Director of Public Prosecutions v Basic
[2022] VCC 920
•21 June 2022
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00195 & CR-22-00198
Indictment No. C2114965
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DENNIS BASIC |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 June 2022 | |
DATE OF SENTENCE: | 21 June 2022 | |
CASE MAY BE CITED AS: | DPP v BASIC | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 920 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Sentence – Assaulting an emergency worker on duty – Causing injury recklessly – Knowingly possess explosive substance for unlawful object – Cruelty to animal – Possess prohibited weapon – Throw missile to endanger – Bail Act offences – Fail to comply with direction of Chief Health Officer – Offender attending anti-COVID-19 lockdown demonstrations – Two separate incidents nine months apart – Spontaneous and unsophisticated offending of relatively short duration on each occasion – Early pleas of guilty – Extensive and serious prior criminal history – Highly problematic prospects of rehabilitation
Legislation Cited: Sentencing Act 1991 ss 5(2G), 9(1), 10A
Cases Cited:Phillips v The Queen [2017] VSCA 313 – Loader v The Queen (2011) 33 VR 86, — Lecornu v The Queen (2012) 36 VR 382 – Zarghami v The Queen [2020] VSCA 74 – DPP v Frewstal Pty Ltd (2015) 47 VR 660
Sentence: TES – 26 months’ and 14 days’ imprisonment and fines totalling $1500
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M Zammit | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr O Smith | Pica Criminal Lawyers |
HIS HONOUR:
1Dennis Basic, you have pleaded guilty to an indictment containing one charge of assaulting an emergency worker on duty (Charge 1),[1] one charge of knowingly possess explosive substance for unlawful object (Charge 2),[2] and one charge of causing injury recklessly (Charge 3).[3]
[1] Contrary to Crimes Act 1958 (‘CA’) s 31(1)(b).
[2] Contrary to CA s 317(4).
[3] Contrary to CA s 18.
2You have also consented to have this Court deal with nine transferred related summary offences comprising: one charge of cruelty to animal (Summary Charge 3, Informant Scott);[4] four charges of possess prohibited weapon (Summary Charges 4, 5 and 6, Informant Scott and Summary Charge 9, Informant Gagliardi); one charge of throw missile to endanger (Summary Charge 5, Informant Gagliardi); one charge of commit indictable offence whilst on bail (Summary Charge 6, Informant Gagliardi);[5] one charge of contravene a conduct condition of bail (Summary Charge 7, Informant Gagliardi);[6] and one charge of fail to comply with a Direction of the Chief Health Officer (Summary Charge 8, Informant Gagliardi). Summary Charges 5 and 6 are rolled-up counts.[7]
[4] Contrary to Prevention of Cruelty to Animals Act 1986 s 9(1)(a).
[5] Contrary to Bail Act 1977s 30B.
[6] Contrary to Bail Act 1977s 30A.
[7] See McCray (a pseudonym) v The Queen [2017] VSCA 340, [17]–[18], [29]–[30] (Maxwell P and Croucher AJA; Crawford v The Queen [2018] VSCA 113 [43]–[44] (Maxwell P and Kyrou JA).
3The maximum penalties for these offences are as follows:
Assault emergency worker on duty – 5 years’ imprisonment.
Knowingly possess explosive substance for unlawful object – 5 years’ imprisonment.
Causing injury recklessly – 5 years’ imprisonment.
Cruelty to animal –12 months’ imprisonment and/or 250 penalty units.
Possess prohibited weapon – 2 years’ imprisonment and/or 240 penalty units.
Throw missile to injure – 6 months’ imprisonment and/or 25 penalty units.
Commit indictable offence whilst on bail – 3 months’ imprisonment and/or 30 penalty units.
Contravene a conduct condition of bail – 3 months’ imprisonment and/or 30 penalty units.
Fail to comply with Direction of Chief Health Officer – 120 penalty units.
The Facts
4The prosecution filed a summary of prosecution opening for plea dated 3 June 2022,[8] which I am told by your counsel I can treat as a statement of agreed facts.
[8] Exhibit (‘Ex’) P1.
The First Incident — 23 October 2020
5On Friday 23 October 2020 at approximately 2:00pm, you attended in the vicinity of the Shrine of Remembrance along with approximately 2,000 other protesters in breach of the Chief Health Officer’s Directions operative at that time.
6Those directions included a requirement:
(a) not to gather in groups of 10 or more people; and
(b) to maintain a social distance of 1.5 metres.
7At approximately 2:45pm, you and the group of protesters left the Shrine of Remembrance and travelled towards the Melbourne CBD along St Kilda Road.
