District Court New South Wales Medium Neutral Citation: R v Conor Lavan [2018] NSWDC 263 Hearing dates: 8 June 2018 Date of orders: 08 June 2018 Decision date: 08 June 2018 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Aggregate sentence of three years and nine months with a non‑parole period of two years and five months. Catchwords: CRIMINAL LAW SENTENCING – sentence after trial – possession firearm – supply firearm – connection to other criminal activity – impact of offences on community – parity where co-offenders give assistance – youth and community – interest in rehabilitation – assaulted in gaol – gaol not a deterrent – special circumstances – need for supervision – community protection. Legislation Cited: Firearms Act 1996 Cases Cited: Afu v R [2017] NSWCCA 246 AZ [2011] NSWCCA 43 Do v R [2010] NSWCCA 182 Green v The Queen (2011) 244CLR 462 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 O'Connor [2014] NSWCCA 53 R v Thalari [2009] NSWCCA 170 R v Thurgar (1990) 51 A Crim R 109 Tran v R [2010] NSWCCA 183 Category: Sentence Parties: Conor Lavan (Offender) Director of Public Prosecutions Representation: Counsel: Mr Coyne (for the Offender) Ms E Beljic, (Trial Advocate for the Director of Public Prosecutions) Solicitors: Mr M Ward (for the Offender) Mr J Lee (for the Director of Public Prosecutions) File Number(s): 2016/00324873 Judgment Introduction 1. On 30 June 2016, Conor Lavan brought a .270 Ruger rifle with scope to his friend Ben Anderson's bedsit in Mangerton. He stayed the night. Unbeknown to either man, police had obtained a search warrant for the unit that very day. Anderson was their target as Anderson was conducting a drug supply business from the bedsit. The search uncovered a quantity of drugs and two rifles, including the Ruger and ammunition for it. Anderson was arrested; Lavan was let go, although he received Court Attendance Notices for other offences, which were subsequently disposed of in the Local Court, and to which I will later refer. Later fingerprint and DNA analysis conducted on the Ruger linked Lavan to it. In exchange for a reduction in sentence, Anderson agreed to give evidence against Lavan. 2. On 15 September 2016, police telephone intercepts revealed that Daniel Tarvij was in serious trouble. He owed the Lone Wolf Motor Cycle Club over $70,000 for a drug debt. They had demanded immediate repayment in cash or kind; being firearms and cars. A desperate Tarvij phoned his friend Lavan. Lavan said he had two "Roscoes"; code for guns. Tarvij went to another unit in Mangerton and picked up Lavan, and I can readily conclude a weapon. As the car drove down nearby Crown Street, it was stopped by police. That weapon, a shortened .22 rifle, was found down Tarvij's trousers. Later, Tarvij, in exchange for a reduction in sentence, told police that he had just been given that rifle by Lavan. A search of a garage at Tarvij's unit found ammunition and other firearms. Tarvij put the blame for one of those weapons on Mr Lavan. 3. Lavan denied a connection with any of the firearms. He came for trial on 27 February 2018 before myself and a jury of 12. On 5 March 2018, the jury found him guilty of possessing the Ruger and supplying the shortened .22 rifle. He was acquitted of the other firearms offence. Lavan must have the full benefit of that acquittal. He also received some benefit because he assisted the course of justice by making pre‑trial disclosures. 4. It appears that the jury gave Lavan the benefit of the doubt on the count where the Crown case was based solely on the testimony of the witness Tavij about whom I gave a warning about potential unreliability. 5. I proceed to sentence on the basis that the jury did accept beyond reasonable doubt that Lavan, on two occasions, had rifles in his possession, and on 15 September was prepared to, and did, supply one, to another. By his own admission today, he accepts that the Ruger was also in his possession for the purpose of supply. He wished to obtain a benefit from the supply of either cash or drugs. Objective seriousness 1. The possession and/or supply of a firearm, particularly where, as here, it is connected with criminal activities, is a key factor in assessing the seriousness of the offence: R v Thurgar (1990) 51 A Crim R 109. Lavan's crimes involved the possession, and their intended use by the criminal element, of those rifles in our community. He possessed the Ruger, and he had it in the home of a person he knew to be a drug supplier. The shortened firearm was given to someone he knew to be involved in illicit drug supply: see R v Thalari [2009] NSWCCA 170; AZ [2011] NSWCCA 43. Both offences involve significant breaches of the Firearms Act 1996. That Act makes it clear that firearm possession is a privilege that is conditional on the overriding need to ensure public safety. There was no justification here for the possession of the rifles. There