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District Court 26 March 2021

R v Oliver

[2021] NSWDC 263

Assault & violenceDrugsTraffic & drivingFirearms & weapons
CRIME ASSAULT OFFICER IN EXECUTION OF DUTY SUPPLY PROHIBITED DRUG >INDICTABLE & 2ND+OFF GUILTY PLEA DEPRIVED UPBRINGING

Citation: R v Oliver [2021] NSWDC 263
Court: District Court of New South Wales
Date: 26 March 2021
Judge: Haesler SC DCJ

Background

In March 2020, the offender was riding a motorcycle in Koonawarra when he pulled up near premises where police were attending for an unrelated matter. Upon seeing police, he rode away quickly, dropped the motorcycle and fled on foot. When officers caught him, he punched a sergeant in the arm with a closed fist before being tackled to the ground.

Police found a loaded Baikal 410 shortened single-barrel shotgun tucked down the front of his trousers, barrel pointing upward toward his face. In his bag were two satchels containing just over 77 grams of methylamphetamine, shotgun ammunition, and $2,700 cash. The motorcycle carried false number plates and was unregistered; the offender was also disqualified from driving at the time.

Critically, this conduct occurred while the offender was on parole for earlier firearms and drug offences arising from a 2018 motorcycle accident. He had been released to parole in October 2019 but had disengaged from Community Corrections, and a warrant for his arrest for parole breach had been issued the day before this incident.

  • What were the appropriate individual sentences for each offence, given the presence of multiple aggravating factors?
  • What aggregate sentence properly reflected the offender's overall criminality?
  • What weight should be given to the guilty pleas entered in the Local Court?
  • How should the sentencing court treat offences committed while the offender was on parole?
  • What mitigating weight, if any, should be given to the offender's deprived background and personal circumstances?
  • Whether special circumstances existed to justify a variation to the standard non-parole period ratio?

Decision

Haesler SC DCJ treated the possession of a shortened, loaded firearm as a particularly serious example of its type. His Honour emphasised that the simultaneous possession of a firearm, ammunition, and a commercial quantity of drugs significantly elevated the objective seriousness of each offence. The court drew on Thalari v R [2009] NSWCCA 170 for the proposition that the concurrent possession of a firearm and drugs increases the risk of serious harm, noting that a weapon possessed in an unregulated, drug-affected environment is a weapon that may be used.

For the assault on the police officer, the court applied the guideline established in Attorney General's Application Under s37 of the Crimes (Sentencing Procedure) Act 1999 No 2 [2002] NSWCCA 515. His Honour accepted that offences involving assaults on police in the execution of their duty require a significant element of deterrence, given the community's dependence on police to maintain law and order.

The offender's prior criminal history and the fact that he reoffended while on parole for similar matters required greater weight to be placed on both personal and general deterrence. The court afforded a 25% discount to each sentence to reflect the utilitarian value of the early guilty pleas, while acknowledging that other aspects of those pleas were difficult to quantify in the circumstances.

The court accepted that the offender's deprived upbringing, including his father's suicide when the offender was very young, early exposure to abuse, learning difficulties, and normalised drug use, were relevant mitigating factors consistent with Bugmy v The Queen (2013) 249 CLR 571. These matters were weighed against a pattern of reoffending and the absence of engagement with treatment or supervision. His Honour found no special circumstances warranting a variation to the standard non-parole period ratio, other than to account for the aggregation of the sentence.

Orders Made

  • Use of unregistered motor vehicle (Seq 9): Convicted; no further penalty imposed pursuant to s 10A Crimes (Sentencing Procedure) Act 1999
  • Assault officer in execution of duty (Seq 6), with Form 1 matter (resist police): 9 months imprisonment
  • Possess shortened firearm not pistol (Seq 1), with Form 1 matters (possess ammunition, possess loaded firearm, not keep firearm safely): 3 years 9 months imprisonment
  • Supply prohibited drug, indictable quantity (Seq 4): 2 years 1 month imprisonment
  • Deal with property proceeds of crime under $100,000 (Seq 12): 9 months imprisonment
  • Drive during disqualification period, second or subsequent offence (Seq 5): 6 months imprisonment; 12-month licence disqualification (stayed while in custody)
  • Aggregate sentence: 4 years 6 months imprisonment
  • Non-parole period: 3 years 3 months, commencing 5 June 2020, with eligibility for parole from 4 September 2023
  • Parole period: 1 year 3 months, expiring 4 December 2024 (total effective custody 4 years 9 months)
  • Firearms destruction order and drug destruction order made

Key Takeaways

  • Simultaneous possession of a loaded firearm, ammunition, and a commercial quantity of drugs significantly elevates the objective seriousness of each individual offence, as confirmed by reference to Thalari v R [2009] NSWCCA 170.
  • Reoffending while on parole for similar matters is an aggravating factor that requires a sentencing court to give greater weight to both personal and specific deterrence, and also calls for some independent punishment for the parole breach itself.
  • Under the guideline in Attorney General's Application No 2 [2002] NSWCCA 515, offences involving assault on police in the execution of their duty carry a significant deterrence component, reflecting the community's reliance on police authority.
  • A deprived background and difficult personal history remain relevant mitigating considerations, but those factors carry reduced weight when an offender has continued to reoffend and has failed to engage with rehabilitation opportunities.
  • No finding of special circumstances was made where the material before the court did not justify variation to the standard non-parole period ratio, save to account for sentence aggregation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 193C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A
- Drug (Misuse and Trafficking) Act 1985 (NSW), s 25(1)
- Firearms Act 1996 (NSW), s 62(1)(b)

Cases
- Attorney General's Application Under s37 of the Crimes (Sentencing Procedure) Act 1999 No 2 [2002] NSWCCA 515
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Cahyadi v Regina (2007) 168 Crim R 41
- Callaghan v R [2006] 160 A Crim R 145
- Krivosic v R [2017] NSWCCA 167
- Luu v R [2008] NSWCCA 285
- Olbrich v The Queen (2000) 117 A Crim R 326
- R v Amurao [2005] NSWCCA 32
- R v AZ (2011) 205 A Crim R 222; [2011] NSWCCA 43
- R v Brown [2006] NSWCCA 249
- R v Irwin [2019] NSWCCA 133
- R v Lachlan [2015] NSWCCA 178
- R v MacDonnell (2002) 128 A Crim R 34
- R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170
- Thompson & Houlton (2000) 115 A Crim R 104