R v DOGAN [2011] NSWDC 86

District Court New South Wales

Medium Neutral Citation: R v DOGAN [2011] NSWDC 86 Hearing dates: 28 July 2011 Decision date: 28 July 2011 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to imprisonment Catchwords: CRIMINAL LAW - Sentence - Form 1 - Possess unregistered firearms - Possess a precursor - conceal serious indictable offences Cases Cited: Mack v R [2009] NSWCCA 216 Category: Sentence Parties: The Crown Erkan Dogan Representation: Mr G Turnbull - Offender Director of Public Prosecution The Law Practice File Number(s): 2009/00078683

SENTENCE 1HIS HONOUR: Erkan Dogan grew up in rural Queensland. His home life was unusual to the point of being disturbing. He and his siblings, at least most of them, appear to have tried to get away from home as quickly as possible. His older sister moved down to Sydney and when the offender was seventeen he followed. He lived with her for a time but soon began to escalate his drug use, not only recreationally, but also he commenced using steroids as part of his gym activities. Somehow he got into contact with a very serious criminal organisation. At the age of only twenty he committed a large number of serious offences for which he must now be sentenced. 2The first of those offences was one of possessing more than three unregistered firearms, any one of which is a prohibited firearm. That is an offence that has a maximum penalty of twenty years imprisonment and a standard non-parole period of ten years. Although the standard non-parole period is not of direct application because of the offender's early pleas of guilty, it remains as an important guidepost to the sentence I should impose upon him. The lengthy standard non-parole period of ten years is a good indication as to the seriousness with which parliament says judges should treat offences of this kind. 3The offender also is to be sentenced for possessing a precursor, that is a substance that can be used to manufacture drugs, in this case 6.39 litres of a substance called safrole. The maximum penalty for that offence is five years imprisonment. 4Then there are three offences of concealing a serious indictable offence. The first is an offence of concealing the circumstance that other people possessed more than three unregistered firearms, any one of which is a prohibited firearm or pistol. The second is concealing a serious indictable offence of supplying a commercial quantity of methylamphetamine and the third is concealing a serious indictable offence, namely the possession of people known to the offender of offensive weapons, which were in fact explosive devices. It is important to understand that by his plea of guilty, the offender admits that he understood that those people possessed the explosives with intent themselves to commit indictable offences. 5What I have described is already a large number of serious offences, but there are more. The offender asks that when I sentence him I take into account fourteen further offences on a form 1. They are attached to the first of the offences I described, the possession of the firearms matters. Those fourteen offences all relate to the offender's possession of other items, prohibited drugs in three cases, goods in custody, (which relates to various forms of police paraphernalia), prohibited weapons, including an imitation submachine gun, extendable batons, ballistic vests and two devices capable of inflicting electric shocks on people. The offender's criminality is very serious indeed. 6This was all discovered when police executed a search warrant at some premises. There they discovered the items that I have referred to. 7The agreed facts on sentence are some seventeen and a half pages. They are clearly the product of some cutting and pasting from another document without much thought been given to precisely what it is that a judge needs to know in order to sentence someone. The judge does not need to know for example, exhibit numbers, and yet they appear throughout the statement of facts. I will not delay matters further by being further critical of the statement of facts beyond saying this. There is a real risk that in producing a document of that length the essential criminality of what an offender did is easily hidden. With those remarks out of the way let me turn to what it is agreed that the offender did. 8The search discovered firstly a number of firearms that were not inside a safe. Those firearms are the subject of the first offence, that is the one with the standard non-parole period. The police located a pump action shotgun. It was in fact loaded. There were five rounds. The statement of facts say they were in the chamber, but I suspect it means they were in the magazine. Police also discovered ammunition suitable for that shotgun. It is also suitable for another shotgun that was discovered inside a safe, which is not the subject of this charge. 9Police also discovered, again not within the safe, a 7.62 millimetre self-loading rifle with a telescopic sight and a magazine. The magazine was capable of holding thirty 7.62 millimetre cartridges. 10The next series of firearms discovered by the police were blank firing self-loading pistols, that is they are not themselves capable of killing anyone, in contrast to the shotgun and rifle that I have earlier described. There were four such blank-firing pistols. 11I mentioned before that there was a safe in the premises. Access was gained to that safe and further items were found. It is important to understand that the offender is not to be sentenced on the basis that he was in possession of the items within the safe. They form the basis of the other offences of concealing a serious indictable offence. 12With that qualification, police found within the safe another three twelve gauge shotguns, one of which had been shortened. Ammunition was also found. There was another 7.62 millimetre rifle with a telescopic sight. Magazines suitable for 7.62 millimetre ammunition were also found, as well as an enormous quantity of ammunition, over 2,000 cartridges. There was a .22 inch rifle as well, a nine millimetre pistol, another blank-firing revolver, as well as further ammunition and magazines. Other items, the subject of the offences on the form 1, were discovered: An imitation Thompson submachine gun, an extendable baton, two ballistic vests, two imitation rifles, an imitation AK-47, the two devices capable of inflicting electric shocks on people, an imitation self loading pistol and some drugs. As well as the drugs, police discovered 6.39 litres of safrole, the precursor that I mentioned earlier. Also within the safe were thirteen explosive devices and two grenades. They have each been dismantled. One of the devices was a smoke grenade; the other is a device which is used by someone intending to assault another person to distract them. It produces two loud bangs half a second apart. 13Also in the statement of facts is evidence, which is accepted of course, to indicate the offender's connection and contact with members of an outlaw motorcycle gang, that gang, having been involved in attacks on another outlaw motorcycle gang which is involved in explosions, brawls and the death of one person, the subject of a trial that is presently proceeding in the Supreme Court. 