Solicitors:
Johnston Legal (for the Offender)
Ms N Oldender (Director of Public Prosecutions)
File Number(s): 2018/00095236
[2]
Judgment - ex tempore revised
There are members of our community who for various reasons do not see themselves as part of the community; some revel in being outlaws. Some flaunt their outlaw status by their behaviour and what they wear. Many commit offences against the community and against each other. Considerable resources are deployed by the New South Wales police to investigate, combat and ultimately attempt to prevent crimes being committed by such outlaw groups.
In 2017 a Police State Crime Command Group Squad investigation, code named Rednap, was investigating hostilities between the Finks outlaw motorcycle group and the Illawarra chapter of a group, called Brothers for Life. I am told that Brothers for Life members, although purporting to adopt the outlaw motorcycle group lifestyle do not in fact ride motorcycles.
The police complain, in the facts document before me, that some of these outlaw groups are reluctant to wear clothing which identified them as members of the group and that they did so to prevent "unnecessary interaction with law enforcement". There has been a lot of talk about banning 'colours' but here it appears that the only lawful thing some of the group did was go about in ordinary clothing. I am not quite sure this was simply to avoid police detection. Regardless of what they thought they were doing, members of the Wollongong chapter of Brothers for Life were, as this case shows, under fairly constant supervision and surveillance by New South Wales police.
The Wollongong chapter of Brothers for Life was led by a man who is presently in custody in the Australian Capital Territory and will, I presume at some stage, be brought back to New South Wales to face justice here. In case his matter comes before a jury I will not name him. He had developed an animosity to the self‑styled president of the Finks outlaw motorcycle gang, Troy Albert Fornaciari, who he referred to at times by the names Snozzo, Panda, Fuck Face, Fonza or Zoreli. Mr Fornaciari has appeared as a witness in this Court. Mr Fornaciari was, I am told, recently sentenced to terms of imprisonment in the Local Court.
Much of the information provided to me comes from telephone intercepts, including recordings of lawfully seized recorded gaol conversations. Gaol phone conversations are all recorded. To conform with surveillance privacy legislation gaol phone conversations are preceded by a standard message to the parties that they will be recorded. In an attempt to attempt to disguise what they were talking about this offender and others used a combination of not very complex codes. Sometimes they used the code words, sometimes they just forgot: for example; I suspect that the code word for bullets is not "bullets." At other times the code words they used were almost as transparent.
Coe, for reasons which I will go to in detail later, found some support and meaning in his connection with this criminal group and adopted their lifestyle. Despite being gaoled he continued with that lifestyle in custody, so far as he could. I am prepared to accept, that he came under the malevolent influence of the groups' self-styled leader. Coe has, as is evident today, strong family support but he has spent most of his teens and will spend most of his 20s in custody away from his family and his friends other than those who are also in gaol.
The crime to which he said he was guilty and must be sentenced for today is the common law offence of conspiracy to discharge a firearm with intent to cause grievous bodily harm. He is being sentenced for his role in a conspiracy to use a firearm on behalf of the groups' leader to fulfil threats he had made to Fornaciari and to continue the vendetta that apparently existed between the two outlaw groups.
[3]
The conspiracy and the Common Law Offence
The conspiracy has, so far as is practicable, a statutory equivalent, s 33A(1)(a) Crimes Act 1900; discharge a firearm with intent to cause grievous bodily harm. The Crimes Act offence carries a maximum penalty of 25 years. Generally, for a conviction pursuant to s 33A(1)(a), a firearm has to have been used and someone has to have been put at risk of, or caused, grievous bodily harm. That maximum penalty is one important guide to the exercise of my sentencing discretion. Only in exceptional circumstances should penalties for conspiracy exceed that for an equivalent offence. No one has suggested that this is such an exceptional case.
Coe asks when I sentence him that I take into account his two other crimes - participation in a criminal group and supplying a prohibited drug, I will do so, as is required by the Crimes (Sentencing Procedure) Act 1999. I do not sentence for the matters on the Form 1 but they do here operate, as part of my synthesis of all relevant matters, to increase the sentence that would otherwise be appropriate. The increase recognises the need for personal deterrence and retribution.
Sometimes, as when the criminal group charge is taken into account, that increase can be substantial. So far as the supply drug matter is concerned, it was a small quantity and taking it into account does not significantly increase the sentence. The supply of illicit drugs was haphazard and the way in which members of the criminal group obtained funds.
