District Court New South Wales Medium Neutral Citation: R v Peter YEALLAND [2018] NSWDC 364 Hearing dates: 12 November 2018 Date of orders: 04 December 2018 Decision date: 04 December 2018 Jurisdiction: Criminal Before: His Honour Judge G Lerve Decision: Aggregate sentence of imprisonment, see [82-86] Catchwords: CRIMINAL LAW – offences – supply prohibited drug, not less than large commercial quantity – possess pistol not being authorised SENTENCING – remorse – accumulation - parity - aggregate sentences – special circumstances – outlaw motor cycle gangs – general deterrence Legislation Cited: Crimes (Sentencing Procedure) Act, 1999 Drug Misuse and Trafficking Act, 1985 Firearms Act, 1996 Cases Cited: The Attorney-General's Application Pursuant to s37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 NSWLR 146 Butters v R [2010] NSWCCA 1 Bugmy v The Queen [2013] HCA 37 DPP (Cth) v De La Rosa (2010) NSWLR 1 R v Hemsley [2004] NSWCCA 228 DJ v R [2017] NSWCCA 319 Lachlan v R (2015) 252 A Crim R 277; [2015] NSWCCA 178 Laspina v R [2016] NSWCCA 181 Ngati v The Queen [2014] NSWCCA 125 Parente v R [2017] NSWCCA 284 Tepania v R [2018] NSWCCA 247 Category: Sentence Parties: Director of Public Prosecutions Peter Yelland Representation: Counsel: Mr James QC for the offender Solicitors: Mr A Hanshaw for the director File Number(s): 2016/381413, 2017/248753 Publication restriction: No. SENTENCE 1. The offender pleaded guilty before the Local Court at Wagga Wagga on 13 June 2018 in respect of four offences, namely (in the order in which they appear in the Crown tender bundle, exhibit A on sentence): 1. That (he) between 9 July 2016 and 3 November 2016 at Wagga Wagga in the State of New South Wales, did supply an amount of a prohibited drug, namely 510 grams of methylamphetamine being an amount which was not less than the large commercial quantity applicable to that prohibited drug, contrary to s 25(2) of the Drug Misuse and Trafficking Act, 1985, and further 2. That (he) on 20 December 2016 at Mount Austin (in the State of New South Wales) did possess a pistol namely loaded 9mm self-loading silver 1911 – A1 pistol not being authorised to do so by a licence or permit, contrary to s 7(1) of the Firearms Act, 1996, and further 3. That (he) on 20 December 2016 at Rosemeadow in the State of New South Wales, did supply an amount of a prohibited drug, namely 225.75 grams of 3,4-methyldioxy-methylamphetamine, being an amount which was not less than the commercial quantity applicable to that prohibited drug, contrary to s 25(2) of the Drug Misuse and Trafficking Act, and further 4. That (he) on 20 December 2016 at Forest Hill in the State of New South Wales, did supply 498.2 grams of methyl amphetamine being an amount which was not less than the commercial quantity applicable to that prohibited drug, contrary to s 25(2) of the Drug Misuse and Trafficking Act. 1. The pleas of guilty were adhered to at the Wagga Wagga District Court at the sentence hearing on 12 November 2018 and accordingly, the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty. 2. The maximum penalty for the offence of Supply Large Commercial Quantity of a Prohibited Drug is life imprisonment. Parliament has specified a standard non-parole period of 15 years imprisonment in respect of that offence. The maximum penalty for the offence of Possess Unauthorised Pistol is 14 years imprisonment. Parliament has specified a standard non-parole period of 4 years imprisonment in respect of that offence. The maximum penalty for the two counts of Supply Commercial Quantity of a Prohibited Drug is 20 years imprisonment. Parliament has specified a standard non-parole period of 10 years imprisonment in respect of those offences. 3. As the four substantive matters on which I am passing sentence carry standard non-parole periods I acknowledge that I am engaged in a one-step instinctive process in which two of the principal guideposts are the standard non-parole period and the maximum penalties specified. 4. In respect of the charge of Possess Unauthorised Pistol the offender asks that I take into account a further four matters on a Form 1 document, all of which relate to the same firearm. As the Crown correctly submits the most serious of the offences is the charge of Acquire Pistol while subject to a Firearms Prohibition Order. In respect of the charge of Supply Commercial Quantity of methylamphetamine the offender asks that I take into account a further six matters on a Form 1 document, being five charges of Supply Prohibited Drug and one charge of Knowingly deal with the Proceeds of Crime. That last matter of Deal with the Proceeds of Crime relates to a sum of $5,600 found at a search. 5. In dealing with the Form 1 matters I will need to have regard to and give proper effect to the principles enunciated by the Court of Criminal Appeal in The Attorney-General's Application Pursuant to 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. 