8Police had established a roadblock on St Kilda Road, on Princess Bridge in front of the Arts Centre. A number of police officers on foot were standing in front of 20 officers of the Police Mounted Branch on horseback. Those police officers were involved in maintaining a roadblock, which prevented you and the protesters from travelling North on St Kilda Road.
9At 2:58pm, you confronted Senior Constable Jamie Brown who was on foot. You attempted to push forward through the roadblock but he pushed you backwards. You grabbed hold of him and struggled with him. You ripped his police-issue baseball cap from his head.
10You continued to stand in front of Senior Constable Brown for a period of time. While standing in front of him, you yelled obscenities, waved the flagpole you were holding in a threatening manner and gestured as if you wanted him to fight you. You then disappeared into the crowd. This conduct gives rise to Charge 1.
11The incident was captured by a body-worn camera that was being used by Senior Constable Brown. While you were struggling with him, your T-shirt lifted up, exposing a large, distinctive scar on your stomach.
12At 3:01pm you approached Mounted Branch officer Senior Constable Jessica Walsh who was riding a troop horse named ‘Zac’. You were holding a distinctive flag with the word ‘resist’ written on it. The flag was on a flagpole which was approximately three metres long. At that time you were wearing distinctive clothing.
13You used the flagpole to forcefully strike the head of the troop horse being ridden by Senior Constable Walsh multiple times thereby causing the him to lift its head up quickly move backwards (Summary Charge 3, Informant Scott).
14The incident was captured by body-worn cameras operated by Senior Constable Walsh and Sergeant Rachel Dunkinson. Further footage of your actions was captured by a camera operated by a Herald Sun newspaper reporter. Other media representatives were present and captured images of you during the incident. A compilation DVD of some of this footage was played in court during the plea hearing.[9]
[9] Ex P2.
15After striking the troop horse with the flagpole, you rejoined the large group of protesters and moved away from the roadblock.
The Investigation
16On 18 November 2020, investigators from the Northwest Regional Crime Squad attended your home at Narre Warren South. You were arrested outside. Investigators searched your home and the following items were located and seized:
17In your bedroom:
(a) A black ASP extendable baton, located in the top draw of a bedside table (Summary Charge 4, Informant Scott).
(b) A can of ‘Guardian’ oleoresin capsicum (OC) spray, located in a glass cabinet above the bed (part Summary Charge 5, Informant Scott).
(c) A black handled flick-knife, located in the glass cabinet above the bed (part Summary Charge 6, Informant Scott).
(d) Two ‘Time to Die’ fireworks sticks, located in the glass cabinet above the bed (Charge 2).
(e) Four ‘Thunder Bomb’ firecrackers, located in the glass cabinet above the bed (Charge 2).
(f) Two ‘China Roller’ firecrackers, located in the glass cabinet above the bed (Charge 2).
(g) Two small black firecrackers, located in the glass cabinet above the bed (Charge 2).
In an upstairs study:
(h) Ten small firecrackers in a snap-lock sandwich bag, located in a wooden cabinet (Charge 2).
(i) A flick-knife with a brown handle, located on a bookshelf (part Summary Charge 6, Informant Scott).
18In a Mercedes ML 350 CDI SUV vehicle parked outside the address:
A can of ‘Guardian’ OC Spray was in the driver’s side door (part Summary Charge 5, Informant Scott).
19In a Mercedes CLA45 AMG vehicle parked in the garage:
A can of ‘Guardian’ OC spray (part Summary Charge 5, Informant Scott).
20You were taken to the Narre Warren Police Station where you were asked to take part in a forensic procedure to allow police to photograph tattoos on your arms and chest, and a distinctive scar on your stomach. You relied on your right to decline to take part in that procedure. Consequently, authorisation for you to undergo the procedure was obtained from an Acting Senior Sergeant and the photographs were taken without your consent.
21You also refused to provide the passcode to a black Apple iPhone located at your premises. No charge arises from this conduct.
22During a subsequent record of interview you exercised your right to refuse to answer questions. You were bailed to appear at the Melbourne Magistrates’ Court on 4 June 2021. A condition of this bail was you do not breach the Chief Health Officer’s Directions.
23On 19 November 2020, an expert explosives examiner examined the fireworks seized during the search of your home. She determined they were explosives as defined by the Dangerous Goods Act 1985. These explosives can only be possessed by a person holding an appropriate licence issued by the Victorian WorkCover Authority. It was common ground you held no such license.
The Second Incident — 24 July 2021
24On 24 July 2021 at 10:00am, you and approximately 3,000 anti-lockdown protesters entered the city of Melbourne to take part in what was called a ‘Worldwide Freedom Rally’. This demonstration was organised to protest against the lockdown imposed by the Premier of Victoria on 15 July 2021 and was in breach of the Chief Health Officer’s Directions in force at that time.
