R v Cochran [2019] NSWDC 462

District Court New South Wales

Medium Neutral Citation: R v Cochran [2019] NSWDC 462 Hearing dates: 28 June 2019 Decision date: 28 June 2019 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: For orders see [34]-[39] Catchwords: SENTENCING - Sentencing facts – possession multiple firearms – replica firearms and other weapons – potential harm – gaol did not deter – offender's deprived background – special circumstances. Legislation Cited: Firearms Act 1996 (NSW) Weapons Prohibition Act 1998 (NSW) Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 Attorney General's Application No. 1 (2002) 56 NSWLR 146 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 R v Brown [2005] NSWCCA 249 R v Mezzadri (2011) 210 A Crim R 442 Tepania v R [2018] NSWCC 247 Texts Cited: Does Imprisonment Deter? A Review of the Evidence, Victorian Sentencing Advisory Council, April 2011 Category: Sentence Parties: Ricki Lawrence Cochran (the offender) Director of Public Prosecutions Representation: Solicitors: Ms E Parkes, Solicitor Advocate, Legal Aid NSW (for the offender) Ms Zielinski (for the Director of Public Prosecutions) File Number(s): 2018/00200755 Publication restriction: Published version edited to comply with non-disclosure orders.

Judgment – ex tempore revised 1. On behalf of the community both State and Federal governments have introduced legislation that restricts the availability of weapons and firearms. For example the Firearms Act 1996 (NSW) makes it clear that firearm possession is a privilege that is conditional on the overriding need to ensure public safety. Judges must give effect to those laws. The normal way we do so is by the imposition of harsh penalties in an attempt to impress upon offenders and anyone who might be tempted to offend by unsanctioned possession of firearms or weapons the dire consequences of breaching our laws. 2. The laws are there for a reason. If possessed weapons can be used against others. If used against others those victims can be both physically and mentally hurt. 3. Cochran has spent most of his adult life in custody or facing criminal charges. In July 2015 he was arrested for possession of a prohibited weapon and placed on a good behaviour bond. On 6 December 2017 Cochran was released from prison after serving a sentence. 4. While in the community he was arrested for a matter, which is presently before the Local Court. His telephone was seized and examined. Some of the products of that seizure and examination are before me. As a consequence of what they observed on 18 June 2018 police served firearms and weapons prohibition orders on Cochran. 5. On 27 June 2018 police executed a search warrant at a home in Berkeley where Cochran was living with his partner, his sister and his sister's two children. 6. The subsequent search discovered two air pistols and soft pellet ammunition in a box addressed to the offender, but at a different address in Mt St Thomas. Cochran's sister told police that he had ordered them for her and her children. They also found a small gold replica Ruger, that pistol was exhibited to me and returned to police. It is a good facsimile but it appears to be a miniature and although not obvious until closely examined, was once a cigarette lighter. They also found; a large ornamental push dagger; a shortened 0.22 self‑loading rifle, with a 16 cartridge capacity magazine for that rifle; 73 rounds of 0.22 ammunition; a 12 gauge double barrel shotgun, which had its barrel and butt shortened; and, three shotgun shells. Cochran was not home at that time; he was arrested on 25 July 2018 and has been in custody since that date. 7. In the Local Court Cochrane accepted his guilt for the four matters for sentence with four to be dealt with on a form 1. There are backup charges on a s. 166 certificate which will be withdrawn and dismissed at the conclusion of these proceedings. The offences are use and possess a weapon, a push dagger, contrary to a prohibition order; Section 34 Weapons Prohibition Act 1998 (NSW) maximum penalty ten years. 8. Possess more than three unregistered firearms including a pistol or prohibited firearm, s 51D(1) Firearms Act, maximum penalty 20 years with a standard non‑parole period of ten years for an offence that falls, taking into only objective factors, in the middle of the range,. This offence relates to the replica pistol, the two air guns, the shortened 22 and the shortened shotgun. There are two counts of possession of a firearm subject to a firearms prohibition order: s 74(1) Firearms Act. No issue was taken that multiple firearms are referred to in those charges. The first relates to the shortened weapons. It carries a maximum penalty of five years. The second relates to the air pistol and replica and because replicas or imitations are deemed to be real pistols it carries a maximum penalty of 14 years; although any assessment of objective seriousness would put the possession of potentially lethal weapons in a much more serious category. 9. I have to have regard to the guidance offered by the maximum penalties and, where relevant, the standard non‑parole period. They can and do provide sentencing measures but those measures have to be taken with a common sense approach, which reflects the objective seriousness of what was done in the offence for sentence. They invite comparisons between the instant case and worst case but one does not first look at the maximum and then make proportional deductions from it. 10. I must give content to the standard non‑parole period. However, a process of comparing and contrasting the actual offence with an abstract one is not necessary, nor is it necessary to identify features of the offence which were not taken into account when considering the role of the standard non‑parole period; see Tepania v R [2018] NSWCC 247, at [103] to [120]. 