CURE D

STATE OF TASMANIA v DAVID JOHN EATON AND DANIEL CURE        WOOD J

COMMENTS ON PASSING SENTENCE                                                     14 MAY 2019

 

The defendants, David John Eaton and Daniel Cure, have been found guilty of one count of stealing a firearm or firearm part contrary to s 234A(1) of the Criminal Code.

On 25 January 2016, David John Eaton, Daniel Cure and a third offender, Matthew John Davey, stole 14 firearms from a shed at a residential property in Blackstone Heights in Launceston.  The firearms were secured in a gun safe, within a walk-in steel safe, which was inside a locked shed.  The firearms were mainly pistols and handguns and a few larger firearms such as rifles and a shotgun, as well as associated items such as magazines and ammunition, in total valued at approximately $25,284.00.  The three were principal offenders and all took part in the theft.  Matthew John Davey was the main offender; he led the enterprise and it was his initiative.

Firearms were the target and sole objective of the theft.  Mr Davey had received information, at least a week or two before the theft, about the presence of firearms and their location.  In the days beforehand, he received information that the homeowners would be away over the Australia Day long weekend.  At the time of the theft he had information about the precise location of firearms inside the shed, although not about the number of firearms that were located there.  The commission of the crime involved a significant amount of effort, planning and preparation.  Illustrative of the effort and planning involved is that in the days before the theft Mr Davey, with Mr Eaton’s assistance sourced oxy-acetylene cutting equipment in preparation for the stealing.

Mr Eaton and Mr Cure, as well as their co-offender Mr Davey, travelled to Launceston together on 23 January 2016, reaching Ross before the trip was aborted after attracting police attention.  Immediately, Matthew Davey began planning another trip to Launceston for the purpose of committing the crime.  On 24 January Mr Eaton and Mr Cure travelled to Launceston, as did Mr Davey.  Mr Davey returned to Hobart later that same day while Mr Eaton and Mr Cure remained in Launceston with the purpose of committing the crime that night.  The evidence before the jury included recordings of telephone conversations between Mr Eaton and Mr Cure in Launceston, and Mr Davey in Hobart.  The recordings reveal that the two defendants Mr Eaton and Mr Cure were at the Blackstone Heights property and were running into difficulties in executing the plan and were seeking direction from Mr Davey. The two defendants were inclined to abandon the enterprise, but they were urged on by Mr Davey.  Mr Davey had discussions with Mr Eaton about sourcing replacement equipment.

The two defendants were unable to execute the plan that night.  The following day, 25 January, Mr Davey drove to Launceston, and that afternoon the three offenders carried out the crime together.  Once the 14 firearms were stolen, Mr Davey took control and possession of them.  Within a very short period of time, he had disposed of 12, which have not been recovered.  I have no doubt that he was indiscriminate about how he disposed of them, and to whom, and whether the recipient or recipients were legally entitled to possess firearms.  I accept that Mr Eaton and Mr Cure were not involved in the disposal of the firearms.  I also accept that the evidence does not establish that they profited from their involvement in the theft of the firearms.  By contrast, Mr Davey was sentenced on the basis that his purpose in committing the stealing was financial gain.

Sentencing the defendants requires consideration of the principle stated by the High Court in the case of De Simoni (1981) 147 CLR 383The two defendants were not charged with the attempted burglary or the successful burglary of the shed preceding the theft which involved the use of oxyacetylene equipment to attempt to and ultimately successfully to gain entry. Because of the High Court principle, the defendants cannot be punished for either the attempted burglary or the burglary, and these crimes cannot be taken into account as aggravating factors of the stealing.  However, I may take into account that the crime of stealing a firearm or firearm part was premeditated and involved significant planning and preparation.

I will first consider David Eaton, his circumstances and antecedents.  He is now 33 years of age, he is in good physical health except for an elbow condition requiring specialist attention. He presently receives a disability pension. He is in a stable relationship with a woman who is a social worker and in steady employment.  She is well regarded by her employer and by her community.  She has a 16 year old son who is doing well.  The defendant’s partner’s brother is Matthew Davey.   The defendant regards his partner’s family as providing him with a family that was lacking in his life.  Mr Eaton and his partner have a three year old daughter, born after the commission of this crime.  He is a dedicated father, committed to providing his daughter with a stable family life that he did not have growing up.

Mr Eaton is an energetic and motivated person. This is illustrated by the recent landscaping work he has undertaken at his home.  At the time of this crime, he was employed as a baker.  He has a disciplined attitude to his health and fitness, and is resistant to external pressures in terms of alcohol and drug taking.  He is a talented boxer and was a successful amateur boxer and at the height of his success in 2014, he was training daily and on the cusp of a professional career.

He has had a difficult upbringing involving significant trauma.  He was lacking parental supervision and care from a young age and he had to fend for himself as a child and adolescent.  He spent a lot of time in the company of older children who were a poor influence, as can be seen from his history of offending.  He was incarcerated from a young age, and was traumatised by some of his experiences in detention.