was no justification for the supply of the shortened firearm: Friendship should not go so far. 2. To commit crimes to help a friend may appear to some to be noble. There is no nobility in possession of, or supply of, firearms. The fact that at the time the firearm was not able to be fired does little to mitigate the seriousness of this offence. Firearms of the nature of that recovered from Mr Tarvij's trousers are clearly altered so that they can intimidate and terrify others. They could be made usable again. The weapons were not licensed; they were not registered; they were not kept safely; they had been stolen. I am not punishing him for those matters because they would be separate offences, but they are matters I can take into account, and they are obvious from the facts of this matter. Firearms, if possessed, are liable to be used, and if used, are liable to be a source of great danger or damage to the community. Their possession, even if not loaded, created, so far as the second offence, a high risk to the safety of the public and arresting officers: see Do v R [2010] NSWCCA 182 and Tran v R [2010] NSWCCA 183. 3. The evidence at trial revealed that Lavan's possession of these rifles were not one offs. Lavan was associated with others engaged in the acquisition of rifles, and perhaps drugs, and was well aware that those rifles might be used by the criminal element for unlawful ends. He is, however, not to be sentenced for these associations but only for the two matters before me. 4. For these reasons, each offence is one of considerable objective seriousness. Only full time custody could meet all the purposes of sentencing. 5. I have some statistics before me. They provide little guidance. I have sentenced many offenders for firearm possession matters but I have to focus on the specific matters before me. They do not carry standard non‑parole periods, although similar objective facts might. 6. I have to focus on the fact that a s51H(1) Firearms Act offence carries a maximum penalty of 14 years. The supply offence, s62(1)(c) Firearms Act, also carries a maximum penalty of 14 years. Those maximums are important guides to the exercise of my sentencing discretion. Careful attention to them is required; but every offence and every offender is different. Criminal History 1. Born in 1996, Lavan has been in contact with the criminal justice system since 2013. As a child he was sentenced to control orders. In 2015, he was imprisoned for assault police and dishonesty offences. His sentence had expired only a few months before these offences. He is not entitled to the leniency often given to first offenders. At the time of the offending he did not appear to have learnt the lesson meant to be taught by imprisonment. He said in his evidence today he has learnt some important lessons this time. 2. As is more often the case, his initial terms in juvenile detention and prison, rather than deterring him from further crime, appear to have reinforced his connections with the criminal element in our community, another indication that harsh prison sentences often have a counterproductive effect, particularly on the young and immature. It also appears that he did not receive any significant benefit from his period on parole. Parity issues 1. On 16 June 2017, I sentenced Anderson for drug supply and Firearms Act offences. He received an aggregate sentence which appears, initially, modest; two years three months with a non‑parole period of one year and two months. However, I had reduced each indicated sentence by 25% to take into account the utilitarian value of his guilty plea and by a further 10% to reflect his cooperation, both past and future. The indicated sentence for the firearm found, when Lavan was arrested, was 11 months; a starting point of one year and six months approximately. Anderson presented to the Court with powerful subjective features. He had, by his assistance, placed himself at odds with his previous past. He was, apparently, genuinely a person who presented as being at the crossroads in his life. 2. Although Lavan is not to be punished for putting the prosecution to proof, his attitude to his offending appeared defiant, and it would appear that at least until today, he had learnt all the wrong lessons from his time in custody. 3. When Judge Noman SC sentenced Tarvij, she reduced each indicated sentence by 25% and 15% to reflect cooperation, past and future. For the indicated sentence, so far as his possession of the shortened .22 rifle seized from him on 16 September, there was a sentence of one year and ten months' imprisonment, which gives a starting point of three years. 