11. An assessment of the objective gravity of the offence is however always required. To put it bluntly the offence involved two very nasty and lethal weapons. There is no conceivable reason why anyone would possess those weapons other than because of an association with past or future crimes. There are reasons here, however, to vary the standard non‑parole period. The first being the early plea of guilty, the second being a finding of special circumstances that I intend to make. The third being the other matters referred to in the restricted publication portion of this judgment. The fourth being my finding that the possession of five weapons, two of which being airguns, one a replica, put this towards the bottom of what are generally regarded as very serious offending. As Madam Crown pointed out in her submissions by reference to R v Brown [2005] NSWCCA 249. To possess weapons which are used to perpetuate some of the worst crimes of violence in our community and possess more than one is a matter that is of considerable concern to the community and the Courts and is reflected in the need for harsh and condone punishment. 12. There was no justification here for the possession of any of the weapons or firearms. I do not accept the suggestion Cochran made to his psychologist or said by his sister that they were unaware the replica and air pistols were illegal. Just because they can be bought on the internet does not make them legal. They are not toys, they are not regarded as toys, the police do not regard them as toys and the community should not regard them as toys. Possession, even of replicas, poses a significant risk to the safety of the community but more so those shortened weapons and the push dagger. While the dagger itself may be seen as some sort of popular culture, Game of Thrones type thing, if used could have lethal consequences, it is not an ornament, it is a nasty weapon. 13. None of the weapons were licensed or registered. None were kept safely. They were kept in a home where children lived. They were kept in defiance of the firearms prohibition order and a weapons prohibition order. The Commissioner made the prohibition order against Cochran because, in the opinion of the Commissioner, he was not fit, in the public interest, to have possession of a firearm or weapon. That opinion was justified. Having been served with the order Cochran knew not only that it was illegal for him to possess weapons and firearms but that the police were on to him. He did nothing to destroy, surrender in defiance of the order. The fact there is a concession that he obtained the shotgun after the order. I can accept that given his background, given his history he would have felt awkward in simply surrendering them to the police and making admissions. And, I suppose, he did not sell them to other criminals or give them to other criminals where they could have been used, a matter I can take into account, he was on the horns of a dilemma but he knew and well knew that he was committing a serious offence well before, certainly when those orders were served on him. He obviously has the capacity to obtain such weapons, particularly the ones in working order. 14. He has a long and sad history as a heavy user of illicit drugs. Such a history notoriously impacts on a person's judgment and capacity to make rational ordered decisions. Offenders are punished for what they have done and what they might do given the opportunity. But where an offender possess a firearm and they are known to have an involvement in criminal activity in breach of orders put on them to deter such possession, it makes the offending even more serious. The simple fact that firearms and other weapons if possessed are liable to be used and if used are liable to be a source of great danger or damage. Their possession, even if not then loaded, or even if an imitation, creates a risk to the safety of the public and importantly the police tasked with enforcing the law. 15. Possessing replicas or air pistols is less objectively serious than the possession of serviceable weapons: R v Mezzadri (2011) 210 A Crim R 442. That said, they are not toys, they can be used to fool others into thinking they are real. If used to threaten others, while physical harm may not be possible, the risk of psychological harm remains. This Court hears too often Victim Impact Statements from people who have guns put in their faces, they are not to know that when that replica is put in their face it is not the last moments they will be spending on this earthy, they are not to know it is not loaded or it is in fact a replica. The same applies even to a replica of pistols. 16. The s. 51D Firearms Act offence reflects, however, as I have said the inclusion of air pistols and imitations. The number of weapons is a factor in assessing relative seriousness. So too, as I have said earlier, is the nature of the weapons, some may have been air pistols and replicas but there were two very usable weapons shortened so as to be easily concealable. 17. The offender's explanations for the weapons, given through his psychologist, was an "interest in guns". Even if accepted, and frankly not being on oath and not being able to be tested I cannot accept it as the sole explanation for his possession of the firearms, that explanation does not mitigate multiple offending. 18. I am required to impose an appropriate sentence for each offence to allow the appropriate deductions from that sentence taking into account the strictures in the legislative provisions. I also have to form an overall sentence that is just and appropriate to the totality of the offender's behaviour: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62. 19. In matters such as this public confidence in the administration of justice requires any suggestion of a discount for multiple offending for the matters I referred to earlier, this sentence cannot be used as a guide either to general objective seriousness or when it comes to a general pattern of sentencing for matters such as this. I also have to be careful here the Court, in sentencing for individual offences, has to be aware that for a number of reasons practical the charges have been laid by the prosecution with the aim of encompassing all of the offender's criminal conduct. More than one offence has been charged and punishment must be extracted for each offence. As the High Court made clear in Pearce v The Queen (1998) 194 CLR 610: ""To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. … [T]he punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts." 1. The offences here have a number of common elements. Significantly, a number of them have so many common factors that the sentence for each must incorporate the criminality of the other. There remains, however, because of the variety of firearms and weapons possessed some need for a degree of separate punishment and some should be made partly cumulative upon the others. Ultimately, as I said, the aggravation of all the sentences must be just and proportionate. 