R v Geerlings (No.2)

[2019] NSWDC 439

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Geerlings (No.2) [2019] NSWDC 439
Hearing dates:	16 April 2019
Decision date:	16 April 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 7 years with a non parole period of 4 years 6 months.
Catchwords:	CRIME - SENTENCE - Aggravated break, enter, and steal in company; possessing shortened firearm without authority; possessing unauthorised pistol; supply prohibited drug.
Legislation Cited:	Crimes Act 1900 (NSW) s112(2); Firearm's Act 1996 (NSW) ss7(1), 62(1)(b); Drug Misuse and Trafficking Act 1985 (NSW) s25(1)
Category:	Sentence
Parties:	Regina (Crown) Paul Fredrick Geerlings
Representation:	Mr Reville (ODPP) Ms Davids (Counsel for the offender)
File Number(s):	2018/100131
Publication restriction:	Nil

JUDGMENT 

1. Paul Fredrick Geerlings, you are appear for sentence today in relation to the following four principal offences. 

2. First, aggravated break, enter and steal in company. This involves a contravention of s 112(2) of the Crimes Act.  The maximum penalty for that offence is 20 years' imprisonment and there is a standard non-parole period of 5 years' imprisonment.

3. Secondly, possessing a shortened firearm without authority.  This involves a contravention of s 62(1)(b) of the Firearm’s Act  The maximum penalty for this offence is 14 years’ imprisonment and there is no standard non-parole period.

4. Thirdly, possessing an unauthorised pistol.  This involves a contravention of s 7(1) of the Firearm’s Act.  The maximum penalty for this offence is also 14 years' imprisonment and there is a standard non-parole period of 4 years' imprisonment.

5. Fourthly, supplying a prohibited drug, being 93.63 grams of the drug commonly known as MDMA, otherwise known as ecstasy. This involves a contravention of s 25(1) of the Drug (Misuse and Trafficking) Act.  The maximum penalty for that offence is 15 years' imprisonment and there is no standard non-parole period.

6. This sentence hearing commenced on 11 March 2019. The matter was adjourned on that date because of the unsatisfactory nature of the document described as an agreed statement of facts - see R v Geerlings [2019] NSWDC 83.

7. The following are the facts in relation to the offences, Mr Geerlings, for which you are to be sentenced today. 

8. In March of 2018, you were 47 years old. 

9. You had a long criminal history and a longer addiction to illicit drugs. 

10. As far as I can see, the cause of that unsatisfactory life, more likely than not, was the sexual abuse you received at the hands of a Catholic priest when you were nine years old.  That priest (your parish priest) knew that your parents had separated and that you were therefore a vulnerable child. 

11. You turned to drugs (in circumstances I shall come back to) when you were a teenager: first, cannabis and then heroin - which has been your lifelong companion ever since. 

12. It is regrettable (to say the least) that what I see as a clear connection between your sexual abuse as a child, your self medication with heroin, and your criminality has never been properly addressed by any of the many health professionals who have interviewed you over the years.

13. Returning to March 2018, you had an acquaintance called Robert Farrar. He, in turn, introduced you to a man whose first name was "Joe".  Joe arranged for you and Mr Farrar to go to premises at Bankstown, which was part of a unit complex.  You and Mr Farrar travelled there in a motor vehicle driven by Mr Farrar. 

14. When you got to the home unit complex, the security gate for the underground car park was open and you and Mr Farrar drove into that car park.

15. You then specifically sought out the garage space for unit number 10.  The owner of that garage space had some sort of dispute, it would seem, with Joe. 

16. You had taken a pair of pliers with you and you used those pliers to break the lock for the unit 10 garage.  You and Mr Farrar then stole a high pressure washer from that garage. It was placed in the rear of the car and you and Mr Farrar drove off with it.

17. The high pressure washer was a relatively valuable piece of equipment.  It was worth $2,350. 

18. However, the agreed facts also tell me that, whilst you and Mr Farrar were in that underground car space, and whilst you were seeking to break the lock of the unit 10 garage space, Mr Farrar stole an industrial vacuum cleaner worth $800 from the garage space for Unit 14.  I do not understand the crown case against you to be that that was part of a joint criminal enterprise or that you are to be otherwise criminally liable for it. I therefore do not understand why that material was placed in the agreed statement of facts. I have disregarded it.

