his parents, sister, and his sister's children. He was present in the attached garage when police arrived.

The search uncovered 205.66 grams of cocaine along with indicators of drug supply, $77,855 in cash admitted to be proceeds of crime, an AR-15 Armalite assault rifle stored in the offender's bedroom wardrobe with loaded magazines, and a loaded Colt semi-automatic pistol in the garage. The offender made admissions to police and pleaded guilty to all four counts on the indictment.

The offender had been in continuous custody since his arrest on 28 February 2007. The sentencing hearing took place on 1 October 2010, with the sentence delivered on 22 October 2010.

  • What sentences were appropriate across four distinct offences: drug supply, dealing with proceeds of crime, and possession of two separate prohibited firearms?
  • How should the sentences be structured and accumulated given the offender had been in pre-sentence custody since arrest?
  • What weight should be given to the guilty pleas, the offender's status as a drug user, and other mitigating personal circumstances?
  • Whether the firearms offences fell above or below the mid-range of objective seriousness, given the standard non-parole periods applicable under the Firearms Act 1996?
  • Whether special circumstances existed to justify departing from the standard ratio between the non-parole period and the balance of sentence?

Decision

The court assessed the drug supply offence as serious. The quantity of cocaine (205.66 grams) far exceeded the trafficable threshold of 3 grams and was close to the commercial quantity of 250 grams. The court found the offender was more than a street-level dealer and was dealing from a family home. The fact that the offender was himself a drug user, and partly supplied to fund his own habit, did not significantly mitigate the objective seriousness of the conduct.

On the proceeds of crime count, the court treated the $77,855 as directly connected to the drug supply, finding it was proceeds held to repay a supplier. Given this close connection, the sentence for that count was made entirely concurrent with the supply count.

On the two firearms counts, the court found that possession of both an unlicensed assault rifle and an unlicensed pistol posed a significant risk to public safety. The presence of children in the household was a relevant aggravating feature. The court placed the Armalite rifle offence below mid-range of objective seriousness because the weapon was stored out of ready access, though still with loaded magazines. The pistol offence was treated as more serious given its easier accessibility. Both offences attracted standard non-parole periods of three years under the Firearms Act 1996, but the court sentenced below those benchmarks, consistent with findings on objective seriousness.

The court allowed a 25 per cent reduction across all counts to reflect the utilitarian value of the guilty pleas, which had been indicated in the Local Court. Special circumstances were found in the need to accommodate the accumulation of sentences, justifying adjustment of the ratio between non-parole periods and the balance of sentence on the supply count. The total effective sentence was 5 years, with a non-parole period of 3 years and 9 months.

Orders Made

  • Count 4 (possession of prohibited pistol, s 7(1) Firearms Act 1996): Non-parole period of 2 years 1 month (from 28 February 2007), balance of 8 months; total sentence 2 years 9 months.
  • Count 3 (possession of AR-15 Armalite rifle, s 7(1) Firearms Act 1996): Non-parole period of 1 year 10 months (commencing 28 November 2007), balance of 8 months; total sentence 2 years 6 months, to be served after 9 months of Count 4.
  • Count 2 (dealing with proceeds of crime, s 193B(2) Crimes Act 1900): Fixed term of 14 months (commencing 28 October 2008), concurrent with Count 1; no non-parole period specified.
  • Count 1 (supply of prohibited drug, s 25(1) Drug Misuse and Trafficking Act 1985): Non-parole period of 2 years 1 month (commencing 28 October 2008, expiring 27 November 2010), balance of 1 year 3 months; total sentence 3 years 4 months.
  • Total effective sentence: 5 years imprisonment, with a non-parole period of 3 years 9 months; eligible for parole on 27 November 2010 (subject to State Parole Authority determination).
  • Seven matters on the s 166 Certificate marked withdrawn and dismissed, having been taken into account on the Form 1s.

Key Takeaways

  • The District Court applied a 25 per cent sentencing discount for guilty pleas indicated at the Local Court stage, treating this as carrying significant utilitarian benefit and evidencing a willingness to assist the course of justice.
  • A finding that an offence falls below the mid-range of objective seriousness provides a basis for departing downward from the standard non-parole period prescribed by the Firearms Act 1996, with the precise placement on the scale determined by the specific circumstances of possession.
  • Proceeds of crime charges closely and factually connected to an accompanying drug supply count may be structured as fully concurrent, reflecting the court's assessment that the conduct forms part of the same criminal enterprise.
  • Special circumstances warranting an adjusted ratio between the non-parole period and the balance of sentence can arise from the structural need to accumulate multiple sentences, not only from rehabilitation considerations.
  • The presence of children and other family members in a home where prohibited weapons and drugs are stored was treated as an aggravating feature relevant to both the firearms and drug supply counts.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes Act 1900 (NSW), s 193B(2)
- Firearms Act 1996 (NSW), s 7(1)
- Weapons Prohibition Act 1998 (NSW)

Cases cited: No cases were cited in the portions of the judgment provided.