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District Court 3 November 2017

R v Baxter

[2017] NSWDC 320

DrugsFirearms & weapons
CRIMINAL LAW SENTENCE FORM 1 POSSESS A PROHIBITED FIREARM NOT KEEP FIREARM SAFELY

Citation: R v Baxter [2017] NSWDC 320
Court: District Court of New South Wales
Date: 3 November 2017
Judge: Berman SC DCJ

Background

The offender was a participant in a drug dealing network, receiving methylamphetamine from a co-offender and on-supplying it to numerous customers. Police intercepted thousands of SMS messages and telephone calls over a roughly ten-day period in August 2016, revealing the extent of the operation. The offender was on parole at the time, notably for prior firearms offences.

In addition to the drug supply activity, intercepted communications revealed the offender attempting to sell a firearm. When police detained and searched him, they discovered a sawn-off 12-gauge shotgun. He also had 22 grams of methylamphetamine in his bedroom, which he admitted possessing for the purposes of supply.

The offender pleaded guilty to four offences: supplying an indictable quantity of methylamphetamine (approximately 210 grams), attempting to supply a prohibited firearm, possessing a prohibited firearm, and a further count of supplying methylamphetamine (22 grams). Two additional offences (failing to keep the firearm safely and possessing ammunition without a licence) were placed on a Form 1 to be taken into account on sentencing.

  • What aggregate sentence was appropriate across four serious offences, taking into account objective gravity, the offender's personal circumstances, and relevant aggravating factors?
  • Whether the agreed facts surrounding the broader drug supply activity could be considered in assessing objective gravity without breaching the rule in R v De Simoni (1981), which prevents sentencing for a more serious offence than the one charged.
  • Whether special circumstances warranted a departure from the standard non-parole period ratio.
  • What weight should be given to mitigating factors including guilty plea, remorse, personal hardship, and positive prison conduct?

Decision

The court applied the Court of Criminal Appeal's guidance in Jadron v R [2015] NSWCCA 217, which permits agreed facts to be used in assessing objective gravity even where those facts might otherwise raise De Simoni concerns. On that basis, Berman SC DCJ considered the full extent of the drug supply network, including that approximately 210 grams of methylamphetamine was supplied to numerous customers over a short period, in assessing the seriousness of the principal drug offence.

The possession and attempted supply of the sawn-off shotgun were treated as particularly serious. His Honour noted that a sawn-off shotgun has no legitimate purpose and is useful only in the course of criminal activity. Although the maximum penalty for attempted supply of a prohibited firearm is the same as for a completed supply, the court gave some credit for the fact that supply was not completed.

Several significant aggravating factors weighed on the sentence. The offending occurred while the offender was on parole, a circumstance the offender himself referenced in one of the intercepted messages. This was also the third set of firearms offences committed by the offender, demonstrating a continuing disregard for the law. To avoid double-counting, the court commenced the sentence from the date of arrest rather than any later point.

Mitigating factors were also substantial. The offender pleaded guilty at the earliest opportunity, attracting a 25 per cent discount. His Honour accepted genuine remorse, noted the personal hardship of losing two family members in close succession, and acknowledged the offender's positive conduct in custody, including gaining the respect of officers and inmates at Cessnock Gaol. A modest finding of special circumstances was made, extending the parole period to support the offender's rehabilitation and reduce the risk of reoffending. The court also took into account that the offender was serving his sentence on protection, resulting in harsher custodial conditions.

Orders Made

  • Aggregate sentence of imprisonment imposed with a non-parole period of six years commencing 9 August 2016, expiring 8 August 2022.
  • Head sentence of nine and a half years.
  • The offender is eligible for release to parole on 8 August 2022.
  • Form 1 offences (failing to keep firearm safely; possessing ammunition without a licence) taken into account on the possession of prohibited firearm count.

Key Takeaways

  • The District Court confirmed, applying Jadron v R, that agreed facts may be used to assess the objective gravity of an offence even where those facts might otherwise raise De Simoni concerns about sentencing for a more serious charge.
  • Offending on parole for firearms offences, and committing further firearms offences, was treated as a seriously aggravating factor, reflecting a demonstrated and continuing attitude of disobedience towards the law.
  • A sawn-off shotgun was characterised as having no legitimate purpose, its utility being confined to criminal activity, reinforcing the high objective gravity of prohibited firearm offences of this kind.
  • Special circumstances may be found not merely as a favour to the offender, but where extending the supervision period on parole serves the broader community interest in reducing reoffending.
  • Despite the gravity of the offending, a 25 per cent reduction applied for an early guilty plea, and personal mitigating factors including family tragedy, remorse, and positive custodial conduct meaningfully reduced the sentence that would otherwise have been imposed.

Legislation and Cases Referenced

Cases:
- Jadron v R [2015] NSWCCA 217
- R v De Simoni (1981) 147 CLR 383

Legislation: No specific legislation was cited in the provided text, though the offences and maximum penalties discussed relate to the Drug Misuse and Trafficking Act 1985 (NSW) and the Firearms Act 1996 (NSW).