6. Some of the matters on the Form 1 documents are relatively inconsequential. However, some are not, noting that the Form 1 relating to the drug matter contains 2 charges of supply prohibited drug involving close to an ounce (27.9 grams and 27.68 grams) and another relating to 17 tablets of MDMA. The Form 1 attaching to the Firearms matter includes the offence of Acquire Pistol in Contravention of Firearms Prohibition Order, which if dealt with separately would carry the same maximum penalty as the firearms matter. For these reasons the matters on the Form 1 documents must have some meaningful impact on the sentences imposed. Facts 1. I am able to deal relatively easily with the facts. However, the issue of assessment of the criminality and the moral culpability of the offender will take some time, given the submissions of Mr James QC who appeared for the offender. 2. The following is within the Statement of Agreed Facts and accordingly for the purpose of proceeding to sentence I am satisfied of the following beyond reasonable doubt. 3. Strike Force Hun was established to investigate organised crime in respect of the supply of prohibited drugs and other serious matters within the Finks Outlaw Motor Cycle Gang (OMCG) in New South Wales. The offender was the President of the Finks Chapter at Wagga Wagga at the time of the offending. 4. At about 12 midnight on 20 December 2016, as a result of information provided by investigators with Strike Force Hun, the offender was stopped by the Highway Patrol at Forest Hill (about 10 km east of the centre of the city of Wagga Wagga) driving a Ford Falcon Utility registered number AMN-56N, registered to the offender. Police soon thereafter commenced searching the vehicle with the assistance of a drug detection dog. That dog indicated on the left front air vent and airbag area of the vehicle. The offender indicated to police (presumably in answer to questions) that he was the only person using the vehicle and he claimed ownership of anything within the vehicle. 5. Police moved the air vent and could thereafter see that there was a concealment within the airbag compartment. Police removed the airbag and located a clear bag containing what police suspected to be and which was ultimately found to be methylamphetamine. Two further bags were also found. Police also found some of the money that relates to the charge of Deal With Proceeds of Crime (one of the Form 1 matters). The offender was arrested and taken to the Police Station. The clear bag was found to contain 498.2 grams of 79% pure methylamphetamine. One of the further bags contained 27.9 grams of cocaine (69% pure) and the smaller resealable bag was found to contain methylamphetamine that weighed 1.86 grams. Charges of Supply Prohibited Drug on one of the Form 1 documents relate to these substances. 6. At 10.40am on 20 December 2016 police executed a search warrant at 3 Hunter Avenue, Mount Austin, a suburb of Wagga Wagga. At about 11am on 20 December 2016, Melanie Clemson drove a white Nissan Navara registered number CE-64-ZF to 3 Hunter Street. That motor vehicle had been identified by police as being used by the offender in the Riverina area. 7. The Nissan was searched and in the same manner of concealment in the airbag compartment police located a loaded Hogue 9mm self-loading silver 1911–A1 pistol. This is the firearm to which the charge of Possess Unauthorised Pistol relates. The matters on the Form 1 attaching to that charge are Possess Unregistered Pistol, Not Keep Firearm Safely, Possess Ammunition without Licence and Acquire Pistol while Subject to a Firearms Prohibition Order. That Order had been served on the offender on 16 March 2016. 8. Also located within that concealment were 17 tablets of 3,4 –methylenedioxy-methylamphetamine with a purity of 11%, further money to which the charge of Deal With Proceeds of Crime relates and 27.68 grams of methylamphetamine with a purity of 11.5%. All of these matters relate to matters on the Form 1 document attaching to the charge of Supply Commercial Quantity of Prohibited Drug. 9. At about 1pm on 20 December 2016 investigators executed a search warrant at 9 Bernardo Street, Rosemeadow, which was an address frequented by the offender. Police seized a black BMW motor vehicle registered NXU-93L, registered to the offender. The vehicle was found to have a concealment in the airbag compartment similar to the other two vehicles. Police located 225.75 grams of 3,4- methylenedioxy-methylamphetamine which relates to one of the four substantive charges. Also found were 6 yellow pills found to be 1.86 grams of 3,4- methylenedioxy-methylamphetamine to which one of the Form 1 matters relates. 10. The facts relating to the charge of Supply Large Commercial Quantity of Prohibited Drug are set out on page 3 of the Agreed Facts. Police applied for and were granted telecommunication interception warrants in respect of telecommunication services used by the offender. Investigators identified that the offender supplied the prohibited drug methylamphetamine on twenty-nine separate occasions to Jade Garry Hardy between 11 July 2016 and 3 November 2016. These specific individual supplies were examined and a total combined weight of 510 grams was involved in those transactions. 