So far as the participation in the criminal group matter is concerned that crime is intertwined with the crime for sentence and informs it. I have to be careful not to double count; one reason for not adopting a mathematical approach to sentencing. The offence for sentence occurred within the context and as part of the participation in the criminal group and one crime informs the other however I only sentence for the conspiracy to discharge the firearm with intent to cause grievous bodily harm.
On 23 January 2018, Coe was released from Bathurst Correctional Centre. Very soon thereafter he was involved in attempting to get firearms and ammunition on behalf of the group. Between 23 January 2018 and 1 February 2018, the groups' leader and Coe entered into an agreement to locate and shoot Fornaciari. A number of overt steps were identified by police, they included sourcing of ammunition, conducting observations of Fornaciari's clubhouse, trying to find a map of Fornaciari's clubhouse's location (although that could not have been difficult). Throughout, the group leader is offering encouragement and assistance for Coe to shoot Fornaciari, although he did exhibit some reluctance to bring the firearm to Coe. The plan ultimately decided on, was to use a woman to lure Fornaciari from his residence and ambush him. The plan came to a head on 28 January 2018.
The plan was not completed on that date. There is objective evidence that the car Coe had obtained ran out of petrol. Whether it had a flat tyre or not has been put in dispute by Ms Doosey, who appears for Mr Coe, but that rationale is in the agreed facts.
The details of the overact acts came from the telephone intercept evidence. They have been the subject of detailed submissions by counsel. They are set out in full in the agreed facts. I will not read it onto the record, it is late on a Friday and there are other matters still in the list. There is ample evidence in those agreed facts to prove that the coded conversations were about firearms and ammunition and that some of the firearms were at times in Coe's possession. It is, however, hard to work out whether he ever, at any stage, had both a working firearm and ammunition for it. It appears that he did not.
It is clear that Coe is expressing to his co-conspirator his willingness to participate in the shooting of Fornaciari. It is also clear that his leader appears paranoid and at times threatens Coe and other members of the criminal group. He displays what is described as "increasing paranoid aggression" and, it is conceded, suspects that Coe may be double crossing him. The level of distrust within the group is openly displayed.
I accept that Coe was in possession of firearms, if not ammunition, at the time he participated in the overt acts and that he did discuss with a woman her luring Fornaciari to a location where he could be shot. Further, Coe did obtain a vehicle and at least commence to put the plan into action.
The facts conclude that police believed that Coe had every intention of completing this offence however the inability to source the ammunition and mode of transport led to the plan's failure. That particular opinion has been put into contest by Ms Doosey, she says that all of the evidence before me would indicate that at least by the 28th, what Coe was doing was making excuses and had ceased to have any intention to shoot Mr Fornaciari. Madam Crown says, no, the objective facts show that as the police state, it was the failure to get a working vehicle that thwarted the plan.
Matters of aggravation must be proved beyond reasonable doubt; matters in mitigation on balance of probabilities. Sometimes courts are put in a position where they simply cannot make such findings. Sometimes a sentencing court must act according to what is known. A judge who is not satisfied that some matter urged in plea does not have to sentence the offender on the basis of that contention unless the prosecution has proved the contrary beyond reasonable doubt. Here, my focus will be on the objective facts: Olbrich v The Queen [1999] HCA 54; (1999) 199 CLR 270.
The objective facts are that Coe did participate in the overt acts in the conspiracy. Up until he ran out of petrol Coe was saying to his leader and co-conspirator, "I'm keen bro". In the absence of sworn evidence to the contrary he has to be taken at his word.
However, the objective evidence also indicates that at that stage he did not have ammunition for whatever firearm he may have had in his possession. Further, the police investigation, which it appears was extensive, indicates that there were no more active steps taken by Coe or anyone else after that last phone call. Thankfully, for the community, and frankly all concerned, further crimes were averted as on 1 February 2018 police stepped in and arrested this offender, the group's leader and Fornaciari. In the process they seized firearms from a number of sources, although not from this offender. It is on those facts that I will sentence him.
Objectively those facts display criminality of a high order. Coe was prepared to engage with others in a criminal group funded by the sale of drugs to source firearms, one of which was to be used to remove a person who they believed had slighted them. The law cannot and will not tolerate people taking the law into their own hands. The law and the community will not tolerate those who behave as Coe did. The only response we have in such situations is to gaol such offenders and gaol them for a telling period.
There are reasons to mitigate the severity of the criminal law. The maximum penalty available to me is 25 years imprisonment. That penalty offers some guidance but it is guidance that is offered in terms of matters where someone was actually, or at risk of, being shot. In this case, thankfully no one was. No one was injured as a consequence of the conspiracy. If it had been likely that someone could be injured I am confident police would have acted to prevent that occurring. They are to be commended for their investigation of this matter and the way in which they put a stop to a series of significant crimes in our local area.
