New South Wales District Court CITATION: Regina v Christopher Mallia [2007] NSWDC 324 HEARING DATE(S): 30/11/2007 JUDGMENT DATE: 30 November 2007 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ at 1 DECISION: Overall sentence of three years and six months with a non-parole period of two years and three months. CATCHWORDS: Criminal law - Sentence - Manufacture pseudoephedrine - Supply amphetamine - Firearms offences - Range of objective seriousness - Rehabilitation - Partial accumulation of sentences ss 24(1), 25(1), 29 Drug Misuse and Trafficking Act 1985 ss 61(1)(b), 65 Fireams Act 1996 LEGISLATION CITED: s7(1) Weapons Prohibition Act 1988 s32 Crimes (Sentencing Procedure) Act 1999 ss 154J, 527C Crimes Act 1900 PARTIES: Regina Christopher Mallia FILE NUMBER(S): 07/21/1162 SOLICITORS: Ms Summerfield for the NSW DPP Mr Conomos for the offender JUDGMENT 1. I am sentencing Christopher Mallia for a series of drug and firearm offences. The issues which I need to address are how serious each of these offences is, to what extent the sentences should overlap and the significance of the factor of rehabilitation. 2. On 26 October 2006 the police entered a house or a unit in Whalan where Mr Mallia was living. They had a search warrant. They located drugs, weapons, cash and other items. The weapons were a shortened shotgun and what I shall refer to as a stun gun. The drugs were methylamphetamine. What was found amounted to 9.16 grams, 7.1 grams of which had a purity of 77 per cent. Those 7.1 grams were estimated by a police expert to have the potential of producing just over $2,800 if sold on the street. They also found just under 90 grams of a substance containing paracetamol. The evidence is that this kind of substance is commonly what's left behind when cold and flu tablets are used in an illegal attempt to manufacture methylamphetamine. Amongst the items found were 256 cold and flu tablets. In addition and related to the firearms were a number of shotgun shells and bullets. 3. Mr Mallia was arrested and taken to the police station. He participated in an interview. He admitted possession of the shortened firearm, the stun gun, the ammunition, the drugs and the cold and fly tablets. He admitted to having attempted a chemical extraction of pseudoephedrine the previous night. Pseudoephedrine is the substance which is used in the manufacture of methylamphetamine. 4. Arising from what was found, Mr Mallia was charged with five offences. He was charged with manufacturing a prohibited drug, namely pseudoephedrine. That is an offence under the Drugs Misuse and Trafficking Act 1985. It carries a maximum of fifteen years imprisonment. The relevant section creating the offence is section 24(1). In addition he was charged with supplying a prohibited drug, namely methylamphetamine. That is an offence under section 25(1) and section 29 of the Drugs Misuse and Trafficking Act. It is commonly known as deemed supply. He was charged with possessing a shortened firearm: that was the shotgun. That is an offence under section 62(1)(b) of the Firearms Act 1996. It carries a maximum of ten years imprisonment. As it happens the shotgun was unregistered so he was charged under section 36(1) of the Firearms Act with possessing an unregistered firearm. That carries a maximum of five years. Finally he was charged with possessing a prohibited weapon. That related to the stun gun. He had no permit so it was an offence under section 7(1) of the Weapons Prohibition Act 1998. That carries a maximum of fourteen years imprisonment. 5. In addition to those charges he was charged with three other offences which I will name in a moment. Those offences I am asked by Mr Mallia to take into account when I am sentencing him for the five main offences. That procedure is provided for by section 32 of the Crimes (Sentencing Procedure) Act 1999. The three offences are possessing ammunition without holding a licence contrary to section 65 of the Firearms Act and knowingly possessing an identity plate not on the correct vehicle. That is an offence against section 154J of the Crimes Act 1900. Finally he was charged with goods suspected of being stolen. That is an offence against section 527C of the Crimes Act. As I said they will be taken into account. I indicated in sentencing him for the other matters. That is an error: I will take those additional offences into account when I sentence him on the charge of manufacturing the prohibited drug. 6. Mr Conomos who appeared for Mr Mallia called his client to give evidence. He has been in custody since his arrest on 26 October 2006. He commenced a drug rehabilitation course in custody. He attended three or four times but discontinued. He explained that that was because he moved areas within the prison. He moved from a non-working to a working area. He found that his name was not included on the list of those undertaking the course, however he appears to have made little or no effort to find out whether he could continue the course in some way or other. He says that he has been drug free since he has been in prison despite on one occasion refusing to produce a urine sample. He explained that he was not in a position to urinate because he had just been to the toilet. 