District Court New South Wales Medium Neutral Citation: R v Tanti [2021] NSWDC 381 Hearing dates: 5 August 2021 Date of orders: 5 August 2021 Decision date: 05 August 2021 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Aggregate sentence of 4 years 6 months with a non-parole period of 2 years 6 months. Catchwords: CRIME - Possess Shortened Firearm - Possess Defaced Firearm - Possess Loaded Firearm in Public Place - Supply prohibited drug - Drive whilst disqualified - Negligent driving SENTENCING - Relevant factors on sentence - early plea - multiple offences - Forms 1 - s 166 summary matters - serving Local Court sentences - totality – application of Pearce v The Queen – long term drug addict – long record - escalation of seriousness of offending - some recent insight into need for rehabilitation programmes - community support Legislation Cited: Crimes Act 1900 Crimes (Administration of Sentences) Act 1999 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Drug (Misuse and Trafficking) Act 1985 Firearms Act 1996 Cases Cited: Attorney General's Application No 1 (2002) 56 NSWLR 146 Cahyadi v Regina [2007] NSWCCA 1 (2007) 168 A Crim R 41 Do v R [2010] NSWCCA 182 El Jamal v R [2017] NSW CCA 243 Markarian v the Queen (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 R v Lachlan [2015] NSW CCA 178 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Thurgar (1990) 51 A Crim R 109 Tran v R [2010] NSWCCA 183 Texts Cited: D. Wetherburn & S. Rahman, The Vanishing Criminal, MUP, 2021 Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497, 2011, BOCSAR Category: Sentence Parties: Matthew Tanti (the offender) Director of Public Prosecutions Representation: Solicitors: Ms E Parkes, Solicitor Advocate, Legal Aid NSW (for the offender) Ms A Kerr (for Director of Public Prosecutions) File Number(s): 2021/00018485 sentence Introduction 1. In May 2020 Matthew Tanti was released to parole. It was not the first time he had been to gaol. He had served a number of short sentences since 2006. He was then 32. He had a wife and two children and skills as a roof tiler. Unfortunately he also had a long term methylamphetamine addiction. By September he was in trouble again. It appears he was using ½ gram a day. He was arrested and bailed for driving while disqualified on both the 5th and 22nd September 2020. In December 2020 he was arrested for goods in custody and drug possession offences. On 18 January 2021 he committed a break and enter offence. 2. On 21 January 2021 Tanti was driving a car south on the Princes Highway near Kembla Grange. The car he was driving belonged to a man police knew was disqualified from driving. Unsurprisingly the car was stopped. Unluckily for him, he too was a disqualified driver. He had been disqualified from driving until 2024. 3. He had even more bad luck. He did not have the owner's permission to take and drive the car. In his pocket he had 8.99 grams of methylamphetamine and $700. A shortened and loaded 12 gauge single barrel break action shotgun was in a bag on the front seat. Its serial number had been defaced. Three extra shotgun cartridges were in the bag. 4. As the police tried to open the car door Tanti drove forward. The car collided with the police car. He then refused requests to get out of the car. Instead, he exited via the passenger door and ran off. With police in pursuit he crossed four lanes of the Princes Highway and jumped a fence into a racehorse training yard. One of the horses was "spooked" and later found to have a leg injury. Tanti was caught trying to climb another fence. After being told to lie down he resisted Constable Nicholls by trying to stand up. 5. He has been in custody ever since. Guilty pleas in the Local Court 1. Tanti engaged in the charge negotiation process in the Local Court. He accepted responsibility for his criminal actions; requiring a reduction of the otherwise appropriate sentences of 25%: s25A Crimes (Sentencing Procedure) Act 1999. As a result of the incident on the 21 January 2021 Tanti is for sentence today for the following Indictable offences: 1. Possess Shortened Firearm: s 62(1)(b) Firearms Act 1996. This offence carries a maximum penalty of 14 years imprisonment. 2. Possess Defaced Firearm: s 66(1)(b) Firearms Act 1996. This offence carries a maximum penalty of 14 years imprisonment. 3. Possess Loaded Firearm in Public Place: s 93G(1)(a)(i) Crimes Act 1900. This offence carries a maximum penalty of 10 years imprisonment. 4. Supply prohibited drug: s 25(1) Drug (Misuse and Trafficking) Act 1985. This offence carries a maximum penalty of 15 years imprisonment. 1. Three related matters are before the Court pursuant to a s 166 Criminal Procedure Act 1986 certificate: 1. Drive whilst disqualified. 2. Negligent driving. 3. Drive stolen conveyance. 1. There are two offences to be taken into account on a Criminal Procedure Act Form 1 attached to the Possess Shortened Firearm offence: 1. Possess ammunition. 2. Not keep firearm safe. 1. There are three offences to be taken into account on a Criminal Procedure Act Form 1 attached to the supply drug offence:- 1. Resist police. 2. Enter enclosed lands. 3. Deal with proceeds of crime. 