11. The offender declined to be interviewed. Assessment of the Criminality 1. Learned Queen's Counsel on behalf of the offender made a number of submissions on the issue of the assessment of the criminality and referred the court to the decision of Tepania v R [2018] NSWCCA 247. Johnson J (Payne JA, Simpson AJA agreeing) said at [112]: "In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J)." 1. Submissions were also made on the issue of moral culpability. Johnson J in Tepania at [119] said: "Taking into account an offender's moral culpability on sentence may be seen as consideration of one of the many factors which bear on sentence (sometimes pulling in different directions) which form part of the exercise of instinctive synthesis that the law requires: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 377-378 [52] (McHugh J)." 1. As I understand the authority, the issue of moral culpability does not enter into the assessment of the criminality of the matter unless related to an issue "that is causally connected with or materially contributed to the commission of the offence(s) (if it be the case) a mental disorder or mental impairment. Mr James QC submitted that the court would apply the principles enunciated by the Court of Criminal Appeal in DPP (Cth) v De La Rosa (2010) NSWLR 1 at [177]-[178]. For reasons that will be set out later in these remarks I decline to find that there is any causal connection between any mental condition suffered by the offender and the offending and accordingly, I do not factor that into the assessment of the criminality. 2. All four substantive matters carry standard non-parole periods. With matters relating to the prohibited drugs it occurs to me that two principal matters that would determine the objective gravity are the quantity of the drug involved and the purity of that drug. Of course, these are two of the main considerations but they are not the only considerations. 3. Turning initially to the Supply Large Commercial Quantity of Prohibited Drug, the quantity is only 10 grams over the 500 gram cusp of the Large Commercial Quantity. A significant number of individual transactions were included. The purity of the drug is not known. In all the circumstances, noting in particular the quantity of the drug involved, this matter is very much towards the lower end of the range of seriousness for matters of that type, namely Supply of the Large Commercial Quantity of a Prohibited Drug. 4. The two charges of Supply Commercial Quantity of Prohibited Drug can be conveniently dealt with together. Both charges relate to substantial quantities of the drug involved and so far as the matter relating to the methylamphetamine is concerned was only 1.8 grams below the quantity required for the large commercial quantity. The purity of the amphetamine was very high being 79% pure. There is no indication of the purity of the MDMA. The matter involving the methylamphetamine is well above mid-range. Given that the purity of the MDMA is unknown, but noting the quantity of that drug, that matter is moderately above mid-range. 5. The charge relating to the firearm is Possess Unauthorised Pistol. The pistol was loaded and found with prohibited drugs. That matter is slightly above mid-range. I note that the possession of that pistol was in contravention of a Firearms Prohibition Order however there is a specific charge relating to that on the Form 1 document attaching to the firearms charge and accordingly it would be double counting to take into account that Order when assessing the seriousness of the matter relating to the pistol. General Deterrence 1. Clearly the offender was involved in trafficking in prohibited drugs to a substantial degree. There were significant quantities of prohibited drugs and several different types of prohibited drugs. There remains a significant issue of general deterrence when sentencing in respect of prohibited 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. 2. The Court of Criminal Appeal in Parente v R [2017] NSWCCA 284 said at [107]-[110]: "[107] 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." 1. There is also a real issue of general deterrence in respect of the firearms offence. 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]. It is not suggested that the weapon in the matter presently under consideration was shortened, but it was a pistol and therefore had a capacity for concealment and suitability for serious criminal activity. 