Citation: R v Geerlings (No.2) [2019] NSWDC 439
Court: District Court of New South Wales
Date: 16 April 2019
Judge: Colefax SC DCJ
Background
The offender, a 47-year-old man with a lengthy criminal history and a long-standing heroin addiction, appeared for sentencing on four principal charges arising from events in March 2018. The charges were aggravated break, enter and steal in company; possessing a shortened firearm without authority; possessing an unauthorised pistol; and supplying a prohibited drug (MDMA).
The break-and-enter involved the offender and an associate attending an underground car park in Bankstown and using pliers to break the lock on a garage space, from which they stole a high-pressure washer valued at $2,350. Four days later, police executed a search warrant at the offender's home and found the stolen washer, two firearms (a shortened .222 Remington calibre rifle and a loaded nine-millimetre pistol), and associated ammunition. The following day, the offender was arrested nearby and found in possession of approximately 98.63 grams of MDMA, which he admitted intending to sell to fund his heroin use.
The sentencing hearing had been adjourned from an earlier date in March 2019 because the agreed statement of facts was found to be unsatisfactory. The resumed hearing involved contested facts relating to how the offender came to possess the firearms and the drugs.
Legal Issues
- What were the objective circumstances of each offence, particularly the firearms offences, given the offender's disputed version of how he came to possess the weapons?
- Whether the offender's account that he was paid to store the firearms overnight on behalf of a third party should be accepted on the balance of probabilities.
- What weight to give to the offender's background, including childhood sexual abuse and resulting drug dependency, in assessing moral culpability and the application of general deterrence.
- Whether special circumstances existed to justify varying the standard ratio between the head sentence and the non-parole period.
- How to structure an appropriate aggregate sentence with indicative terms.
Decision
Contested facts: firearms possession
The court accepted the offender's evidence that he had been paid $500 to store the two firearms overnight for a man named Joe Kokhoury while Kokhoury moved premises. His Honour found the account credible for several reasons: the offender's demeanour in giving evidence appeared truthful; the Crown led no evidence to contradict it; and, critically, while in custody the offender contacted investigating police to provide what he believed was a more accurate recollection of Kokhoury's name, exposing himself to considerable risk. The court found it implausible that the offender would have done so if his account were false. There was also no evidence that the offender knew either weapon was loaded.
Drug supply
The court accepted the offender's explanation that he found the MDMA in a car park near a Bankstown convenience store, having apparently been dropped by another person. The court did not regard it as implausible that drugs could be unknowingly left behind in such a location. Regardless of how the drugs were acquired, the offender admitted knowing they were drugs and intending to sell them to supplement his income for his heroin habit.
Background and moral culpability
His Honour identified a clear connection between the sexual abuse the offender suffered at the hands of a Catholic priest at age nine, his subsequent self-medication with heroin as a teenager, and his ongoing criminality. The court observed, with evident concern, that this connection had not been properly addressed by the many health professionals who had assessed the offender over the years. Given this background, the court found the offender was not a suitable vehicle for the full weight of general deterrence, though that principle remained relevant. Specific deterrence and community protection were fully engaged.
Objective seriousness and sentence
The aggravated break-and-enter was assessed as falling between the middle and the bottom of the range for offences of its type. Each firearms offence was assessed as slightly below the mid-range. The drug supply offence was assessed as below the mid-range, in part because of the absence of evidence as to the purity of the MDMA. A 25 per cent discount applied to each offence for pleas of guilty. A finding of special circumstances was made, in part on account of the offender's difficult personal circumstances including his father's deteriorating health. An aggregate sentence of seven years was imposed, with a non-parole period of four years and six months.
Orders Made
- The offender was convicted of all four principal offences.
- An aggregate sentence of seven years imprisonment was imposed.
- Non-parole period of four years and six months, commencing 29 March 2018 and expiring 28 September 2022.
- Balance of term of two years and six months, commencing 29 September 2022 and expiring 28 March 2025.
- A drug destruction order was made.
Key Takeaways
- The District Court accepted contested facts advanced by the offender on the balance of probabilities where the Crown led no contrary evidence and where the offender's conduct in custody (voluntarily contacting police at personal risk) provided strong circumstantial support for his version.
- Where an agreed statement of facts is found to be unsatisfactory, a sentencing court may adjourn the hearing to obtain a properly prepared document, as occurred in the earlier proceeding reported at R v Geerlings [2019] NSWDC 83.
- A sentencing court may decline to hold a co-offender's separate criminal conduct against the offender being sentenced where the Crown does not establish that conduct formed part of a joint criminal enterprise.
- Documented childhood trauma and its causal connection to long-term drug dependency and offending can inform the assessment of moral culpability and the degree of general deterrence to be applied, even where specific deterrence and community protection remain fully engaged.
- Under the aggregate sentencing regime, the court is required to state indicative sentences and indicative non-parole periods for each constituent offence, against which the aggregate term and non-parole period are then set.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 112(2) (aggravated break, enter and steal in company; maximum 20 years; standard non-parole period 5 years)
- Firearms Act 1996 (NSW), s 62(1)(b) (possess shortened firearm without authority; maximum 14 years)
- Firearms Act 1996 (NSW), s 7(1) (possess unauthorised pistol; maximum 14 years; standard non-parole period 4 years)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) (supply prohibited drug; maximum 15 years)
Cases:
- R v Geerlings [2019] NSWDC 83 (earlier decision adjourning the sentence hearing)