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District Court 8 June 2018

R v Conor Lavan

[2018] NSWDC 263

DrugsFirearms & weapons
CRIMINAL LAW SENTENCING SENTENCE AFTER TRIAL POSSESSION FIREARM SUPPLY FIREARM CONNECTION TO OTHER CRIMINAL ACTIVITY IMPACT OF OFFENCES ON COMMUNITY

Citation: R v Conor Lavan [2018] NSWDC 263
Court: District Court of New South Wales
Date: 8 June 2018
Judge: Haesler SC DCJ

Background

The offender was a young man with a prior criminal history who, on two separate occasions in 2016, was found to have possessed unlicensed rifles connected to criminal activity. On the first occasion, he brought a .270 Ruger rifle to the bedsit of a known drug supplier, where police executing a search warrant discovered it. On the second occasion, intercepted phone calls revealed he supplied a shortened .22 rifle to a friend who was in debt to a motorcycle club over drug money.

Both co-offenders, Anderson and Tarvij, agreed to give evidence against the offender in exchange for sentence reductions. The offender denied involvement with any of the firearms and proceeded to trial. A jury convicted him of possessing the Ruger and supplying the shortened .22 rifle, but acquitted him on a third firearms charge. The offender had been on remand since October 2016 and, by the time of sentencing, accepted that the Ruger had also been in his possession for the purpose of supply.

Born in 1996, the offender had prior contact with the criminal justice system from the age of 17, including a prior prison term for assault and dishonesty offences that had expired only months before these offences occurred.

  • What was the appropriate sentence given the objective seriousness of possessing and supplying firearms connected to criminal activity?
  • How should the principle of parity apply, given that co-offenders Anderson and Tarvij received reduced sentences in exchange for cooperation?
  • Were special circumstances established to justify a departure from the standard ratio of non-parole period to total sentence?
  • How should totality be applied given the offender had already served other sentences during the remand period?
  • What weight should be given to the offender's youth, prospects of rehabilitation, and experience in custody, including being assaulted in gaol?

Decision

Objective seriousness: Haesler SC DCJ found both offences were of considerable objective seriousness. The firearms were unlicensed, unregistered, stolen, and not stored safely, and both were connected to known drug supply activity. The court noted that even an inoperable firearm creates significant risk to public safety and to police, and that the shortened rifle was the type designed to intimidate. Only a full-time custodial sentence could meet the purposes of sentencing.

Parity: Anderson received an indicated sentence of approximately 18 months for the Ruger possession (before reductions), and Tarvij received an indicated sentence of approximately three years for possession of the shortened rifle. The offender received no discount for a guilty plea or cooperation because he went to trial and maintained denial throughout. His Honour noted the offender could not be punished for contesting the charges, but equally could not receive the reductions that flowed from early cooperation or a plea. Having regard to those comparisons, the court set indicated sentences of two years for the possession offence and three years for the supply offence.

Special circumstances and rehabilitation: His Honour found special circumstances existed, warranting a longer-than-standard parole period. The offender was young, had been assaulted during custody, had limited family support, and faced significant risks of reoffending without structured supervision. Extended supervision on parole was considered to serve both the offender's rehabilitation and the protection of the community. The court also noted that harsh custodial sentences had previously reinforced, rather than disrupted, the offender's connections with the criminal element.

Totality: An aggregate sentence was imposed, accounting for time already served and the other Local Court matters dealt with during the remand period. The court declined to accept the submission that time already served was sufficient given the seriousness of the offences.

Orders Made

  • Conviction entered following jury verdict.
  • Firearm forfeiture order made.
  • Aggregate sentence of three years and nine months imposed, with a non-parole period of two years and five months, commencing 30 November 2016.
  • Eligible for parole consideration from 30 April 2019.
  • Total sentence to expire 29 August 2020, with a parole period of one year and four months.

Key Takeaways

  • Possession or supply of firearms connected to criminal activity, such as drug supply networks or organised crime debts, significantly increases the objective seriousness of firearms offences under the Firearms Act 1996.

  • Where co-offenders have received sentence reductions for cooperation and guilty pleas, parity principles require comparison of the underlying indicated sentences rather than the final reduced figures; an offender who proceeds to trial and cooperates in neither respect is not entitled to equivalent reductions, though cannot be punished for exercising the right to trial.

  • Special circumstances justifying a greater proportion of time on parole can be established where an offender is young, lacks support structures, faces rehabilitative challenges, and where extended supervision serves community protection as well as personal rehabilitation.

  • The District Court observed, consistent with established sentencing jurisprudence, that early custodial experience can reinforce rather than reduce connections to criminal networks, particularly for young offenders, though that observation did not diminish the need for a substantial custodial term here.

  • Under ss 51H and 62(1)(c) of the Firearms Act 1996, both possession of a prohibited firearm and supply of a firearm carry maximum penalties of 14 years' imprisonment, and courts are required to treat those maxima as meaningful guides in calibrating sentence.

Legislation and Cases Referenced

Legislation:
- Firearms Act 1996 (NSW), ss 51H(1), 62(1)(c)

Cases:
- Afu v R [2017] NSWCCA 246
- AZ [2011] NSWCCA 43
- Do v R [2010] NSWCCA 182
- Green v The Queen (2011) 244 CLR 462
- Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
- O'Connor [2014] NSWCCA 53
- R v Thalari [2009] NSWCCA 170
- R v Thurgar (1990) 51 A Crim R 109
- Tran v R [2010] NSWCCA 183