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. It was submitted on behalf of the offender that I would reduce the impact of general deterrence in this matter because of the issues relating to the offender's mental health. I will deal with the issue of the offender's mental health in some detail later in these remarks where I come to the conclusion that the mental health condition is part of the subjective mix and no more. I am not of the opinion that the mental health issues impact on the issue of general deterrence in this matter, either in respect of the drug or firearm matters. Criminal History 1. The offender was born on 10 January 1972 and accordingly was 44 years of age at the time of the offending and is 46 at the time of sentence. He has a criminal history that does not entitle him to any particular leniency. The matters recorded against the offender include convictions for possession of a prohibited weapon, assault, assault occasioning actual bodily harm, serious driving matters including drive with the prescribed concentration of alcohol and disqualified driving, and obtaining money by deception. Significantly the offender was convicted at the District Court at Penrith in 2012 and sentenced to a total of three years imprisonment for Supply Prohibited Drug. Subjective Case 1. No oral evidence was called from or on behalf of the offender. However, there was a considerable volume of written material tendered to the court in the offender's case. Exhibit 1 on sentence is a folder, the contents of which is indexed and includes a report from Mr Sam Borenstein, Forensic Psychologist. Exhibit 1 also includes a volume of medical records and a number of testimonial references. Exhibit 2 is a series of notes written by the offender setting out his background and Exhibit 3 is a letter from the offender in which he expresses remorse. 2. The report by Mr Borenstein sets out the background of the offender including that he was born in 1972 (p 4) and he has a total of 7 half-siblings. The offender's father abandoned the family when the offender was an infant. This is also emphasised in the notes from the offender (exhibit 2 on sentence). Those notes also indicate that the offender's mother was left destitute as a result. According to exhibit 2 (p 8) the only contact the offender has had with his father was a birthday card when the offender was 9 years of age. The offender notes that his father abandoning the family caused him to resent his father. Notations about his father abandoning the family are also contained within the documents from the Department of Corrective Services at tab 7 of exhibit 1 and the material from Justice Health at tab 8 of exhibit 1. 3. Mr James QC on behalf of the offender submitted rather forcefully that the material relating to the offender's father abandoning the family enlivened the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37. Whether the material relating to the offender's father does enliven those principles is perhaps something over which reasonable minds might differ. However, I will allow some very minor consideration on this aspect. I note however, that the offender had the benefit of a loving mother and the deprivations he suffered are very minor indeed compared to what has been the situation seen by this court all too often in other cases, particularly from the central west and far north west of New South Wales. 4. At p 2 of his report Mr Borenstein sets out that the offender developed symptoms of Post-Traumatic Stress Disorder (PTSD) following an attack by rival outlaw motorcycle gang members some time after the offender joined "The Finks". There is no expansion on that issue. At p 4 of the report the following appears: "Mr Yealland continues to take antidepressant medication. Mr Yealland was prescribed Efexor XR by a psychiatrist when he first made an attempt to come off amphetamines. Since coming into prison the antidepressant medication was switched to Avanza and Seroquel which has improved his sleep patterns. Mr Yelland commented 'I don't have proper thoughts. I'm still paranoid. Gaol is a very dangerous place'". 1. At tab 8 of exhibit 1 is a copy of hand-written clinical notes from Justice Health. Within those notes are notations that the offender has had suicidal ideation, that he is always sad and that there is mild paranoia. The notes from Justice Health also confirm Mr Borenstein's observations about the offender's medication. 2. It was submitted on behalf of the offender that the material relating to the offender's mental health enlivens the principles enunciated in the decisions such as R v Hemsley [2004] NSWCCA 228 and DPP (Cth) v De La Rosa (2010) 79 NSWLR 1, in particular at [177]-[178]. The submissions continued that the "diagnoses should lead to a finding that the offender's moral culpability is reduced and that he is not an appropriate vehicle for general deterrence (see p 4, MFI 1, outline of written submissions). The Crown submitted that there was no diagnosis and, as I understood the Crown's submissions, no reason as to why the role of general deterrence should be reduced. 3. McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; 205 A Crim R 1; [2010] NSWCCA 194 said at [177]-[178]: "Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] - [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] - [51]; R v Harb [2001] NSWCCA 249 at [35] - [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] - [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner: ● 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: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28]. ● 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: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28]. ● 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: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28]. ● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192]. ● 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: Israil at [24]; Henry at [28]. 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: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24]. [178] I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence: R v Skura [2004] VSCA 53; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [5]." 1. In Muldrock v The Queen [2011] HCA 39 the court said at [54]: "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]. " 1. Her Honour then extracted that part of the judgment of McClellan CJ at CL at [177] in De La Rosa that I have extracted above. Her Honour went on to say: "[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 The Queen [2014] NSWCCA 125 said 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. Beech-Jones J was of course, dealing with issues of the offender being intellectually impaired rather than suffering a mental illness. However, his Honour's comments in my view are still instructive in this case. The offender in the matter presently under consideration was involved in an outlaw motor cycle gang and was involved in the supply of significant quantities of illicit substances, some of which were of significant purity. He was involved in this supply for some considerable period of time. 2. The material relating to the offender's mental health is not comprehensive, does not include an actual formal medical diagnosis by an appropriately qualified psychiatrist and does not disclose a causal connection between any mental condition that the offender may have been suffering at the time of the offending and the offending. In those circumstances, I accept that based on the prescription of the various medications the offender is suffering from a mental condition, which in the absence of other medical material cannot be stated with any more precision, that mental condition is part of the overall subjective mix but no more. 3. Returning to Mr Borenstein's report, the offender began to sell drugs in 2010 and joined the Finks in 2014. In December of 2015 his partner of two years died from methamphetamine toxicity. He was offered and accepted the position of President of the Wagga Wagga chapter of The Finks and moved to the Wagga Wagga area in 2016. He formed a new relationship with a new partner within months of moving to Wagga Wagga. 4. Mr Borenstein notes (p 3) that the offender indicated that the offences were committed to survive and to use drugs. So far as the pistol is concerned the offender told Mr Borenstein that when he got the pistol he did not know what to do with it. 5. The offender works as a sweeper at the gaol and has been abstinent from drugs since he has been in custody. He intends to leave The Finks and undertake rehabilitation. 6. The report (p 5) sets out that the offender has experienced drug induced psychosis in the past with hallucinations and paranoid delusions. When these episodes occurred is not set out in the report. Mr Borenstein went on to opine (p 6) that: "There was no suggestion of serious psychiatric disorder, e.g. psychosis. Thoughts for content and process are normal. There is no evidence of perceptual disturbance e.g. delusions, hallucination, ideas of reference or feelings of passivity". 1. Mr Borenstein also sets out (p 8) that the offender understands that he needs to undertake more intensive drug and alcohol rehabilitation. 2. The personal background and history of the offender is set out in more detail within the offender's hand-written notes, exhibit 2 on sentence. He finished an apprenticeship when he was 22. His mother, to whom he was very close, died when he was 24. He inherited a house from an aunt when he was 18 but over time that property was mortgaged and eventually sold, the proceeds being spent on motor vehicles and drugs. He went to prison at the age of 39 in respect of drug offences. He successfully completed parole without breach. Upon release he commenced work as a self-employed electrician and became involved with the Finks after doing work on a club-house. After binging on alcohol and drugs he lost regular work and worked on a casual basis. He spent some two weeks in a mental health ward after a "bender" on alcohol and drugs. He continued to binge use amphetamines. 3. The offender also says within those notes that being arrested was the best thing that could have happened to him. He sets out that he has seen in gaol the effects of amphetamine. He says that he experiences great guilt for the lives he has assisted in destroying by dealing in ice (methamphetamine). There is then the material relating to his father, which has already been summarised. 