19. Your role in the theft of the high pressure washer was detected because you left your fingerprints behind - and, because of your long criminal history, it was a relatively easy thing for the investigating police to connect you to that robbery. So, four days after the robbery, the police went to Condell Park (which is only about 3.8 kilometres away from Bankstown) to the home that you have lived in for many years with your elderly mother. They had a search warrant.

20. In executing that search warrant, the police found the stolen high pressure washer in the garage of those premises.

21. But more than the washer was found. When the police were executing the search warrant, they also found a shooting target in which were two .22 calibre bullets which were live and had not been fired.

22. But there was more. When they opened the washing machine, they found a black shopping bag. Inside the shopping bag was a .222 Remington Calibre firearm which had been shortened. There is no evidence before me to connect that firearm with the bullets found in the shooting target.

23. But there was more. The shopping bag also contained a smaller bag with two live rounds of ammunition; and, underneath the clothes in the washing machine, the police found another weapon, a nine millimetre pistol which had a 10 round ammunition cartridge - and one round was loaded in the chamber of the pistol. 

24. You were not home when the police executed that warrant. 

25. The next day (that is, 29 March 2018) the police received reports that a person in Bankstown was acting suspiciously. That was you. The police went and they found you and you were arrested. You were searched and, in the pocket of your pants, two packets were found; and within the packets was 98.63 grams of MDMA. However there is no evidence before the Court as to the purity of that quantity of drug.

26. In the (unsatisfactory) agreed statement of facts which was before the Court on the last occasion, the Court was informed that you gave a version to police as to the circumstances in which you came to be in possession of both the firearms and the drugs. This version was given by you to police at an interview that you participated in shortly after your arrest - and after you had sobered up.  It was because of that explanation that the matter was adjourned. 

27. As the sentencing hearing has proceeded, I still have not received into evidence the transcript of the interview - parts of which were put to you in cross-examination today. 

28. However, in the interview it would seem that you told the police that you had been given the guns by a man called Joe Kokhoury (whether he is the same "Joe" who had the dispute with the owner of the garage space that I earlier referred to was not made clear in the sentence hearing). Mr Kokhoury had wanted you to keep the firearms for one night whilst he moved premises; and that he was going to pay you $500 to do so.  There is no evidence that you were aware that either weapon was loaded.

29. You were cross-examined about your version of events. I accept your evidence, Mr Geerlings, for a number of reasons.  First, the manner in which you gave it struck me as being truthful.  Secondly, there was no evidence from the Crown to refute your version. Thirdly, there was a powerful piece of evidence to support your version of events: namely, after you participated in that interview, and provided what you then thought was the name of the man who had given you guns, and whilst you were in custody, you thought you had a better recollection of his name and so you contacted the investigating police who came to the gaol - in full uniform - to interview you, thereby placing you at very considerable risk.  Why you would have done that if you were not telling the truth escapes me. I therefore accept on the balance of probabilities that your version as to how you came to be in possession of those weapons is true.

30. You also apparently gave an explanation as to how you came by the drugs.  You apparently said (although I do not have a copy of the interview) that you found them in a car park near some home units behind the 7 Eleven in Bankstown.  Contrary to the submission of the Crown, I do not regard the difference (if there be a difference) between what you told the police that night and what you said today to be of any significance at all.  It was, in substance, the same version. I do not regard it as implausible that a quantity of drugs could have been dropped unknowingly by a person who was carrying them.

31. In any event, you picked them up and you knew they were drugs. You intended to sell them in order to supplement your income to support your heroin habit. That is why you took the $500 from Joe Kokhoury - who otherwise has apparently never been detected or tracked down. 

32. The Court is required to make an assessment, Mr Geerlings, of the objective seriousness of each of the offences for offences of their kind. The aggravated break and enter is somewhere equidistant between the middle and the bottom of the range.  The possess shortened firearm and possess unauthorised pistol offences are each slightly below the mid-range. The supply prohibited drug is equidistant between the middle and the bottom of the range. 

33. There are no relevant additional aggravating factors.

34. Your subjective circumstances have mainly come to me through some rather out of date expert reports: one from as long ago is 2011; the other from 2013. 

35. The most important thing that has emerged from those reports I have already referred to, that is, when you were a vulnerable child of nine years of age and when your father had left the home, your parish priest sexually abused you for two years.  The significance of that abuse does not appear to have been directly focused on by Doctor Nielsen in 2011 or Doctor Roberts in 2013.

