R v Tape [2018] NSWDC 57

District Court New South Wales

Medium Neutral Citation: R v Tape [2018] NSWDC 57 Hearing dates: 21 April 2017; 9 March 2018 Date of orders: 09 March 2018 Decision date: 09 March 2018 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The offender is referred for assessment to serve his sentence by means of an Intensive Corrections Order. Catchwords: CRIMINAL LAW – Sentence – Paintball guns – Supply prohibited firearms – Acquire prohibited firearm parts – Possess unauthorised firearm – Receive stolen property – Enter dwelling with intent to steal – Larceny – Not keep firearm safely – Positive results following s11 remand. Legislation Cited: Crimes (Sentencing Procedure) Act Category: Sentence Parties: The Crown Corey Nathan Tape Representation: Counsel: Mr J Young – The offender

Solicitors: Director of Public Prosecutions - The Crown Matulich Lawyers – The offender File Number(s): 2016/72656

Judgment 1. HIS HONOUR: Members of the community and parliament are rightfully concerned about offences involving firearms. Their possession is highly regulated. When people possess them, use them and supply them illegally parliament has provided for very significant sentences indeed. The reasons are obvious. Firearms are generally capable of killing, and killing many people. They are easily misused. They are inherently dangerous items. 2. But not all firearms are equal. Some firearms are in fact not lethal, they are imitations. However, their use, possession and sale is also serious because they are easily used in other crimes, robbery for example, where the victim of the offence has no idea that he or she is being held up by an offender carrying an imitation firearm. 3. Then there are firearms in another category, a category with which I am dealing today. 4. The offender faces sentence on a number of matters, the most important of which is an offence of unlawfully supplying prohibited firearms on three or more occasions. That is an offence which carries a maximum penalty of 20 years imprisonment with a standard non-parole period of ten years. He also is to be sentenced for an offence of acquiring prohibited firearm parts, carrying a maximum penalty of four years imprisonment and one offence of possessing an unauthorised firearm which carries a maximum penalty of four years imprisonment with a standard non-parole period of four years. For the sake of completeness I should also note that on a s 166 certificate he is to be sentenced for a number of offences of dishonesty relating to the receiving of stolen property and entering a dwelling with intent to steal. Finally, there are a couple of Form 1 matters, one of larceny and one, to return to the firearms offences, of not keeping a firearm safely. 5. All of the firearms were paintball guns. They are not inherently lethal and they are not designed to imitate a lethal firearm. Of course a person being held up by one may not realise that a non-lethal firearm is being used, but it remains the case that, as I began these remarks on sentence, the firearms the subject of the charges for which Mr Tape is to be sentenced are not lethal, and they are not designed to imitate a lethal firearm. I would not, however, go so far as to describe them as mere toys, as was suggested in some of the material put before me today. 6. All these matters came about after some premises of a paintball gun centre known as the Ultimate Skirmish Game were broken into. A total of 139 paintball guns were stolen. Also stolen were some ammunition, 15 boxes with 2000 rounds per box, some air canisters and some protective clothing worn by participants in a paintball game to prevent injury. Shortly thereafter the accused must have come into possession of a number of those stolen firearms and other material because he began selling, and making arrangements to sell, some of those firearms. 7. The offender was fully aware that what he was doing was wrong. Police intercepted his telephone calls. In those calls he, and the person he was speaking to, used a code, discussing "things" and indeed on one occasion the offender told the person with whom he was speaking that if he got caught he would be up for weapons charges. So the offender was under no illusion as to what he was up to. It is clear that the offender had access to a significant number of paintball guns, even offering prospective purchasers bulk discounts: One to nine guns being $300 each; 10 to 19 guns $250 each; and more than 20 guns at $200 each. Clearly the offender would only make such an offer if he had access to more than 20 of the paintball guns. 8. Further confirmation of this is to be found in a telephone call between the offender and his current partner who was also to some extent a co-offender in these matters. He told her in a telephone call that he had 50 of those "things" left. As police listened to conversations about the paintball guns it became clear that the offender was involved in other criminality as well. That was confirmed when police finally arrested the offender. They found in his possession a number of items of stolen property, including, somewhat bizarrely, some medical equipment such as pacemakers and the like valued at about $178,000. 9. The offender did not give any evidence in this matter and so how he got possession of those things, and what he was intending to do with them is difficult to understand. One would hope if one was to get a pacemaker fitted that it would not be acquired from someone who said that it had fallen off the back of a truck. 10. At the time of these offences the offender was a very different man to the person he was now. He was a drug user as was his co-offender and still partner. When he first came before me some time ago now in April last year there were suggestions that the offender had given up drug use. Accordingly I gave the offender an opportunity to demonstrate the accuracy of his claim to have given up drugs. I adjourned the matter under s 11 of the Crimes (Sentencing Procedure) Act and made it a condition of his bail that he undergo regular urinalysis. He has come back to Court today having fully complied with his conditions of bail and most importantly presenting to the Court clean urinalysis reports. His mother has given evidence on both occasions. Today she described how different her son is now compared to the person he was back in early 2016 at a time when he was using drugs. 