4. Within those notes more detail is given of the attack by rival gang members referred to in Mr Borenstein's report. The offender and another were attacked by members of the Rebels at a hotel in Richmond. He left the Finks but returned. 5. The offender then goes on to set out how he became involved in trafficking drugs. It began by supplying an ounce, which led to trips to Sydney and supplying two ounces after which he found the travelling tiring so would obtain four ounces at a time. He met Jade Hardy during this time. Hardy told him that if he (offender) could get half a kilo he (Hardy) knew someone that would take it and Hardy's debt to the offender, which was about $25,000 would be cleared. The offender was stopped by police coming back to Wagga Wagga with this quantity. 6. Exhibit 3 on sentence is a letter from the offender in the nature of what is sometimes called a "sorry letter". The offender says that he is currently before the courts on very serious charges, that he takes full ownership and responsibility for the charges, he is ashamed and embarrassed by his behaviour and that he has had an arrogant disregard for the law. Further, while in custody he has met men of all ages some of whom have major mental health issues as a result of taking drugs. He found this confronting. He goes on to say that he has brought embarrassment and shame on himself and his family, some of whom no longer speak to him. He accepts that he must be punished and that there must be an element of deterrence in the sentence that is imposed. 7. At p 9 of his report Mr Borenstein notes that the offender expressed guilt and remorse and an understanding of the effect illicit drugs have on individuals and the community. 8. On the issue of remorse Fullerton J giving the judgment of the Court in Butters v R [2010] NSWCCA 1 at [17] said: "On a proper construction, s 21A(3)(i) requires an offender to provide evidence that he or she has accepted responsibility for his or her actions and has acknowledged any injury, loss or damage caused by his or her actions or any reparation for such injury, loss or damage (or both), as a statutory precondition to any reliance on remorse as a mitigating factor. The requirement to provide evidence before remorse can be relied upon does not equate with a requirement that an offender give evidence either of remorse generally or of the matters set out in the section…." 1. However, her Honour went on to say at [18]: "However, as is clear from the remarks on sentence extracted at [15] above, his Honour did not disregard the evidence bearing upon remorse because the applicant did not go into the witness box and give evidence. Rather he considered that in assessing the weight of evidence of remorse, sourcing as it did solely from the tendered material, he was entitled to take into account the fact that the applicant did not give evidence. This was a course properly open to him. It is an approach that is consistent with this Court cautioning against an uncritical reliance on material contained in tendered reports (or other third party statements) for evidentiary purposes where an offender has not given evidence (see R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 and TS v R [2007] NSWCCA 194 at [30])." 1. In the matter presently under consideration given the detailed and comprehensive statements I am prepared to find on balance that the offender is remorseful, but as the written material is untested I am not prepared to give the issue of remorse the same weight as I would had the offender given evidence and the material have been tested. 2. Mr Borenstein also sets out at p 9 of the report that the offender has commenced the process of rehabilitation and that he has successfully declined drugs in prison over the last 22 months and that he has consulted a psychologist on ten occasions. There are some very positive signs but I am not prepared to make a finding on balance that there are good prospects of rehabilitation. One of the positive signs is the offender now has insight into the harm done within the wider community by the illicit substances that he was peddling. In this regard I note the contents of the hand written notes from the offender concerning his experiences in the Junee Correctional Centre. 3. The prospects of rehabilitation will depend largely upon whether the offender undertakes a full time residential rehabilitation course on release and how he engages with the parole authorities upon eventual release. 4. For essentially those same reasons taken with the offender's criminal history I am not prepared to make a finding on balance that he is unlikely to re-offend. Again, I note that there are some very positive signs. 