25Thousands of protesters wearing anti-government insignia and carrying flags and anti-lockdown signs marched through the streets of Melbourne. The protesters congregated in the area of Swanston Street and Flinders Street.
26In response to the protest, Victoria Police deployed officers to assist with crowd control. This included putting roadblocks in place.
27At times protesters confronted police and acted in a hostile and aggressive manner towards them. Some protesters were lighting and throwing flares at police, while others pushed and shoved them. I note this is led as part of the context leading to the offending conduct. It is not suggested you were actively engaged in this conduct.
28At 12:13pm, a large group of protesters began walking north along Swanston Street from Flinders Street. Police had been instructed to create a barrier across Swanston Street approximately 100 metres south on Little Flinders Street, to stop protesters moving further north. The barrier was created by police officers conducting ‘general duty’.
29Within minutes the protesters gathered around the police officers and surrounded them. Many of the protesters were able to pass by the barrier and continue to move north along Swanston Street. However, some of the protesters stopped near the police officers who had formed the barrier and confronted them. Some protesters were shouting and yelling abuse at the police.
30Safe City CTTV cameras in the area captured you at that time. You were among the protesters who were confronting the police.
31You walked towards the police officers who formed the barrier and came within a metre of them.
32At that time, six members of the Mounted Police Branch were on horseback about 100 metres north of the area where the protesters were confronting the police who formed the barrier. They positioned their horses across Swanston Street, in an attempt to prevent protesters travelling further north along Swanston Street. The Mounted Branch team leader directed her team to move forward towards the foot police who had formed the barrier to provide support. This team included Leading Senior Constable Christine Brown.
33The troopers formed their horses into a single file and moved along the eastern side of Swanston Street through the hostile protesters towards the police officers who were being confronted by protesters. Leading Senior Constable Brown was at the rear of this line of horses.
34At the same time, you walked over to a public rubbish bin which was on the eastern side of Swanston Street. You watched the mounted police pass by.
35When the mounted police were approximately two metres from you, you picked up a heavy orange traffic bollard with a weighted black base. You threw the bollard directly at Leading Senior Constable Brown, who was riding away from you and therefore had her back to you. The bollard went about three metres into the air. Other police officers and members of the public were in the immediate vicinity and your actions endangered their safety (Summary Charge 5, Informant Gagliardi).
36The bollard landed directly onto Leading Senior Constable Brown’s head and neck. She felt a large object strike the back of her head towards the left side. It also struck her shoulder. The force caused her head to jolt forward and she felt pain in her head and in the left side of her shoulder.
37In the statement attached to her Victim Impact Statement (‘VIS’), Leading Senior Constable Brown observes the incident gave her horse, ‘Unity’, a fright which caused the horse anxiety. Leading Senior Constable Brown had to put real effort into controlling her horse so she did not shy, rear or kick out, thereby presenting a real danger to the public. After the incident Unity ‘was very upset’. Leading Senior Constable Brown opined, ‘There was a real risk to everyone’s safety’. She states: ‘There was a real risk that I could have fallen off my mount which would have resulted in a riderless horse running through the crowd.’ I accept this was the case.
38As soon as you threw the bollard, you casually walked away north along Swanston Street and blended into the crowd. As you walked away, you looked back at Leading Senior Constable Brown several times.
39Leading Senior Constable Brown looked back and attempted to identify the person who had thrown the bollard. However, all she could see was a dense group of protesters.
40At approximately 12:58pm, CCTV cameras captured you walking east on Flinders Street. You had removed the green jacket you were previously wearing and you were in a T-shirt with the words ‘Free Leonard Peltier’ written across the front chest area. You were eventually identified by investigators through CCTV footage.
41As a result of the assault, Leading Senior Constable Brown sustained injuries to her head and neck which required ongoing treatment by an osteopath and analgesic medications for approximately two months. She continued to work but experienced pain in the left side of her neck as well as headaches. On 26 July 2021 she sought medical attention.
42You committed this offence whilst you were on bail for committing similar offences in the first incident (Summary Charge 6, Informant Gagliardi). You also breached the conditions of your bail by attending the CBD, taking part in the protest and confronting the police in close proximity to other protesters (Summary Charge 7, Informant Gagliardi), and you breached the Chief Health Officer’s Directions (Summary Charge 8, Informant Gagliardi).
Investigation
43On 30 July 2021, police searched your premises and located an extendable ASP baton in a bedside table in your bedroom (Summary Charge 9, Informant Gagliardi).
44On 29 July 2021, you were arrested in St Kilda and taken to the St Kilda Police Station. During a record of interview you gave no comment answers. During the interview you consented to undergo a non-intimate forensic procedure and investigators took a number of photographs of the tattoos on your forearms. You were remanded in custody and have remainder there since.
