Citation: R v Payne [2014] NSWDC 264
Court: District Court of New South Wales
Date: 6 November 2014
Judge: Cogswell SC DCJ
Background
The offender, a 25-year-old man, was charged with unlawfully selling three or more firearms within a period of 12 months, contrary to s 51B(1) of the Firearms Act 1996 (NSW). The offending involved two actual sales of firearms to an undercover operative and negotiations for sale on four further occasions, spanning November to December 2013. The transactions yielded the offender approximately $3,300 in cash, with some dealings also involving prohibited drugs exchanged for firearms.
The offender acted as an intermediary between a supplier and buyers, rather than as the direct source of the weapons. He had a prior criminal record including a firearms offence in 2010, for which he received a community service order. He was arrested on 26 March 2014 and had been in custody since that date.
The offender's background was marked by serious personal disadvantage. He suffered severe burns in childhood, leaving him with scarring and significant loss of confidence. A motorcycle accident at 17 resulted in the partial amputation of fingers on his right hand. He was assessed as functionally illiterate, held a disability support pension, and had a long history of polysubstance use from his mid-teenage years.
Legal Issues
- What was the appropriate objective seriousness of the offending, given the number and nature of the firearms, and the offender's role as an agent or intermediary rather than the primary supplier?
- What weight should be given to the offender's personal circumstances, including functional illiteracy, substance use disorder, post-traumatic stress disorder, acquired head injury, and deprived background?
- What discount applied for the plea of guilty entered at the earliest opportunity?
- Whether special circumstances existed to justify departing from the standard ratio between the head sentence and the non-parole period, and if so, to what extent?
- What relevance, if any, did the standard non-parole period of 10 years have to the sentencing exercise?
Decision
Cogswell SC DCJ assessed the offending as falling below the middle of the range of objective seriousness, accepting the Crown's submission on that point. The relatively limited number of firearms actually supplied and the offender's role as a go-between, rather than the originating supplier, were relevant factors. The court rejected the suggestion that the offending sat near the bottom of the range, noting the offender was nonetheless engaged in a business, was indiscriminate about who was purchasing the weapons, and in some transactions accepted prohibited drugs as part payment.
The court accepted a 25% discount from the otherwise appropriate sentence in recognition of the guilty plea entered at the earliest opportunity. The plea avoided the need for a trial and provided practical assistance to the criminal justice administration.
The court gave significant weight to the offender's personal history, including the childhood burns, the later motorcycle accident, functional illiteracy, substance use disorder, post-traumatic stress disorder, and acquired head injury. A report from a forensic psychiatrist, Dr Furst, diagnosed these conditions and opined that the offender had good prospects of successful rehabilitation with appropriate treatment. The pre-sentence report noted medium to high risk of reoffending, and recorded institutional misconduct related to drug use while in custody, but also identified a treatment pathway through Bennelong's Haven.
Special circumstances were found to exist, warranting a significant reduction in the non-parole period below the standard one-third ratio. The primary bases were that this was the offender's first time in adult custody, that he required structured supervision upon release to support rehabilitation, and that his personal disadvantages limited the employment and rehabilitative opportunities available to him in prison. The head sentence was set at four years, with a non-parole period of two years.
Orders Made
- Head sentence of four years imprisonment commencing 26 March 2014, expiring 25 March 2018.
- Non-parole period of two years, commencing 26 March 2014, expiring 25 March 2016.
- First date of eligibility for parole: 25 March 2016.
- The psychiatric report of Dr Furst was directed to accompany the offender into custody for use by those responsible for classification and assessment.
Key Takeaways
- Acting as an intermediary or agent, rather than the originating source of firearms, is a relevant factor in assessing objective seriousness under s 51B(1) of the Firearms Act 1996, consistent with R v Parkinson [2010] NSWCCA 89 and R v Mack [2009] NSWCCA 216.
- A sentencing court may still characterise conduct as participation in a business even where the offender acted as a go-between; the fact that prohibited drugs were exchanged as part payment, and that the offender was indiscriminate about buyers, were factors that weighed against a finding of minimal culpability.
- Special circumstances justifying a departure from the standard non-parole period ratio were established on the combined basis of first entry into adult custody, limited rehabilitative and employment opportunities in prison, and the need for extended supervised release to support a structured treatment pathway.
- A 25% discount for a guilty plea entered at the earliest opportunity was applied, consistent with the practical benefit of avoiding a trial.
- Significant personal disadvantage, including childhood trauma, acquired disability, functional illiteracy, and diagnosed psychiatric conditions, featured prominently in the sentencing discretion, particularly in relation to prospects of rehabilitation and the weight given to specific deterrence.
Legislation and Cases Referenced
Legislation
- Firearms Act 1996 (NSW), s 51B(1)
Cases
- R v Howard [2004] NSWCCA 348
- R v Mack [2009] NSWCCA 216
- R v Parkinson [2010] NSWCCA 89