Citation: R v Trung [2022] NSWDC 186
Court: District Court of New South Wales
Date: 4 March 2022
Judge: Bourke SC DCJ
Background
The offender was stopped by police on two separate occasions in Cabramatta approximately two and a half months apart. On the first occasion in October 2020, police found an extendable baton in his car, cash totalling $3,660, and just under one gram of methylamphetamine on his person. On the second occasion in January 2021, police found a loaded .32 calibre Walther pistol concealed in a sock inside a Louis Vuitton bag, over 44 grams of heroin hidden inside a toy egg on his child's booster seat, a further extendable baton, and $9,105 in cash.
The offender came before the District Court for sentence on two principal charges: possessing an unauthorised prohibited firearm under the Firearms Act 1996, and supplying an indictable quantity of heroin under the Drug Misuse and Trafficking Act 1985. Three further matters were placed on a Form 1 document (to be taken into account when sentencing for the firearms offence), and two related offences were dealt with by way of a certificate under the Criminal Procedure Act 1986.
The offender pleaded guilty at the earliest opportunity, attracting a 25 percent discount on his sentence.
Legal Issues
- Where on the objective seriousness scale did the firearms offence and the drug supply offence fall, and what weight should be given to the offender's claimed role as a courier rather than an owner or principal?
- What sentence was appropriate having regard to the standard non-parole period for the firearms offence, the maximum penalties, the Form 1 matters, and the offender's subjective circumstances?
- Whether special circumstances existed to justify a non-parole period shorter than the statutory default of one-third of the head sentence.
- What commencement date was appropriate, given the offender had been in custody since January 2021 but part of that period related to the revocation of a pre-existing Intensive Correction Order.
Decision
Objective seriousness of the firearms offence. The court noted that the agreed facts strongly suggested the offender possessed the pistol as protection for drug-dealing activities. However, the Crown did not dispute the offender's sworn evidence that he was acting as a courier transporting the weapon on behalf of another person. Accepting that account, the court could not be satisfied beyond reasonable doubt that the offender owned the weapon or possessed it for more than a brief period. The pistol was nonetheless a loaded, lethal, and easily concealable weapon carried unsecured in a public place. The court assessed the offence as below the mid-range but well above the low range.
Objective seriousness of the drug supply offence. The charge was a deemed supply based on quantity rather than actual supply. The 44.92 grams of heroin was described as substantially exceeding the indictable threshold. The court assessed this offence as also below mid-range, reflecting the courier role accepted for the purposes of sentence.
Subjective circumstances and special circumstances. The court considered the offender's personal background, including his history and the nature of his offending. It found special circumstances existed, warranting a departure from the standard one-third non-parole period ratio, and structured the sentence accordingly.
Commencement date. Although the offender had been in custody since 8 January 2021, part of that period was attributable to the revocation of a prior Intensive Correction Order that did not expire until 2 September 2021. The court exercised its discretion to backdate the sentence to 2 June 2021, three months before the expiry of the ICO period, reflecting a partial credit for that earlier custody.
Orders Made
- Head sentence of 4 years and 2 months imposed for the principal offences.
- Non-parole period of 2 years and 6 months (reflecting a finding of special circumstances).
- Sentence to commence on 2 June 2021.
- Head sentence to expire on 1 August 2025.
- Non-parole period to expire on 1 December 2023 (date of eligibility for parole).
- Consent orders made for the confiscation of the cash amounts seized by police.
Key Takeaways
- Accepting a courier role at sentence does not necessarily reduce a firearms possession offence to a low-range matter: the District Court still assessed possession of a loaded, unsecured pistol in a public place as well above the low range, even absent evidence of ownership or intent to use.
- Under s 25(1) of the Drug Misuse and Trafficking Act 1985, a charge of supplying an indictable quantity may be based on deemed supply arising from quantity alone, without proof of an actual transaction.
- Where a defendant's custody period overlaps with the tail of a revoked Intensive Correction Order, the sentencing court retains a discretion to backdate the head sentence to a date before the ICO expired, as a matter of fairness rather than strict entitlement.
- A 25 percent sentencing discount for an early guilty plea applied in this matter, consistent with established New South Wales sentencing practice.
- The Court of Criminal Appeal's guidance in R v Farrell [2014] NSWCCA 30 on assessing the objective seriousness of firearms offences, including the nature of the weapon, whether it was loaded, and the presence of further ammunition, was applied and confirmed as relevant, with the court noting that the applicable standard non-parole period has since increased from three to four years.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999
- Criminal Procedure Act 1986 (ss 166, 167)
- Drug Misuse and Trafficking Act 1985 (s 25(1))
- Firearms Act 1996 (s 7(1))
- Weapons Prohibition Act 1998 (s 7(1))
Cases:
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act [2002] NSWCCA 518
- R v Farrell [2014] NSWCCA 30