STATE OF TASMANIA v CODY DAVID BROWN GEASON J
COMMENTS ON PASSING SENTENCE 14 NOVEMBER 2019
You appear for sentence upon your plea of guilty to two indictments. First, in respect to a charge of stealing firearms, stealing ammunition, motor vehicle stealing and aggravated burglary.
On 15 August 2018 you and two others broke into a locked vehicle parked at the Howrah Bowls Club. You located some keys inside that vehicle and there was an address. You drove to that address and, with another person and using those keys, you entered that residence. The residence was that of the owner of the motor vehicle you had stolen. You were in the premises for only a short time, but inside you accessed a gun safe with a key (another of the keys which was in the complainant’s motor vehicle) and you proceeded to gather up and take the complainant’s firearms and ammunition. In all, five firearms and ammunition were taken.
On 17 August 2018, the complainant’s motor vehicle was located in Lutana and your DNA was located on the steering wheel and in a glove located on the passenger seat.
You were apprehended by police and you participated in a record of interview. You told police that you had been stranded at the Shoreline car park with another person and chose to steal the complainant’s motor vehicle at random in order to get home. You used scissors to enter the vehicle. You explained to police that a set of keys had been found in the vehicle. You admitted entering the complainant’s house using those keys. You told police that the person you were with, who remains unidentified, was the person who took the guns and ammunition. You apologised for what you have done. I accept the Crown’s submission that you and your co-defendant agreed to enter the premises of the complainant intending to steal, and in there you stole firearms and ammunition. I accept too that your liability even when only as an accessory is the same as those who were with you and who participated in the crimes.
It has been put to me on your behalf that as a result you did not profit from the theft of those items. That seems to me to be at odds with your statement to police that the offending was committed for the purposes of obtaining money for drugs. I also note that you have not identified to police, any other person involved and I regard your failure to do that as indicative of a failure to co-operate when such co-operation would be a relevant matter in fixing sentence.
So whilst you have made some admissions and you have pleaded guilty your co-operation is qualified by that failure.
The value of the firearms stolen has been estimated at a little over $4000 and the ammunition was valued at $500. These were not insured and I make a compensation order in favour of the complainant in an amount to be assessed.
An aggravating feature of your offending is that at the time these offences were committed you were on bail in relation to a number of other matters including one of motor vehicle stealing. I have regard to what has been put to be my by the State to the effect the complainant feels nervous and less safe in his home than he did before your offending. I also note the firearms which were taken had a sentimental value to him.
In addition to sentencing you in relation to the firearms matters, I also have before me a second indictment containing a charge of wounding to which you have also pleaded guilty.
Briefly, on 14 December 2017 you were with the complainant and two children, aged 4 and 6 at your residence at Claremont. You had known the complainant for a number of years but at the time you had developed a relationship with her. At about 8.45pm you contacted Ambulance Tasmania and sought their assistance because the complainant had been shot. You reported that she had been shot by two unknown male persons. The Ambulance attended along with police and you repeated that version of events to officers. She was interviewed by police and gave a similar version, that is to the effect that others had caused her injury.
Police interviewed you and subsequently determined there were inconsistencies in the stories they had heard in relation to these matters. You participated in a further record of interview where you made further admissions. You said that you were playing with the gun and it went off. You admitted that you pulled the trigger of the firearm but said that you did not know the pin was pulled back.
After the wounding had occurred you threw the gun into the bushes near your house and you called the Ambulance as I have described. The gun was located by police. There were some unused cartridges in the bag.
The complainant subsequently made a statement about the matter telling police that when you saw the injury you went into “meltdown”, as she put it. She told police that she had said to you that in those circumstances she would tell them the incident was an accident.
The complainant sustained two wounds to her abdomen. The injuries were not life-threatening.
I have regard to the contents of the victim impact statement that she has made that indicates that she has had difficulty sleeping since the shooting, and has been prescribed medication in order to sleep.
I also have regard to the submissions that have been made on your behalf and apart from acknowledging your remorse for what occurred, those submissions emphasise the steps that you have taken towards your rehabilitation and previously I have recognised the progress that you have made in that respect. Unfortunately, there have been a number of matters in respect of which you have appeared for sentence that pre-date this maturing in your attitude and you are now serving sentences in consequence of those matters, and you need to get those sentences done and put behind you so that you can then make the progress that you have indicated you are now willing to make.
The task in arriving at a sentence for you is to fix one that is appropriate having regard to the objective seriousness of your offending but also which takes account of the fact that you are already serving a long sentence. The objective seriousness of the offences involving the theft of firearms and the motor vehicle is, in my view, relatively high. As I have said, those guns had sentimental value to the complainant and there was really no need for you to break into that property on that day. It is one thing to say you stole a vehicle to get home, it is another thing to compound the seriousness of that action, and it was serious, and you were on bail, but to compound that by then entering his property and compound it again by taking items from that property makes the objective seriousness of the crime high on my view, and that cannot be ignored in fixing sentence.
In relation to the wounding, I accept that the wounding was not intended. It was unforeseen in that sense, but it was not unforeseeable and by your plea of guilty you have accepted that.
In fixing sentence for these matters, as I say, I have to have regard to the fact that you are serving a long sentence. One in respect of a charge of dangerous driving and a cumulative sentence of a further 18 months imposed in the Magistrates Court. Those sentences were significant sentences and I cannot ignore those, if I am to be obedient to the principle of totality articulated by the High Court in Mill, and which requires me to impose a sentence today that is not so crushing as to defeat within you any sense of future purpose, any sense of hope for your future. So it is a balancing exercise and the Court of Criminal Appeal discussed the principles that are applicable recently in the decision of the in Fletcher-Jones. The way I intend to achieve that balance is to impose sentences which incorporate concurrency. Mr Cangelosi will be able to explain that to you, but essentially Mr Brown, and you probably know this from past experience, if a sentence is concurrent it operates along-side other sentences; you are serving two sentences or three sentences at the same time. The idea of that is that we do not just end up with an accumulation of penalties that go on and on and on to the point where, as I say, any sense of hope is completely defeated. So, the task that I must undertake is to get the balance right between punishment, deterring others from behaving in the same way, vindicating the victim as I have already said, and not crushing any sense of hope.
The way I intend to do that is this; in respect of the firearms matters, motor vehicle stealing, and aggravated burglary you are convicted, and I impose a global penalty of 18 months’ imprisonment. Ten months of that sentence will run concurrently with the sentences you are currently serving. In respect of the charge of wounding, you are sentenced to 14 months’ imprisonment all of which is to be served concurrently with the sentences you are currently serving.
The net effect of that is, is that you will serve an additional 8 months, that is 8 months more than the sentences that you knew about when you came here today.
I think that that achieves the right balance. You are serving a long sentence at present and as I have noted, the Magistrates Court sentences are cumulative to the dangerous driving sentence which was imposed by the Court of Criminal Appeal.
I do not intend to make any order for parole in the circumstances of the concurrency of sentence that I have just imposed.