As an adult, he committed crimes of violence in 2004 and 2005 resulting in a lengthy period of incarceration.  He committed offences of dishonesty including burglary and stealing in 2004 which resulted in a period of 8 months’ imprisonment, and in 2009 offences of dishonesty resulting in a period of two months’ suspended imprisonment.  In that same year he was dealt with for possession of firearms which attracted a fine. Since then, he has a convictions for dishonesty committed in 2011 and 2015, both of which attracted a community service order.  Since the commission of the crime before the Court today, he committed the crimes of stealing and aggravated assault, and received a partially suspended term of imprisonment, a community service order and a probation order.

Mr Eaton was exposed to very distressing events in his late teenage years and early 20’s.  A very close friend of his was killed and he was an eye witness.  He lost his cousin, Ms Eaton, in 2014.  They were very close.  She went missing and ultimately it was revealed she had been murdered.  That had a profound effect upon him.  He was overwhelmed with grief and unable to continue his training.  He suffers from anxiety and severe panic attacks.  He also has unresolved anger, and under the recent probation order commenced an EQUIPS aggression program.  He has seen his general practitioner and has been referred to the Hobart Clinic for a mental health assessment, although that has not yet occurred.

The delay in this matter proceeding to trial has caused his life to stall. There were legitimate reasons for that delay but nonetheless, having this matter unresolved and the uncertainty of the outcome, has been, as he has described it, a “darkness always in the background.”

The recent time he has spent in custody as a result of the partially suspended sentence has served to reinforce his desire to avoid being imprisoned again.  He has clear goals for the short and long term.  He has resumed his boxing training and he wishes to reach peak fitness again.  He has a goal of working in landscaping.  There are family ties and loyalties that the defendant will need to negotiate in the future.  However, he is a disciplined person motivated to lead a productive life, and with supports in place, there is promise that he will pursue his goals.

Finally, I have taken into account that he spent approximately 10 days in custody after he was first charged.

I turn now to the defendant, Daniel Cure and his circumstances and antecedents.  He is now 31 years of age.  His involvement in this crime is tied closely to substance abuse.  He was a young man who was leading a productive life, working full-time in his own plastering business until his life fell apart in 2009 when he experienced a devastating event.  He lost his young son, who died from cancer.  The defendant developed a serious drug problem, and that led to him offending, particularly in the period in 2015 to 2016.  He accumulated a significant number of prior convictions for summary offences in this period including drug offences, associated driving offences, unlawful possession of property, motor vehicle stealing, burglary, stealing and computer related fraud.  He also committed firearms offences in this period.  He has not reoffended since late 2016.  In April 2017, a term of two years and two months’ imprisonment was imposed. He was released on parole in April 2018.  He has almost reached the end of that parole period.  He has not reoffended whilst on parole.  There was an occasion while on parole when he relapsed and returned to drug use.  He was frank and co-operative with the Parole Board.  His parole was suspended for 13 days.  That short period in prison reinforced his commitment to stay out of prison, and the need to continue with his rehabilitation efforts.

The efforts he has made while on parole have been significant.  I have a report from his parole officer.  He has been compliant with the requirements of the Suboxone program, including urinalysis, apart from that incident of relapse.  His parole officer states that Mr Cure expresses “genuine motivation toward rehabilitating his life and has thus far, shown considerable progress toward doing so”.  He has also participated in the Holyoake Gottawana Program which has addressed underlying causes for his drug abuse and provided him with grief counselling. He successfully completed that program but continued to attend counselling on a voluntary basis almost every week.  I have a report from his Holyoake counsellors which states that the defendant has worked hard at changing and has started to mentor other participants in the group sessions.  The report commends his determination, diligence and the changes he has made.

Mr Cure is in a stable relationship.  He provides a supportive step father role to his partner’s daughter.  He has a six year old son from a previous relationship who provides him with strong motivation to become a positive role model.  He is actively involved in caring and raising his son.  He resumed employment in May 2018.  In the period of delay since committing this crime he has demonstrated that he has sound prospects of rehabilitation.

Matthew Davey was sentenced by me to two and a half years’ imprisonment for the same crime of stealing a firearm or firearm part.  He is not a comparable offender.  It was his plan, and he was in charge of it.  He was motivated by money and he took possession of the firearms after the theft and he disposed of them.  However, Mr Cure and Mr Eaton were both active participants in what is a serious example of this crime.  There were determined efforts by each of you to assist Mr Davey in his plan and your involvement was premediated. The seriousness of this crime must be reflected in the sentence I impose.

Notwithstanding the positive considerations I have referred to it would be plain to both of you that you face a term of imprisonment. An advantage to you both in the delay you have experienced in having this matter resolved is that there is now a new sentence available to the courts of home detention.  If not for that option I would have sentenced both of you to a term of imprisonment.  In the circumstances of each of you, I regard a home detention order as appropriate.  I will impose a home detention order for a period of 9 months.  I will also impose a community corrections order for 18 months which will run first at the same time as the home detention order and then extend beyond that for a further 9 months.  This will have the effect of extending the period when you must not reoffend and also extend the period of supervision. I make a compensation order with respect to the theft of the firearms pursuant to s 68 of the Sentencing Act, adjourned sine die for assessment.