District Court New South Wales Medium Neutral Citation: Regina v DEBNAM, Anthony Charles [2018] NSWDC 139 Hearing dates: 17 May 2018 Date of orders: 07 June 2018 Decision date: 07 June 2018 Jurisdiction: Criminal Before: His Honour Judge Lerve Decision: Sentenced Catchwords: SENTENCE – firearms offences – mental health issues Legislation Cited: Criminal Procedure Act, 1986 Crimes (Sentencing Procedure) Act, 1999 Drug Misuse and Trafficking Act 1985 Firearms Act, 1996 Cases Cited: The Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 NSWLR 146 Aslan v R [2014] NSWCCA 114 Cahyadi v R [2007] NSWCCA 1 De Simoni v The Queen (1981) 147 CLR 383 DJ v R [2017] NSWCCA 319 Jeffree v R [2017] NSWCCA 72 Lachlan v R (2015) 252 A Crim R 277; [2015] NSWCCA 178 Laspina v R [2016] NSWCCA 181 Muldrock v The Queen [2011] HCA 39; (2011) 212 A Crim R 254 Ngati v R [2014] NSWCCA 125 Parente v R [2017] NSWCCA 284 Robinson v R [2017] NSWCCA 315 Thalari v R (2009) 196 A Crim R 398 Veen v The Queen (No. 2) (1988) 164 CLR Category: Sentence Parties: Director of Public Prosecutions Anthony Debnam Representation: Counsel: Mr M Shaw for Debnam Solicitors: Ms V Morgan for the Director File Number(s): 2016/140809 Publication restriction: No REMARKS ON SENTENCE 1. The offender appears for sentence in respect of two sets of matters. First, on matter 2016/140809 there is one charge on an indictment, namely: That (he) between 2 March 2016 and 23 March 2016 at Wagga Wagga in the State of New South Wales, did supply a prohibited drug, namely 3.95 grams of methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. 1. Further, on file 2014/371970 the offender pleaded guilty to three counts, namely: That (he) between 1 July 2014 and 26 August 2014 at Kooringal in the State of New South Wales, did possess a prohibited firearm, namely a shortened .357 magnum calibre six chambers revolving rifle serial number 02118 in contravention of a firearms prohibition order that was in force, contrary to s 74(1) of the Firearms Act, 1996 ; and further That (he) between 1 July 2014 and 26 August 2014 at Kooringal in the State of New South Wales, did possess a shortened firearm namely a shortened .357 magnum calibre six chamber revolving rifle serial number 02118, without being authorised to do so by a permit, contrary to s 62(1)(b) of the Firearms Act; and further That (he) between 1 July 2014 and 26 August 2014 at Kooringal in the State of New South Wales, did possess ammunition for a firearm whilst being a person subjected to a Firearms Prohibition Order, contrary to s 74(3) of the Firearms Act. 1. In addition, in respect of the charge of supply prohibited drug there is one matter on a Form 1 document. That matter is one charge of possess a prohibited weapon without being authorised to do so by permit. The matter relates to what is referred to as a taser gun that was located in the course of a search. In dealing with the Form 1 matter I will need to apply the principles enunciated by the Court of Criminal Appeal in The Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002, otherwise known as the Guideline Judgment on Form 1 matters, reported at (2002) 56 NSWLR 146. 2. One of the many issues that fall for consideration is the value of any numerical discount for the utilitarian value of the pleas of guilty. In respect of the supply drug charge the Crown sentence summary indicates that the offender was committed for sentence. He was committed for trial. The supply prohibited drug matter was listed for trial, to commence following the trial in respect of the firearms matters. The trial in that matter commenced before me on 7 August 2017 but aborted because of adverse media publicity. The matter was listed for trial on 19 February 2018 and after some negotiations the pleas of guilty as outlined as above. 3. Mr Shaw, counsel for the offender, submitted that the discount for the plea of guilty in the supply drug matter should be 10% to 15% and more towards the upper end of that range, noting that the plea was entered at an earlier stage than the firearms matters. The trial for the firearms matter aborted on what would have been the day on which the summing-up would have been given. Mr Shaw submitted that the discount for pleas of guilty in the firearms matters should be between 10% and 12.5%, noting that there would have been at least some chance of an acquittal. The Crown submitted that the discount for the pleas of guilty in all matters should be no more than 10%. Both matters were listed for trial and the first trial for the firearms matters commenced and continued for some days. The plea of guilty for the drug matters was entered the week before the trial was due to commence in that matter. In those circumstances, I will allow a discount of 12.5% for the supply drug matter but a discount of 10% for the firearms matters. 4. In respect of the Supply Prohibited Drug charge there is a further matter of possession of a prohibited drug attaching to a certificate pursuant to s 166 of the Criminal Procedure Act, 1986. This relates to a small quantity of mehtylamphetamine found on the offender's person at the time of his arrest. Given what must a substantial custodial sentence, I will deal with that matter using the provisions of s 10A of the Crimes (Sentencing Procedure) Act, 1999. 