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District Court 24 May 2024

R v Taylor

[2024] NSWDC 232

DrugsFirearms & weapons

Citation: R v Taylor [2024] NSWDC 232
Court: District Court of New South Wales
Date: 24 May 2024
Judge: Priestley SC DCJ

Background

The offender appeared for sentence on 15 charges arising from conduct in September and October 2022. The charges included five counts on indictment, one Form 1 matter, and nine summary matters brought up by section 166 certificate. The offending spanned firearm supply, prohibited weapon possession, and drug supply and possession.

The principal charges involved the offender using encrypted messaging applications (Threema and Signal) to offer to supply pistols and a fully automatic submachine gun, and to agree to supply another firearm. Separately, phone evidence revealed the offender had participated in cocaine supply on multiple occasions, and police executing a search warrant recovered a range of prohibited weapons, drugs, and ammunition.

The offender had been in custody since 27 October 2022, following an initial arrest on 17 October and a brief period on bail. One of the drug supply charges was committed, at least in part, while the offender was on bail.

  • How to assess the objective seriousness of firearms supply offences where the agreed facts did not establish the offender actually possessed the firearms offered for sale
  • Whether the standard non-parole periods for the two principal firearm supply counts (counts 1 and 2) bore meaningfully on the sentencing exercise
  • How to apply the Form 1 procedure, and what weight to give to personal deterrence and retribution in that context
  • What discount applied for the offender's guilty plea, and whether special circumstances justified a departure from the statutory ratio between non-parole period and balance of term
  • Whether an intensive correction order (ICO) was available given the total length of the sentence

Decision

Objective seriousness of the firearm supply charges. On count 1, the agreed facts used the word "indicated" in describing the offender's representations about possessing the pistols. His Honour noted the guns were not found on any search of the premises and that an unchallenged psychologist's report described the offender as willing to say anything for drug money. Applying the principle that matters adverse to the accused must be proved beyond reasonable doubt, the court proceeded on the basis that the offender did not possess the firearms. However, the court accepted that he genuinely represented he could obtain the two pistols, distinguishing those from the submachine gun (which was treated only as a representation). The objective seriousness of count 1 was assessed as low. Count 2, where the agreed facts did not include the qualifying word "indicated," was treated as an agreement to supply, but was also assessed at low objective seriousness, in part because police executed a search warrant before the proposed transaction could occur.

Standard non-parole periods and sentencing guideposts. The court applied the principles in Muldrock v R (2011) 244 CLR 120, treating the standard non-parole periods for counts 1 and 2 as legislative guideposts reflecting Parliament's view of the seriousness of those offences, without treating the midpoint of the range as a starting point. Indicative non-parole periods for counts 1 and 2 were set at seven months and five months respectively, reflecting the low objective seriousness finding, the 25% guilty plea discount, and the special circumstances finding.

Special circumstances and rehabilitation. His Honour found special circumstances justifying a longer-than-usual balance of term, having regard to the offender's age, his background of childhood trauma and drug addiction, the rehabilitative steps already taken in custody, and the availability of community supports. The court expressed guarded optimism about the prospects for continued rehabilitation, noting that extended post-release supervision would assist in addressing the underlying drivers of the offending. The court also acknowledged the risk of relapse and the need to avoid anti-social associations.

ICO availability. The court rejected the submission that an intensive correction order was appropriate. Given the breadth and seriousness of the section 25A drug supply charges and the weapons-related offending, the aggregate sentence exceeded three years, which meant section 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW) prohibited the imposition of an ICO.

Orders Made

  • The offender was convicted on all five counts on the indictment and all nine summary matters.
  • A 25% discount was applied to the indicative sentences for counts 1, 2, 3, 4 and 5 and summary matters sequences 3, 4 and 5.
  • An aggregate sentence of imprisonment was imposed, commencing 25 October 2022, with:
  • A non-parole period of 2 years and 8 months, expiring 24 June 2025
  • A balance of term of 2 years and 4 months, expiring 24 October 2027
  • In respect of summary matters sequences 1, 2, 11, 12, 14 and 16, convictions were recorded pursuant to section 10A of the Crimes (Sentencing Procedure) Act 1999 with no further penalty imposed.

Key Takeaways

  • Where agreed facts describe an offender as having "indicated" possession of firearms, rather than unambiguously admitting possession, a sentencing court may decline to find actual possession, provided matters adverse to the accused are not established beyond reasonable doubt.
  • The District Court confirmed that standard non-parole periods function as legislative guideposts under Muldrock, not as presumptive starting points, and may be departed from where objective seriousness is assessed as below the midpoint and where a guilty plea discount and special circumstances apply.
  • A guilty plea discount of 25% was applied across the principal charges, reflecting the utilitarian value of the pleas.
  • Special circumstances, within the meaning of the Crimes (Sentencing Procedure) Act 1999, were established on the basis of the offender's youth, trauma history, drug dependency, and rehabilitative prospects, justifying a longer balance of term to enable extended supervision.
  • Under section 68 of the Crimes (Sentencing Procedure) Act 1999, once an aggregate sentence exceeds three years, an intensive correction order is not available, regardless of the arguments in its favour.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 54A, 68
- Firearms Act 1996 (NSW), ss 51(1), 51(1A)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25A(1)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases
- Muldrock v R (2011) 244 CLR 120
- McLaren v R [2012] NSWCCA 284
- Bugmy v R (2013) 302 ALR 192
- Nasrallah v R [2021] NSWCCA 207
- R v Millwood [2012] NSWCCA 2
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146