5. Mr James QC submitted orally and within the outline of his written submissions that there should be a finding of special circumstances. This was amplified in the oral submissions. I agree that I should make such a finding. The sentence imposed in this matter will be substantial and the offender will need assistance in reintegration into the community and society. Moreover, there is a need for intensive and extensive supervision to ensure that he receives the appropriate treatment and counselling to ensure that he does not regress so far as involvement with illicit substances is concerned. In this regard I note that Mr Borenstein opines (bottom page 9) that in addition to drug rehabilitation Mr Yealland will require individual psychological treatment and learn more effective ways of dealing with emotions, particularly those that have their origins in unresolved and complicated grief. Competing submissions 1. I have dealt with a number of the submissions advanced by Mr James QC in dealing with various issues within these remarks. Mr James addressed the issue of the quantities of the drugs involved and as I understood Queen's Counsel he did not dissent from the views I expressed, which were at the state of taking submissions were preliminary views, as to the objective seriousness of the matters. My ultimate findings as to the seriousness of the matters are consistent with those preliminary views. Mr James QC also addressed on the authority of Tepania v R and I have already dealt with that matter. He also addressed on the significance of the standard non-parole period. 2. Mr James QC submitted that there were no factors of statutory aggravation. I agree with that submission and I note the Crown did not suggest otherwise. It was also submitted that there was no adequate explanation for the possession of the firearm, but the lack of an adequate explanation did not aggravate the matter. I also agree with that submission but I am left wondering as to what could possibly be an adequate explanation in the circumstances of this case. 3. The issue of the person Hardy, to whom this offender supplied methylamphetamine, was then raised. It was put that Hardy was the offender's exclusive customer. It was also put that it did not deprive this offender from a degree of parity, but "that is as far as it goes". I am of the opinion that there is no real issue of parity to be considered in this matter. Hardy received a significant discount for assistance and he was facing one charge. The criminality can be distinguished very substantially. 4. Submissions were then made on behalf of the offender to the effect that the offender received no real financial reward over and above the dealing. I accept that the offender would have used some of the drugs that were found in his possession but clearly the vast bulk of them were for on-supply. The submission continued that the court should "try to see what the offender actually did within the theoretical parameters of the offence". I understood this submission was to the effect that the matter was not as serious as someone who was charged with or was responsible for a highly organised enterprise where a large number of people were involved in the widespread dissemination of drugs into the community. I accept that submission for what it is worth. The counts on which I am passing sentence involving methylamphetamine involve the total quantity of a little over a kilogram, not taking into account the matters on the Form 1. That is still a substantial undertaking in the dealing with prohibited drugs. 5. Submissions were then made on the issue of the involvement of the offender with outlaw motorcycle gangs. It was put, at least as I understand the submission, that the offender was induced into joining the gang, which led to his addiction to drugs which then in turn led to him offending in relation to drugs. This may well be the case. However, while this may well explain how it was the offender first became involved in the trade of peddling illicit substances this does not act in mitigation in my opinion. 6. Clearly the offender enjoys family support. A number of his family were supporting him in court. The number of references tendered also indicates he enjoys wide support in the wider community. The family support can only assist in the rehabilitation of the offender, noting however that he will remain in custody for some considerable period of time to come. 7. Mr James QC submitted that I recommend that the offender have access to drug rehabilitation while he is in custody. I have no difficulty in acceding to that recommendation. However, what actually occurs is a matter entirely for the Department of Corrective Services. 8. The Crown reminded the court of the need for general deterrence in matters relating to the supply of drugs and the illegal supply of firearms. I have already dealt with this aspect. The Court was also reminded that the weight and purity of the drugs were not the only matters to consider in assessing the seriousness of the matters. I agree with that however, those factors remain, in my opinion the two of the principal matters to consider. 