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District Court 20 February 2020

R v Klein

[2020] NSWDC 165

DrugsFirearms & weapons

Citation: R v Klein [2020] NSWDC 165
Court: District Court of New South Wales
Date: 20 February 2020
Judge(s): M L Williams SC DCJ

Background

The offender, a 38-year-old man with no serious prior criminal history, appeared for sentence following guilty pleas to a range of serious drug and firearms offences. At the time of the offending, he was subject to two section 10 bonds and a Firearms Prohibition Order (FPO) that had been served on him in May 2016. A police strike force had been established specifically to investigate his activities following the discovery of imported precursor chemicals delivered to a tyre business at Drummoyne.

Police surveillance and a series of search warrants connected the offender to a clandestine laboratory at a remote property at Oallen, NSW, where a large commercial quantity of MDA had been manufactured. A storage cage at a Kellyville Ridge unit complex, registered to his mother, contained over 17 kilograms of MDA in tablet form, cocaine, loaded firearms, ammunition, and a silencer. The offender was arrested at that storage cage on 14 March 2018 after being observed searching through it in an agitated state.

The offending involved multiple co-accused, at least one of whom remained before the courts. The agreed facts established that the offender had an organisational role in procuring chemicals, equipment, and transportation for the manufacturing operation over several months in late 2017. The court also accepted that he had connections to an outlaw motorcycle gang and a long-standing drug addiction.

  • What aggregate term of imprisonment was appropriate for the totality of the drug and firearms offending, including Form 1 matters?
  • How should aggravating factors, including breach of conditional liberty and planned, organised criminal activity, affect the sentence?
  • What weight should be given to mitigating factors including an early guilty plea, remorse, rehabilitation prospects, and unlikely reoffending?
  • Whether special circumstances existed so as to justify a departure from the standard ratio between the non-parole period and the balance of term, particularly given the hardship of protective custody conditions.
  • How should the onerous conditions of the offender's custody (including extended periods of protective custody with limited access to programs) bear on the sentence?

Decision

The court convicted the offender on all charges and determined that a term of full-time imprisonment was the only appropriate outcome, a position not in dispute. His Honour applied a 25% discount for the utilitarian value of the early guilty plea across the relevant charges. Aggravating factors included the fact that the offending was planned and organised over several months and occurred while the offender was on conditional liberty under two section 10 bonds and subject to an FPO.

In mitigation, the court accepted evidence of genuine remorse, a difficult personal history including an early parental divorce, a long-standing drug addiction, and a meaningful prospect of rehabilitation. The offender's father gave unchallenged evidence of sincere expressions of remorse. The court also accepted that the offender had distanced himself from an outlaw motorcycle gang at personal cost.

The court gave significant weight to the harsh conditions of the offender's custody. For a substantial period, he had been held in protective custody under conditions of near-isolation, limiting his access to educational programs and meaningful activity. Applying the principle from R v Astill (No 2), the court addressed that hardship not by reducing the head sentence but by making a significant finding of special circumstances, which extended the balance of the sentence available for supervision on parole beyond the standard proportion.

An aggregate sentence was held to be the appropriate disposition given the underlying unity of all offences, each being connected to the serious drug manufacturing enterprise. The court assessed indicative sentences for each charge before arriving at an aggregate term that reflected the totality of the criminality without being crushing.

Orders Made

  • The offender was convicted of each offence.
  • Indicative sentences:
  • Manufacture of large commercial quantity of MDA: 7 years (NPP 4 years 6 months)
  • Supply of large commercial quantity of MDA (including Form 1 for supply of 331g cocaine): 7 years 6 months (NPP 4 years 10 months)
  • Possess unregistered .22 calibre rifle (including Form 1 for acquiring firearm subject to FPO): 22 months
  • Possess unregistered air rifle (including Form 1 for acquiring firearm subject to FPO): 22 months
  • Possess unauthorised pistol (including Form 1 matters for acquiring pistol and ammunition subject to FPO, and possessing a silencer): 3 years (NPP 2 years)
  • Aggregate sentence of 10 years imprisonment, commencing 14 March 2018.
  • Non-parole period of 6 years, expiring 13 March 2024.
  • Special circumstances found.
  • Confiscation order: $1,298.80 in cash found on the offender at arrest forfeited to the State.

Key Takeaways

  • Where an offender has spent an extended period in protective custody under near-isolation, effectively cut off from rehabilitation programs, the sentencing court may address that hardship through a significant finding of special circumstances rather than a reduction to the head sentence.
  • An aggregate sentence is appropriate where multiple offences share an underlying unity, here the commission of serious drug manufacturing and supply offences with related firearms possession.
  • Breach of conditional liberty (including section 10 bonds) and the planned, organised nature of the offending are statutory aggravating factors under the Crimes (Sentencing Procedure) Act 1999 that the court must take into account and that increase the seriousness of the sentence.
  • A 25% discount applied for an early guilty plea, consistent with the utilitarian value recognised in New South Wales sentencing practice.
  • Connections to an outlaw motorcycle gang, long-standing drug addiction, and the offender's own disassociation from that gang at personal cost were all treated as relevant subjective considerations going to prospects of rehabilitation and the need for extended post-release supervision.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 25(2)
- Firearms Act 1996 (NSW), ss 7(1), 36(1), 74(1), 74(3)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Bell v R [2019] NSWCCA 271
- El Kheir v R [2019] NSWCCA 288
- Greentree v R [2018] NSWCCA 227
- R v Astill (No 2) (1992) 64 A Crim R 289
- R v Irwin [2019] NSWCCA 133