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District Court 2 October 2019

R v Lawson

[2019] NSWDC 849

DrugsFirearms & weapons

Citation: R v Lawson [2019] NSWDC 849
Court: District Court of New South Wales
Date: 2 October 2019
Judge: M L Williams SC DCJ

Background

The offender, a 44-year-old man, was arrested on 5 October 2018 following the execution of a search warrant at a residential property on the Central Coast of New South Wales. Police found a loaded shortened .22 calibre pump-action rifle concealed beneath his sleeping area, a Taser, body armour, pepper spray, electronic scales, approximately 77 grams of methamphetamine in total, cannabis, MDMA, methadone, and $5,450 in cash. A tick list of names and numbers was also located, consistent with drug supply activity.

The offender had a significant prior criminal history. Most notably, in 2010 he received an eight-year sentence with a five-year non-parole period for methamphetamine supply offences. He had been released on parole, but parole was revoked in 2017 after he reoffended. At the time of the 2018 offending, he was on bail, subject to a section 9 bond, and also subject to both a firearms prohibition order and a weapons prohibition order, both of which had been served on him in early 2017.

The offender entered guilty pleas attracting a 25% discount. His counsel conceded that a term of full-time custody was inevitable. The sentencing proceedings focused on how the court should weigh the serious and aggravated nature of the offending against the offender's traumatic background, entrenched drug addiction, mental health, and efforts at rehabilitation.

  • What aggregate sentence was appropriate across three principal offence categories, multiple Form 1 matters, and three section 166 certificate offences?
  • How should the court apply the principles in R v Pearce regarding accumulation, concurrence, and totality when all offences arose from a single search warrant execution?
  • What weight should be given to the offender's history of childhood sexual abuse and resulting drug addiction under the Bugmy principles, in light of the earlier Court of Criminal Appeal observations in Lawson v R [2012] NSWCCA 56?
  • Whether special circumstances existed justifying a variation to the standard ratio between the non-parole period and the total sentence?
  • What uplift, if any, should be applied to reflect the Form 1 matters, and how should those matters affect the emphasis on personal deterrence and retribution?

Decision

Williams SC DCJ convicted the offender on all counts and imposed an aggregate sentence of 4 years and 3 months imprisonment, with a non-parole period of 2 years and 3 months. The sentence was backdated to commence on 5 January 2019, reflecting that three months of a six-month sentence previously served was already attributable to related drug supply offending.

The court weighed the seriousness of the offending heavily. The offender was on multiple forms of conditional liberty, including bail, a section 9 bond, and prohibition orders, all breached by this conduct. The Form 1 matters, particularly the possession and use of a Taser, body armour, and pepper spray alongside the drug supply activity, were treated as warranting greater emphasis on personal deterrence and retribution, consistent with the guideline judgment in Attorney General's Application No 1 of 2002.

Against those aggravating features, the court applied the Bugmy principles. The offender's prolonged childhood sexual abuse by his stepfather, who also introduced him to cannabis as a child, had been identified in earlier proceedings as an extremely sad history with a detrimental impact on his drug dependence. While Judge Coolahan had not been persuaded of a direct causal link to the earlier offending, Williams SC DCJ acknowledged the relevance of that background to the current sentencing exercise. The offender's acknowledged addiction to methamphetamine, his candid admission that he was selling drugs to fund his own use, and his participation in rehabilitation programs both previously and most recently in custody, were all taken into account.

Special circumstances were found, resulting in a non-parole period that represents a proportion of the total sentence less than the statutory norm of two-thirds. The court structured the sentence on the basis of totality given that all offending arose from one day's events, with a significant degree of concurrency between the individual indicative terms.

Orders Made

  • The offender was convicted of each offence.
  • An aggregate sentence of 4 years and 3 months imprisonment, commencing 5 January 2019.
  • Non-parole period of 2 years and 3 months, expiring 4 April 2021.
  • Indicative sentences:
  • Sequence 001 (supply methamphetamine, with Form 1 matters 008, 010, 011, 012): 4 years
  • Sequence 013 (possess Taser, with Form 1 matters 006, 007, 014, 015, 016): 18 months, with a non-parole period of 12 months
  • Sequence 019 (possess shortened loaded firearm): 3 years and 6 months
  • Section 166 certificate sequence 003: 6 months
  • Section 166 certificate sequence 004: 4 months
  • Section 166 certificate sequence 005: 6 months
  • Special circumstances found.

Key Takeaways

  • The District Court confirmed that Form 1 matters can result in a substantial uplift to the head sentence and may justify greater emphasis on personal deterrence and retribution, consistent with the guideline judgment in Attorney General's Application No 1 of 2002.

  • Under the Bugmy principles, a sentencing court is required to consider the ongoing relevance of severe childhood disadvantage, including sexual abuse and early drug exposure, even where a previous sentencing court was not persuaded of a direct causal link to prior offending.

  • Where all offences arise from a single search warrant execution on one day, R v Pearce requires the court to fix an appropriate sentence for each offence first, then apply principles of accumulation, concurrence, and totality to arrive at an appropriate overall result.

  • Breach of multiple forms of conditional liberty simultaneously, including bail, a section 9 bond, and active prohibition orders, functions as a significant aggravating factor in the sentencing calculus.

  • Special circumstances, based on totality, entrenched drug addiction, and the need for supervised rehabilitation on release, can justify a non-parole period representing less than two-thirds of the total sentence even in cases of serious and repeat offending.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 3A, 9, 37, 166
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Firearms Act 1996 (NSW), ss 36(1), 39(1)(a), 62(1)(b), 74(1)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Bugmy v The Queen (2013) 249 CLR 571
- Imbornone v R [2017] NSWCCA 144
- Lawson v R [2012] NSWCCA 56
- R v Lulham (2016) 263 A Crim R 287
- R v Pearce (1998) 194 CLR 610
- R v Qutami [2001] NSWCCA 353
- R v Williams (2005) 156 A Crim R 225; [2005] NSWCCA 355
- Veen v The Queen (No 2) (1988) 164 CLR 465