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District Court 8 July 2022

R v Green

[2022] NSWDC 749

DrugsFirearms & weapons
CRIMINAL SENTENCE POSSESS UNAUTHORISED PISTOL NOT KEEP FIREARMS SAFELY, PISTOL SERIOUSNESS O F OFFENCES SPECIFIC & GENERAL DETERRENCE

Citation: R v Green [2022] NSWDC 749
Court: District Court of New South Wales
Date: 8 July 2022
Judge: King SC DCJ

Background

The offender, Alex Green, was 19 years old at the time of the offending. In the early hours of 11 February 2021, police stopped him driving in West Gosford. A search of the vehicle uncovered a loaded pistol under the driver's seat, quantities of MDMA, cannabis, and cocaine residue, drug supply paraphernalia, and handwritten "tick lists" bearing his fingerprints.

The offender pleaded guilty to a cluster of firearms and drug offences. These included possessing an unauthorised pistol, possessing more than three unregistered firearms (including a pistol or prohibited firearm), possessing ammunition without a licence, and supplying prohibited drugs on an ongoing basis. A number of additional related offences were listed on Form 1 documents and a section 166 certificate to be taken into account at sentence.

Critically, all of this offending occurred while Green was subject to four separate Community Correction Orders that had been recently imposed.

  • The appropriate sentences for each principal offence, having regard to maximum penalties and, where applicable, standard non-parole periods (SNPPs)
  • The weight to be given to the SNPPs as reference points following a plea of guilty rather than a trial
  • The applicable discount for the utilty of the guilty plea
  • The relevance of the offender's youth and subjective circumstances to the assessment of specific deterrence and rehabilitation prospects
  • How to deal with the offending in the context of the offender already being subject to multiple Community Correction Orders

Decision

The District Court sentenced Green across each of the principal offences and acknowledged the Form 1 and section 166 matters in calculating the overall sentence. A 25 per cent discount was applied across all matters to reflect the utilty of the guilty pleas entered following committal from Gosford Local Court.

King SC DCJ noted that SNPPs apply as a guidepost or benchmark, on the assumption that an offence is at the mid-range of objective seriousness and has proceeded to trial. Following R v Way (2004) 60 NSWLR 168, the SNPPs remained relevant reference points even after the plea discount was applied. The principal firearms offence (possessing more than three unregistered firearms including a pistol or prohibited firearm) carries an SNPP of ten years and a maximum of 20 years, reflecting the legislature's view of its seriousness.

His Honour took the offender's age at the time of offending (19 years) into account as a mitigating factor, but noted that Green had been acting in an essentially adult manner given the sophistication of the drug supply operation. The presence of a loaded firearm in the vehicle and the ongoing nature of the drug supply were treated as serious aggravating features. The fact that all offending occurred while the offender was already subject to four Community Correction Orders weighed heavily against him and placed his rehabilitation prospects in doubt.

Despite those concerns, His Honour structured the sentence to allow a substantial parole period of two and a half years, expressing a guarded but genuine hope that the offender, who would be approximately 24 years old upon release, would use the time in custody constructively and cease using prohibited drugs.

Orders Made

• Sentence of five years imprisonment with a non-parole period of two years, six months
• Sentence to commence on 11 February 2021
• First eligible for parole on 10 August 2023
• Total sentence to expire on 10 February 2026

Key Takeaways

  • Standard non-parole periods function as a guidepost or benchmark rather than a mandatory minimum, and remain relevant reference points at sentence even where a guilty plea has been entered and a discount applied.
  • A 25 per cent discount for utilty of plea was available where the offender was committed for sentence from the Local Court following guilty pleas.
  • Committing serious firearms and drug supply offences while already subject to multiple Community Correction Orders is a significant aggravating factor that weighs heavily against the offender and directly undermines any case for favourable rehabilitation findings.
  • Youth at the time of offending is a mitigating consideration, but its weight is reduced where the offending is sophisticated and adult in character, such as running an organised drug supply operation with a loaded firearm in the vehicle.
  • Where cocaine was found only as a residue in a wallet, the District Court assessed that possession offence as not significant, inferring on the facts that the offender had simply retained the empty bag after personal consumption.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 32, 166
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25A(1)
- Firearms Act 1996 (NSW), ss 7(1), 36(1), 39(1)(a), 51D(2), 65(3)

Cases
- R v Way (2004) 60 NSWLR 168
- Attorney General's Application No 1 of 2002 [2002] NSWCCA 518
- BP v R [2010] NSWCCA 159
- Bugmy v R (2013) 249 CLR 571
- Bullock v R [2016] NSWCCA 131
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCA 194