Director of Public Prosecutions v Basic

[2017] VCC 977

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00203
CR-17-00300

DIRECTOR OF PUBLIC PROSECUTIONS

v

DENNIS BASIC

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	12 May & 28 June 2017
DATE OF SENTENCE:	11 July 2017
CASE MAY BE CITED AS:	DPP v Basic
MEDIUM NEUTRAL CITATION:	[2017] VCC 977

REASONS FOR SENTENCE

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Subject:  SENTENCING

Catchwords:  Possession of firearms; offending breached CCO for similar offences; early admissions and plea of guilty; whether CCO should be confirmed when non-parole period applies to breaching offences

Legislation Cited:  Sentencing Act 1991 (Vic) ss 6AAA, 11, 44

Cases Cited:Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342; DPP v Basic [2016] VSCA 99; Berichon v The Queen (2013) 40 VR 490

SentencePlea charges: 2 years imprisonment with non-parole period of 18 months plus fine of $1,500 in relation to summary charge 6

Contravention of CCO: re-sentenced to 9 months imprisonment
TES: 28 months imprisonment with non-parole period of 18 months with 405 days of pre-sentence detention reckoned served

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering (on plea) Mr D. Bosso (on sentence)	OPP
For the Accused	Mr P. Dunn QC (on plea) Mr D. Cole (on sentence)	Dean Cole and Associates

HER HONOUR: 

1Dennis Basic, you have pleaded guilty to four charges of being a prohibited person possessing a firearm and one charge of possessing a drug of dependence, namely anabolic steroid.  You have also agreed to have transferred and heard in this court, and have pleaded guilty to, two related summary offences, namely possessing cartridge ammunition without a licence and possessing a prohibited weapon, namely body armour.

2You have also admitted a prior criminal history to which I shall refer shortly. 

3The maximum penalty for each charge of being a prohibited person possessing a firearm is ten years' imprisonment.  For possessing a drug of dependence in the circumstances in which this steroid was found, the maximum penalty is 30 penalty units or one year imprisonment as the prosecution does not allege that it was for a purpose other than personal use.  The maximum penalty for possessing cartridge ammunition without a licence is 40 penalty units, and for possessing the body armour, it is 240 penalty units or two years' imprisonment.  I have taken each of these maximum penalties into account in assessing the objective seriousness of each offence. 

4All of these charges arise from what was found on 1 June 2016 when police executed a search warrant at a house where you were living - the home of a friend.  Police located four firearms in the house, namely a loaded semi-automatic pistol in the hallstand near the front door (Charge 1); an unloaded semi-automatic handgun and a Winchester 12 gauge pump-action shotgun both hidden in a hidden compartment behind the splash-back in the laundry (Charges 2 and 3);  and a loaded semi-automatic handgun with serial number removed in your unlocked bedroom (Charge 4).  In the kitchen refrigerator, police found two small vials containing anabolic steroids which are the subject of Charge 5.

5Also located were multiple amounts of ammunition of varying types to fit each of the firearms, including some in the hall stand, some in your bedroom and some in the hidden compartment in the laundry.  All of that ammunition is the subject of Summary Charge 6.  Also found in your wardrobe was a black body armour vest which is the subject of Summary Charge 11.

6Initially when interviewed, you denied knowledge of the firearms and ammunition.  You did admit possession of the body armour, claiming that you had had it for three years from when you were a member of the Hells Angels, and you also admitted possession of the steroids which you said that you used for the gym.  Later on the same day of that interview, it was recommenced and you made full admissions regarding the possession of the firearms and ammunition.  You told the police specifically that they were not owned by the man at whose house you were living at the time and who had also been arrested that day.

7In line with those admissions, you pleaded guilty to these charges in advance of the committal hearing.  This cooperation with police and early plea of guilty indicates cooperation by you with the justice system and has the utilitarian value of saving the community the time and cost of a further investigation and disputed hearings.  This entitles you to considerable leniency. It also indicates that you have acknowledged responsibility for your offending.  I accept that it also reflects some genuine remorse on your part.  I will tell you when I have imposed sentence what it would have been had you been found guilty of these charges after a jury trial.

8On the first occasion that this matter was before me, I was asked to adjourn it to give you the opportunity to make a statement to police which might have provided helpful information as to the source of the firearms.  I am told that you did have a discussion with the police, but as the information was already a year out of date, it was decided that that course would not be pursued.  Nevertheless, I accept, and the prosecution concedes, that you were willing to cooperate in this manner.  That, in addition to your early plea of guilty and apparent remorse does tell in your favour.

9I am told that the reason you had possession of the firearms and ammunition and body armour was to protect yourself from what you understood were likely attacks on you.  This threat arose from your history over the last few years, and that history is relevant not only to the reasons for your offending but also to several relevant sentencing factors in your case, and I will go to the relevant  part of that history, now.