36. I have frequently recalled to mind, Mr Geerlings, what the President of the Royal Commission into the Institutional Abuse of Children had to say at the very first sittings of that Royal Commission. His Honour said words to this effect: that, what in the past lawyers and judges had regarded as low level sexual abuse of children, could have catastrophic results for those children. The work of the Royal Commission has proved the accuracy of what his Honour had to say.  I do not know the nature of the sexual abuse that Father O’Keefe inflicted on you. I do know what the President of the Royal Commission has had to say.  I do know from the evidence before me that, for a period of time, the Catholic Church was prepared to pay for counselling for you but that has been discontinued. I do not have any evidence before me as to how effective (or otherwise) the counselling was.  

37. One thing I know, Mr Geerlings, is that your heroin addiction continues; and I strongly suspect that until the issues of your abuse as a child are confronted head on, you will continue to have a problem with heroin - and, for that reason, you will continue to offend.

38. You have the support of your sister, brother, and mother who are in court today. Your father is, sadly, dying from asbestosis. 

39. Unsurprisingly, with the history I have given, you have had only limited success in the workforce. You have no formal qualifications of any kind.  You have largely worked in unskilled work when you have had legitimate employment.

40. You have, as I have said, a long criminal history which means that you are not entitled to the leniency which can, in appropriate circumstances, be extended to a first offender.

41. You have not expressed any remorse for your offending, even though you had the opportunity of doing so in the witness box. 

42. Clearly the firearms offences are very serious. Mr Kokhoury could have had no legitimate purpose in having them or in asking you to store them for him (even if it were only for one night). And the quantity of the MDMA, regardless of the lack of evidence about the purity, is a serious matter. You were willing to sell that large quantity of that dangerous drug for money to support your heroin habit.

43. It is difficult to form an assessment about your prospects of rehabilitation, Mr Geerlings: first, because you have not expressed remorse; and secondly, and most importantly, because there is nothing in place to deal with the fundamental cause of your offending.  The fundamental cause of your offending is not your addiction to heroin. That is the consequence of your abuse as a child. If you are going to rehabilitate that abuse needs to be focussed on, not the consequence of the abuse, which is the heroin addiction. Unless and until that matter is addressed, you will continue to offend.  It is to be hoped that, as a consequence of the changed attitudes to the abuse of children which the Royal Commission has brought to light, you might now receive the intense treatment you require. 

44. It is for that reason, together with the fact that your period of imprisonment (which is to be continued today) will be made harder by reason of your father’s dying, that I intend to make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period.

45.  In your case specific deterrence is fully engaged. Because of your dysfunctional upbringing, you are not a suitable vehicle for the full application of general deterrence - but it remains a relevant consideration. And the protection of the community is also a significant consideration which is fully engaged. 

46. The manner in which the contested facts hearing was conducted, and the circumstances which gave rise to it, will not be visited upon you.

47. You will receive a 25% discount for each of the four pleas of guilty. 

48. I am going to impose an aggregate sentence. I am required to state the indicative sentences which underpin that aggregate sentence. 

49. For the aggravated break and enter offence, except for your plea of guilty, the term of imprisonment would have been 2 years and 6 months.  Because of the plea, the indicative sentence is 1 year and 10 months; the indicative non-parole period is 1 year 2 months. 

50. For the possess shortened firearm offence, the indicative sentence, except for the plea of guilty, would have been 4 years imprisonment. Because the discount of 25% for the plea of guilty, the indicative sentence is 3 years.  The same indicative sentences are given for the possess pistol and the supply of prohibited drugs offences.  The indicative non-parole period for the possess the pistol is 1 year and 11 months. In connection with the possess pistol offence, the nature of the matters on the Form 1 have been taken into account but they are of such a relatively minor kind that there will be no meaningful increase in the sentence.

51. Paul Fredrick Geerlings, of the offences of aggravated break, enter, and steal in company; possess shortened firearm without authority; possess unauthorised pistol; and supply 98.63 grams of ecstasy you are convicted. 

52. I sentence you to an aggregate sentence of 7 years imprisonment. 

53. I fix a non-parole period of 4 years and 6 months to date from 29 March 2018 and which will expire on 28 September 2022. 

54. I fix a balance of 2 years and 6 months to date from 29 September 2022 and which will expire on 28 March 2025.

55. I make a drug destruction order. 

56. You will now go with the officers, thank you.

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Amendments

05 September 2019 - Decision: "Aggravated" replaced with "Aggregate"

Decision last updated: 05 September 2019