Citation: R v Aquilina [2022] NSWDC 515
Court: District Court of New South Wales
Date: 4 November 2022
Judge: Colefax SC DCJ
Background
The offender, a man aged 28 at the time of the offending, ran what the Crown described as a "medium scale street level drug supply business" from his residential premises. Between mid-December 2020 and early March 2021, he personally took orders and arranged deliveries of cocaine across 158 discrete transactions, supplying a total of 322.25 grams and receiving approximately $113,400 in proceeds. He was assisted by others, including his wife, but stood at the apex of the operation.
Police placed his premises under surveillance from January 2021 and arrested him on 4 March 2021. A search warrant executed at the time uncovered two working firearms in his garage: a loaded 9mm CZ 75B self-loading pistol and a .44 magnum Smith and Wesson revolver, together with ammunition for each. Cash totalling $14,970 was also found at the premises.
The offender pleaded guilty to three principal offences: supplying a prohibited drug in a quantity greater than the commercial quantity (cocaine), and possessing each of the two unauthorised pistols. Three further matters were taken into account on Form 1, including dealing with the proceeds of crime and two counts of possessing ammunition without a licence.
Legal Issues
- The appropriate objective seriousness of each principal offence
- Whether the offender was storing the firearms for others, or whether they were his own
- Whether genuine remorse had been established in the absence of sworn evidence
- The applicable discount for early guilty pleas
- Whether special circumstances existed to vary the statutory ratio between the head sentence and the non-parole period
- The construction of an appropriate aggregate sentence
Decision
Objective seriousness. The District Court assessed the drug supply offence (sequence 4) as slightly below mid-range, and each firearms possession offence (sequences 13 and 14) as mid-range. The Form 1 matters resulted in a modest increase to the drug supply sentence and only a very slight increase to each firearms sentence. No additional aggravating circumstances were identified.
Ownership of the firearms. The offender's letter of remorse suggested he had merely allowed others to store the guns at his home. Colefax SC DCJ rejected that account. Because it was unsworn, was not raised with either the sentencing assessment report author or the psychologist, and was inconsistent with all other circumstances, the court drew the only rational inference available: the offender owned the firearms, and they formed part of his drug supply enterprise. No finding was made, however, that he had ever used them.
Remorse and subjective circumstances. The court approached the question of remorse with care given the absence of sworn evidence and the rejected exculpatory claim about the firearms. Overall, some genuine remorse was accepted, though its weight was moderated. The court accepted that a serious motorbike accident at 25 had contributed to increased drug use, and that the offender's diagnosed substance use disorder had a causal connection to his offending. Other diagnosed conditions, including ADHD, anxiety, and depression, were noted but not found to be causally linked. The offender had no prior criminal record, had completed the Positive Lifestyle Program in custody, and had the support of family and prospective employment on release.
Sentence construction. A 25 per cent discount applied for the utilitarian value of early guilty pleas. The Court also took into account 160 days of COVID-related lockdown that made custody more harsh than it would otherwise have been. Special circumstances were found, given that this was the offender's first period of custody and that a longer parole period would assist rehabilitation. The indicative sentences for the three principal offences were not made fully concurrent, reflecting the seriousness and distinctly separate nature of each offence.
Orders Made
- Aggregate term of imprisonment of 7 years, backdated to 4 March 2021
- Non-parole period of 3 years 6 months, commencing 4 March 2021 and expiring 3 September 2024
- Balance of term of 3 years 6 months, commencing 4 September 2024 and expiring 3 March 2028
Key Takeaways
- An unsworn assertion in a letter of remorse, unsupported by oral evidence and inconsistent with circumstances known to the court, will carry little weight and may be rejected on the balance of probabilities.
- Where a defendant possesses loaded, working firearms alongside drug supply paraphernalia at the same premises, a court may infer ownership and connection to the drug enterprise even without direct evidence of use.
- The District Court treated the COVID-19 pandemic's effect on conditions of custody, including prolonged lockdowns, as a specific mitigating factor reducing the overall harshness of the sentence.
- Special circumstances justifying a variation to the standard head sentence to non-parole period ratio were found on the basis of a first custodial term and the rehabilitation value of an extended parole period.
- A 25 per cent discount for the utilitarian value of early guilty pleas applied across all three principal offences, consistent with established sentencing practice.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) (supply prohibited drug greater than commercial quantity; maximum 20 years imprisonment; standard non-parole period 10 years)
- Firearms Act 1996 (NSW), s 7(1) (possess unauthorised pistol; maximum 14 years imprisonment; standard non-parole period 4 years)
Cases cited: No cases were cited in the provided judgment text.