District Court New South Wales Medium Neutral Citation: R v Baxter [2017] NSWDC 320 Hearing dates: 3 November 2017 Date of orders: 03 November 2017 Decision date: 03 November 2017 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to an aggregate term of imprisonment consisting of a non-parole period 0f 6 years with a head sentence of 9½ years Catchwords: CRIMINAL LAW – Sentence – Form 1 – Supply indictable quantity of methylamphetamine – Attempting to supply a prohibited firearm – Possess a prohibited firearm – Not keep firearm safely – possess ammunition without holding a licence or permit – Offender on parole at time of offending. Cases Cited: Jadron v R [2015] NSWCCA 217 R v De Simoni (1981) 147 CLR 383 Category: Sentence Parties: The Crown Jamie Baxter Representation: Solicitors: Director of Public Prosecutions – The Crown Lambton Law Pty Ltd – The offender File Number(s): 2016/239913 SENTENCE 1. HIS HONOUR: There are two particular features in the case of Jamie Baxter which point towards leniency being offered to him, but against that is the circumstance that he is being sentenced today for four very serious offences. The two particular factors suggesting leniency concern what led him to become seriously involved in drug use which then led to drug supply, are, first, the untimely death of two members of his family in short succession and secondly the fact that Mr Baxter is doing remarkably well in prison, being well respected and, apart from using a sleeping tablet on one occasion, not using any drugs. 2. But he must, even despite those features, spend a significant time in custody because of what he did and what his behaviour demonstrated about his attitude towards the law. The events that I am about to describe occurred whilst Mr Baxter was on parole and, more specifically, on parole for a number of offences relating to firearms. 3. The offender was part of a drug dealing network together with a man by the name of Brendan Hosking. Mr Hosking was supplying drugs to Mr Baxter who was then on-supplying the drugs to other customers. A number of telephone calls and messages were monitored by police in the relatively short period between 29 July 2016 and 9 August which revealed that the offender had received and sent a total of 4,447 SMS messages, a large number of which related to the supply of methylamphetamine and the collection of money owed for the supply of methylamphetamine. It is agreed between the parties that the offender supplied approximately 210 grams of that drug to numerous different customers in that period. 4. Mr Baxter was deeply involved in the supply of drugs. In that short time he supplied a significant quantity of methylamphetamine and he must have had a significant number of customers. I should emphasise that an authority from the Court of Criminal Appeal Jadron v R [2015] NSWCCA 217 says, that I can, and the parties both ask me to, take into account all of the agreed facts when assessing the objective gravity of the offence I have just described, despite my concern that in doing so I would be breaching the rule in De Simoni v R (1981) 147 CLR 383. 5. The offender is to be sentenced for an offence of supplying an indictable quantity of methylamphetamine, carrying a maximum penalty of 15 years' imprisonment for the offence I have just described. 6. The next offence was also discovered through the use of Mr Baxter's telephone calls and messages being intercepted. On 8 August he tried to sell a firearm to Mr Hosking. He said, "...I'm selling that bike plus I got real nice bang-bang if you want it too, bro...". Discussions ensued between the offender and Mr Hosking - I interpose to note that one of those messages actually made reference to the fact that the offender was on parole at the time - until police detained and searched the offender and discovered a sawn-off 12-gauge shotgun. It is that firearm which the offender was attempting to supply. 7. The offender has pleaded guilty to two offences arising out of that; attempting to supply a prohibited firearm, carrying a maximum penalty of 14 years, and possessing a prohibited firearm also carrying a maximum penalty of 14 years, but this carrying a standard non-parole period of four years. There is, substantial overlap between the two offences. It is the one firearm involved on each occasion. 8. This is, of course, a particularly serious offence. A sawn-off 12-gauge shotgun has no legitimate purpose. Its only use is that such a weapon is useful in the course of criminal activity. I should mention at this stage that when I sentence the offender for the offence of possessing the unauthorised prohibited firearm he asks me to take into account two other offences on a Form 1. The first is that he did not keep that firearm safely and the second is that he possessed ammunition for that firearm without holding a licence or a permit. 9. In assessing the objective gravity of the attempt supply prohibited firearm, I will take into account that it was an attempt and not a completed supply. Although the maximum penalty for an attempt is the same as the maximum penalty for a successful supply, clearly the latter is more objectively serious than the former. 