District Court New South Wales Medium Neutral Citation: R v Grant [2019] NSWDC 866 Hearing dates: 18 December 2019 Decision date: 18 December 2019 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Aggregate sentence of four years. Non‑parole period of three years. Catchwords: SENTENCING – multiple offences- drug supply- firearm possession- Form 1 matters taken into account SENTENCING – relevant factors on sentence- institutionalised offender- background of deprivation- never lived a normal community life- need for assistance on release Legislation Cited: Criminal Procedure Act 1986 Drug (Misuse and Trafficking) Act 1985 Firearms Act 1996 Poisons and Therapeutic Goods Act 1966 Cases Cited: Bugmy v The Queen (2013) 249 CLR 571 R v Millwood [2012] NSWCCA 2 Category: Sentence Parties: Wayne Richard Grant Director of Public Prosecutions Representation: Counsel: Ms R Mitchell (for the offender) Solicitors: Bannisters Lawyers (for the offender) Ms A Bird (for the Director of Public Prosecutions) File Number(s): 2018/00212485 SENTENCE – EX TEMPORE REVISED 1. Wayne Grant was born in 1972. He first went to gaol in 1992. His time in the community since that date can be measured in months, sometimes weeks. All the material before me indicates that he has, to use the technical term, been institutionalised. In layman's terms he is more comfortable and secure in gaol than in the community and he has had no real time in the community, at least as an adult, to ever lead a normal community life. 2. In April 2018 he was released into the community having served a short sentence. He was not subject to any supervision or control when he was released. Within a very short period of time he was back in gaol, as on 10 July 2018 he was arrested for the offences which now bring him before the Court. He was arrested in a motel room in Wollongong. He was using that room to live in and as dug supply premises. Those offences involve the supply of the drug methylamphetamine, s 25(1) Drug (Misuse and Trafficking) Act 1985, maximum penalty 15 years; possession of an unauthorised pistol, s 7(1) Firearms Act 1996, maximum penalty 14 years with a standard non-parole period of four years for an offence which, taking into account only objective factors, is in the middle of the range. There is also an offence on a s 166 Criminal Procedure Act 1986 certificate of possession a not insubstantial quantity of the drug heroin - 24.53 grams. 3. Grant has asked that when I sentence him for the supply offence I take into account his acceptance of guilt of the offences of possession of the restricted substance Clonazepam, an offence pursuant to the Poisons and Therapeutic Goods Act 1966, and the offence of conducting a drug premises: s 36Z(1)(a) Drug Misuse and Trafficking Act. I will take those matters into account when I sentence for the supply. They are relevant to my synthesis of the ultimate sentence for the supply matter so I have to be particularly careful here. Were I to increase that sentence in any significant way because of the matters on the Form 1 there would be a double counting. It is obvious from the agreed facts in relation to the supply offence that the premises and the circumstances in which the supply occurred are relevant to an assessment of the objective seriousness of the principal offence. So far as the Clonazepam possession is concerned had it been dealt with individually it is doubtful that a custodial sentence would have been imposed. So while I take them into account effectively what I am doing is cleaning the slate. 4. So far as the possession of heroin is concerned, given the history of this offender and the need for some form of appropriate punishment there will be a custodial sentence indicated, but the level of accumulation will be modest given all the circumstances. 5. Turning to the principal offences for sentence. Grant was in possession of 141.781 grams of methylamphetamine. He had those drugs because he was supplying them to other users in our community. The commercial quantity of methylamphetamine is 250 grams. At the same time he was in possession of a gel pellet pistol. Although the gel pellet pistol could not be used to inflict a lethal injury it had the superficial appearance of a lethal pistol and was found in a flat which was admittedly a drug premises. This is not simply a case of someone purchasing on the internet what, in some countries, is regarded as a toy. While it can be used as a toy the weapon also could have been used, and was potentially available to be used, in a threatening manner. 6. The connection between the two offences increases the severity of the sentences required. Again care needs to be taken not to double count such matters when I come to synthesise the appropriate sentences to be indicated. 7. The community has to understand and Mr Grant has to understand that possession of any form of firearm is a privilege subject to licensing and that if possessed pistols can be used to cause direct harm, to threaten others. It is not for them to know the origin or nature of the pistol, particularly one that looks like that displayed in exhibit B3. 8. The seriousness of the drug offence is primarily based on the quantity of the drug possessed for the purpose of supply. Grant does not need a lecture from me; his life has been blighted by the use and abuse of illicit drugs since he was a young man. There were others in using the motel room where the drugs were seized, one of whom I have sentenced. It is unclear because of the chaotic nature of the scene that confronted the police when they raided the premises who played what role, but it is clear that this offender had the drugs in his possession. He no other means of support and being himself a drug user, he was obviously supplying and had the drugs for supply to others in the community. His drug use, and his background indicates that he was not a sophisticated drug dealer who was engaged in the trade simply to take advantage of the enormous profits that can be made by preying on the addictions of others. Rather he was a drug user with no moral compass who had no real understanding of the impact of his crimes other than self-interest. And that self-interest was to get what money he could obtain so he could use and abuse illicit drugs. Although he falls into the "user dealer" category, the quantity, if supplied to the community, could have caused significant harm to others as he well knew because of the consequences of drug use on himself. 9. The supply offence calls for a significant custodial sentence, as does the firearms matter. There must be separate and independent punishment for each but I must also take into account they are connected. The overall aggregate sentence should be just and appropriate to his total criminality. 