5. The maximum penalty for the offence contrary to s 74(1) of the Firearms Act is 5 years imprisonment. The maximum penalty for the offence contrary to s 62(1)(b) of the Firearms Act is 14 years imprisonment. The maximum penalty for the offence contrary to s 74(3) of the Firearms Act is 5 years imprisonment. The maximum penalty for the offence contrary to s 25(1) of the Drug Misuse and Trafficking Act is 15 years imprisonment and/or a fine of 2,000 penalty units. There is no standard non-parole period applicable to any of the matters. Facts and assessment 1. The facts in both matters are before the Court by way of a Statement of Agreed Facts. In respect of the firearms matters, additional material was included in the tender bundle; objection was taken and it was removed. I will deal initially with the firearms matters. 2. The offender was issued with a Firearms Prohibition Order on 25 January 1989, which prohibited him from acquiring, possessing or using firearms, possessing parts of firearms and possessing ammunition. 3. In the morning of 26 August 2014 police executed a search warrant at the home of the parents of the offender at an address in Kooringal, a suburb of Wagga Wagga. The offender had previously resided at those premises and was known to frequent there. In the course of the search police found a "sub-woofer" type speaker on top of a cupboard in a spare room. Within the body of the speaker police located a loaded six round .357 revolver in a shoulder holster together with a quantity of .357 and other ammunition and used (presumably cartridges or shells) ammunition was found. Ballistics tests revealed that the used ammunition had been fired by the .357 firearm. The offender's father provided a statement to the effect that the offender's partner, Ms Jenny Hunter had brought the speaker to the house about four to six weeks before the search. A DNA profile consistent with that of the offender was found on the trigger, trigger guard, pistol grip, hammer and shoulder holster. 4. Subsequent examination revealed that the firearm was a shortened .357 magnum calibre Uberti model 1875 six chamber revolving rifle, serial number 02118. That firearm was deemed to be classed as a shortened firearm and also a prohibited firearm under the provisions of the Firearms Act. The ammunition found were examined and found to be ammunition as defined in the Firearms Act. 5. So far as the assessment of the criminality in the firearms matters is concerned, the Crown submits (within paragraph 19 of the written submissions, MFI 1 on sentence) that "Each count is a separate breach. The Crown submits that the offences incorporate the unlawful network that facilitated the firearm and ammunition as well." The firearm was shortened and that makes the charge of possess firearm in contravention of firearms prohibition order more serious. If it is necessary to make a more precise finding in all of the circumstances, noting the type and nature of the firearm, that matter is slightly above mid-range. The facts do not set out the quantity of ammunition that was involved but it is plain enough that it was not just a case of one or two pieces. The charge of possess ammunition in contravention of firearms prohibition order is mid-range. 6. That leaves the charge of possess shorted firearm. The Crown submits (paragraph 19(a)(ii) of MFI 1) that this charge "is at the higher end of the quantum of seriousness". The charge is possess shortened firearm. The gravamen of the offence is the possession of a shortened firearm. The firearm involved was a six-round relatively large calibre revolver as opposed for example a single shot small calibre rifle. The matter is slightly above mid-range. 7. The Crown submits (paragraph 19(a)(iii) of MFI 1) that so far as the charge of supply prohibited drug is concerned the offender was engaged in a "supply to a substantial degree". The total amount of the drug supplied was 3.95 grams. The one charge relates to a total of seven different transactions over a period of approximately 3 weeks, which was detected by electronic surveillance. Clearly the offender was engaged in the supply of the methylamphetamine for profit. The quantity supplied was quite small. Given the quantities involved the offender was supplying to end users. There is no suggestion in the facts that it was a particularly well organised or elaborate enterprise. Reasonable minds may differ on whether it was trafficking dealing to a substantial degree. I am satisfied to the criminal standard that it was, noting the period of time and the number of different transactions. That having been said, it is at very low end of the scale of seriousness for matters of supply where that finding has been made. Even so, the finding that an offender was involved in trafficking to a substantial degree does not have the consequences that it once did, following the decision of Robinson v R [2017] NSWCCA 315 and Parente v R [2017] NSWCCA 284. Criminal History 1. As the Crown correctly submitted at the sentence hearing, the matters relating to firearms for which the offender appears for sentence are the fourth sets of like matters on which he has been convicted. 