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District Court 18 December 2019

R v Grant

[2019] NSWDC 866

DrugsFirearms & weapons
SENTENCING MULTIPLE OFFENCES DRUG SUPPLY FIREARM POSSESSION RELEVANT FACTORS ON SENTENCE INSTITUTIONALISED OFFENDER

Citation: R v Grant [2019] NSWDC 866
Court: District Court of New South Wales
Date: 18 December 2019
Judge: Haesler SC DCJ

Background

The offender, a man born in 1972, had spent almost his entire adult life in custody since first being imprisoned in 1992. Released in April 2018 without supervision, he was arrested just months later on 10 July 2018 after police raided a Wollongong motel room he was using as both living quarters and drug supply premises.

Police found 141.781 grams of methylamphetamine (the commercial quantity threshold is 250 grams), 24.53 grams of heroin, a gel pellet pistol that resembled a real firearm, and quantities of the restricted substance Clonazepam. The offender entered early guilty pleas to supply of methylamphetamine and possession of an unauthorised pistol, with the heroin possession dealt with by way of a Form 1 certificate. Two further matters (possession of Clonazepam and conducting a drug premises) were also placed on the Form 1 to be taken into account on sentence.

A psychologist's report confirmed the offender had no adaptive skills for community life. His background included childhood sexual and physical abuse, the early death of his mother (who herself suffered complex trauma and PTSD), and a history of impulsivity driven by a prolonged survival mode.

  • What aggregate sentence appropriately reflects the objective seriousness of the drug supply and firearm possession offences, without double-counting overlapping facts?
  • How should the Form 1 matters (heroin possession, Clonazepam possession, and conducting a drug premises) affect the principal sentences?
  • What weight should be given to the offender's severe childhood deprivation and institutionalisation, including under the High Court's guidance in Bugmy v The Queen?
  • Whether special circumstances existed to justify a non-parole period shorter than the statutory default, given the risk of institutionalisation?

Decision

Haesler SC DCJ assessed the drug supply offence as objectively serious, given the quantity approaching commercial level and the organised nature of the motel premises. The firearm offence was assessed as falling in the middle of the range on objective factors alone. The connection between the two offences (a weapon present at drug supply premises) increased the overall severity, though the judge was careful not to double-count that connection when synthesising the aggregate sentence. Each indicated sentence was reduced by 25 per cent to reflect the early guilty pleas.

On the Form 1 matters, the judge noted that the drug premises and circumstances of supply were already embedded in the objective facts of the principal offence, so any further uplift for those matters risked double-counting. The Clonazepam possession, if dealt with alone, was unlikely to have attracted a custodial sentence. The heroin possession warranted some custodial component given the offender's history, but the resulting accumulation was kept modest.

The judge applied Bugmy to hold that the offender's prolonged childhood deprivation continued to bear on the sentencing exercise, reducing his moral culpability, even in the face of a lengthy criminal record. The Court accepted that the offender fell into the "user-dealer" category rather than a sophisticated commercial operator. There was no finding of meaningful remorse, as his history of drug dependence and self-interest appeared to have overtaken any capacity for genuine reflection on the harm caused to others.

On special circumstances, the judge declined to make a formal finding. Although institutionalisation is a recognised basis for such a finding under Court of Criminal Appeal authority, the objective gravity of both principal offences required a minimum non-parole period of some length. The one-year parole period was nonetheless regarded as sufficient to allow at least a beginning of supervised rehabilitation in the community, though the judge expressed frank uncertainty about whether the offender would take advantage of that opportunity.

Orders Made

  • Aggregate sentence of four years imprisonment, commencing 10 July 2018.
  • Non-parole period of three years; eligible for parole consideration on 9 July 2021.
  • Parole period of one year.
  • Indicated sentence for drug supply (including Form 1 matters): three years.
  • Indicated sentence for possession of unauthorised pistol: two years and three months, with a non-parole period of one year and six months.
  • Indicated sentence for possession of heroin: six months.
  • Drug destruction order made.
  • Firearms destruction order made.
  • Each indicated sentence reflected a 25 per cent reduction for early guilty plea.

Key Takeaways

  • The District Court confirmed that where Form 1 matters overlap factually with the principal offence (such as drug premises charges where the circumstances of supply are already part of the agreed facts), any sentence uplift must be carefully calibrated to avoid double-counting.
  • A finding of institutionalisation is a recognised basis, under Court of Criminal Appeal authority, for a special circumstances finding that extends the parole period, but the objective gravity of the offences may outweigh that consideration in a given case.
  • Under Bugmy v The Queen (2013) 249 CLR 571, the lasting effects of severe childhood deprivation on moral culpability do not diminish merely because the offender has a long criminal history; the High Court's principle continues to apply at each sentencing exercise.
  • Classifying an offender as a "user-dealer" rather than a commercial supplier remains relevant to the assessment of objective seriousness, even where the quantity of drugs is substantial and capable of causing significant community harm.
  • Deteriorating health in custody, and restrictions on access to medical treatment available freely in the community, are recognised as legitimate considerations going to the conditions of the custodial sentence.

Legislation and Cases Referenced

Legislation
- Drug (Misuse and Trafficking) Act 1985 (NSW), s 25(1) (supply of prohibited drug); s 36Z(1)(a) (conducting a drug premises)
- Firearms Act 1996 (NSW), s 7(1) (possession of unauthorised pistol)
- Criminal Procedure Act 1986 (NSW), s 166 (Form 1 procedure)
- Poisons and Therapeutic Goods Act 1966 (NSW) (possession of restricted substance Clonazepam)

Cases
- Bugmy v The Queen (2013) 249 CLR 571 (High Court of Australia)
- R v Millwood [2012] NSWCCA 2