Citation: R v Coe [2019] NSWDC 236
Court: District Court of New South Wales
Date: 3 May 2019
Judge: Haesler SC DCJ
Background
In 2017, NSW Police State Crime Command launched an investigation, code-named Rednap, into hostilities between the Finks outlaw motorcycle gang and the Illawarra chapter of Brothers for Life. The Wollongong chapter of Brothers for Life was led by a man in custody in the ACT, whose name was suppressed to protect future jury proceedings. The leader held a particular animosity toward the self-styled Finks president, Troy Fornaciari.
The offender, Coe, had spent most of his teenage years in custody and was released from Bathurst Correctional Centre on 23 January 2018. Within days of his release, and acting under the direction of the group's leader, he became involved in a plan to locate and shoot Fornaciari. Police gathered evidence through telephone intercepts and recorded gaol phone calls, which Coe and others attempted to obscure using simple codes.
Between 23 January and 1 February 2018, Coe and the group's leader agreed to ambush Fornaciari, including sourcing ammunition, conducting surveillance of Fornaciari's clubhouse, and arranging for a woman to lure Fornaciari from his residence. The plan did not succeed. The agreed facts indicated the vehicle Coe had obtained ran out of petrol, and police concluded that difficulty sourcing both a working firearm and matching ammunition also contributed to the failure.
Legal Issues
- What was the appropriate sentence for the common law offence of conspiracy to discharge a firearm with intent to cause grievous bodily harm?
- How should the Form 1 matters (participation in a criminal group and supply of a prohibited drug) affect the sentence?
- What weight should be given to the offender's early guilty plea, background of disadvantage, and time spent in custody throughout his life?
- Whether there were special circumstances justifying a variation to the standard non-parole period ratio.
- Whether, and to what extent, the offender's apparent reluctance or inability to complete the offence affected culpability.
Decision
Haesler SC DCJ sentenced Coe on the common law offence of conspiracy to discharge a firearm with intent to cause grievous bodily harm. His Honour took the statutory equivalent offence under s 33A(1)(a) of the Crimes Act 1900, which carries a maximum of 25 years, as an important guide to the sentencing discretion. The court noted that only in exceptional circumstances should the penalty for a conspiracy exceed that for the equivalent completed offence, and this was not such a case.
The two Form 1 matters were taken into account as required by the Crimes (Sentencing Procedure) Act 1999. The participation in a criminal group was intertwined with the principal offence and, while care was taken to avoid double-counting, it operated to increase the sentence above what would otherwise have been appropriate. The drug supply matter involved a small quantity and had only a minor upward effect.
In mitigation, the court accepted that Coe entered an early guilty plea, warranting a 25% reduction. His Honour also applied the principles from Bugmy v The Queen (2013) 249 CLR 571, recognising that Coe's severe background of disadvantage and social deprivation, having been socialised almost entirely in juvenile detention and adult custody, were matters that would follow him throughout his life and carried genuine mitigatory weight. The court also found special circumstances given Coe's background, though noted that any parole release remained something that had to be earned.
The court concluded the offence was objectively serious, involving criminal gang activity, firearms, and a real risk of grievous bodily harm to an identified person. Weighing the objective seriousness against Coe's youth, disadvantage, early plea, and the plan's failure to reach completion, his Honour determined that a pre-plea sentence of seven years was appropriate, reduced to five years and three months after the plea discount.
Orders Made
- Coe was convicted of conspiracy to discharge a firearm with intent to cause grievous bodily harm.
- A non-parole period of three years and six months, commencing 26 March 2018, with eligibility for parole consideration from 25 September 2021.
- A balance of term of one year and nine months, commencing 26 September 2021.
- Total sentence: five years and three months, expiring 25 June 2023.
Key Takeaways
- The District Court confirmed that, as a general principle, penalties for conspiracy should not exceed the penalty for the equivalent completed offence except in exceptional circumstances, using the statutory maximum for the equivalent offence as the primary yardstick.
- Form 1 matters are not independently sentenced but can significantly increase the head sentence, particularly where, as with participation in a criminal group, the Form 1 conduct is closely intertwined with the principal offence. Courts must take care to avoid double-counting where the two are factually interdependent.
- Under Bugmy v The Queen, profound background disadvantage and socialisation in custody are mitigating factors that courts must weigh at sentencing and that continue to carry weight throughout an offender's life, even where the offending is serious.
- An early guilty plea attracted a 25% reduction, consistent with the sentencing framework under the Crimes (Sentencing Procedure) Act 1999.
- Where a plan to cause serious harm is thwarted before completion, the question of whether failure reflected genuine withdrawal or mere practical impediment is a live factual dispute. Here, the court did not need to resolve it definitively because the agreed facts provided sufficient basis for sentencing regardless of which characterisation was accepted.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 33A(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Olbrich v The Queen [1999] HCA 54; (1999) 199 CLR 270