4. In determining these sentences I have regard to the circumstance of this offender and his co‑offenders. I have to have regard to their respective degrees of culpability, and their personal situation. Both Tarvij and Anderson were also sentenced for drug related offences. Like must be compared with like, but different personal and criminal histories may justify a real difference in the time each might serve in prison. This principle is known as parity. It is a classic example of the need, so far as possible, to ensure equal justice: see Green v The Queen (2011) 244 CLR 462 and Afu v R [2017] NSWCCA 246. Totality 1. Lavan has been in custody since 31 October 2016. During his period on remand, he served a three month sentence for the matters that came to the attention of police when they visited Anderson's premises on the night of 30 June and in the morning of 1st July. That three month sentence was placed in the middle of his remand period. 2. As Mr Coyne, who appeared at trial and on sentence, points out those matters had some relationship to his activities with Anderson. There must be some independent punishment for those matters, but I also, as I will indicate, have to have regard to the principle of totality. In all the circumstances, I propose to commence this sentence on 30 November 2016. 3. I am allowed considerable flexibility in determining the structure of two or more sentences. There were here, however, distinct offences on different days. A sentence for one could not comprehend the criminality involved in the other. I must impose an appropriate sentence for each offence and structure the sentences such that the overall sentence is just and appropriate to the totality of the offender's criminal behaviour: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59. 4. I do not make sentences concurrent simply because they are similar conduct. Public confidence in the administration of justice would suffer if they were somehow a feeling that there was a discount for multiple offending. There must be some accumulation of the indicated sentences here. Subjective case 1. Mr Lavan gave evidence. He was, I accept, frank. He accepted that his behaviour in the past had not been acceptable, and that after he first came into gaol he was still using illicit drugs. This is evident in the custodial record before me. It would appear that he failed to learn any important lessons from his time in custody on the last occasion. He tells me that he is starting to grow up. He now sees that his pattern of offending and gaol is not the life he wants to lead. 2. It is, unfortunately, common that those who have learning and behavioural difficulties, and consequent trouble at school, often take up the use and abuse of alcohol and illicit drugs when very young. It is also, unfortunately common, that some young and immature men associate with those in the community who engage in criminal activity; they see it as a lifestyle that is to be adopted and emulated. 3. There is an enormous amount of research being done on the development of adolescents; particularly adolescent males. Mr Lavan, in his history to date, has shown considerable immaturity and considerable inability to act in his own best interest. In doing so, he has caused considerable harm, not just to himself but to the community. As Madam Crown said in this matter, anyone who saw the community's reaction to the arrest of Tarvij, and the finding of the gun that had been supplied to him by Lavan, on the recording played at trial, would understand the abhorrence with which firearm offences are viewed by the community. 4. The fact that Lavan took up the use and abuse of illicit drugs when too young to really make rational decisions; the fact that he has taken considerable time to mature, are all matters I have to take into account. There is a real risk that Lavan, if he continues down the path he has taken to date, will be a danger to himself but, more importantly, a danger to the community. 5. While he has been in gaol this time, he has not been able to access programs. He tells me, and I accept that he was assaulted and seriously hurt while in prison. That is a matter I can and will take into account. It is notorious that victims of crime suffer when they are placed in a position where there is a possibility of repetition of that crime. When I deal with victims in court, and victim impact statements are presented in court, it is not at all unusual to have those persons saying that the memory of the event was brought up by certain triggers, and they are entitled to sympathy for that. 6. When someone is assaulted in gaol they, if serving a sentence or if imprisoned afterwards, are returned to the very place they were assaulted: A person in custody has no freedom. They have no control over who they associate with. They have no control over who is assigned to share their cell. A past assault can mean that they spend their remaining time in custody apprehensive of a future assault. That said, as the Court of Criminal Appeal made clear in O'Connor [2014] NSWCCA 53, only limited weight can be given to that one factor. 