2. The offender was born on 4 April 1968 and accordingly is now 50 years of age and was in his late 40's at the time of the offending. In 1988 he was convicted of a number of assault charges including assault police. In 1989 he was convicted of two counts of carry firearm in manner likely to endanger safety, one count of use firearm in a public place and possess firearm whilst intoxicated. Sentences of 6 months imprisonment were imposed, some of which were reduced on appeal to the District Court. In 1997 he was convicted of dangerous driving occasioning grievous bodily harm and sentenced to a total of 4 years imprisonment. 3. In 2003 the offender was convicted of possession of a knife, goods in custody, possess restricted substance and drive under the influence of alcohol or drugs. Fines and good behaviour bonds were imposed. 4. On 27 May 2002 the offender was convicted of two counts of possess ammunition without licence or permit, possess loaded firearm in a public place, two counts of possess unregistered firearm being a pistol, possess unauthorised firearm (prohibited firearm), two counts of possess unauthorised firearm – pistol and two counts of possess prohibited drug. The total effective sentence was 12 months with a non-parole period of 9 months. The non-parole period was reduced on appeal. 5. In 2003 the offender was convicted of drive while disqualified and sentenced to imprisonment. A longer but wholly suspended sentence was imposed on appeal to the District Court. He was convicted of drive while disqualified in 2005 and sentenced to imprisonment but the appeal was dismissed. 6. On 24 July 2008 the offender was convicted of possess unregistered unauthorised firearm in a public place and sentenced to imprisonment for 6 years 6 months with a non-parole period of 3 years and 6 months. 7. Since 2008 the offender has been convicted of various and some serious traffic offences and charges of possess prohibited drug. 8. The offender has a record that does not entitle him to any particular leniency. Further the Crown submitted that given his record there must be an element of specific deterrence in any sentence imposed. I understood that submission to be directed towards s 3A(b) of the Crimes (Sentencing Procedure) Act rather than a submission that the principles enunciated by the High Court in Veen v The Queen (No. 2) (1988) 164 CLR 465 are enlivened. Given that these matters are now the fourth set of firearms matters for which the offender has appeared for sentence the Crown's submission has very considerable force. Clearly, any sentence must involve an element of specific deterrence. 9. My memory, although I do not have specific note, is that counsel for the offender essentially put that the record does not entitle the offender to any particular leniency. General Deterrence 1. Apart from an issue of specific deterrence there is also an issue of general deterrence relating both to the firearms and the supply of prohibited drugs. In this matter there are issues of intellectual functioning that may impact on the application of general deterrence. In this regard I note that the offender sustained a traumatic brain injury on 16 August 2015, which was after the commission of the firearms offences but before the commission of the drug offence. Even so, it is appropriate in this matter that I deal with a number of decisions on this issue. 2. In Lachlan v R (2015) 252 A Crim R 277; [2015] NSWCCA 178 Gleeson JA (Johnson & Garling JJ agreeing) said at [72]: "…shortened firearms could have no legitimate purpose. Compact firearms are particularly dangerous because of their capacity for concealment: R v Brown at [23]. This makes them suited for serious criminal activity". 1. The decision in Lachlan has been followed in a number of decisions since – see for example DJ v R [2017] NSWCCA 319 at [104]. 2. A little earlier in Lachlan Gleeson JA said at [68]: "Subsequent cases have emphasised that the possession of firearms, except where necessary and by persons authorised to have them, is calculated to lead to substantial damage. Accordingly sentences imposed for such offences must "operate as real disincentives to those otherwise attracted to the illegal position of firearms": R v Mahmud [2010] NSWCCA 219 at [71] (R S Hulme J; Giles JA and Latham J agreeing). See also R v Howard [2004] NSWCCA 348 at [66] (Spigelman CJ; Grove J and Smart AJ agreeing); Dionys v The Queen at [47]-[48] (Hoeben J; McClellan CJ at CL and Adams J agreeing)." 1. Rothman J in some (obiter) additional comments in Laspina v R [2016] NSWCCA 181 at [6] said: "Nevertheless, for far too long courts have dealt with firearm offences in a way which has had regard to whether the firearms were intended to be used in a criminal offence of another kind. In so doing, in my view, we are underplaying the seriousness of firearm offences generally, including mere possession, but particularly when those firearms are possessed for the purpose of sale to other persons who, for obvious reasons, will not be in possession of them legally." 1. As I observed at first instance in DJ v R (which comments were recited by Johnson J in the appeal judgment at [39]) "… I again note the need for general deterrence relating to the use of firearms. One would have to be cloistered from the world not to understand the havoc that they wreak in residential and suburban areas." 