Victim Impact
45A VIS from Leading Senior Constable Christine Brown (Charge 3) was tendered by the prosecution,[10] in which she described the injury she suffered as a result of being hit in the head and shoulder with the traffic bollard you threw at her. She said the traffic bollard was heavy, and its weight, in conjunction with the velocity of your throw, caused her head to jerk forward resulting in immediate pain. The bollard also hit her left shoulder, leaving it feeling stiff and sore.
[10] Ex P3.
46Fortunately, she was wearing a ‘heavy duty demonstration helmet’ at the time which afforded extra protection for her head, otherwise the injury she suffered could have been much more severe.
47Leading Senior Constable Brown continued working that shift and after a while the pain in her neck and shoulder settled down, however she developed a headache over the course of her shift. This headache lasted for two months and required treatment from an osteopath. She also needed to take six to eight analgesic tablets (ibuprofen and paracetamol) each day for two months.
48Leading Senior Constable Brown did not take time off work because the Mounted Branch were extremely busy and she did not want to let her team down. Nonetheless, her injury was far from trivial.
49Senior Constable Jamie Brown (Charge 1) did not prepare a VIS. Nonetheless, in the absence of a VIS a sentencing judge can draw reasonable inferences from the known facts regarding the likely effect of the crime on any victim of it.[11] While Senior Constable Brown did not receive any injury as a result of your assault, undoubtedly the incident would have been very unsettling for him.
[11] R v Miller [1995] 2 VR 348, 354 (Southwell, Ormiston and McDonald JJ); R v Dowlan [1998] 1 VR 123, 139 (Charles JA, Phillips CJ and Nathan AJA agreeing); R v Rankin [2001] VSCA 158 [7]–[10] (Winneke P, Vincent JA and O'Bryan AJA agreeing); Stalio v The Queen (2012) A Crim R 261, 281 [69]–[70] (Neave, Osborne JJA and King AJA).
Offence Seriousness
50At the plea hearing your counsel conceded your offending is serious, as it involves two separate and discrete instances of violence directed towards police officers who were performing their lawful duties. And another incident involving an attack on a police horse.
51That police were the target in all incidents increases your moral culpability and emphasises that general and specific deterrence are important sentencing considerations in this case.[12]
[12] Phillips v The Queen [2017] VSCA 313 [54] (Osborn and Priest JJA, Weinberg JA agreeing).
52Your offending constituting charge 1 on the indictment of assaulting an emergency worker on duty, involved aggressive and violent behaviour. Your counsel submitted that at the time of this offending you were fearful of the situation that had developed. I reject this submission. After charging towards and then physically struggling with Senior Constable Jamie Brown, you continued to stand in front of him for a period of time, gesturing at him as if you wanted to fight him.
53Senior Constable Brown was performing his lawful duty protecting the public from the very type of unprovoked and aggressive behaviour you engaged in. Your conduct is to be denounced in the strongest terms. Moreover, the presence of a weapon is an aggravating circumstance; albeit I accept it was used as a threat rather than by an application of force.
54Your offending conduct involving recklessly causing injury to Leading Senior Constable Christine Brown is inherently serious, as is reflected by the mandatory sentence of a term of imprisonment I must impose on you pursuant to s 5(2G) of the Sentencing Act 1991.
55The use of a weapon is an aggravating feature of this offence, as is the fact you were in breach of your undertaking of bail, arising from the first incident, when you committed the second assault.[13] However, since you also fall to be sentenced on the related summary offence of committing an indictable offence whilst on bail,[14] I acknowledge I must avoid the imposition of double punishment.
[13] See Loader v The Queen (2011) 33 VR 86, 96–7 [51]–[54] (Nettle JA, Warren CJ and Ashley JA agreeing); Lecornu v The Queen (2012) 36 VR 382, 388 [19]–[21] (Maxwell P, Holingworth and Cavanough AJJA agreeing); Zarghami v The Queen [2020] VSCA 74 [25]–[33] (Kaye, T Forrest and Osborn JJA).
[14] Summary Charge 6, Informant Gagliardi.
56Leading Senior Constable Brown was particularly vulnerable when you threw the traffic bollard at her because her back was facing you at the time. This can only be seen as a deliberate act intended to take her by surprise, which it did. Moreover, she was on horseback which created a significant risk to her safety. She could easily have fallen off, leaving a riderless horse in dangerous circumstances. This was a cowardly and unprovoked attack on a mounted police officer performing her duty, committed by a person who shouldn’t even have been present at the rally.