10. The final offence that I have to specifically sentence Mr Baxter for is another offence of supplying methylamphetamine. This related to the comparatively small, but nevertheless significant, amount of 22 gram of methylamphetamine which was found in the offender's bedroom when they searched it. By his plea he admits that those drugs were in his possession for the purposes of supplying them. 11. So we have an offender who was deeply involved in the supply of prohibited drugs and who, whilst on parole for firearms offences, committed another firearms offence. Indeed, this is the third set of offences committed by the offender involving firearms. At least at the time he committed these offences he was demonstrating a continuing attitude of disobedience towards the law. 12. It is a seriously aggravating feature that the offender was on parole, as I have mentioned even referring to that in the course of an SMS message, at the time he committed this offence, but in order not to double count, I will commence the sentence that I will eventually announced on the offender from 9 August 2016 despite the fact that he has been serving the balance of parole of an earlier sentence at least for some part of the time since then. 13. Although Mr Baxter's parents separated when he was quite young, he was raised in an otherwise supportive environment. He has had regular contact with his birth father and he told a psychiatrist that his mother, step-father and birth father are the best of friends, with his birth father visiting him in prison twice a month. 14. Although he was using drugs before his brother died, his drug use escalated dramatically after his brother died in 2011 and his sister died relatively shortly thereafter. It is commonplace to learn that a person who begins to use drugs begins associating with other criminals and that together they become involved in very serious offending. That is the case here. 15. Mr Baxter recognises that he needs to, himself, do something about his life if he wants to avoid being the sort of person he must see in gaol on a regular basis, a person who has spent most of their adult lives in gaol. He has done things to better himself whilst in custody. He recognises that on his release from custody he has to avoid hanging around with the wrong crowd. 16. He has prospects for his future upon his release from custody. Evidence suggests that he is working in prison and has been able to do that since his incarceration through his honesty and hard work ethic. It appears that he has gained the respect of both officers and inmates at Cessnock Gaol. 17. He expressed his remorse while giving evidence today, saying that he deeply regretted all his actions. He has done other things as well to demonstrate remorse. I discussed those with Mr Hanlon, who appears for the offender, in the course of submissions. 18. He is currently serving his sentence on protection as a result of receiving a threat of violence from another inmate. I will take into account that circumstance as well as the risk that he will serve the entirety of his sentence on protection and the associated risk that that will involve harsher conditions of custody than would otherwise have been the case. 19. Consistent with his expressions of remorse, he pleaded guilty at the earliest opportunity and so the sentence I impose upon him will be approximately 25 per cent less than it would otherwise have been. I have taken into account the maximum penalties and, where appropriate, the standard non-parole period for these offences. My reasons for not imposing the standard non-parole period on the possess prohibited firearm matter appear in these remarks on sentence. 20. I note that he has family in support of him today including his partner, with whom he has a young child. That is another factor which suggests that there are prospects for the future and that there is hope, especially with some assistance, that Mr Baxter will no longer mix with the wrong crowd and will put his offending days behind him. If he is able to do that, he will have a happier life and if he is able to do that, he will not cause harm to members of the community in the future. 21. For this reason I have decided to make a modest finding of special circumstances in the offender's favour, not as a favour to him, but because I want to do as much as I can to ensure that he does not commit offences in the future. If he is able to change his life around, then the community benefits, not just Mr Baxter. 22. I will impose an aggregate sentence of imprisonment. Were I not to have done so, I would have imposed the following sentences. For the offence of supplying methylamphetamine, that relating to the approximately 210 grams of methylamphetamine, a sentence of six years' imprisonment. For the offence of attempting to supply a prohibited firearm, a sentence of imprisonment of six years. For the offence of supplying methylamphetamine, that relating to the 22 grams, a sentence of imprisonment of two years. And for the offence of possessing the shortened 12-gauge shotgun, a sentence of imprisonment of five years with a non-parole period of two and a half years. 23. Instead, I impose a sentence consisting of a non-parole period of six years to date from 9 August 2016 with a head sentence of nine and a half years. The non-parole period will expire on 8 August 2022 on which day Mr Baxter is eligible to be released to parole. ********** 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: 14 November 2017