Citation: R v Graves [2021] NSWDC 722
Court: District Court of New South Wales
Date: 12 November 2021
Judge: Colefax SC DCJ
Background
In the early hours of 18 November 2019, police stopped an unregistered vehicle in the Sydney suburb of Ambarvale. The driver, a 47-year-old man, immediately admitted he was disqualified from driving. A subsequent search of him and the vehicle uncovered a 20cm knife, knuckle dusters, 77.4 grams of methylamphetamine in resealable bags, a gel blaster firearm (classified as an air gun and pistol under the Firearms Act), and a mace adapted with protruding nails and screws.
The offender was arrested and refused bail. After the initial sentence hearing in November 2020 was adjourned to allow him to undertake residential drug rehabilitation, he completed that program and was released to bail in March 2021. The sentence hearing resumed in November 2021 and judgment was delivered on 12 November 2021.
The offender faced four principal offences and consented to the Court also dealing with a driving while disqualified charge. He had an extensive criminal history spanning approximately 30 years, with a record that had escalated in seriousness over time, and was subject to both a community correction order and an intensive correction order at the time of the offending.
Legal Issues
- The appropriate objective seriousness for each offence, including drug supply, possession of a prohibited firearm, possession of prohibited weapons, and driving while disqualified
- The weight to be given to the offender's subjective circumstances, including his lengthy criminal history, drug dependency, and successful completion of residential rehabilitation
- Whether special circumstances existed to justify varying the standard ratio of the non-parole period to the head sentence
- The appropriate start date for the aggregate sentence, taking into account time spent on remand
- Whether to take action on a breach of an existing community corrections order
Decision
Colefax SC DCJ assessed the objective seriousness of each offence. The drug supply charge (sequence 1) and the mace possession charge (sequence 8) were rated just below the mid-range for their respective offence types. The firearm possession, knuckle dusters, and driving while disqualified offences were assessed as falling approximately halfway between the middle and the bottom of the range. All offences were additionally aggravated by the fact that the offender was subject to both a community correction order and an intensive correction order at the time.
His Honour accepted the offender's sworn explanation that the items were in the vehicle because he had hastily left a toxic relationship, taking his belongings. While the sentencing assessment report author was sceptical of this account, the judge found the offender to be an impressive witness following his completion of rehabilitation. Although the offender told the report author the drugs were for personal use, purchased with gambling winnings, His Honour noted some scepticism about that claim but declined to make findings beyond the agreed facts.
A 25 percent discount was applied to each indicative sentence, reflecting the utilitarian value of the offender's guilty pleas. The offender's criminal history was not treated as an additional aggravating factor (beyond informing his ineligibility for first-offender leniency), with the exception of the driving record in relation to the disqualified driving charge.
His Honour found special circumstances to justify varying the standard non-parole to head sentence ratio, in order to support the offender's rehabilitation at what was described as a crucial stage of his life. The start date of the aggregate sentence was adjusted as a deliberate act of leniency to account for the full period of remand, rounded up to one year and four months. The non-parole period was fixed to expire on the date of sentence, meaning the offender became immediately eligible for parole.
Orders Made
- Aggregate term of imprisonment of 4 years 6 months imposed across sequences 1, 2, 3, 8 and 5
- Non-parole period of 1 year 4 months, dated from 13 July 2020, expiring 12 November 2021 (offender immediately eligible for parole)
- Balance of term of 3 years 2 months, commencing 13 November 2021 and expiring 12 January 2025
- Disqualification from driving for 6 months, dated from 23 November 2020 (sequence 5)
- No action taken on the breach of the community corrections order imposed 8 May 2019
Key Takeaways
- The District Court applied an aggregate sentence where multiple offences arose from a single transaction, fixing individual indicative sentences before arriving at a combined term that reflected the totality of the criminality.
- A 25 percent discount on each indicative sentence was applied for guilty pleas, reflecting the utilitarian benefit to the criminal justice system rather than any indication of remorse standing alone.
- Committing offences while already subject to both a community correction order and an intensive correction order constituted an additional aggravating factor separate from the assessment of each offence's objective seriousness.
- Successfully completing residential rehabilitation, combined with credible sworn evidence, weighed in favour of the offender and supported a finding of special circumstances to extend the parole period beyond the statutory norm.
- Where an offender has been held on remand for a significant period, the sentencing court may adjust the nominal start date of the aggregate sentence as an act of leniency, ensuring the practical effect of the sentence reflects time already served.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Firearms Act 1996 (NSW), s 7(1)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Road Transport Act 2013 (NSW), s 54(1)(a)
Cases cited: None identified in the judgment text.