7. He said that his intention was that the manufacture of pseudoephedrine was to produce amphetamines for his own use and that the methylamphetamines were also for his own use. He has a four year old daughter who was born on 20 March 2003. In custody he has been affected by the fact that he finds that there are younger men than he is in gaol with him for drug offences. Mr Mallia comes from a strong and supportive family. His parents and aunt are present in court, his elder brother has employed him in the past and has indicated that he will re-employ him when he is released from custody. 8. Mr Mallia has a qualification in wall and floor tiling. When cross-examined about the stun gun he said that he had it simply to play with. Some people sold it to him, he did intend to use it otherwise than to play with it around the house. As for the shotgun he said that was for a specific purpose. The woman he was living with at the time had an ex-boyfriend. The ex-boyfriend had broken into the house and threatened violence at some stage. Mr Mallia said he purchased the shotgun in order to protect them from any future violence. He said that despite his involvement in the drug culture he had not resorted to violence. The Crown acknowledged that there was no evidence of any use by him of the firearms. 9. Two documents which were tendered into evidence provide more personal background concerning Mr Mallia. The first is the Pre-Sentence Report dated 20 November 2007. It notes a long history of drug abuse. He apparently started when he was eighteen years old. Mr Mallia is now 27, having been born on 23 September 1980. He attempted drug rehabilitation in the public hospital system but that was not successful despite trying for some years. He told the officer that he was not and never had been a drug dealer and that his efforts to produce amphetamines were to support his own habit. He expressed his shame for the offending behaviour. He noted that he'd been reprimanded on 19 November 2007 for damaging or destroying property. He explained that in evidence as it being related to obtaining some silicone which he had taken to his cell for a particular purpose. The report noted that despite being in gaol for some twelve months, he had done little to address his substance abuse issues. Following from that observation the author raised a concern about Mr Mallia's ability to address those issues whilst at liberty. 10. The second source of personal information is a report from a psychiatrist Doctor John Albert Roberts dated 26 November 2007. It recites much of the information which Mr Mallia himself gave in evidence or which is contained in the Pre-Sentence Report. It too noted an acknowledgment by Mr Mallia that he had done the wrong thing and a need for rehabilitation. It noted that he had in mind his daughter. It confirmed what Mr Mallia said that his intention is to resume his relationship with the mother of his four year old daughter. That is not the same person whom he was living with at the time of these offences.Mr Mallia himself said in evidence that it is his intention once he is released to spend time with his daughter, to become re-employed and to concentrate on the relationship between him and the mother of his daughter. 11. Doctor Roberts diagnosed a significant substance dependency disorder which resulted in Mr Mallia becoming involved in the drug sub-culture. It noted his mental status was in normal limits. Doctor Roberts suggested that Mr Mallia should undertake a treatment program once he has been released. It should specifically relate to his substance abuse. Doctor Roberts was of the opinion that such a program should last four a minimum of two years. It should involve him seeing a psychiatrist of his choice. Doctor Roberts thought his prognosis was enhanced by his ability to stay off drugs whilst in custody, the support which he is receiving from his family and the ability to pursue a trade once he is released. He thought his motivation would be enhanced by being involved in a treatment program. It recommended such a program be made a feature of any conditional release. 12. I have read a letter from Mr Mallia's brother Jason Mallia who confirmed that he would offer his brother employment once he was released from custody. Mr Mallia has a criminal record. In 1999 he was convicted of possessing a knife in a public place, maliciously damaging property and resisting arrest as well as possessing implements for breaking into a car. He received a bond. He explained that the reason for his possession of a knife was the bad area where he had been located. Over the years he has been convicted of offences fairly regularly. They include larceny and traffic offences. One offence in 1994 involved the possessing of a prescribed restricted substance. 