14To say that the offender has involved himself in serious criminal activity is something of an understatement. He was twenty at the time, he is now twenty-two and he has no prior criminal convictions. He, as I mentioned earlier, grew up in rural Queensland in a family where there was constant abuse. His father was addicted to marijuana and although his mother was warm and caring, she suffers from bipolar disorder. The offender commenced using drugs when he was living at home, stealing his father's drugs. Once he came to Sydney, as I mentioned earlier, his drug use escalated and he must have somehow come into contact with a number of serious criminals who clearly used him as a person who could be trusted to look after their weapons and drugs. 15The offender pleaded guilty at the earliest opportunity and so is entitled to a discount on his sentence to reflect the utilitarian value of his pleas. He also asks that I take into account a matter involving some assistance to the authorities. It is the subject of an affidavit which has been placed in a sealed envelope. The assistance is somewhat limited, it has had the effect of getting two dangerous weapons out of circulation, but it does not extend beyond that. Indeed, on one view, if the offender was aware of those items and had not handed them into police or arranged for that to be done, he could have been charged with a further offence involving a further concealment of a serious offence. Combining the discounts for plea and assistance I will impose a sentence which is thirty per cent less than it would otherwise have been. 16I am required to assess the seriousness of the offence that carries the standard non-parole period with some particularity. Both Mr Turnbull, who appears for the offender, and the Crown, rely on the decision of the Court of Criminal Appeal, Mack v R [2-0] NSWCCA 216 , in which a number of factors were identified in determining the seriousness of such an offence. The first concerns the number of firearms, in this case there were six, although it has to be noted that four of those were only capable of firing blanks. All of those items were prohibited firearms. Two of them were dangerous. One of them was loaded. These firearms were not possessed so that they could be displayed as collector's items on a wall either. They were clearly possessed so that they could be used in criminal activity, part of that criminal activity involving, as the evidence would clearly indicate, illegal drug supply. Although some items were found in a safe, the items the subject of this specific offence, were not. As I have mentioned earlier, ammunition suitable to the firearms was found nearby. For those reasons the objective gravity of this offence is within the middle of the range of objective seriousness. The major circumstance preventing the finding of greater objective gravity concerns the circumstance that four of the firearms were not lethal. 17The offender spent almost a year and a half in custody before being released on bail. Because of these offences and the fact that police have detected them and because that has led to a significant quantity of material being seized by police, the offender's safety is at risk. It does not take much imagination to conclude that the outlaw motorcycle gang who were responsible for all of these items would be very displeased at what has happened and are likely to seek some form of retribution. The offender was placed in what is in effect solitary confinement for some time. The circumstances of such custody are extreme. Fortunately the conditions were relaxed. His sister, who gave evidence today, noted a change in his behaviour once that occurred. But he has done his time in custody thus far in circumstances which are very different from the circumstances applying to the general prison population and there is a real risk, in fact a very good chance, that he will serve the remainder of his sentence in some form of protection. If that happens there is a real risk and indeed again a very good chance that this will involve conditions of custody, which are harsher than those which apply to the general prison population. 18I have mentioned a couple of times that the offender was a fairly young person at the time he committed these offences. The evidence would also suggest that he was vulnerable to the influence of others. I accept that that is the case. His age, his background and his drug use all made him a target for more serious criminals. He is, I accept, quite a different person now to the person he was when he committed these offences. He does have good prospects of rehabilitation. His offending extended over a relatively short period of time and of course there is no suggestion that he was going to commit any of the serious criminal offences which others were going to. On the other hand, by his pleas of guilty, he admits he was aware of the use to which at least some of the items were going to be put. 19It is impossible to describe his behaviour as anything other than very serious criminality indeed. For that reason he must go to gaol for a lengthy period of time. It is a fundamental rule in sentencing that a sentence must reflect the objective gravity of what an offender has done. 20It is necessary also to recognise that there are multiple offences here. Although all of the offences were in effect committed at the one time, they represent different aspects of the offender's criminality and so there must be an accumulation of sentence. The principle of totality of course operates significantly in the offender's favour. I should also say at this stage that because the sentence for the standard non-parole period offence, will be served after the sentence for the other two offences, the circumstance that there is accumulation leads to the standard non-parole period being less than it would be if it were standing alone. Were the offender an older man when he committed these offences, the sentences that I would impose upon him would be much longer than the ones I will shortly announce. The sentence must reflect not only the offences but also the offender. For that reason I have reduced the sentences significantly because of the offender's age and his vulnerability at the time. 21The offender is sentenced to imprisonment for each of the offences of concealing a serious indictable offence. I impose a fixed term of eighteen months to have commenced on 13 February 2010, which takes account of his presentence custody. For the offence of possessing precursor, the offender is sentenced to a fixed term of eighteen months to date from 13 February 2011. Those sentences are fixed term because of the sentence I will now announce. The offence of possessing more than three unregistered firearms, any one of which is a prohibited firearm, the offender is sentenced to imprisonment. I set a non-parole period of two and a half years to commence on 13 August 2011. It will expire on 12 February 2014. I set a head sentence in that case of five and a half years. The overall sentence is thus, a non-parole period of four years and a head sentence of seven years. It will be clear that I have made a finding of special circumstances in the offender's favour. They of course relate to his age, the fact that this is his first time in custody and that he will serve his sentence on protection. 22Sequences 3 and 4 on the section 166 certificate withdrawn and dismissed.