57Moreover, the injury Leading Senior Constable Brown suffered as a result of your offending cannot be categorised as falling at the lowest end of the scale. She suffered an injury that was protracted, lasting two months, and required osteopathic treatment and significant quantities of analgesics, indicating the injury was far from trivial. By your plea to this charge, you admit you foresaw injury would probably result from throwing the traffic bollard at Leading Senior Constable Brown, which act in fact caused injury.[15]
[15] R v Campbell [1997] 2 VR 585, 586 (Phillips CJ), 592–3 (Hayne JA and Crockett AJA); DPP Reference No 1 of 2019 [2020] VSCA 181 (Maxwell P, Priest, Kaye, McLeish and Emerton JJA).
58In mitigation your counsel submitted, and the prosecution conceded, that in both incidents your offending against police may be regarded as spontaneous, opportunist, unplanned and that neither incident was of an extended duration. I do not accept the prosecution submission that any attempt by you to conceal your identity is of significance in this case.
59The attack on the police horse with the flagpole you were carrying is also a serious enough example of cruelty to an animal. The extent of the crime is evident from the video footage of the incident which was played in court at the plea hearing and I have watched again since. It is as well the horse was obviously well trained and well ridden. Fortunately, while the horse was clearly upset by the incident, no physical injury was inflicted by you
60In my opinion, your attacks on two police officers and a police horse in two separate incidents nine months apart show a continuing disregard for the law and disrespect towards those charged with enforcing the law on behalf of the Victorian community. I agree with the prosecutor’s submission that your offending conduct at the rallies towards the police officers and the police horse was ‘unwarranted, disrespectful and appalling’. I would add it was also dangerous, unprovoked and completely lawless.
61The charge of possessing explosive substances for an unlawful object is based on the presence of numerous fireworks found in your home during the police search on 18 November 2020. I have viewed photographs of the various items.[16]
[16] Ex P4.
62This is not a serious example of the offence. There is nothing to indicate you possessed the fireworks for the purpose of making an explosive device or for any other destructive purpose. Your counsel submitted you possessed them for entertainment purposes. I have no reason to sentence you on any other basis. Nonetheless, the possession of explosive substances is unlawful and is inherently dangerous.
63The four prohibited weapon charges are very concerning, particularly given the number and type of weapons and your prior criminal history. Even if I were to accept you possessed these item for self-defence, clearly this does not excuse your crimes.
64Finally, throwing a missile to endanger, failing to comply with a direction of the Chief Health Officer, committing an indictable offence whilst on bail and contravening a conduct condition of bail are all serious enough criminal offences, the latter two constituting breaches of a court order.
65Clearly, denunciation, general deterrence and just punishment must all be given significant weight in sentencing you for these offences.
Personal Circumstances
66You are currently aged 42 and at the time of the offending you were 40 and 41 years of age.
67You were raised in Melbourne by your parents. Your mother, who is aged 68, is a retired aged care worker and your father, who is aged 73, is a retired welder. Your parents have always been law-abiding citizens. You enjoy a close relationship with them and have maintained regular contact by phone whilst in custody. They remain supportive of you but are disappointed you are again in custody.
68You are the middle child in a sibship of three. Your older brother is a fitter and turner and your younger brother is a disability pensioner. You also share a close relationship with them.
69In 2015, your younger brother suffered a stroke resulting in partial paralysis. You live with him and assist with his care by cooking, cleaning, shopping and assisting him to attend programs, training and rehabilitation appointments. While you have been in custody, your parents have been assisting your brother. However, they are elderly and this has been difficult for them.
70You married a woman in 2004 and were divorced in 2015. You have two children from that relationship; a daughter aged 17 years and a son who is 14 years old. Both children reside with their mother.
71You attended Brandon Park Secondary College where you completed Year 12. You were a moderately talented student, excelling in maths, arts, sport, legal studies and science. You do not report any social issues at secondary school.
72You enrolled in a Bachelor of Civil Engineering at RMIT in 1997. You completed two years of the four-year course, before leaving owing to financial difficulties. At that time, your older brother was a talented soccer player and represented Australia before he suffered a broken tibia and fibula. You entered the workforce to assist your family to pay for your older brother’s rehabilitation.
73In 2017, you returned to study, completing a Certificate III in Small Business at Holmesglen TAFE over a 12 month period. Thereafter, you completed a Certificate III in Commercial Cookery over a 12 month period at the same institute.
74You have a solid employment history and you do not anticipate having difficulty finding paid work upon your release from custody.
75You commenced employment after leaving RMIT as a labourer and stonemason for Gordan Bluestone, where you worked for two years.
76Thereafter, you were employed by JZ Plastering as a labourer, qualified plasterer and then project manager. You worked for JZ Plastering for 14 years. You were the project manager for the plastering and installation of suspended ceilings at the County Court and also in Owen Dixon Chambers.