2. There are matters so far as the s. 51D matter is concerned to be taken into account on a form 1. I note the submissions made and what was said in the Attorney General's Application No. 1 (2002) 56 NSWLR 146 and Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, to which I was referred. Had the ammunition offences been before me separately for sentence they would have only attracted a fine. Had the other matters been before me there would have been substantial concurrence because of the proper application of the principle in Pearce. There is a need here to be particularly careful. If I increase the sentence by any significant amount because of the matters on the form 1, I will have double counted matters in aggravating of sentence. I cannot and should not do so. 3. Cochran has a criminal record, he gains no comfort from it. He has been offending since he was a child. He has, as I have indicated, a prior possess weapons offence. He was, as is accepted, on bail for a separate matter at the time of the commission of this offence. 4. The lessons meant to have been learnt by juvenile detention and adult gaol sentences had not, at least until these proceedings, been demonstrated to have been learnt. This in itself is not surprising. Those experienced in the justice system are aware of a tragic paradox. There is a higher rate of recidivism amongst younger offenders who have been to gaol, imprisonment does not have a specific deterrent effect upon them. Incarcerated young people are placed with others who have antisocial attitudes and after their release young people may be likely to associate with others who they have met in custody and they therefore associate and join with those who commit criminal offences such as the possession of illicit weapons. Being in custody often has a negative effect on a young person's long term stability and capacity to lead a law abiding life and may contribute to reoffending. All of these concerns are evident in this case: Does Imprisonment Deter? A Review of the Evidence, Victorian Sentencing Advisory Council, April 2011. 5. I am assisted by a psychological report of Ms Dombrowski: exhibit 1, and the sentence assessment report of Ms Rebec of 27 June 2019, exhibit C. As I have said I cannot accept excuses proffered through either person from the tender but I do accept that he at last shown signs of accepting responsibility for his offending. 6. The background material is, however, not controversial, in accordance with what I know of the offender and as the District Judge and long term resident and practitioner in the area what I know of the circumstances where he grew up. Now 24 years old Cochran is an Aboriginal man who identifies as Wiradjuri. He grew up with his parents at the former Mission at Coomaditchie in Port Kembla. His parents had problems with substance abuse and crime. They both died young, while he was last in custody. He had few of the advantage we expect for children in our community. 7. He had problems at school and on leaving school while he was able to work kept up and continued what had been the early uptake of illicit drugs and alcohol that made attendance at work a struggle. His peers were criminals and drug uses, he has never to date escaped that milieu. His heavy drug use has continually, as his record makes clear, compromised his capacity for decision making and judgment. He now has signs of what Ms Dombrowski regards as a personality disorder with antisocial features. That disorder in turn makes decision making more difficult and his problems are exacerbated by substance abuse which is brought about by poor decision making. This disorder will make effective engagement in alcohol and drug programs difficult but the circle must be broken. If he is ever to lead a normal community life he must learn how to lead a normal community life, he never had that opportunity. If he does not learn he will commit more crimes against the community on release and he must be released, I cannot extend his sentence beyond what is called for by its objective facts and I have, so far as I am allowed, reduced his sentence significantly. 8. Ms Dombrowski suggests that while in custody he engage with the Ngara Nura program, a culturally sensitive alcohol and other drug (AOD) program, and that on release he get as much support finding suitable housing, employment and vocational training from Probation and Parole. In particular he needs to be supervised and managed as to his peer associations. He will need to continue to engage in AOD programs. If he resumes alcohol and other drug use his future will be bleak, so much for Mr Cochran that if his future is bleak he will offend again and my job is to protect the community from him. 9. The sentence assessment report notes some insight into his offending behaviour and its impact. He has and professes solid goals, particularly those about avoiding old associates. He has expressed a willingness to engage in programs such as EQUIPS but he will remain a medium to high risk of reoffending unless he is supervised and assisted. His risk of institutionalisation, those other matters which demonstrate his intention to sever ties with his former associates and his youth all combine to make a sound case for a finding of special circumstances. 10. I have had regard to other decisions, some of which I have referred to, but every offence and every set of offending is individual. I have had regard to the written submissions provided by Ms Zielinski for the Crown and Ms Parkes for the offender and I trust these submissions do justice to them.