2. The Crown favoured the court with copies of the decisions of Jeffree v R [2017] NSWCCA 72 and Thalari v R (2009) 196 A Crim R 398. I will deal with those authorities when dealing with the offender's issue of intellectual functioning a little later in these remarks. 3. So far as the issue of supply prohibited drugs is concerned, I referred earlier in these remarks to the decisions of Parente and Robinson. There remains a real issue of general deterrence in charges relating to the supply of drugs. As I have often observed it is no exaggeration or hyperbole to note that barely a day goes by in this court that the court does not deal, either on appeal from the Local Court or on indictment, an offender who has committed serious criminal offending under the influence of methylamphetamine or has committed serious criminal offending to facilitate the purchase of more the particularly nefarious and addictive substance. 4. The Court in Parente said at [107]-[110]: "Sentencing in drug supply cases should be approached in a manner consistent with the general principles referred to earlier. Nonetheless, there are some matters that should be emphasised. [108] First, it is necessary for a sentencing court to be mindful of the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act which include '(b) to prevent crime by deterring the offender and other persons from committing similar offences' and '(c) to protect the community from the offender'. [109] Since at least the 1970s (see the cases referred to above at [63]ff) there has been no doubt about the importance of general deterrence in drug supply cases. An inherent characteristic of most activity relating to illicit drug supply is that participants take steps to ensure it is carried out covertly with the result that significant resources have had to be devoted by law enforcement authorities to detection and successful prosecution. A consistent message of deterrence from sentencing judges is necessary. [110] Further, having regard to the social impact of drug use, particularly as an underlying cause of other criminal offending, protection of the community will usually be of significance as well." Subjective Case 1. No oral evidence was given by or on behalf of the offender. In respect of the subjective case the court is assisted by two pre-sentence reports, one dated 7 February 2018 and the other dated 16 May 2018. There are also medical records from the Canberra Hospital and two reports from Duffy Robilliard Psychologists. 2. The material from Canberra Hospital indicates that the offender received a traumatic brain injury as a result of an accident with a motor cycle apparently falling on him on 16 August 2015, with admission to the hospital in Canberra the following day after transfer from the Wagga Wagga Base Hospital. From what I can make from the documents it appears that the offender was discharged on or about 27 August 2015. Exhibit 2 on sentence, the one page report from Anna Robilliard, sets out that she met with offender at Junee Correctional Centre on 16 December 2016 and that she read documents from the Canberra Hospital indicating that the offender discharged himself ten days after admission. Ms Anne Lucas of Duffy Robilliard then conducted a neuropsychological assessment of the offender producing a comprehensive report dated 3 May 2017, which became exhibit 3 on sentence. 3. At paragraph 3 of exhibit 3 the report notes that the offender has been on the Disability Support Pension for most of his life. It also reports that the offender was involved in a shooting accident and there are fragments of the bullet remaining in his brain. There is no notation supporting this in the records from the Canberra Hospital. 4. The offender reported to the author of the report (see para 13) that he had few close friendships. The author concluded that these appeared tenuous and not particularly supportive, with many relying on mutual drug taking as the basis of the relationship. The offender began using cannabis when he was 15 and commenced smoking methylamphetamine in about 2014. He told the author of the report that he smoked the drug every day until his arrest and that he has never undertaken treatment for substance abuse issues. It appears from paragraph 25 of the report that the offender is a poor historian. At paragraph 35 of the report the author opines that the offender is a high risk of self-harm. 5. At paragraph 37 of the report Ms Lucas says of the offender: "His overall cognitive ability based on his performance placed him within the borderline range of intellectual function. His performance suggested in his overall thinking and reasoning abilities he would fall within the lower 2% of age matched peers". 1. Ms Lucas goes on to say at paragraph 38 that the offender "performed slightly better on non-verbal than verbal tasks, however on analysis there was no significant difference between his ability to reason with or without the use of words". 2. A little later in the report (paragraph 43) Ms Lucas concludes that the offender's ability to sustain attention, concentrate and exert mental control was in the extremely low range. Further, the results of the administration of testing suggested he performed better than only 2% of his peers. 