77After being incarcerated in 2014, then completing study at Holmesglen TAFE, you worked part-time as a consultant for Total Concreting.
78Up until your most recent remand, you were sub-contracted to the Adriatic Restaurant in St Kilda where you supervised the fit out and launch.
79In 2020, you started your own company called Heaven on Earth Entertainment which organises music festivals. You intend to revive the business upon your release.
80You have also engaged in voluntary work. Between 2011 and 2013, and then 2015 and 2016, you volunteered at City Life, a homeless shelter based in Frankston. You initially assisted in the kitchen, before moving into administration work and approaching businesses in the area to support the charity.
81You have been heavily involved with the Mostar Croatian Soccer Club, where you became president in 2016. In this voluntary role, you arranged team rosters, games, social events and coaching.
82You have no current physical or mental health diagnoses.
83You disclosed having a serious problem with alcohol from your late 20’s to your early 30’s. You started drinking alcohol at 16 years of age and by your late 20’s you were reliant on alcohol, drinking 8 to 10 standard drinks daily. You undertook professional alcohol counselling in 2015 and have remained abstinent since that time.
Prior Criminal History
84You have a relevant and extensive criminal history which dates back to 2 March 2001 where you appeared in the Melbourne Magistrates’ Court and were sentenced to a total effective sentence of 6 months’ imprisonment to be served by way of an Intensive Corrective Order for charges relating to recklessly causing serious injury (two charges) and intentionally causing injury (four charges). You subsequently breached the Intensive Corrective Order and the orders were confirmed and you were fined $150.00 without conviction for the breach.
85You have two further convictions for violent offending which are particularly concerning. On 13 June 2002, you appeared in the Melbourne Magistrates’ Court and received a without conviction fine for one charge of recklessly causing injury. On 30 August 2005, you were sentenced to 4 years’ imprisonment with a non-parole period of 18 months for offences comprising of armed robbery (one charge), intentionally cause injury (one charge) and common law assault (one charge).
86You have a prior conviction in the Central Local Court in New South Wales in November 2007 for dangerous driving for which you were imprisoned for two months.
87Significantly to the present charges, you also have relevant prior convictions for a number of offences relating to possession of weapons, ammunition and explosive substances.
88On 10 May 2016, you were resentenced by the Court of Appeal on a Crown Appeal[17] for eight charges of prohibited person possess firearm, one charge of prohibited person possess silencer, one charge of possess cartridge ammunition without a licence, one charge of making an explosive substance with intent to enable another person to endanger life or to cause serious injury, one charge of knowingly possess explosive substances for unlawful object and one charge of possessing of a drug of dependence. In the usual circumstances that pertained in that case, the Court of Appeal effectively reimposed the 23 months’ imprisonment you received in this Court and placed you on a Community Correction Order (CCO) for 4 years.
[17] DPP v Basic [2016] VSCA 99 (Weinberg AP, Redlich and Ferguson JJA).
89On 15 December 2017, you were re-sentenced by the Court of Appeal on a Crown Appeal[18] for four charges of prohibited person possess firearm, one charge of possess body armour without approval and one charge of possess drug of dependence. These offences breached the CCO imposed by that Court in May 2016. You were resentenced on those previous offences. Overall, you received a total effective sentence of 5 years 6 months’ imprisonment with a non-parole period of 3 years and 8 months. You were paroled on 13 August 2018 and successfully completed that parole order.[19]
[18] DPP v Basic [2017] VSCA 376 (Weinberg, Osborn and Priest JJA).
[19] See ‘Outcome Completion Report’ dated 1 June 2022 (Ex D4).
90Finally, you have a prior conviction on 24 October 2017 for dealing with property suspected of being proceeds of crime for which you received a sentence of two months’ imprisonment
91In committing the subsequent firearm offences, you appear to have been undeterred by previous sentences of imprisonment imposed for similar offending.
92You are not to be repunished for your past offending, but it illuminates your moral culpability for the instant offences and shows your propensity to commit violent offences and offences involving the possession of prohibited weapons in particular.[20] In my opinion, your prior criminal history demonstrates that you have ‘manifested in [your] commission of the instant offence[s] a continuing attitude of disobedience of the law’. Accordingly, it is necessary in your case to give significant weight to specific deterrence and protection of the community.[21]
[20] Veen v The Queen (No 2) (1988) 164 CLR 465, 477 (Mason CJ, Brennan, Dawson and Toohey JJ).
[21] Ibid.
93I assess your prospects of rehabilitation as being highly problematic. Much will depend on you putting your antisocial and completely lawless past behaviour behind you and becoming a productive member of society. Your prior criminal history does not bode well for this ambition; however, you do have some protective factors such as a very supportive family and good employment prospects.