13. It is appropriate at this stage to make two observations. They are unrelated. The first is that the criminal record which I have just referred to will not aggravate or increase Mr Mallia's sentence but it deprives him of the mitigating factor of a good character in coming before the court for sentence. The second observation is that in sentencing him for the supply of prohibited drugs, I sentence him on the basis that he possessed those drugs for the purpose of supply. That is an essential component of the offence despite his evidence that the drugs were for his own use. 14. I need to assess how serious these offences were. So far as the drug offences are concerned I accept that the possession of the drugs which led to the supply charge was not for greed but for need. The possession was for the purpose of supply but I accept Mr Conomos's submission that Mr Mallia was not a professional criminal but a man seriously addicted to drugs who got involved in the drug milieu or became inevitably involved in the drug milieu. The deemed purpose of sale or supply was to support this drug habit. The fact that he was a drug addict does not mitigate the offence but it does put the seriousness of the offence into context. I am not sentencing a drug free man who is in the business of regularly supplying drugs. I am sentencing a relatively young man who was seriously addicted and needing to support his own habit. The possession for the purpose of supply was of an amount which was a small portion of the commercial quantity, the commercial quantity being some 250 grams. Nevertheless it was above, significantly above, the trafficable amount. I also accept the submission of the prosecution that the eventual dissemination of these drugs into the community had the potential for significant harm. I acknowledge though that that factor follows from the nature of the offence, rather than as an additional aggravating factor. 15. As for the firearm offences I regard the possession of the shotgun as for a hostile purpose. Mr Mallia acknowledged as much in admitting that he had the shotgun for the protection of himself and his partner. However I also accept that the weapons were not used, although there was ammunition present as well. I have to bear in mind in this regard that I am sentencing him or at least taking into account an offence of possessing ammunition. Nevertheless the weapons were capable of being used. 16. I regard the drug offences as towards the lower end of the range of objective seriousness. The main factors which draw me to that conclusion are the amounts involved and the fact that Mr Mallia was himself a drug addict supporting his own habit. Nevertheless I need to bear in mind that parliament has fixed a maximum penalty of fifteen years in respect of each of those offences. 17. I also regard the firearms offences as towards the lower end of the range of objective seriousness. The single most serious factor is the fact that the shotgun was possessed for an acknowledged serious intent or hostile purpose. I think it likely that the Crown's submission is right, that the weapons were connected with the drug activity. However that would be an aggravating factor and the highest which in fairness the Crown could put it was that the weapons were found in the context of drug activity. I cannot be satisfied beyond reasonable doubt that that is a factor which I should take into account as aggravating those offences. 18. I regard Mr Mallia's prospects of rehabilitation as guarded. I say guarded because he has previously been unsuccessful in undertaking a drug rehabilitation course some years ago and because of an apparent lack in motivation in undertaking or persevering with the course in prison. On the other hand I accept the submission of Mr Conomos that it is relatively speaking early days and it may take his client some time to understand the significance of what he needs to undertake. Mr Conomos acknowledged as his client did the fact that, being aged 27 it was important that he undertake some serious rehabilitation. I therefore conclude that his prospects of rehabilitation are, as I said, guarded. I am hopeful that he will - and I will make provision in my sentence for a recommendation to the effect that he should undertake the kind of course suggested by Doctor Roberts. I take into account the fact that the time in custody has already had an impact which has hopefully done him some good. I take into account that he has shown some remorse: he has acknowledged that before me and people who have interviewed him. Realistically as the Crown says though, that was in the face of a very strong prosecution case. 19. I take have taken into account the submissions of Mr Conomos and Miss Summerfield who appears for the prosecution. I have read the statistics produced by the Judicial Commission which were attached to Miss Summerfield's submissions and the material from the Public Defenders' database. 20. One thing which is important to mention at this stage is that Mr Mallia pleaded guilty at the earliest available opportunity. That was acknowledged by the Crown. I propose to allow him the full 25 per cent discount for that plea of guilty. In pleading guilty he has facilitated the administration of the law and enabled the process of the law's response to this criminal behaviour to proceed with some speed. 