1. As a result of his other earlier offending Tanti is serving sentences that commenced on 1 February 2021 and expire on 24 October 2022. He is eligible for parole on 24 December 2021. Objective seriousness Firearms 1. Each offence involved a significant breach of the Firearms Act 1996. That Act makes it clear that firearm possession is a privilege that is conditional on the overriding need to ensure public safety. The shotgun's possession posed a significant risk to the safety of the community. It was in working order and readily available for use. The modifications to the shogun, by shortening and the erasure of its serial number emphasised the fact it had no lawful use. Shortened Firearms are particularly dangerous because of their capacity for concealment, making them suited to criminal activity: R v Lachlan [2015] NSW CCA 178. 2. Today, Mr Tanti gave me an explanation for how he came to be in possession of the shotgun. He said he was asked to mind it by a friend. He could not say why and for how long or what the circumstances of his continued possession might be. He said he wasn't thinking because he was under the influence of methylamphetamine. His possession of this weapon while under the influence of methyl amphetamine does not mitigate; to the contrary it makes his possession of it more serious because he was not in a position to think clearly and rationally. 3. The shotgun was loaded. Additional ammunition was to hand. Although it was not used for this purpose there was a risk to police when approaching the vehicle to arrest the offender. It was possessed in a public place; the Princes Highway at 9am on a weekday. At that time the road is busy with members of the public travelling to work and school. 4. The criminality is more serious where the offender possesses a firearm as part of their involvement in a crime. And, as is obvious, Tanti was involved in other crimes: R v Thurgar (1990) 51 A Crim R 109. Firearms if possessed, are liable to be used, and if used, are liable to be a source of great danger or damage. Their possession creates a high risk to the safety of the public and arresting officers: Do v R [2010] NSWCCA 182; Tran v R [2010] NSWCCA 183. Drug Supply 1. Tanti is a long term drug user. He had no legitimate source of income. He had a quantity of methylamphetamine for his own use and for the purpose of supply. It was not a large quantity. And I have no details of how when or why any supply occurred. 2. It bears repeating that the sale of illicit drugs causes considerable harm not just to those who purchase and ingest such drugs but to the community in general. The illicit trade in drugs is one of the principal sources for crime in the community. It is not just the sale of drugs; it is the crimes that are committed by those who seek to obtain funds for drugs and the destruction to family life and personal life that drugs cause. 3. Some drugs have long term physiological effects that dispose the user to violence and aggression. Those who become addicted to drugs turn to crime to fund their drug use. Drug sellers don't rely on courts to solve disputes but often resort to violence: D. Wetherburn & S. Rahman, The Vanishing Criminal, MUP, 2021. Other matters 1. Tanti should not have been diving. He, as he has many times before, drove while disqualified; defying the orders of the Local Court. He did have the owner's permission to be driving that car. He was negligent in his control of the car he was driving. That negligence put others and property at risk. He allowed the car to collide with the police car. Each of these offences was individually serious and requires separate and discrete punishment. Other relevant factors on sentence Maximum penalty 1. While every offence and every offender requires individualised treatment courts must in the exercise of their undoubted discretion take guidance from a number of sources. They include here; the maximum penalties prescribed; the decisions of other courts, particularly those designed to give guidance; and of course, the purposes of sentencing, in particular personal and general deterrence and the protection of the community. 2. The maximum penalties reflect the seriousness of these offences. They are sentencing measures to be balanced with all other relevant factors Form 1 1. The matters on the Form 1 operate to increase the sentence that would otherwise be appropriate for the offence for sentence: Markarian v the Queen (2005) 228 CLR 357. The increase operates to recognise the need for personal deterrence and retribution for the crime for sentence: Attorney General's Application No 1 (2002) 56 NSWLR 146 at [39] – [42]. However, where a matter was also a circumstances aggravating the objective seriousness of a matter for sentence that factor should not be double counted. This is particularly so for the Form 1 attached to the Possess Shortened Firearm offence. Past criminal history 1. Tanti's criminal record dates from 2007. He has committed numerous crimes including; custody of knife in public place, drug offences and driving offences. He is not entitled to the leniency often given first offenders or those without settled criminal habits. 