Mitigating Circumstances
94You pleaded guilty to these offences at the committal mention stage in the Magistrates’ Court following negotiations between you and the prosecution. I accept your pleas were entered at the earliest reasonable opportunity.
95Your pleas have utilitarian benefit, particularly in the COVID-19 environment.[22] They also indicate an acceptance by you of responsibility for your offending conduct and a willingness to facilitate the course of justice.
[22] Worboyes v The Queen (2021) 96 MVR 344, 356–7 [22], [34]–[39], [2021] VSCA 169 (Priest, Kaye and T Forrest JJA); Chenhall v The Queen [2021] VSCA 175 [29]–[30], [33]–[35] (Priest, Kaye and T Forrest JJA); Tran v The Queen [2021] VSCA 278 [59] (Kaye and T Forrest JJA); Rossi v The Queen [2021] VSCA 296 [13]–[16], [19] (Priest and T Forrest JJA).
96While I accept you are undoubtedly regretful for the situation you are in and the effect this has had on you, there is insufficient evidence before me to make a determination that you are remorseful and demonstrate true contrition for your offending conduct, beyond what is evident from the pleas themselves.[23]
[23] See Barbaro v The Queen (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA).
97I have had regard to the references tendered on your behalf from Mr David Rubinic, Mr Kristian Sarkies and Mr Ryan Wilson.[24] Clearly, you are not a person of otherwise good character. Nonetheless, the sentiments expressed in the references are relevant to your personal circumstances and to my assessment of your prospects for rehabilitation.
[24] Ex D3.
98The effects of the COVID-19 pandemic are relevant to sentencing because:
(a) An offender is a higher risk of contracting COVID–19 if they are incarcerated (presuming an outbreak in custody).[25]
[25] The Queen v Madex [2020] VSC 145 [52] (Incerti J); R v Kelso [2020] NSWDC 157 [45] (Norrish QC DCJ)
(b) As I earlier observed, the inherent utilitarian value of a guilty plea is greater during the pandemic.[26]
(c) The pandemic is causing additional stress and concern for those incarcerated and their families, as it is for every member of the community.[27]
(d) The pandemic can impact on visits, work and educational opportunities, depending on the number of cases of COVID-19 in the community at any given time.[28]
[26] See above [95].
[27] Brown (aka Davis) v The Queen [2020] VSCA 60 [48] (Priest and Weinberg JJA).
[28] Astbury v The Queen (No 2) [2020] VSCA 158 [33] (Kaye, Niall and Weinberg JJA).
99I accept the time you have spent in custody on remand has been burdensome on you because your visiting rights have been restricted and you have spent some 77 days in 23 or 24 hour lockdown. This has caused you mild symptoms of anxiety and depression. You have been on the waitlist for mental heath support since March 2022. Nonetheless, you counsel accepted no Verdins principles[29] are engaged in your case.
[29] See R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
100Whilst I am of the view your prospects of rehabilitation are highly problematic, I accept you have some prospects for rehabilitation in light of your strong family support, good employment history and the fact you have dealt positively with your addiction to alcohol. Moreover, there have been periods in your past where you have managed to remain offence free for some years.
Application of Sentencing Principles
101I have had regard to current sentencing practices in relation to the present charges as informed by the decisions of the High Court of Australia in R v Kilic[30] and DPP (Vic) v Dalgliesh (a Pseudonym)[31] and the Victorian Court of Appeal decision in DPP v Zhuang.[32] In particular, I have considered the comparable cases your counsel referred me to.[33]
[30] (2016) 259 CLR 256, 266–8 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[31] (2017) 262 CLR 428 (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).
[32] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[[25] (Priest and Kyrou JJA) (‘Williams’).
[33] See Appendix 1 to [Defence] “Outline of Submissions” dated 25 May 2022 (Ex D1).
102While current sentencing practices are relevant to the sentences I impose on you, they are only one of a number of sentencing considerations I must take into account in imposing just sentences in your case.[34]
[34] See DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
103Moreover, it is always difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute the offences before me and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain any assistance from comparable cases, I have sought to do so in your case
104The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, the effect of your offences on the victims and your personal circumstances.
105Denunciation, general deterrence and just punishment must be given significant weight in sentencing you for these offences. Moreover, I consider real weight needs be given to specific deterrence and protection of the community, given the nature of your offending conduct, your prior criminal history and the risk of you reoffending in a similar manner. As I said earlier, I assess your prospects for rehabilitation as being highly problematic.
