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District Court 4 December 2018

R v Peter YEALLAND

[2018] NSWDC 364

DrugsFirearms & weapons
CRIMINAL LAW OFFENCES REMORSE ACCUMULATION PARITY AGGREGATE SENTENCES

Citation: R v Peter Yealland [2018] NSWDC 364
Court: District Court of New South Wales
Date: 4 December 2018
Judge: His Honour Judge G Lerve

Background

The offender was the president of the Wagga Wagga chapter of the Finks Outlaw Motor Cycle Gang (OMCG). He was the subject of a police investigation, Strike Force Hun, which targeted organised drug supply and serious crime connected to that organisation.

On 20 December 2016, police stopped the offender's vehicle near Wagga Wagga and located a substantial quantity of methylamphetamine concealed in the airbag compartment. Searches conducted the same day at two other locations associated with the offender uncovered a loaded, unlicensed 9mm pistol (also concealed in an airbag compartment), a commercial quantity of MDMA, and additional drugs. Separately, telecommunication intercept evidence established that the offender had supplied methylamphetamine to an individual on 29 occasions between July and November 2016, with a total combined weight of 510 grams.

The offender pleaded guilty in the Local Court at Wagga Wagga on 13 June 2018 to four charges: supply of a large commercial quantity of methylamphetamine, possession of an unauthorised pistol, supply of a commercial quantity of MDMA, and supply of a commercial quantity of methylamphetamine. He was entitled to the full 25% utilitarian discount for his early guilty pleas.

  • What were the appropriate indicative sentences for each of the four substantive offences, having regard to the standard non-parole periods and maximum penalties?
  • How should the Form 1 matters (additional charges taken into account without separate conviction) affect sentencing on the substantive counts?
  • How should totality, accumulation, and parity principles apply in constructing an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999?
  • Whether special circumstances existed to justify a variation in the ratio between non-parole period and total sentence.
  • What weight should be given to the offender's role in an OMCG, remorse, and general deterrence?

Decision

His Honour conducted a one-step instinctive synthesis, treating the standard non-parole periods and maximum penalties as the principal guideposts. The standard non-parole period for the large commercial supply charge was 15 years (maximum: life); for the commercial supply charges, 10 years each (maximum: 20 years); and for the unauthorised pistol charge, 4 years (maximum: 14 years).

The court assessed the large commercial supply offence as low-range, given that the combined weight of 510 grams was only marginally above the large commercial quantity threshold. However, the commercial quantity methylamphetamine charge was treated as well above mid-range, as 498.2 grams fell just under 2 grams below the large commercial threshold. As a result, the indicative sentence for the commercial supply of methylamphetamine was set higher than that for the large commercial supply count. Each of the Form 1 documents included serious additional matters, particularly the acquisition of the pistol while subject to a Firearms Prohibition Order, and the court required these to have a meaningful impact on the relevant sentences.

The court considered the offender's OMCG membership and his role as chapter president as significant aggravating factors, relevant to general deterrence. The offender's sophisticated methods of concealment across multiple vehicles underscored the organised and professional nature of the offending. The 25% discount for the guilty pleas was applied to each indicative starting point.

Applying the totality principle and constructing an aggregate sentence, the court determined that the sentences should be substantially accumulated rather than served concurrently, given that the offences were separate in time and character. His Honour invoked s 53A of the Crimes (Sentencing Procedure) Act 1999 to impose a single aggregate term.

Orders Made

  • The offender was convicted on all four charges to which he pleaded guilty.
  • An aggregate sentence of 12 years and 9 months was imposed, with a non-parole period of 8 years and 6 months; the balance of term is 4 years and 3 months.
  • The non-parole period commenced on 20 December 2016 and expires on 19 June 2025; the balance of term runs from 20 June 2025 to 19 September 2029.
  • The court recommended the offender's release to parole at the expiration of the non-parole period.
  • The court recommended to the Department of Corrective Services that the offender have access to a drug rehabilitation programme while in custody.

Key Takeaways

  • Where individual charges in a multi-offence matter carry standard non-parole periods, the sentencing court engages in a one-step instinctive synthesis using those standard non-parole periods and maximum penalties as the principal guideposts.
  • The District Court found that a charge near the lower boundary of its category (large commercial supply) could attract a lower indicative sentence than a charge sitting near the upper boundary of the category below it (commercial supply), reflecting the importance of quantity within each tier rather than category classification alone.
  • Form 1 matters must have a meaningful impact on the sentence for the substantive offence to which they attach, particularly where those additional charges are serious on their own terms, such as acquiring a firearm while subject to a Firearms Prohibition Order.
  • An offender's leadership role in an OMCG and the professional, organised nature of the offending are significant factors supporting the weight given to general deterrence at sentence.
  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999, an aggregate sentence may be imposed across multiple substantive counts, with the court required to set out indicative sentences for each charge so that the basis for the aggregate is transparent.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 53A and 37
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Firearms Act 1996 (NSW), s 7(1)

Cases:
- Attorney-General's Application Pursuant to s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146 (Guideline Judgment on Form 1 Matters)
- Butters v R [2010] NSWCCA 1
- Bugmy v The Queen [2013] HCA 37
- DPP (Cth) v De La Rosa (2010) NSWLR 1
- R v Hemsley [2004] NSWCCA 228
- DJ v R [2017] NSWCCA 319
- Lachlan v R (2015) 252 A Crim R 277; [2015] NSWCCA 178
- Laspina v R [2016] NSWCCA 181
- Ngati v The Queen [2014] NSWCCA 125
- Parente v R [2017] NSWCCA 284
- Tepania v R [2018] NSWCCA 247