2. He was on bail at the time; another aggravating factor. Fundamental to a receiving bail is a promise not to offend while on conditional liberty. Accumulation and concurrence 1. I will be imposing an aggregate sentence. The various charges seek to encompass the whole of the offender's criminal conduct on the 21 January 2021. This means more than one offence must be charged and punishment exacted for each. As was made clear in Pearce v The Queen (1998) 194 CLR 610 at [40]: "To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. … [T]he punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts." 1. This aggregate sentence must also sit with the other sentences imposed on Tanti while he was awaiting a hearing in this court. I note that in the main matter a substantial finding of special circumstances was made by the Local Court: s 44(2) Crimes (Sentencing Procedure) Act 1999. 2. He must have the benefit of 11 days served solely in relation to these matters: s24 Crimes (Sentencing Procedure) Act 1999. 3. I am required to indicate an appropriate sentence for each offence and to structure the sentences such that the aggregate sentence and time in custody is just and appropriate to the totality of his crimes: Mill v The Queen (1988) 166 CLR 59 at 62-63. This includes the sentences imposed by the Local Court. 4. Each indicated sentence must be reduced by 25%. I must take care that the process of accumulation does not erode that benefit. 5. Each count involved discrete acts of criminality however each count had some common features and the purposes of sentencing apply to each and those purposes overlap. The sentences should be partly cumulative but some require considerable concurrence: Cahyadi v Regina [2007] NSWCCA 1 (2007) 168 A Crim R 41. In particular I note that, the three firearms matters have a common element - the shotgun. To give proper effect to Pearce v The Queen I cannot punish twice where those elements overlap. COVID-19 1. The present crisis has increased apprehension by prisoners about infections in gaols as it does in the community in general. As a community we are being asked, urged and compelled to self-isolate. This cannot happen in a gaol. Social visits were suspended for over a year reducing any capacity to remain in direct contact with pro-social friends and family. They had only just resumed, only to be stopped again. Access to telephone calls and AVL links has increased. 2. COVID-19 has not entered our gaols. Tanti falls into a category that might be considered for early parole if it does: s276 Crimes (Administration of Sentences) Act 1999. The offender has endured over a year of such restrictions. He faces them now. He may face them again. The lack of visits, and that heightened anxiety and concern, are relevant factors that must be synthesised along with all other matters. Subjective case 1. I have the benefit of a comprehensive Psychosocial Assessment by Ms Seers from Legal Aid NSW. Mr Tanti gave evidence confirming the history he gave her. I also have letters from his wife and mother. 2. His mother has noticed a positive change since he last went into custody. He is now committed to undertaking rehabilitation in and outside of gaol. She will support him if he maintains this change of attitude. His wife expressed similar sentiments. She too has noticed changes; particularly his desire to address his addiction. If he is genuine in his desire for change she will support him and he is welcome to return home to her and his children. She is excited to see the new and improved Matthew. 3. In his evidence today Tanti told me that he had only just picked up the shotgun that he was minding for a friend. He was high on drugs and wasn't thinking clearly. He could not offer any other explanation. 4. He told me he has finally realised he can't continue to use drugs. He also realises he can't achieve change on his own. Since he came to the South Coast Correctional Centre as a sentenced prisoner is engaged in programmes. He has started Narcotics Anonymous (NA) meetings and has done the EQUIPS foundation program. He is ready for more programmes. He expressed insight into the impact of his offending on his family. He has missed most of the milestones in his daughter's lives. He said he was sorry for what he did and in particular for the police who must have been scared when they found the shotgun. 5. That a person committed the offences while suffering from the impact of drugs taken because of a long term addiction cannot excuse their crimes. The fact of addiction and its consequences, how it came about and what is to be done about it may however be taken into account as a factor relevant to the sentencing. It allows me to understand why he did what he did and continued to do it. And, to understand his state of mind and capacity to exercise sound judgment. It can also explain the impulsivity of the offence and the extent of any planning for it. It is relevant here and provides assistance to the offender's subjective case as the origin or extent of the addiction, and any attempts to overcome it, impact upon the offender's prospects of recidivism or rehabilitation: Henry v R (1999) 46 NSWLR 346. 6. Ms Seers suggests that despite a nurturing and supportive family his parent's divorce when he was 11 and subsequent loss of emotional supports predisposed Tanti to the abuse of alcohol and other drugs, such as methylamphetamine. He told her despite all the pain it has caused his family he has not, until recently, seen his drug use as a significant issue. 