3. At paragraph 54 and continuing Ms Lucas concludes that the assessment was consistent with the report of the traumatic brain injury. I infer from what appears in the report that the issue of intellectual functioning is related to that traumatic brain injury. This has some significance when it is considered the firearms offences were committed before that injury was sustained. Ms Lucas was apparently satisfied that the offender was not feigning symptoms. She goes on to say that the offender provided information that was consistent with assessment results, suggesting low frustration tolerance and some disinhibition which may be associated with his frontal lobe brain injuries. She recommends that the offender would benefit from referral to a brain injury programme and that the offender after release may require assistance with financial management, accommodation and assistance with making complex decisions such as health care. It was noted that his parents are aging. 4. Some of these matters inform a need for special circumstances. The offender has been in custody for approximately two and one half years and there must be a further period in custody. The offender will need an extended period of supervision to assist with reintegration into the community and to ensure that he remains free from illicit substances. 5. The issue then arises as to what impact the issue of the traumatic brain injury and resultant issues with intellectual functioning have on the ultimate sentence to be imposed in these matters. 6. The High Court of Australia in Muldrock v The Queen [2011] HCA 39; (2011) 212 A Crim R 254 at [54] said "The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community". 1. In Aslan v R [2014] NSWCCA 114 Simpson J (as her Honour then was) in giving the judgment of the court at [33] and [34] said: "This Court has frequently had to grapple with the effect on sentencing (especially with respect to serious or violent crimes) of mental illness, intellectual handicap or other mental or emotional impairment or disability. The compassion and sympathy that such a condition engenders collide with the need for sentences to reflect the objective gravity of the offence in question, the community's interest in general deterrence, and that criminal conduct must be met with appropriate denunciation and retribution. Over the years, the applicable principles have evolved. They were most recently re-stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]. They are as follows: '[Principle 1] Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence... [Principle 2] It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed... [Principle 3] It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced... [Principle 4] It may reduce or eliminate the significance of specific deterrence... [Principle 5] Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence ... Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public ...' (internal citations omitted, italics added) [34] It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for." 1. Beech-Jones J in giving the leading judgment in Ngati v R [2014] NSWCCA 125 at [46] said: "Nevertheless the approach stated in Muldrock is only expressed to be apposite to 'most cases' of an offender with impaired intellectual functioning. It does not necessarily apply to all. The task still remains to consider the evidence of the intellectual retardation and the facts of the particular offence. In this case, his Honour noted the degree of planning that was involved by the applicant in the commission of the offences. His Honour concluded that the application was "fully aware" that his conduct was "seriously wrong". Considered in this context the finding that he was "fully aware" was clearly a reference to the applicant having a deep understanding of its wrongful nature and consequences" 1. So far as the firearms offences are concerned they were committed before the injury was sustained. So far as the drug matter is concerned there is no evidence of any causal connection between the issues of the offender's intellectual functioning and the offending. However, with those offenders suffering an intellectual disability the decreased capacity to reason will in most cases reduce the moral culpability of the offender. As has been made quite clear a finding that an offender has reduced intellectual capacity or suffers from a mental illness does not have automatic consequences. However, the issues raised so far as the offender's intellectual functioning is concerned remain part of the overall subjective mix. 2. It is on this issue that the Crown made available the decisions of Jeffree and Thalari to which I earlier referred. In Jeffree Beazley P (Walton & Hulme JJ agreeing) said at [37]-[40]: "[37] His Honour, at [34], considered that general deterrence was a very important factor. His concern was the fact that the applicant, who had a reduced capacity to react to an argument in an appropriate way, had access to firearms and having become embroiled in the argument with his neighbour, committed a series of extremely serious crimes. Such were his concerns in