11. In the period of remand he has also kept his job and a reference tendered today from his employer Mr Trikillis speaks highly of him. He says: "Corey is reliable, trustworthy and exceptional worker and a valued member of my staff. Corey was honest regarding his charges from the beginning of his employment and I believe this showed good character and allowed us to build trust and start with an open an honest relationship." 1. The question is of course whether the offender's efforts at rehabilitation are enough to overcome the obvious likelihood that criminality such as I have described is deserving of a fulltime custodial sentence. 2. I note that the offender pleaded guilty at the earliest opportunity to these offences and so the sentence I impose upon him will be 25% less than it would otherwise have been. 3. I note also that the offender spent 17 days in custody before he was granted bail. 4. I note the standard non-parole period applicable to two of the offences for which the offender must be sentenced. I have taken into account both the maximum penalty and the standard non-parole period where appropriate in determining the sentence to impose upon Mr Tape. My reasons for not imposing the standard non-parole period appear in these remarks on sentence, the most important factor of course being the nature of the firearms themselves. One can quite understand why a standard non-parole period would be applicable for an offence involving a lethal firearm, but as I have hoped to explain these firearms are not in that category. 5. Mr Tape has written a letter to the Court. He also relies on a psychological report. In both he expresses his remorse. As the Crown reminds me I must exercise some circumspection before I accept such material in circumstances where the offender does not make the short journey from dock to witness box to give sworn evidence that what he told the psychologist and what he wrote in his letter to me are accurate. 6. In many respects the firearms offences focus on one aspect of the offender's criminality. But there is another aspect of the same criminality consistent with his other offences relating to receiving stolen property and larceny. That criminality is of course that the offender was dealing in stolen property. He was supplying firearms which he knew to be stolen and so it is important not to overlook that aspect of what the offender has done in determining the appropriate sentence. 7. In Mr Tape's letter to me he makes reference to those who will suffer should he go to gaol. But it has to be said that consequences such as those of which Mr Tape speaks are hardly unusual. Indeed they are commonplace when people with dependents, people in a relationship with a partner, commit serious crimes and get sent to gaol as a result. I have commented on this more than once but I will do it again. It is always a bit distasteful for an offender to seek mercy on the part of his or her dependents when they knew that they had those dependents when they committed their offences in the first place. If the offender does go to gaol and his family suffers, then that is not the Court's fault. That is his fault for committing a series of offences when he knew that his family would suffer in the event that he was detected and punished for what he had done. 8. I should mention briefly the issue or parity. Two others have been sentenced for their part in offences relating to the firearms, including of course his current partner. She received the benefit of bonds under s 9 of the Crimes (Sentencing Procedure) Act when the matter was dealt with in the Local Court. Whilst the offender should not have a justifiable sense of grievance when he compares the sentence I ultimately impose upon him with that which was imposed upon his partner, it has to be said that their criminality was vastly different. 9. Mr Young who appears for Mr Tape today submitted that it would be appropriate for his client to be dealt with under s 9 of the Crimes (Sentencing Procedure) Act. I regret to say that that submission is very much wide of the mark. 10. Mr Tape is a person who I am satisfied has good prospects of rehabilitation and is unlikely offend again. A s 9 bond would require him to obey the law, something he is obliged to do in any case. Ultimately a s 9 bond would not punish the offender significantly, but significant punishment is required to reflect the objective criminality of what he has done. 11. Mr Young also made a submission that I would find special circumstances. Were I to ultimately impose a period of fulltime custody I would have done so. Whether a fulltime custodial sentence is ultimately imposed is something which remains to be seen, because I have determined that a sentence of imprisonment is required and I have determined that that is likely to be two years or less, and I am satisfied that if assessed as being suitable to serve that sentence by means of an Intensive Corrections Order such an outcome is at least a possibility. 12. Accordingly I will adjourn this matter until a date to be discussed and order that Mr Tape is to be assessed for his suitability to serve a sentence by means of an Intensive Corrections Order. In the meantime his bail will continue unconditionally. 13. 27 April is that suitable for you? 14. I list the matter for 27 April. 15. Mr Tape I'm not sure whether Mr Young discussed the possibility of an Intensive Corrections Order with you, I'm not even sure whether you know what one is. Let me tell you the most important thing about an Intensive Corrections Order is that it doesn't require you going back to gaol unless you don't comply with it. What's going to happen in the meantime, between now and 27 April, is that you'll be assessed as to whether you are suitable to serve a sentence by means of an Intensive Corrections Order. If you are suitable, and I'm not going to make any promises, but it's possible that I won't send you to gaol. If you're not suitable you're going to go to gaol. There's a possibility that even if you are suitable, depending on what the report says, you'll still go to gaol anyway. But you've got to continue what you've been doing between now and 27 April to maximise the chance that you don't go to gaol. 16. ADJOURNED TO FRIDAY 27 APRIL 2018 FOR SENTENCE