10. Madam Crown in her written and oral submissions called for a custodial sentence of some length. Ms Mitchell for the offender accepted this but asked that appropriate recognition to be given to the offender's tragic history. 11. The sentences must as the Crown submit have some specific deterrent effect Grant understands that if he offends he will be sent back to gaol but to date gaol has had no great deterrent impact on him as he feels safe in gaol. That feeling may be changing. From the material before me it appears that he is feeling less safe as he gets older. As he gets older his health is deteriorating. I am sure that Justice Health will do what they can with the resources that they have but no opiates are available for pain relief. Some medications are restricted. As the Justice Health material indicates Grant may have difficulty in obtaining appropriate treatment and accordingly suffer more than those not in custody. If members of the community have lung and other problems, particularly in the current climate crises, they are free to go down to the doctor or to the hospital and get access to medications, puffers, steroids if necessary. In the gaol that is simply not possible. It is one consequence of a person losing all control over their life; one of the consequences of a custodial sentence. 12. It is loss of control over his life that Grant to date seems to have gotten used to, but he is feeling the consequences of that today. It is one of the reasons why many studies have indicated that harsher and longer sentences lose their deterrent effect at a certain point. That said sentencing courts should engage in a proper exercise, which involves appropriate punishment, appropriate extraction of retribution and an attempt to structure a sentence that enables a process of rehabilitation to take place. 13. There is no evidence before me of any heartfelt remorse because I do not think Grant understands the consequences for himself let alone the consequences for others. He has passed beyond that. 14. The Court must and does take into account the background of the offender. Even in the face of repeated offending it is clear from the report provided to me from Ms Santa Brigida, Psychologist, that this offender has no adaptive skills for leading a normal community life. His problems commenced when he was far too young. He was the subject of abuse of various types, some of a sexual nature. He was subject to violence. He suffered after the early death of his mother. She herself had a history involving complex traumas and suffered from post‑traumatic stress disorder. As a consequence Grant has been impulsive and, for most of his life, in survival mode. He has avoided any responsibility for himself, let alone responsibility for others and that is reflected in his criminal record and his custodial history. 15. Am impact of a background such as this is lasting and continues to apply, as the High Court made clear in Bugmy v The Queen (2013) 249 CLR 571. 16. Ms Mitchell also referred me to R v Millwood [2012] NSWCCA 2 and other authorities that say that anyone aware of a background like Grant's would say it is not surprising that he has found himself in this position. His history of childhood disadvantage; reduces his moral culpability. His mental health and other problems means that common sense and common humanity dictate that given his lack of resources to guide his behavioural decisions he should not be punished as someone who is more morally culpable. Accordingly, the sentence I impose will not be as significant as some in the community might expect. 17. It is a sad but tragic fact that as Grant gets older his health problems will mean that prison time becomes harsher and harsher. But as Ms Santa Brigida says, he also thrives in custody because it gives him much needed structure. 18. Grant must be released to the community. If he does not get the opportunity, at the very least, of engaging in some form of therapy while in custody and some form of staged release into the community while on parole it is inevitable that he will reoffend. If he is released without support and supervision he could spend the rest of his life in custody. 19. Apart from my concerns and the concerns of taxpayers of paying for that custody, the main concern is that a return to custody means he will have committed further offences against the community. The ultimate object of any sentencing exercise is to ensure that person does not reoffend and that the community can be protected from him. His current offences do not mean he should be removed from the community forever. I can only sentence him taking into account both his background and the objective seriousness of the offences he committed. 20. I am indebted to both counsel for their comprehensive submissions. I hope I have in these remarks done justice to them. Ms Santa Brigida's report, which is comprehensive and I have had a chance to read it a couple of times, I have taken it into account and should accompany the warrant. 21. Ms Mitchell made a submission that a finding of special circumstances should be made. There is authority from the Court of Criminal Appeal that the risk or the fact of institutionalisation is one reason for such a finding. I have carefully considered that submission, but in the circumstances the need to reflect in the sentence the objective gravity of both offences, and the other matters to which I have referred, require a minimum period of custody of some length. The period I have allowed on parole will be sufficient for at least a start to be made for supervised rehabilitation in the community; if Grant is given that opportunity. I can be far from confident that he will survive the year on parole that I have allowed. It is up to him. The help may or may not be offered, but he has to take advantage of it. Orders 1. There will be an aggregate sentence. It will date from the date he came into custody, 10 July 2018. Each of the indicated sentences reflect the early plea of guilty and a reduction of 25%. 2. For the drug supply matter and taking into account the Form 1 I indicate a sentence of three years. 3. For the possession of the pistol I indicate a sentence of two years and three months with a non‑parole period of one year and six months. 4. For the possess heroin there will be a sentence of six months. 5. Taking into account questions of totality there will be a total aggregate sentence in this matter of four years. There will be a non‑parole period of three years. Grant will be eligible for consideration for release to parole therefore on 9 July 2021. A parole period of one year. 6. I make a drug destruction order and a firearms destruction order. ********** 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: 16 April 2020