10On 14 December 2015, I sentenced you in relation to three sets of charges, all arising from your actions in 2013 when you were attempting to become a member of the Hells Angels outlaw motorcycle club.  In addition to charges relating to explosive substances, and a charge for possession of a drug of dependence, you were sentenced on eight charges of being a prohibited person in possession of a firearm, one of a silencer, as well as a charge of possessing ammunition without a licence.  In combination, I imposed a total term of imprisonment of 23 months to be followed by a Community Correction Order commencing on your release.

11Those sentences were appealed by the Director of Public Prosecutions on the grounds that they were manifestly inadequate, and on 10 May 2016, the
Court of Appeal agreed that they were manifestly adequate on the charges relating to possession of the firearms, and increased the sentence for those  charges by extending the duration and conditions of the Community Correction Order.  You were released from prison on 14 December 2015 after I sentenced you, and on that date the CCO commenced. 

12I am told you found accommodation offered by a friend on the other side of Melbourne from your past connections, intending to stay well away from them.  You also obtained employment quickly as you have extensive experience and trade skills in the building industry.  In addition, you apparently engaged well from the start of your CCO, and rapidly completed much of the amount of the unpaid community work which I had imposed.  You also complied with therapeutic conditions.  You so impressed at the football club where you were doing the unpaid community work that you were offered paid employment there.  You refused that offer as you already had other employment, and yet you continued to attend voluntarily to assist with maintenance tasks at the football club.

13However, you became aware that you were likely to be targeted by two outlaw motorcycle gangs.  One was the Hells Angels as you had made it clear you wanted no further contact, and indeed it had been a condition of your CCO that you not associate with any of its members.  And as a result, you were apparently regarded as a “turncoat”.  Further, the events that gave rise to the previous charges against you had involved the taking by a rival gang, the Comancheros, of your motorcycle, and this enmity had not been resolved.  I am told that you had received indirect messages that you were likely to be targeted by both of those groups and there had already been contact to inform you that one or both knew you where you were.

14I am told that you acquired the firearms and ammunition and body armour, that are the subject of these current charges, with the intention of defending yourself from anticipated attacks.  Your counsel submits that your possession of these prohibited items was wholly defensive.  There is nothing to indicate that there was an intention to use any of them in connection with any criminal activity or any offensive purpose including to provide security or as a means of enforcement in the context of other criminal activity - that is a description used to categorize the seriousness of this type of offending[1].  In this context, it is submitted that the circumstances of your possession of these firearms was at a lesser level of seriousness for this offence than had those other purposes been shown. 

[1]        Berichon v The Queen (2013) 40 VR 490, cited in DPP v Basic [2016] VSCA 99 at para [46]

15However, I am told that the reason your residence was searched was that anxious neighbours had reported to police that gunshots were fired into some vacant land behind it, and indeed a helicopter had been engaged by police to locate the premises from which they were fired.  There is no evidence that you fired the shots but someone within the house where you had brought those guns and ammunition did.  Even though no one was hurt on that occasion, the circumstances are a clear example of the very real risk of danger when firearms are kept illegally on premises, especially accompanied by ammunition.  It is not known who discharged one or more weapons on the night that gave rise to police being notified, but that is an example in itself of how such weapons can come into the possession of others with various motivations for their being fired. 

16Even accepting that on this occasion there is no evidence that you intended to use any of these weapons for anything other than defending yourself, there are other ways of defending yourself such as by seeking police assistance. 
The circumstances are much more serious than were a single unloaded weapon stored where you lived, perhaps under lock and key, and with no intention of it being used for any purpose.  The fact that you had acquired four firearms, and multiple types of ammunition for them, and kept two loaded, one in the hall table and one in your bedroom, reflects that even if only to defend yourself you did anticipate using one or more of them.  The fact that someone else at the premises may have found and fired one or more of them is an indication of the wider risk to public safety or indeed the prospect of them being taken by some other person to be used in relation to some other criminal activity. 

17For these reasons, protection of the public, and general deterrence are important sentencing factors.

18Just as importantly, there is a considerable need in this case for specific deterrence; that is because you simply had not learnt from your previous involvement in illicit possession of firearms and ammunition.  The sentence previously imposed did not deter you from engaging in similar conduct again, and so soon after a reminder by the Court of Appeal of how seriously it viewed such offending.  The prosecution points out that you were found in possession these firearms and ammunition for them less than a month after the Court of Appeal had considerably increased your sentence for the previous eight charges of possession of firearms.

19In addition to the matters for which I sentenced you in December 2015, your prior criminal history is also of relevance.  You have a history of offences of violence dating back to 2001 and 2002, and in August 2005 you were sentenced to four years' imprisonment for armed robbery, intentionally causing injury and assault.  You were released on parole in 2005 or 2006.  Your criminal history therefore pre-dates your involvement with motorcycle gangs, and shows that you had used violence well before that, although not on a continuous basis and there was quite a lapse of time in between.  These matters are relevant to my assessment of your prospects of staying clear of trouble in the future. 