106The standard sentencing regime does not apply in this case. However, the offence of recklessly causing injury to Leading Senior Constable Christine Brown (Charge 3) on the indictment is a ‘category 1’ offence under the Sentencing Act (1991) (‘the Act’).[35] Accordingly, a court must impose a mandatory sentence of imprisonment to be immediately served[36] and, unless ‘special reason exists’, a term of not less than six months’ imprisonment must be imposed.[37]
[35] See Sentencing Act 1991 (‘SA’) s 3(1) definition of ‘category 1’ offence at para (cc).
[36] See SA s 5(2G).
[37] See SA s 10A.
107At the plea hearing, neither your counsel nor the prosecutor submitted a special reason exists in your case, and I am satisfied none is established pursuant to one of the exceptions outlined in s 10A of the Act.
108Charge 3 and the related summary offences which arose from the second incident were committed whilst you were on bail for the first incident. Consequently, s 16(3C) of the Act is enlivened and the normal presumption of concurrency does not apply in sentencing you for these offences.
109Totality is a relevant consideration in this case. The offending conduct in both incidents formed part of a single chain of events and occurred over a relatively short period of time. Charge 1 and Summary Charge 3 (Informant Scott) occurred during the first incident within minutes of each other. Charge 3 and Summary Charge 5 (informant Gagliardi) occurred during the second incident and arise from the same action of you throwing the bollard. Summary Charges 6, 7 and 8 arise as a result of the second incident.
110I consider it is appropriate to impose an aggregate sentence of imprisonment on you in relation to Summary Charges 4, 5, and 6 (Informant Scott) and Summary Charge 9 (Informant Gagliardi) as they are founded on the same facts or form part of a series of offences of the same or a similar character;[38] namely, possessing various prohibited weapons at your home or in cars associated with you parked at or near your home. The four offences are of a comparable level of seriousness and I consider ‘an aggregate sentence is a “more flexible and pragmatic” way of “reflecting all of [your] conduct”.’[39] The effect of this is that you will receive one sentence of imprisonment for all four offences, however, it will be no longer than the effective total of the individual sentences I would have otherwise imposed on you for those offences.
[38] See SA s 9(1).
[39] DPP v Frewstal Pty Ltd (2015) 47 VR 660, 670 [44] (Maxwell P); Cokacar v The Queen [2019] VSCA 178 [29]–[33] (Maxwell P, Priest JA agreeing); Stevens v The Queen [2020] VSCA 170 [54]–[56] (Emerton and Weinberg JJA); Sinclair v The Queen [2021] VSCA 144 [20]–[25] (Maxwell P and Kaye JA).
Mr Basic
On Charge 1, assaulting an emergency worker on duty, you are convicted and sentenced to six months’ imprisonment.
On Charge 2, knowingly possess explosive substance for unlawful object, you are convicted and fined $1000.00. That fine is referred to the Director, Fines Victoria for management and collection.
On Charge 3, causing injury recklessly, you are convicted and sentenced to 15 months’ imprisonment.
On Summary Charge 3 (Informant Scott), cruelty to animal, you are convicted and sentenced to three months’ imprisonment.
On Summary Charges 4, 5 and 6 (Informant Scott) and 9 (Informant Gagliardi), possess prohibited weapons, you are convicted and sentenced to an aggregate sentence of six months’ imprisonment.
On Summary Charge 5 (Informant Gagliardi), throw missile to endanger, you are convicted and sentenced to two months’ imprisonment.
On Summary Charge 6 (Informant Gagliardi), commit indictable offence on bail, you are convicted and sentenced to one month’s imprisonment.
On Summary Charge 7 (Informant Gagliardi), contravene conduct condition, you are convicted and sentenced to one month’s imprisonment.
On Summary Charge 8 (Informant Gagliardi), fail to comply with direction of Chief Health Officer, you are convicted and fined $500.00. That fine is referred to the Director, Fines Victoria for management and collection.
I order six months of the sentence imposed on Charge 1, one month of the sentence imposed on Summary Charge 3, three months of the aggregate sentencing imposed on Summary Charges 4, 5, 6 (Informant Scott) and 9 (Informant Gagliardi), one month of the sentence imposed on Summary Charge 5 (Informant Gagliardi), and 7 days of the sentence imposed on Summary Charge 6 (Informant Gagliardi) and 7 days of the sentence imposed on Summary Charge 7 (Informant Gagliardi) be served cumulatively on the sentence imposed on Charge 3 and on each other.
This makes a total effective sentence of imprisonment for 26 months and 14 days.
I order you serve a minimum of 20 months imprisonment before being eligible for parole.
I declare 326 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct the fact that declaration was made, and its details, be noted in the records of the court.
In accordance with s 6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty, I would have sentenced you to a total effective sentence of three years’ imprisonment with a minimum non-parole period of 2 years and 3 months and total fines of $2,250.00.
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