I have had the benefit of reading the sentencing remarks of Judge Conlon when he dealt with Coe in October 2014. Judge Conlon had before him a number of reports, which contain material not dissimilar to the history now before me.
I have the benefit of a report of the respected psychologist, Laura Durkin. She indicates that Coe, now 28, shows no evidence of any thought disorder. He was polite in his discussions with her. He gave a history that, although not supported by evidence on oath, is not in serious dispute.
Coe is an Aboriginal Australian with strong family support. That family has, over generations, been blighted, by illness, by drug use, and by contact with the criminal justice system. His father had been in gaol, his mother had problems of her own. When Coe was seven his parents died within 11 months of each other; his father reportedly from a drug overdose and his mother from illness. He then lived with extended family, spending most of his youth with his grandparents, who are present in court today. They did what they could. They tried to support him emotionally and provide him with basic necessities but for many reasons he had difficulty engaging with them or with the community in which he grew up.
His response, from a very young age, was to break the rules and be defiant. He was introduced to alcohol and other drugs when very young. His risk taking, his criminal activity, his drug and alcohol use, his absconding from the family home meant that he had few of the advantages that most in the community expect. Not surprisingly he did not engage with schooling or learn pro‑social activities from a community. He struggled at school and is functionally illiterate.
Although he has had jobs for short periods his lack of innate honesty has meant that he has stolen and been sacked very shortly after getting a job. He has no skills to maintain a job.
He has been incarcerated in Juvenile Justice Institutions. Since he was 18 he has spent most of his adult life in gaol. His gaol record and his own admissions indicate that he runs amok while incarcerated and does not conform with gaol discipline. He has learnt nothing positive from the gaol experience. His criminal record and all the material before me confirms what Ms Durkin says; Coe has used aggression to distance himself from people. This aggression helps hide his own insecurities and fears that he will be judged. His anger appears to give him some control over others. By making people afraid of him he can hide behind that fear. He is drawn to other antisocial members of the community. His bonds are more with those people than with pro‑social members of the community. Ms Durkin reports a sense of connection and family with those he has met in gaol or antisocial associates in the gang he associated with.
I am aware of extensive research, which was summarised by the Victorian Sentencing Counsel in 2011 "Does Imprisonment Deter? A Review of the Evidence". The Review made the point that harsher prison conditions for young offenders do not necessarily discourage future offending and that there is a paradox - the experience of prison can exert a crime producing effect. Prison does so by providing a criminal learning environment where youths who did not have access to pro‑social socialisation associate with others whom they met in custody making them more likely to join gangs. Custody thus, can have a negative effect on young offender's capacity to engage in lawful community life on release. The present case is a text book example of that academic conclusion.
Coe told Ms Durkin he is tired of the lifestyle and is prepared to make changes. His gaol record does not reflect this assertion. The most recent report of a disciplinary matter is early 2019.
Coe took up the use and abuse of illicit drugs when too young to make any rational choice about the matter. Ms Durkin also says there are childhood disorders that he has never come to grips with. He has never meaningfully engaged in therapy. He has had some significant intimate relations but as yet has no children and little opportunity to engage in any meaningful way in those relationships.
He has Hepatitis C resulting from intravenous drug use. He has not yet been able to complete a course of medication. He will have time to do that while he is in custody. If he does one thing in custody he should deal with his Hepatitis C.
Coe's criminal history means that greater weight has to be given to deterrence and community protection. Ms Durkin notes that theft has become normalised to him; violence has become normalised. She says he has no real power to regulate his aggression. Coe acknowledged to her that he has used violence instrumentally in the commission of crimes. This is evident in his criminal record and subsequent gaoling. She concludes:
"These periods of imprisonment do not appear to have deterred Coe from offending, nor has he obtained the skills required to live prosocially. Now, after so many years in custody, Coe reportedly struggles to cope with a lack of structure and routine in the community".
It is clear from everything before me that Coe has failed to adhere to societal rules and has a disregard for others. His impulsion and aggression continues while he is in custody.
While his parents' death may have been a catalyst for this behaviour he is now 28 years old. He has a choice while he is in custody to engage in programmes and reflect on his behaviour or to continue down the path he has been on; in which case he may spend the rest of his life in custody. Not that many people will be concerned about that, other than his family, but the community must be concerned because to go back into gaol he will have to offend against the community. Ultimately, my job as a judge is to try and ensure that he does not reoffend.