relation to firearms that his Honour had introduced his remarks on sentence by noting, at [1], that: 'This case illustrates why it is illegal in this state to have unlicensed and unregistered firearms in the community.' [38] Although his Honour moderated the sentence because of the applicant's disabilities, he nonetheless, at [34], considered that the sentence 'must carry a significant component of general deterrence'. His Honour repeated, '[i]llegal firearms can fall into the hands of people with limited ability to control themselves'. In placing this emphasis on general deterrence, his Honour expressly did so in the context of persons in the community, such as the applicant, with a reduced capacity to control their behaviour. [39] In my opinion, no error has been demonstrated in the manner in which his Honour dealt with general deterrence. This was not a case where general deterrence had no role to play. There was no evidence that the applicant did not understand the nature of his act. Although of limited cognitive capacity, the applicant was not found to have 'an [intellectual] impairment or dysfunction'. There was no error of principle in that approach, nor could it be said, nor was it argued, that the sentence ultimately imposed demonstrated error because it was manifestly excessive. [40] His Honour did not fail to apply the principles in Aslan. It is apparent from Simpson J's remarks in Aslan, at [34], that the principles stated in that case are not a prescriptive formula that must be intoned in every case. It is the substance of the reasoning that determines whether a sentencing judge has had appropriate regard to the matters identified in the principles. His Honour's careful consideration of the applicant's psychological difficulties, his express reference to moderating the sentence and the actual sentence imposed demonstrate that his Honour was aware of, and applied, correct sentencing principles." 1. In Thalari at [93] Johnson J (Young JA, Latham J agreeing) said: "Whether the principle emerging from cases such as R v Hemsley [2004] NSWCCA 228 ought be applied, so as to render an offender a less appropriate vehicle for general deterrence, depends upon the circumstances of the case. See, generally, R v Hamid (2006) 164 A Crim R 179 at 198-200 [109]-[115] and the cases referred to therein. In this case, the Appellant was involved in the supply of drugs for gain, as well as being a personal user of drugs, and he possessed a loaded and lethal pistol in the context of these activities. I do not consider that the evidence before the District Court concerning the Appellant's mental state rendered him a less appropriate vehicle for general deterrence. Indeed, the issue of public safety arising from his possession of a loaded pistol tends to heighten concern, in a manner which might fairly be reflected in a significant allowance for personal and general deterrence in this case." 1. As I have already observed so far as the firearms offences are concerned these are the fourth lot of offending relating to firearms in respect of which the offender has now been dealt. He has other matters on his record relating to drugs. The charge relating to the supply of drugs involved a number of transactions over a period of time. The firearm was located hidden in a speaker in a room in the home of the offender's parents, it having been taken there by the offender's partner at the time. This is one of those cases where I am of the opinion that the issue of intellectual functioning does not have any impact on the sentence to be imposed, save it assisting in a finding of special circumstances, informing as it does a need for an extended period of supervision. However, I am not prepared to make any additional allowance reflecting the need for personal and general deterrence in this case. The traumatic brain injury occurred after the offender was last dealt with for firearms matters. 2. Both pre-sentence reports refer to the offender's substance abuse issues. The authors of both pre-sentence reports assess the offender as being a medium-high risk of re-offending. The author of the most recent report says under the heading assessment at p 4: "With his extensive criminal history and entrenched criminogenic behaviour, it is difficult to determine if Mr Debnam comprehends the impact of his actions on his parents, children and the wider community". 1. There is nothing whatsoever on the material before me that would entitle the court to make a finding on balance that the offender is remorseful. Given his criminal history and the contents of the pre-sentence reports I am unable to find on balance that there are good prospects of rehabilitation and further I am unable to find on balance that he is unlikely to re-offend. 2. Exhibits 4 and 5 on sentence are medical reports relating to the offender's parents. Clearly, both parents have significant health issues. Submissions 1. I have already dealt with a good number of the submissions made by the parties. Mr Shaw on behalf of the offender emphasised the issue of intellectual functioning. The submissions included emphasising that the offender had not had a proper neuropsychological assessment following the traumatic brain injury. Submissions were made as to the connection between the issue of depression and the use of illicit substances. Mr Shaw emphasised the health issues faced by the offender's parents noting that the offender's father's diagnosis of lung cancer has been a recent one. Mr Shaw submitted that there should be a finding of special circumstances and in essence put that although the offender may not have yet served the non-parole period the offender would not serve a great deal more time in actual custody. 