20You are now aged 37.  You were married and have two children but that marriage had effectively ended in 2013 and you were formally divorced while last in prison.  I am told that you had not seen your children since then and were trying to establish some arrangements for visits through legal avenues, but those prospects were further damaged by your further offending and imprisonment. 

21You are still quite close to your parents whom you visit.  They are said to be the only reason that when out of prison you would go to south-eastern suburbs, as you were otherwise not going there in your attempt to stay away from former gang associations.

22As I learnt when last sentencing you, for some years following your release from prison in about 2006, you were living with your wife and children, working for her family’s business and living amongst her family, and appeared to be very comfortably established.  You, in due course, stopping working yourself to allow your wife to return to an active role in her family's business.  Over time, the marriage broke down.  I was told that it was through the breakdown of your marriage that you became involved or sought to become involved with an illegal motorcycle gang; that was in 2013, which led to the last offending and your last period of imprisonment.  It is unfortunate that you seem not to have learnt sufficiently from your previous mistakes, and have again easily become involved in serious criminal activity.

23However, you do not seem to have significant underlying problems that would necessarily undermine your ability to stay clear of criminal activity in the future.  In particular, you do not seem to have significant mental health or drug dependency conditions,  and if you could make better decisions for yourself, you could stay out of criminal trouble in future. 

24I also note that sentences of imprisonment have not sufficiently deterred you on your release in the past, and in the situation with which I am dealing, far too soon after a reminder by the Court of Appeal of how stern a punishment imprisonment might be.

25You were arrested and charged with these offences, that is those for which I am about to sentence you, on 1 June 2016, and have been remanded in custody ever since; that is now, more than 13 months and that period will count towards your sentence.  I have also taken into account as requiring some moderation of your sentence that your time in custody has been more restricted than it might have been as you were kept most of the time at the Melbourne Assessment Prison to keep you away from possible danger from associates of motorcycle gangs. 

26I have already outlined why your personal history of offending does not give rise to confidence in your ability to refrain from the offending in the future, and that is why specific deterrence must be given considerable weight in your sentence.  On the other hand, the prospects of your rehabilitation are by no means poor.  You showed yourself able, on your last release from prison, to move away from the geographical area where previous contacts and potential trouble might have undermined you, and that reflects a genuine effort to try to start afresh and stay away from contacts who might have led you back into past offending ways. 

27It is impressive that you obtained full-time employment quite quickly, especially as you had not had employment for some years before your last imprisonment ,and I am told you would have no difficulty obtaining employment on your next release from prison and intend to do that.  Employment is an obvious stabilising as well as enabling factor if you are to establish a responsible future for yourself.

28I also take into account that you showed some generosity and sense of community support in providing work voluntarily where you were not available to take on the employment offer that arose out of your CCO community work at a football club.  I note that when I last sentenced you, there had also been information about you having being a regular weekly volunteer as well as a financial donor to a charity which provided care and support for disadvantaged people.   I accept that you have a history of volunteering, and showing your willingness to support others in the community, and that is also a sign that you feel some responsibility for other people and for organisations in the community.  That is in contrast to the entirely anti-social attitudes that sometimes come before the court.

29If you can stay away from past criminal associations, and in particular avoid acquiring weapons, your chances of building a stable future for yourself are by no means poor, but with your history, they cannot be said to be said to be any more than fair.  I accept that you have genuine motivation to try to build a better future, being to try to gain some contact with your children in the future.

30For consideration of current sentencing practices for offences of this type, I was provided with sentencing snapshots in relation to the charge of being a prohibited person possessing, carrying or using a registered firearm.  For the period from July 2011 to June 2014, when certain types of sentences were available but are no longer, in effect more than 50 per cent received sentences that involved some imprisonment.  Further, for the period July 2011 to June 2015, more than 68 per cent the terms of the imprisonment imposed were up to two years imprisonment, and only 11 per cent were for more than three years imprisonment.  These statistics provide some guidance as to current sentencing practice, but limited due to lack of information as to whether these were sentences imposed after trial or pleas of guilty, whether they were for possession of single or multiple firearms, whether they involved possession of firearms for furtherance of ongoing criminal activity, and the extent of relevant prior offending.  I note that it is likely there was some prior serious offending for the offender to be a prohibited person under those charges. 

31I also take into account the cases referred to in comments of the Court of Appeal on your last appeal in relation to current sentencing practice for offences of this type; that is the possession of firearms when a prohibited person.