The history of his relationship with his co-conspirator is set out in the report. I am prepared to accept that he saw in him someone to whom he could look up to. But at the same he also felt threatened by him and found it difficult to separate himself from him and the criminal group. Given Coe's history of antisocial personality traits; given his history in gaol, given his personal history of disadvantage and deprivation, that is understandable. There are a number of complex matters that he needs to address. He will need to adjust his thinking. He needs help in doing that.
There are young offenders programs in New South Wales gaols but the Drug Court's Community Drug Treatment Centre is not available to him. That program, which involves very detailed programmes, including cognitive behaviour therapy, has reputedly had great success in dealing with angry, antisocial young men such as Coe. That program is not available to prisoners from the Illawarra. I can only recommend that eventually we have such a program available to us.
Ms Durkin recommends that he engage with the Violent Offender Therapeutic Management Program and engage in other anger management programs and that his release from custody be staged. I agree with that recommendation. Coe must be supervised and monitored for as long as practicable on his release because his criminal antecedents records a dismal failure, to date, in his willingness to engage with Probation and Parole and his complete lack of concern about returning to custody.
I have been urged to make a finding of special circumstances. I intend to make a modest finding but it will be qualified. The non‑parole period is the minimum that must be served when one considers all of the purposes of sentencing. There are studies which show that where persons engage with supervision and are monitored it takes longer for them to reoffend and they commit fewer offences: Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497.
While I am not confident that Coe can change his ways, subject to him proving himself to the State Parole Authority, the longer he can be monitored in the community the better. If he does not prove himself to them he may serve the whole of this sentence in custody. It is a matter for him and how he responds. He has got to take the opportunity to engage in programs, he has got to take the opportunity to learn how to hold down a job, any job, if he does not do that he may as well just keep his photograph outside his cell for when he gets released so it will be ready for him when he gets back.
Ms Doosey raised, briefly, that Coe was acting under duress from his co-conspirator. I cannot make a finding of non‑exculpatory duress: s 21A(3)(d) of the Crimes Act. I am prepared to accept that his co-conspirator is a nasty and violent man who made threats to harm Coe. But, what was happening here was an attempt by Coe to ingratiate himself with the group's leader and remain part of the group. There is no information before me that indicates that Coe himself had any direct grudge against Fornaciari and it may be that he was talking himself up to his leader. But everything he said and did, as recorded, indicates that if given the opportunity he may well have carried out the shooting. The only thing that can be said in his favour is it was not a well thought out plan and that when the plan failed on the 28th, perhaps because it was doomed to fail, nothing further happened. He gets the benefit of that; because nothing happened no one was injured as a result of this conspiracy.
Coe went into custody for breach of parole on 2 February 2018. He served a balance of parole of a bit over four months. He was formally arrested for this matter on 26 March 2018; I will date the sentence from that date.
His plea of guilty came early. Although a fresh indictment was presented today this was to clear up some administrative matters. I will reduce the otherwise appropriate sentence by 25% to take into account his early guilty plea.
There must be more time in custody. The community expects that such conspiracies be appropriately punished. There are reasons for mitigation of sentence, what are colloquially called Bugmy factors will remain with him throughout his life, as the High Court made clear in that important case: Bugmy v The Queen (2013) 249 CLR 571.
Coe's prospects for the future are guarded but the long experience of the Court is that people of his age with his terrible background are often at the crossroads when they next face release into the community. A choice needs to be made; do I continue the way I have been going or do I go back to my family and prove myself to them. Coe's real family are there for him. He is still young enough, and will still be young enough on release, to make those choices. It very much remains a matter for him.
The offence for sentence is objectively serious, it involved criminal gangs, it involved firearms, it involved a real risk that someone could have been seriously harmed. Against that has to be balanced a young man who has no advantages, who has been socialised in custody, both in juvenile detention and in gaol and has to date chosen that course to live as an outlaw. Living as an outlaw has meant he has spent most of his life in custody. It would seem to me, Mr Coe, to be a no brainer, if you want to live in the community you have to be honest but if you want spend the rest of your life in gaol, continue the way you have lived to date.
The sentence will be moderated because of the matters outlined but there still has to be a significant penalty. Had it not been for the plea of guilty a sentence of seven years would have been imposed. The term of the sentence will be five years and three months.
The formal orders of the Court are:
You are convicted.
There will be a non‑parole period of three years and six months to date from 26 March 2018. You will be eligible for consideration for release to parole on 25 September 2021. That parole will have to be earned.
The balance of term of one year and nine months will commence 26 September 2021. Total sentence a term of imprisonment of 5 years 3 months
The sentence will expire on 25 June 2023.
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Decision last updated: 06 June 2019