21. I turn now to the question of the penalties, although not formally sentencing him yet. As for the offence of manufacturing a prohibited drug, I take into account on this offence the matters which are listed on the Form 1. Taking those matters into account I would regard an overall sentence as five years as appropriate. However I propose to discount that by 25 per cent and allow an extra discount for the expression of remorse which Mr Mallia has indicated. I therefore regard an appropriate overall sentence for that offence as three and a half years. I propose to fix a non parole period of two years. For the offence of supplying a prohibited drug I regard an appropriate overall sentence as four and a half years. For the same reasons I discount that to three years and I propose to fix a non parole period of eighteen months. For the offence of possessing a shortened firearm I regard an appropriate overall sentence as two and a half years but I propose to reduce that to two years with a non parole period of one year, which to some extent will be cumulative by three months on the penalties for the drug offences. As for the offence of possessing the unregistered firearm I regard an appropriate penalty is nine months which I will discount to six months. As to the offence of possessing a prohibited weapon, that is the stun gun, an appropriate penalty is two and a half years which I propose to discount to two years with a non parole period of one year. 22. Now Mr Mallia if would stand up. I am going to first explain to you just the overall sentence so you understand and then I have actually got to formally impose the sentences on you but I want you to understand first how you're going to end up. Your overall sentence will be three and a half years, it commenced last year when you were arrested on 26 October 2006 and it will finish on 25 April 2010. There will be an overall non parole period, the time you must stay in gaol before you can be considered for release, of two and quarter years, two years and three months from the date that you were arrested, 26 October 2006 and that will expire on 25 January 2009. So the first date on which you will be eligible for release will be just over a year from now, a year and two months, you will be eligible for release on 25 January 2009. Do you understand that? OFFENDER: Yeah. 23. Now remain standing. I have to sentence you formally in respect of each of these offences but what I have just explained to you is the outcome of them all, the bottom line so to speak— CONOMOS: Your Honour before you do that, with unfamed respect, do you want to mention anything about special circumstances? HIS HONOUR: Yes I was going to do that-- CONOMOS: I just didn't want you to be -- HIS HONOUR: I realised when I was explaining it to him. CONOMOS: I'm sorry your Honour, it's my duty to— HIS HONOUR: No you're quite right, I understand that Mr Conomos. 24. For the offence of manufacturing a prohibited drug contrary to section 24 of the Drugs Misuse and Trafficking Act 1985. I sentence you to three years and six months from 26 October 2006 to 25 April 2010. There will be a non parole period for the manufacturing of prohibited drugs of two years to commence on 26 October 2006 and to expire on 25 October 2008. CONOMOS: Your Honour did say to two and a quarter years previously. HIS HONOUR: I did and that's for the, one of the firearms that's the accumulation. CONOMOS: -- all right. HIS HONOUR: It's coming. CONOMOS: Okay. 25. Accordingly the balance of the term for the manufacturing of prohibited drugs is one year and six months from 26 October 2008 expiring on 25 April 2010. I note that the non parole period is less than the statutory ratio of 75 per cent, that is because I have taken into account what I regard as special circumstances, namely the need for Mr Mallia to undertake and extensive rehabilitation course during his parole period. 26. In respect of the offence of supplying the prohibited drug, section 25 of the Drug Misuse and Trafficking Act, I sentence you to a total period of three years, that is to date from when you were arrested 26 October 2006 and it will expire on 25 October 2009. That will be made up of a non-parole period of one year and six months from 26 October 2006 when you were arrested, expiring on 25 April 2008 and the balance of the term will be one year and six months from 26 April 2008 expiring on 25 October 2009. 27. I turn now to the firearm offences. In respect of the offence of possessing a shortened firearm, again section 62 of the Firearms Act 1996, I sentence you to a total term of two years, that is to date from 26 January 2008 and to expire on 25 January 2010. That will be made up of a non-parole period of one year to date from 26 January 2008 and to expire on 25 January 2009 and a balance of the term of one year to date from 26 January 2009 and to expire on 25 January 2010. Once again with that offence as with the deemed supply offence I have reduced the non-parole period from the statutory period because of the same finding regarding special circumstances. 28. As for the offence of possessing the unregistered firearm, contrary to section 36 of the Firearms Act I sentence you to a fixed term of six months to date from 26 January 2008 and to expire on 25 July 2008. 29. As for the offence of possessing a prohibited weapon against section 7 of the Weapons Prohibition Act 1998 I sentence you to a total term of two years to date from 26 January 2008 and to expire on 25 January 2010. There will be a non parole period of one year to date from 26 January 2008 and to expire on 25 January 2009 and a balance of the term of one year to date from 26 January 2009 and to expire on 25 January 2010. Once again with that offence I have found special circumstances. I recommend that on your release on parole that the parole authority consider making it a condition of your release that you undertake the kind of drug rehabilitation course recommended by Doctor Roberts and the kind of treatment which he recommended and I direct that the report of Doctor Roberts accompany you to the relevant prison authorities. 