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District Court 28 November 2018

R v Corey Smith

[2018] NSWDC 501

Theft & propertyFirearms & weapons

Citation: R v Corey Smith [2018] NSWDC 501
Court: District Court of New South Wales
Date: 28 November 2018
Judge(s): Wilson SC DCJ

Background

The offender, a 25-year-old man and nominee of the Finks outlaw motorcycle gang, appeared for sentencing after pleading guilty to three principal charges arising from two separate episodes of criminal conduct in 2016 and 2017. He had a prior record that included robbery in company, larceny, and break and enter offences, and was subject to firearms and weapons prohibition orders at the time of the later offending.

The 2016 offending involved an aggravated break and enter at a Melrose Park family home in the early hours of 25 April 2016. The offender and a co-accused entered the home knowing a family with four young children was inside, and stole laptops, handbags, and other items. The offender also took the victims' car and used a stolen credit card at two service stations.

The 2017 offending occurred on 3 July 2017, when police executed a lawful search of the offender's bedroom at an Emerton address. They located two prohibited firearms: a .177 calibre rifle in plain view in a laundry basket, and a .22 calibre rifle wrapped in a bag and towel. The offender denied ownership of both, but DNA evidence connected him to items in the room. The offending occurred while he was on bail for the 2016 charges.

Legal Issues

  • What is the appropriate objective seriousness for the aggravated break, enter and steal offence, having regard to the guideline judgment in R v Ponfield?
  • What is the appropriate objective seriousness for the two prohibited firearms possession offences, having regard to the principles in R v Farrell?
  • What discount should be applied to reflect the early guilty pleas, and how should the strength of the Crown case be weighed?
  • Whether special circumstances exist justifying a departure from the statutory non-parole period ratio under the Crimes (Sentencing Procedure) Act 1999?
  • How should the totality principle be applied across the five convictions to ensure the overall sentence is proportionate but not crushing?
  • What weight should be given to the offender's deprived background, guarded rehabilitation prospects, and association with organised crime?

Decision

Objective seriousness: break and enter offence

The court assessed the aggravated break and enter at the high end of the low range of objective seriousness (at [60]). It accepted both the Crown's and the defence's characterisation of the offending as falling towards the lower range, but found that not all the Ponfield guideline criteria needed to be satisfied to elevate seriousness within that band. The presence of a family with young children asleep in the home was a significant feature.

Objective seriousness: firearms offences

The court placed both prohibited firearms offences at the lower end of the mid-range of objective seriousness (at [64]). Relevant factors included the offender's association with the Finks outlaw motorcycle gang, which supported an inference that the firearms could be connected to criminal activity, though no direct evidence of intended criminal use was established (at [62]). The court noted the weapons were single-shot, non-repeating firearms requiring reloading after each discharge (at [63]).

Aggravating and mitigating factors

Committing the 2017 firearms offences while on bail for the 2016 break and enter was an aggravating factor (at [67]). The offender's deprived background, including an unstable upbringing, early exposure to antisocial environments, and a significant drug addiction, was accepted as capable of reducing moral culpability (at [78]-[79]). However, the court found his prospects of rehabilitation and his likelihood of re-offending were both guarded, partly due to his continued gravitation toward antisocial groups (at [85]-[86]).

Guilty plea discount, special circumstances, and totality

A 25% discount was applied across the sentence, reflecting early pleas in the Local Court for both matters, weighed against a solid Crown case supported by CCTV footage and DNA evidence (at [94]-[95]). Special circumstances were found, justifying a departure from the standard non-parole period ratio, on the basis that the offender required extended post-release supervision in the community (at [96]-[97]). The court declined an aggregate sentence given the temporal gap between the two episodes of offending, instead structuring individual sentences with a combination of concurrency and accumulation to reflect total criminality without crushing the offender (at [106]). The combined standard non-parole periods, had they been applied without adjustment, would have produced a base non-parole period of approximately thirteen years, which the court found disproportionate in the circumstances (at [105]).

Orders Made

  • For possession of prohibited firearm (.177 calibre rifle, sequence 22): sentenced to three years' imprisonment, reduced to two years and three months after 25% discount, with a non-parole period of one year and four months, commencing 1 July 2017, non-parole period expiring 31 October 2018, head sentence expiring 30 September 2019.
  • For possession of prohibited firearm (.22 calibre rifle, sequence 23): sentenced to three years' imprisonment, reduced to two years and three months after 25% discount, with a non-parole period of one year and four months, commencing 1 April 2018, non-parole period expiring 31 July 2019, head sentence expiring 30 June 2020.
  • For possession of prohibited firearm in contravention of a firearms prohibition order (sequence 16): fixed term of eight months, reduced to six months after 25% discount, commencing 1 October 2019, expiring 31 March 2020.
  • For possession of prohibited firearm in contravention of a firearms prohibition order (sequence 17): fixed term of eight months, reduced to six months after 25% discount, commencing 1 January 2020, expiring 30 June 2020.
  • For aggravated break, enter and steal (sequence 13): sentenced to five years and four months' imprisonment, reduced to four years after 25% discount, with a non-parole period of two years, commencing 1 July 2019, non-parole period expiring 30 June 2021, head sentence expiring 30 June 2023.
  • Effective total sentence: six years' imprisonment with a non-parole period of four years, commencing 1 July 2017, with eligibility for parole from 30 June 2021 (at [115]).

Key Takeaways

  • The District Court confirmed that, in applying the R v Ponfield guideline to aggravated break and enter offences, it is not necessary to satisfy all of the enumerated criteria to elevate the offence beyond the lowest range of objective seriousness; the presence of multiple relevant factors can have a cumulative effect on assessed seriousness (at [58]-[60]).

  • Committing further serious offences while on bail for existing charges remains a clear statutory aggravating factor, and the court gave it explicit weight in assessing the 2017 firearms offending (at [67]).

  • An offender's deprived background, including early exposure to antisocial environments and drug dependency, can reduce moral culpability and is a factor that retains relevance throughout the sentencing exercise, even where there is a history of repeated offending (at [78]-[79]).

  • Where applying the combined standard non-parole periods for multiple serious offences would produce an aggregate that is grossly disproportionate to the overall criminality, that disproportion is itself a basis to depart from those standard non-parole periods (at [105]).

  • In structuring sentences across multiple charges arising from temporally distinct episodes of offending, the totality principle requires the court to use a combination of concurrent and accumulated terms to ensure the overall sentence reflects the full criminality involved without becoming crushing (at [99], [106]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
- Drug Misuse and Trafficking Act 1985
- Firearms Act 1996

Cases
- Athos v R [2013] NSWCCA 205
- Conte v R [2018] NSWCCA 209
- Pearce v R (1998) 72 ALJR 1416
- R v Farrell [2014] NSWCCA 30
- R v McNaughton (2006) 66 NSWLR 566
- R v Ponfield (1999) 48 NSWLR 327