7. Although he has the capacity to work and a family who need him, Tanti continually falls back into drug use and crime when "things get hard." The longest drug free period since he was a teenager seems to have been 18 months in 2019-2020. As his family will not tolerate drug use he then associates with other drug users and criminals and as his record makes clear ends up back in gaol. Although there are periods he has remained drug free this has been the pattern of his life to date. At present she says he has "not developed resilience, a positive self-worth or adaptive coping mechanisms to manage life's stressors." 8. Ms Seers suggests that if the pattern is to be broken he will need psychological/cognitive assessment and he would benefit from Dialectical Behaviour Therapy and Cognitive Behaviour Therapy. He is a candidate for a residential drug rehabilitation service and would benefit from the SMART recovery programmes. Submissions 1. Ms Kerr, Solicitor, for the Director of Public Prosecutions, submits a sentence of full-time imprisonment is the only appropriate sentence. She noted that an important aspect of Firearm offences is general deterrence, citing El Jamal v R [2017] NSW CCA 243 at [35]-[38]. She asked that I give appropriate weight to the effects drug supply has on the community. While acknowledging the community would benefit if Tanti was able to deal with his long term methylamphetamine addiction she submitted that the court would be guarded as to his prospects for rehabilitation. 2. Ms Parkes, Solicitor for Tanti, takes no issue with Ms Kerr's summary of legal principles. She however puts emphasis his recent active engagement in rehabilitation programs. She submits that this is "better late than never" and indicates some insight and acceptance of responsibility and remorse. She asks that I structure a sentence designed to encourage these early signs of reform. Synthesis 1. Tanti seems to have shown some insight into his offending. He does not want to lose the support of his family but that support is conditional. He must earn it by positive action. While I accept he has failed before, Tanti must be released and the longer he is supervised the better. His prospects are guarded but if he is ever to change now is the time, while he still has support from pro-social family members. That, and the fact this sentence will be partially accumulated on the sentences imposed in the Local Court, require a finding of special circumstances. 2. I will allow Tanti a lengthy period of supervised parole so that he can engage in rehabilitation and psychological treatment in the community under the supervision of Community Corrections. But his crimes were so serious that he must still spend a substantial period in custody before being eligible for release. That minimum period must also properly reflect the seriousness of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59]. 3. It important to note that studies reveal that offenders who received parole supervision upon release from custody take longer to commit a new offence, were less likely to commit a new indictable offence and committed fewer offences than offenders who were released unconditionally into the community: Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497, 2011, BOCSAR. 4. I must return to what Tanti did this day. His offending represents an escalation of his criminal activity. His possession of the shotgun and the circumstances of its possession, in particular, posed a real risk to our community and the police. To his credit he did not seek to use the gun but he did not submit to arrest either. He must be appropriately punished for all that he did that day. Orders 1. I indicate the following sentences 1. Possess shortened firearm, taking into account the matters on the Form 1, I indicate a sentence of 3 years. 2. Possess defaced firearm, I indicate a sentence of 1 year 6 months. 3. Possess loaded firearm in public place, I indicate a sentence of 2 years 3 months. 4. Supply prohibited drug, taking into account the matters on the Form 1, I indicate a sentence of 1 year 10 months. 5. Drive whilst disqualified, I indicate a sentence of 4 months. 6. Negligent driving, I indicate a sentence of 3 months. 7. Drive stolen conveyance, I indicate a sentence of 1 year 1 month. 1. The total aggregate sentence is 4 years 6 months. There will be a non-parole period of 2 years 6 months commencing 21 August 2021 and expiring 20 February 2024. The balance of the sentence of 2 years is to commence upon the expiration of the non-parole period on 21 February 2024 and expiring on 20 February 2026. 2. You will be eligible for consideration for release to parole at the expiration of the non-parole period on 20 February 2024. 3. For the Drive while disqualified, you are disqualified from driving for a period of 2 years from today. 4. Pursuant to s 18 (1) of the Confiscation of Proceeds of Crime Act 1989, I order that the sum of $700 be forfeited to the State. 5. I make firearms destruction orders. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 August 2021