30. Now in a moment I will make sure, have a seat Mr Mallia, I'll just make sure that he understands that but Miss Summerfield and Mr Conomos are there any formalities-- CONOMOS: The mathematics are correct your Honour, what you've done is you've jumped up the weapons offences for by three months? HIS HONOUR: Correct. CONOMOS: That's fair enough, the maths are correct your Honour and the overall dragnet is 26 October 2006 until 25 April 2010 and if he behaves himself he gets out on parole on 25 January 2009. HIS HONOUR: That's correct. Miss Summerfield are you still doing your sums? SUMMERFIELD: I'm just working out the earliest release date your Honour but that's been indicated in your sentence. CONOMOS: Yes 25 January 2009. HIS HONOUR: 25 January 2009: it's the date attached to the possess shortened firearm where I sentenced him to two years with a year non-parole period to date from 26 January 2008 to 25 January 2009. SUMMERFIELD: Thank you your Honour. HIS HONOUR: And as Mr Conomos said that is accumulated by three months. CONOMOS: But run current with each other. HIS HONOUR: Yes I've just got to check with both of you that there are no more formal orders I need to make because the sentence is over-- CONOMOS: No your Honour, you've indicated that you take the Form 1 matters into account. HIS HONOUR: I have. CONOMOS: You did that earlier in your judgment. HIS HONOUR: I did, special circumstances I have indicated-- CONOMOS: Yes now do they want any forfeiture of weapons, that's all I'm concerned about-- HIS HONOUR: That's the kind of thing I have in mind. SUMMERFIELD: Yes your Honour I'd be seeking an order to destroy the drugs and for the forfeiture of the $805 dollars cash which is the subject of the Form 1 goods in custody charge and also for the back up charges to be dismissed. HIS HONOUR: All right. CONOMOS: That's not opposed your Honour, that's what should happen. 31. All right I make an order that the drugs be destroyed, I make an order for the forfeiture of the $805 cash. SUMMERFIELD: And indeed the weapons. CONOMOS: The weapons and cartridges your Honour. HIS HONOUR: As well as the weapons and the ammunition. SUMMERFIELD: I've actually placed it on the end of the brief. CONOMOS: What certificate is this Ms Crown? SUMMERFIELD: Section 166. CONOMOS: Oh yes that's fair enough. 32. The back up offences which are attached to item 17 in exhibit A are dismissed pursuant to section 166 and I think 167 of the Criminal Procedure Act 1986. Now does that conclude - any other formal orders I need to make? SUMMERFIELD: There aren't your Honour, the only other matter to deal with is the sentence in relation to the matter also on the section 166 certificate which is a related offence. HIS HONOUR: The related offences. SUMMERFIELD: Of organised drug premises which is sequence-- CONOMOS: That's sequence 6 your Honour. SUMMERFIELD: On that same certificate. HIS HONOUR: What about the possess ammunition knowingly possess identity plate and goods in custody, they were on the Form 1? CONOMOS: They were on the Form 1 your Honour. HIS HONOUR: So-- CONOMOS: Would your Honour just impose a summary sentence and run it concurrent and backdate it please. HIS HONOUR: Yes. CONOMOS: Might I suggest with unfeigned respect that a fixed period of six months from 26 October 2006. HIS HONOUR: What's the maximum? SUMMERFIELD: The maximum penalty is twelve months imprisonment and or fifty penalty units. HIS HONOUR: All right for the offence-- CONOMOS: I pitched it half way your Honour. 33. Yes I was going to do even better than that. For the offence of organising drug premises contrary to section 36Z of the Drug Misuse and Trafficking Act I sentence Mr Mallia to three months imprisonment, a fixed term to date from 26 October 2006. I have sentenced him to a period of less than six months because I regard the offence as serious and warranting a custodial sentence and I have also taken into account that he is also serving a custodial sentence. Any other formalities? CONOMOS: No your Honour that completes the formalities. SUMMERFIELD: No there's not your Honour. 34. All right now Mr Mallia, I am sure Mr Conomos is going to explain it and somebody in the registry will explain it but it's my obligation to make sure you do understand the sentences which I have imposed. The overall sentence is three and a half years from when you were arrested, from 26 October last year and that will finish on 25 April 2010 and the non parole period during which you have to be in gaol is from the date of your arrest 26 October 2006 and that expires on 25 January 2009. And as I heard Mr Conomos say to you, it's important that you remain well behaved in custody because it's the parole authority not me who decides whether or not you will be released on 25 January 2009. They may keep you in gaol until 25 April 2010 so it's very important that you behave yourself in custody so that that earliest date that you're eligible, 25 January 2009, you increase your chances of being released on that date. Do you understand that? OFFENDER: Yes your Honour. oOo 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.