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District Court 24 May 2024

R v WHITLEY

[2024] NSWDC 184

DrugsFirearms & weapons
CRIME DRUG OFFENCES SUPPLY PROHIBITED DRUG COCAINE CRIME FIREARMS OFFENCES RISK OF REOFFENDING

Citation: R v Whitley [2024] NSWDC 184
Court: District Court of New South Wales
Date: 24 May 2024
Judge: Lerve DCJ

Background

The offender, born in 1999, was sentenced following early guilty pleas to four charges arising from separate but overlapping episodes of criminal conduct in the Wagga Wagga region. The first involved the supply of 69 grams of cocaine (more than the indictable quantity but below the commercial quantity), discovered when police executed a search warrant at his parents' home in January 2023. The second and third sets of charges concerned the possession of five unregistered and unlicensed firearms, including a pistol and a prohibited firearm, stored at a co-offender's Tatton address, all while a Firearms Prohibition Order (FPO) was in force against him.

Police built the case substantially from digital evidence. Analysis of the offender's mobile phone revealed videos and photographs of him handling the firearms, with identifying features including visible tattoos and, in one instance, his face. The phone also contained drug pricing lists, tick lists (records of money owed for drug supply), images of cocaine, and a video of him opening a safe containing bags of white substances and cash.

The offender had been subject to an FPO since December 2019 and had never held a firearms licence. A co-offender admitted to storing the five firearms at his address on the offender's behalf, though that co-offender had not yet been sentenced and parity was therefore not a live issue.

  • What aggregate sentence was appropriate for four charges spanning drug supply and multiple serious firearms offences?
  • What discount applied by reason of the early guilty pleas?
  • How should the court treat an additional charge on a Form 1 document (a charge taken into account without conviction) in relation to the principal firearms offence under s 51D(2) of the Firearms Act?
  • What weight should be given to the standard non-parole period of 10 years applicable to the s 51D(2) offence, and how did the offender's overall circumstances bear on the length of the non-parole period?

Decision

The court applied a full 25% discount to reflect the utilitarian value of the early guilty pleas, which were entered before a Magistrate at Wagga Wagga Local Court in January 2024 and maintained in the District Court. The principal firearms offence under s 51D(2) carries a maximum of 20 years and a standard non-parole period of 10 years, indicating the legislature's view of the seriousness of possessing multiple unregistered firearms. The two FPO possession charges each carry a maximum of 14 years, and the drug supply offence carries a maximum of 15 years.

Before discounting, Lerve DCJ assessed the starting points for each charge individually. The supply charge attracted a starting point of approximately 3 years; the s 51D(2) charge (taking into account the Form 1 matter) a starting point of 4 years; and each FPO charge a starting point of 3 years. The court noted that had separate sentences been imposed, some degree of meaningful partial accumulation would have been required to reflect the distinct nature of the drug offending relative to the firearms offending.

The court imposed an aggregate sentence, finding that approach appropriate in the circumstances. The judge flagged the offender's significant drug dependency as a relevant factor in assessing risk of reoffending, and recommended in strong terms that any release to parole be conditioned on supervision by the Department of Community Corrections and compliance with directions relating to substance abuse treatment and counselling. The court also directed that the psychological report of Ms Dombrowski be forwarded to the Department of Corrective Services.

Orders Made

  • The offender was convicted of all four charges.
  • An aggregate sentence of 5 years imprisonment was imposed, with a non-parole period of 3 years commencing 17 August 2023 and expiring 16 August 2026.
  • The balance of term (parole period) of 2 years commences 17 August 2026 and expires 16 August 2028.
  • The total effective sentence, accounting for time in custody from 17 November 2022, is 5 years and 9 months.
  • The court recommended the offender's release to parole at the expiration of the non-parole period.
  • The court recommended, in the strongest terms, that any parole release be conditioned on supervision by the Department of Community Corrections and compliance with all reasonable directions regarding ongoing substance abuse treatment and counselling.
  • A copy of Ms Dombrowski's report (Exhibit 1 on sentence) was directed to be forwarded to the Department of Corrective Services with the relevant warrant.

Key Takeaways

  • An early guilty plea entered before a Magistrate and maintained in the District Court attracts the full 25% utilitarian discount under the Crimes (Sentencing Procedure) Act 1999, even where the matter is ultimately dealt with on indictment.
  • Where a co-offender has not yet been sentenced, no issue of parity arises and the sentencing court proceeds without reference to that person's outcome.
  • Under s 51D(2) of the Firearms Act 1996, possessing more than three unregistered firearms carries a standard non-parole period of 10 years, which anchors the sentencing assessment even where, after discounts and other factors, the sentence imposed falls well below that benchmark.
  • The Form 1 guideline judgment (Attorney General's Application No. 1 of 2002) requires the sentencing court to give proper effect to charges taken into account on a Form 1, which in this case increased the overall weight on the principal firearms charge rather than functioning merely as a technical formality.
  • Digital evidence, including GPS-tagged Snapchat photographs, tick lists, and videos identifying the offender by distinctive tattoos, formed the factual foundation for findings about both drug supply and firearms possession.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Firearms Act 1996 (NSW), ss 4(1), 51D(2), 74(1), Schedule 1

Cases
- The Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999, No. 1 of 2002 (2002) 56 NSWLR 146 (Guideline Judgment on Form 1 Matters)
- Laspina v R [2016] NSWCCA 181
- Nabalarua v R [2020] NSWCCA 68
- Parente v R (2017) 207 A Crim R 412
- R v Lachlan (2015) 252 A Crim R 277; [2015] NSWCCA 178
- R v Smith & Campbell [2019] NSWCCA 1
- Taylor v R [2018] NSWCCA 50