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District Court 7 June 2018

Regina v DEBNAM, Anthony Charles

[2018] NSWDC 139

DrugsFirearms & weapons
SENTENCE FIREARMS OFFENCES MENTAL HEALTH ISSUES

Citation: Regina v Debnam [2018] NSWDC 139
Court: District Court of New South Wales
Date: 7 June 2018
Judge: His Honour Judge Lerve

Background

The offender appeared for sentencing across two separate sets of criminal matters. The first involved three firearms charges arising from a police search of his parents' home in Kooringal, Wagga Wagga in August 2014. Officers executed a search warrant and discovered a loaded, shortened .357 magnum calibre revolving rifle concealed inside a sub-woofer speaker, along with ammunition. DNA consistent with the offender's profile was found on the trigger, trigger guard, pistol grip, hammer, and shoulder holster.

The second matter involved a charge of supplying methylamphetamine between March 2016 and March 2016 at Wagga Wagga, covering seven separate transactions detected through electronic surveillance, totalling 3.95 grams. A further charge of possessing a prohibited weapon (a taser) was included on a Form 1 document to be taken into account on sentencing.

The offender had been subject to a Firearms Prohibition Order since 1989, which made the firearms and ammunition possession offences particularly serious. Both sets of matters had been listed for trial, and the firearms trial had already commenced and aborted due to adverse media publicity before guilty pleas were ultimately entered.

  • What discount for the utilitarian value of guilty pleas was appropriate, given the late timing of the pleas and the history of both matters proceeding to trial?
  • How should the objective seriousness of each firearms offence be assessed, including the possession of a shortened prohibited firearm while subject to a Firearms Prohibition Order?
  • Whether the drug supply constituted "trafficking to a substantial degree," and what sentencing weight that finding carried?
  • How should the Form 1 matter (possession of a prohibited weapon) be taken into account on sentence?
  • What aggregate sentence was appropriate, having regard to the offender's mental health, criminal history, and the principles of totality?

Decision

Guilty plea discounts. Judge Lerve allowed a 12.5% discount for the drug supply matter, noting the plea was entered approximately one week before trial. A lesser discount of 10% applied to the firearms matters, reflecting that the trial had already commenced and run for several days before being aborted, and that the pleas were entered only after that aborted trial.

Firearms offences. His Honour assessed the charge of possessing a firearm in contravention of a Firearms Prohibition Order as slightly above mid-range in objective seriousness, noting the firearm had been shortened, which increased its gravity. The charge of possessing a shortened firearm was also placed slightly above mid-range. The ammunition possession charge was assessed at mid-range. The court did not accept the Crown's submission that the possession charges incorporated a broader "unlawful network" as an aggravating feature beyond what the agreed facts supported.

Drug supply. The court was satisfied to the criminal standard that the offender was engaged in trafficking to a substantial degree, given the seven transactions over approximately three weeks. However, His Honour noted the quantity was very small and the enterprise was neither elaborate nor well-organised, placing the matter at the very low end of the scale for supply offences where a "substantial degree" finding applies. The personal possession charge was dealt with by way of a section 10A order (conviction without further penalty), given the substantial custodial sentence already being imposed.

Aggregate sentence. Applying section 53A of the Crimes (Sentencing Procedure) Act 1999, the court imposed a single aggregate sentence across all matters. His Honour identified the individual component sentences, then fixed an aggregate that reflected the totality principle. The court recommended release to parole at the expiration of the non-parole period and also recommended that any parole conditions include ongoing treatment and counselling for substance abuse and mental health issues.

Orders Made

  • The offender was convicted on each matter to which he pleaded guilty.
  • An aggregate sentence of 5 years and 3 months was imposed under section 53A of the Crimes (Sentencing Procedure) Act 1999.
  • Non-parole period: 3 years and 3 months, commencing 21 December 2015 and expiring 20 March 2019.
  • Parole period: 2 years, commencing 21 March 2019 and expiring 20 March 2021.
  • The court recommended the offender's release to parole at the expiration of the non-parole period.
  • The court recommended that any parole be conditioned on the offender following directions for ongoing treatment and counselling for substance abuse and health issues.

Key Takeaways

  • A guilty plea entered approximately one week before a scheduled trial attracted a 12.5% discount, while pleas entered after a trial had already commenced and been aborted attracted only 10%, reflecting the diminished utilitarian value of late pleas.
  • Under the De Simoni principle, the sentencing court was careful not to treat the drug supply as falling within the more serious statutory category of "supply on an ongoing basis" under section 25A of the Drug Misuse and Trafficking Act, even where a "substantial degree" finding was made.
  • Possession of a shortened firearm by a person already subject to a Firearms Prohibition Order was assessed as a more serious form of the offence, but the court declined to accept submissions that went beyond the agreed facts in characterising the broader context of the offending.
  • A section 10A conviction (conviction without penalty) remained available for a minor ancillary charge where a substantial custodial sentence was already being imposed for related matters.
  • The District Court retained a broad discretion in recommending parole conditions addressing rehabilitation, though it acknowledged that decisions about the terms of parole remain entirely within the parole authorities' jurisdiction.

Legislation and Cases Referenced

Legislation
- Firearms Act 1996 (NSW), ss 62(1)(b), 74(1), 74(3)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 53A, 166
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- The Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 (Guideline Judgment on Form 1 matters)
- De Simoni v The Queen (1981) 147 CLR 383
- Muldrock v The Queen [2011] HCA 39; (2011) 212 A Crim R 254
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Cahyadi v R [2007] NSWCCA 1
- Lachlan v R (2015) 252 A Crim R 277; [2015] NSWCCA 178
- Aslan v R [2014] NSWCCA 114
- Ngati v R [2014] NSWCCA 125
- Jeffree v R [2017] NSWCCA 72
- Parente v R [2017] NSWCCA 284
- Robinson v R [2017] NSWCCA 315
- DJ v R [2017] NSWCCA 319
- Laspina v R [2016] NSWCCA 181
- Thalari v R (2009) 196 A Crim R 398