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District Court 27 March 2024

R v Lynch

[2024] NSWDC 92

DrugsFirearms & weapons
CRIME SENTENCE FIREARMS POSSESS PISTOL POSSESS AMMUNITION

Citation: R v Lynch [2024] NSWDC 92
Court: District Court of New South Wales
Date: 27 March 2024
Judge: Newlinds SC DCJ

Background

The offender pleaded guilty to two indictment charges under the Firearms Act 1900 (NSW): possessing a pistol and possessing ammunition, both in contravention of a Firearms Prohibition Order (FPO). An FPO had been served on the offender in April 2020 following an earlier firearms offence. The maximum penalty for possessing a pistol in contravention of an FPO is 14 years imprisonment.

The offending occurred in July 2021, just 13 days after the offender was released from prison on parole. The circumstances involved the offender's brother shooting two people with a pistol, and the offender's subsequent conduct in helping to conceal his brother's whereabouts from police.

Four further matters were dealt with on a Form 1 (s166 of the Criminal Procedure Act 1986), covering ongoing supply of methylamphetamine, supply of cannabis, and two counts of dealing with property reasonably suspected of being proceeds of crime.

  • What guilty plea discount applied to the indictment charges and the Form 1 matters respectively
  • How to calculate the commencement date of any sentence, given the offender had spent time in custody both on remand for these offences and serving time for a parole breach
  • What weight the offender's extensive criminal history, including repeated parole violations, carried in the sentencing exercise
  • Whether special circumstances existed to justify a variation from the standard non-parole period ratio

Decision

The District Court applied a 10% guilty plea discount to the two indictment charges. The Crown accepted this figure, noting that although the pleas were not formally entered until the first day of trial, the matter had resolved approximately one month before the scheduled trial fixture. A lesser discount applied to the Form 1 offences, which fall outside the statutory regime mandating specific discounts; the court accepted the Crown's submission that only a minimal discount was warranted there, as plea indications came late and the agreed facts were still being negotiated after the indictment pleas were entered.

On the question of the sentence start date, the court declined to backdate the sentence to the date of arrest (18 August 2021). The offender had spent approximately six months of his time in custody serving time for a separate parole breach, rather than on remand for the current offences. Balancing those competing considerations, the court fixed the commencement date at 18 December 2021.

The court characterised the offender's record as "extremely long and disappointing," noting this was the third consecutive occasion on which he had offended using a combination of drugs and firearms while on parole. The escalating speed of reoffending was a significant aggravating feature: the current offending began only 13 days after release.

Notwithstanding that history, the court identified special circumstances justifying a significant variation from the usual non-parole period ratio. The court observed that the offender appeared institutionalised and that his deprived upbringing was a relevant background factor under the principles in Bugmy v R [2013] HCA 37. An extended parole period was considered most likely to support any realistic prospect of rehabilitation, and the court decided the offender deserved one further opportunity to change.

Orders Made

  • Aggregate sentence of 6 years imprisonment, commencing 18 December 2021 and expiring 17 December 2027
  • Minimum non-parole period of 3 years, commencing 18 December 2021 and expiring 17 December 2024 (the first day of eligibility for parole)

Key Takeaways

  • The District Court applied a 10% guilty plea discount where the matter resolved approximately one month before a special fixture, even though formal pleas were not entered until the first day of trial.
  • A lesser discount applied to Form 1 (s166) matters than to the indictment charges, because those offences fall outside the statutory discount regime and the plea indications emerged late in proceedings.
  • Where an offender has spent time in custody for a concurrent parole breach as well as on remand for the current offences, the sentencing court will exercise judgment to fix an appropriate commencement date rather than mechanically backdating to the date of arrest.
  • Committing firearms and drug offences repeatedly while on parole is a significant aggravating factor; the court here treated the pattern of three consecutive parole violations involving guns and drugs as a serious feature of the offending.
  • Under Bugmy v R, a deprived background remained a relevant mitigating consideration even for a recidivist offender, and that factor, combined with the prospects offered by supervised parole, supported a substantial variation from the standard non-parole period ratio.

Legislation and Cases Referenced

Legislation:
- Firearms Act 1900 (NSW), ss 74(1), 74(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 22
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A
- Crimes Act 1900 (NSW), s 193C(2)

Cases:
- Bugmy v R [2013] HCA 37
- Callaghan v R [2006] NSWCCA 58
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Muldrock v The Queen (2011) 244 CLR 120
- Park v R [2020] NSWCCA 90
- Quinlan v R [2021] NSWCCA 21
- R v Henry (1999) 46 NSWLR 346
- R v Israil [2002] NSWCCA 255
- R v Millwood [2012] NSWCCA
- R v MJ [2023] NSWCCA 306
- R v Olbrich [1999] HCA 54
- R v Osenkowski (1982) 30 SASR 212
- R v Pogson (2012) 82 NSWLR 60
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Wat v R [2017] NSWCCA 62