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District Court 29 August 2024

R v Allen

[2024] NSWDC 463

DrugsFirearms & weaponsPublic order & justice offences

Citation: R v Allen [2024] NSWDC 463
Court: District Court of New South Wales
Date: 29 August 2024
Judge: Haesler SC DCJ

Background

The offender, a man born in 1997 with an extensive criminal history, was sentenced for a cluster of firearms, weapons, and drug offences arising from two police attendances in August 2022 and an arrest in September 2022. He had been released on parole only months earlier, in May 2022, following convictions that bore similarities to the current offences.

Police executing a search warrant at a Southern Wollongong property found a gel blaster pistol and ammunition in a garage safe. At a separate address where the offender had been staying, police found an expandable baton, nine rounds of ammunition, four opals, and a flick knife. On his arrest on 30 September 2022, the offender voluntarily disclosed he had drugs on him and directed police to a loaded .32 snub nose revolver inside the premises. He was found to be carrying 43 grams of methylamphetamine, which the prosecution treated as intended for supply.

The offender pleaded guilty in the Local Court. He had spent more than 60% of his adult life in custody and had not engaged with rehabilitation programs offered during his most recent period on parole.

  • What sentence was appropriate for each individual offence, having regard to maximum penalties, standard non-parole periods, and the objective seriousness of the conduct?
  • How should the court avoid double-counting when multiple charges arose from the same items or conduct?
  • What weight should be given to the offender's personal history, including childhood neglect, trauma, and an acquired brain injury, as mitigating factors?
  • How should a 25% discount for the utilitarian value of early guilty pleas be applied across the sentence?
  • Whether special circumstances existed to justify a non-parole period that was a higher proportion of the total sentence than would ordinarily apply.

Decision

Haesler SC DCJ identified possession of the loaded snub nose revolver as the most serious offence. The revolver was possessed while the offender was actively supplying drugs, and he had told his parole officer the firearm was "reassuring" during drug trading. The judge found this elevated the objective seriousness of the firearms offence significantly, describing it as a particularly serious example of its type.

The court acknowledged the offender's difficult personal history at length. Childhood neglect, multiple traumas, and an acquired brain injury were accepted as factors that genuinely impaired his capacity to make rational choices. These circumstances required the court to treat him differently from an offender without such disadvantages. Nonetheless, the judge was clear that mitigating factors could only reduce the sentence so far: the need for punishment, retribution, and general deterrence remained.

The court took care not to double-count aggravating features across the multiple offences. Many charges related to the same physical items, such as the gel blaster and the baton, each of which attracted more than one charge. Haesler SC DCJ noted that the Form 1 item (possession of the flick knife in contravention of a weapons prohibition order) appeared to be a "clearing the books" measure and added nothing further to the sentence. The goods in custody charge relating to the four opals was dealt with under section 10A of the Crimes (Sentencing Procedure) Act 1999, meaning a conviction was recorded but no further penalty was imposed.

The aggregate sentence was set at four years, commencing after the offender served six months of a pre-existing parole balance. Special circumstances were found, producing a non-parole period of two years, which is a longer parole period relative to the head sentence than usual. The judge indicated that the offender had an opportunity to demonstrate rehabilitation on parole but that any future offending would not attract the same degree of leniency.

Orders Made

  • Sequence 2 (possession of snub nose revolver): 2 years and 4 months imprisonment; non-parole period of 1 year and 2 months.
  • Sequence 5 (supply methylamphetamine, with Form 1 taken into account): 1 year and 10 months imprisonment.
  • Sequence 6 (acquiring a pistol subject to Firearms Prohibition Order): 9 months imprisonment.
  • Sequence 11 (possession of gel blaster pistol subject to Firearms Prohibition Order): 1 year and 1 month imprisonment.
  • Sequence 15 (use prohibited weapon, extendable baton): 9 months imprisonment.
  • Sequence 4 (not keeping firearm safely, gel blaster): 3 months imprisonment.
  • Sequence 7 (possession of prohibited weapon, flick knife): 3 months imprisonment.
  • Sequence 8 (possession of prohibited weapon, extendable baton): 3 months imprisonment.
  • Sequence 12 (possession of unauthorised prohibited firearm, gel blaster): 3 months imprisonment.
  • Sequence 13 (possession of ammunition subject to Prohibition Order): 3 months imprisonment.
  • Aggregate sentence: 4 years imprisonment, commencing 30 March 2023; non-parole period of 2 years (eligible for parole consideration from 29 March 2025); sentence expires 29 March 2027.
  • Sequence 10 (goods in custody, four opals): dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999; conviction recorded, no further penalty.
  • Sequence 1 on the s 166 certificate: withdrawn and dismissed.

Key Takeaways

  • Possessing a loaded firearm while actively involved in drug supply substantially elevates the objective seriousness of a firearms possession offence, placing it toward the higher end of the sentencing range.
  • A history of childhood neglect, trauma, and acquired brain injury can reduce moral culpability and must be given genuine weight in sentencing, though it does not displace the requirements of punishment and general deterrence.
  • Where multiple charges arise from the same item or incident, the District Court is required to identify and avoid double-counting aggravating features across the individual sentences when constructing an aggregate term.
  • A 25% discount for the utilitarian value of an early guilty plea applies across all individual sentences before the aggregate is fixed.
  • Special circumstances, within the meaning of the Crimes (Sentencing Procedure) Act 1999, can justify a non-parole period that represents a smaller proportion of the head sentence than the statutory default, particularly where an offender's rehabilitation needs are significant and genuine.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Firearms Act 1996 (NSW), ss 7(1), 39(1)(a), 74(1), 74(3)
- Weapons Prohibition Act 1998 (NSW), ss 7(1), 34
- Crimes Act 1900 (NSW), s 527C(1)(c)

Cases:
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610