7. I am prepared to accept that Lavan, given his evidence today, wants to be clean of drugs and wants to keep his mother happy. He says he is a bit embarrassed by the situation he has placed himself in. He should be deeply ashamed. He tells me that he has a place to live with his mother, and he hopes to have a job lined up on release. He has never worked in the community. He will be sorely tested upon release. 8. In cross‑examination, he was fairly frank and candid in acknowledging his criminal activity. While he is not to be punished for putting the matter to trial, he would have been advantaged by showing that same frankness and candour much earlier than today. 9. His mother wrote a letter to the Court: Exhibit 1. In it she sets out the family background. In it she says how they came from Ireland to this country in 2005. She noted that Lavan did not do well at school, both in Ireland and in Australia, that he struggled and had to go to a school for students with behavioural and learning difficulties. She notes how at 14 he started using illicit drugs. She noted the rapid decline in his life that drug use and associating with drug users caused. She notes how he would rather be with his criminal associates than be at home. 10. She says the family tried to help Lavan but his addiction was too strong, and he turned his back on his family. She says that since he has been in gaol she has been visiting him regularly. She has noted a significant improvement in his physical health. She says he is showing some signs of understanding of where he is in life and what will happen if he continues down a criminal path. In her discussions, with him she says Lavan has at last started ‑ I emphasise started ‑ to realise that his actions not only affect himself but also his family and those who are trying to help him. I do not think he has yet realised that it goes beyond that, and it affects the community in general, a community, if he wants to stay out of trouble, he has to live in. 11. She says that he has been drawn to the wrong sort of persons, and he needs to learn to be self‑sufficient. The support that his family, his mother and stepfather, is giving him is conditional. If he wants a life free of drugs and free of crime, he can take their help; if he wants to return to gaol, he knows the choices that can be made. The choice is his. Special circumstances 1. In his submissions, Mr Coyne suggests that a finding of special circumstances should be made to increase the amount of time Lavan is supervised and monitored in the community. It is in Lavan's interest, and also the community's interest, that he receive supervision and monitoring for as long as practicable, but the finding of special circumstances must be tempered by the requirement that the non‑parole period also reflect the manifold purposes of sentencing, and the seriousness of the offences. 2. I cannot accept Mr Coyne's second submission that time served is enough. The offences were too serious for that. Things might have been different if he had acknowledged his guilt at an early time. Again, he is not to be punished for that but he cannot have his sentence reduced as happened with both Tarvij and Anderson. He is being sentenced only for the two firearms' offences. Ultimately, it is in his and the community interests that he engage, while serving the balance of his period in custody, in any programs that can be made available to him. 3. It is also in the community's and his interests that he engage with Probation and Parole on release so that he can get assistance getting work, finding accommodation, and staying away from those in the past he has associated with. Sentence 1. Mr Lavan, I am not confident that you have learnt all the lessons that gaol is meant to teach. I am heartened by the evidence that you gave, but you will need to do a lot of work. If you want to become a career criminal and find permanent accommodation in New South Wales gaols, you know the choices that you can make. If you want to learn how to live in our community, as part of our community, you will be given that opportunity during your parole period. Do you understand? OFFENDER: Yep. 2. HIS HONOUR: Conviction after the jury verdict. I will make the firearm forfeiture order, as requested. I propose to give an aggregate sentence. 3. In relation to the s 51H offence, I indicate a sentence of two years' imprisonment. 4. For the s 62(1)(c) offence, I indicate a sentence of three years' imprisonment. 5. There will be an aggregate sentence in this matter of three years and nine months with a non‑parole period of two years and five months which will commence on 30 November 2016. This means you will be eligible for consideration for release to parole on 30 April 2019. There will be a parole period of one year and four months after that; the total sentence will expire on 29 August 2020. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 September 2018