9. It was put by the Crown that I would find as a matter of statutory aggravation that the drug offences were committed for financial gain. It seems to me that that is inherent in the drug trade. In any event, there was no evidence of substantial accumulation of assets or unexplained wealth. I decline to find that as a matter of statutory aggravation. 10. The Crown then submitted that so far as the submissions relating to the offender's mental health was concerned there was no formal diagnosis, there was no suggestion of a causal connection between the mental condition and the offending and further there was no reason why this offender was not a vehicle for general deterrence. This drew a particularly strident and robust response from Mr James QC. Part of response of Mr James QC was that the offender was vulnerable, which contributed to the offending and therefore the need for general deterrence is reduced. I do not agree with the learned and very experienced senior counsel for the offender. I do not resile from I said earlier in these remarks when dealing with the issue of the offender's mental condition. General Remarks 1. I have a memory of indicating at the sentence hearing that I was proposing to deal with this matter by way of aggregate sentence. I did not understand either counsel to dissent from this course. I note that these remarks have been reduced to writing and a copy will be made available to the parties soon upon the pronouncement of sentence. 2. I must give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act, 1999. 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. Given the maximum penalty, the standard non-parole periods prescribed for each offences and the significance of the form 1 matters clearly there must be a sentence of imprisonment in this matter. Mr James QC appropriately conceded at the sentence hearing that the court would be obliged to impose a significant sentence of imprisonment. 2. As I am proposing to deal with this matter by way of aggregate sentence it will be necessary to set out the sentences that would have been imposed had separate sentences been imposed. 3. There are also the issues of accumulation and concurrency to consider. There would need to be some degree of meaningful but partial accumulation to reflect the different offending, the fact that drugs were found in different locations and that different drugs were involved. Likewise there would need to be some meaningful accumulation so far as the charge relating to the possession of the pistol is concerned. 4. The charge of Large Commercial Supply carries life imprisonment as a maximum penalty and therefore carries a higher maximum penalty that the charge of Commercial Supply of methylamphetamine. However, in this matter given the fact that the Large Commercial Supply is a low-range example of that offence but moreover because of the fact that the Commercial Supply is well above mid-range, noting that it was less than 2 grams below the cusp of Large Commercial Quantity and the number and nature of the matters on the Form 1, the indicative sentence for the Commercial Supply will be greater than that for the Supply of the Large Commercial Quantity. 5. The sentences that would have been imposed had separate sentences been imposed are as follows: H67409016 sequence 1: Large Commercial Supply of Methylamphetamine: A non-parole period of 4 years with a balance of term of 2 years making a total sentence of 6 years, indicating a starting point of 8 years. H63471334 sequence 9: Possess Unauthorised Pistol: Taking into account the matters on the Form 1, a non-parole period of 3 years with a period on parole of 1.5 years making a total sentence of 4.5 years indicating a starting point of 6 years. H63471334 Sequence 16: Supply Commercial Quantity of MDMA A non-parole period of 3 years with a balance of term of 1.5 years making a total sentence of 4.5 years indicating a starting point of 6 years. H63471334 Sequence 18: Supply Commercial Quantity of Methylamphetamine Taking into account the matters on the Form 1, a non-parole period of 5 years with a balance of term of 2.5 years making a total sentence of 7.5 years indicating a starting point of 10 years. Formal orders 1. I invoke s 53A of the Crimes (Sentencing Procedure) Act, 1999 and impose an aggregate sentence. 2. In respect of the matters to which the offender has pleaded guilty he is convicted. 3. The offender is sentence to an aggregate sentence of 12 years and 9 months with a non-parole period of 8 years and 6 months. The balance of term is therefore 4 years 3 months. 4. The non-parole period will commence on 20 December 2016 and will expire on 19 June 2025. The balance of term will commence on 20 June 25 and will expire on 19 September 2029. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release. 5. I recommend to the Department of Corrective Services that while in custody the offender should have access to and be able to participate in a drug rehabilitation programme. ********** 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: 04 December 2018