2. There is a very real issue of pre-sentence custody. At the sentence hearing it was determined that the appropriate commencement date of any sentence would be 21 December 2015. Mr Shaw submitted without any particular urging that the court could impose an aggregate sentence. 3. I did not understand the Crown to take issue with the proposed commencement date. The Court is grateful to the Crown for being able to so quickly assist the court on the issue of pre-sentence custody. The Crown submitted that it would be an appropriate matter to impose an aggregate sentence. 4. I have already addressed the Crown's submission on the issue of intellectual functioning. The Crown emphasised that there was no evidence of any link between the level of intellectual functioning and the offending. The Crown reminded the Court of the very real need for general deterrence, particularly so far the matters relating to the firearms are concerned. 5. The Crown also submitted that there should be some partial accumulation for the firearms offences. General Remarks 1. Although initially I was not minded to impose an aggregate sentence, having heard the submissions from the parties I agree that that would be an appropriate course to adopt. If separate sentences were imposed there would have to be some meaningful accumulation of sentence so far as the matters relating to the supply of drugs and the firearms offences. Although relating to breaches of different sections of the Firearms Act, counts 1 and 2 on the indictment relate to the possession of the same firearm. In these circumstances, noting what was said by Howie J in Cahyadi v R [2007] NSWCCA 1 at [27], the sentences in respect of those matters would be very substantially but not wholly concurrent if separate sentences were imposed. Any degree of accumulation would be very slight. However, count 4 of the indictment relates to the possession of ammunition and accordingly, there would need to be some modest degree of partial accumulation in respect of that matter. 2. In passing sentence I will need to give proper regard and effect to the provisions of sections 3A and 5(1) of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community. 1. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Clearly in this matter there must be sentences of imprisonment imposed, including for the supply prohibited drug matter. Despite the relatively small quantities involved it did involve a number of transactions to be dealt with as a "Hamzy" type matter. I make this observation for fear that someone reviewing these remarks might suggest that I have breached De Simoni v The Queen (1981) 147 CLR 383, noting s 25A of the Drug Misuse and Trafficking Act. There are also the matters of general deterrence and the offender's criminal record. 2. I note that no submission was made to the effect that any sentence other than full time imprisonment be imposed. Aggregate sentence 1. As I am imposing an aggregate sentence it will be necessary to indicate what sentences would have been imposed had separate sentences been imposed. 2. The total sentences (noting that none of the matters on which I am passing sentence carry a standard non-parole period) that would have been imposed are as follows: Firearms matters: Count 1 – Possess Firearm in Contravention of Firearms Prohibition Order – a total sentence of 2 years and 3 months indicating a starting point of 2.5 years. Count 2 – Possess Prohibited Firearm – a total sentence of 4 years and 3 months with a starting point of 4 years and 9 months. Count 4 – Possess Ammunition in Contravention of Firearms Prohibition Order – a total sentence of 1 year 9 months with a starting point of 2 years Supply Prohibited Drug: Taking into account the matter on the Form 1 document, a total sentence of 12 months indicating a starting point of 15 months with some minor mathematical rounding down in favour of the offender. Orders 1. I invoke section 53A of the Crimes (Sentencing Procedure) Act, 1999 and impose an aggregate sentence. 2. In respect of each of the matters to which the offender has pleaded guilty he is convicted. 3. The offender is sentenced to an aggregate sentence of 5 years and 3 months with a non-parole period of 3 years and 3 months. 4. The non-parole period will commence on 21 December 2015 and will expire on 20 March 2019. The period on parole of 2 years will commence on 21 March 2019 and will expire on 20 March 2021. 5. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release. 6. Although it is entirely a matter for the parole authorities I recommend that any parole be conditioned that he follow directions for ongoing treatment and counselling for substance abuse and health issues. ********** 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: 07 June 2018