32I am prepared to accept that your possession of these firearms was not in the category of being in furtherance of ongoing criminal activity, so therefore of a lesser seriousness than last time, but with the prior charges so recently reviewed by the Court of Appeal and as there were four firearms, all with available ammunition and two kept loaded, I consider that these offences are nevertheless of considerable seriousness.

33The sentencing factors, as I have already said, of general deterrence, protection of the public and specific deterrence are all important in this case, but I have not ignored your prospects for rehabilitation.  I have, as already stated, taken into account your cooperation and early plea of guilty.

34It was conceded on your behalf that the seriousness of this offending coming as it did within months of your release for what in part had been similar offending, and in light of the comments of the Court of Appeal in relation to your case as to the appropriateness of sterner sentences for such firearms offences, only a term of imprisonment and one longer than 12 months would be appropriate. The issue of 12 months arises because s.44 of the Sentencing Act has been amended and only enables a combination of imprisonment to be followed by a CCO if the term of imprisonment is no longer than 12 months.  Yours will be longer than 12 months so there is no question of a CCO being imposed for this fresh offending, even to follow imprisonment.

35I am satisfied that no sentence other than imprisonment is appropriate for the first four charges on the indictment.  The fifth charge, that of possession of the anabolic steroid, received little attention in submissions, and if it had been an isolated instance of possession of a steroid drug for personal use, I might well have considered a non-custodial sentence, but in the circumstances where you face imprisonment for other charges, and have a prior history of possession of other illegal drugs, I shall impose a short concurrent term of imprisonment for that charge. 

36The charge of possession of ammunition which is a summary charge that has been transferred and heard before me does not carry a term of imprisonment.  I intend to impose a fine significant enough to reflect that you had considerable quantities and various types of ammunition for each of the four firearms, but also taking into account that there would otherwise be some concurrency as the possession of the ammunition related to possession of those firearms for which you are being sentenced to imprisonment.  I am sure that you will be given advice as whether to apply to convert the fine to another form of sentence if you want to do that.

37Would you now please stand?

38Dennis Basic, on each of the charges, you are convicted, and I sentence you as follows:

39On Charge 1, 18 months' imprisonment.

40On Charge 2, 16 months' imprisonment.

41On Charge 3, 16 months' imprisonment.

42On Charge 4, 18 months' imprisonment.

43On Charge 5, one weeks' imprisonment.

44I direct that two months of each of the sentences on Charges 2, 3 and 4 be served cumulatively on each other and on the sentence imposed on Charge 1, making a total effective sentence on this indictment of 24 months' imprisonment.

45I shall set a non-parole period but it is complicated by the contravention proceedings that are also before me, and therefore I will announce the non-parole period later.

46On the summary Charge 6, of possessing cartridge ammunition without a license, I impose a fine of $1500 with conviction.  I am prepared to grant a reasonable stay on payment of that fine if sought. 

47On summary charge 11 of possessing body armour, I impose two months imprisonment which I direct be served concurrently with the other sentences imposed this day, namely those on the indictment.

48Pursuant to s.6AAA of the Sentencing Act, I state that if you had not pleaded guilty but been found guilty of all of the charges on the indictment after a trial, I would have imposed a total effective sentence of three years, six months' imprisonment with a non-parole period of two years and nine months.  On the summary charges, I would have imposed a fine of $2500 for possessing ammunition, and three months' imprisonment for the body armour.

49Now on these charges, the charges on the indictment and the summary charges, I also make the forfeiture and disposal orders that were sought and were not opposed. 

50I turn now to the issue of the contravention proceeding that is before me for breaching the community corrections order. 

51You can take a seat while I explain my reasons for this and I will tell you when to stand.

52On 10 May 2016, the Court of Appeal imposed a CCO for a period of four years, effective from 14 December 2015, on conditions that you perform 400 hours of unpaid community work, be under the supervision of community corrections officers for a period of four years, undergo assessment and treatment including testing for drug abuse or dependency and for alcohol abuse or a dependency as directed, and not associate with any member or affiliate of any chapter of the Hells Angels motorcycle club or any other motorcycle club for the duration of the CCO.

53In addition to those conditions, all usual terms of a CCO also applied, and the first and most fundamental of those is that a person on a CCO must not commit any offence punishable by imprisonment during the period of the order.  That CCO was imposed in lieu of what I had imposed on 14 December 2015, and the terms were explained at the time I imposed a CCO, and you could have been in no doubt that further offending of the type for which you had been sentenced would breach the CCO.  That you breached it so soon after the Court of Appeal imposed its order reflects that you were just not prepared to adjust all of your offending behaviour notwithstanding the serious message of that order.

54However, until the time of your arrest on 1 June 2016, you had complied with all the conditions of the order, and quite commendably had completed 84 hours of unpaid community work in barely five months.  You were also complying with the therapeutic conditions and supervision. 

55You admit contravening the order by your further offending, or at least by the five charges on the indictment and the second summary charge, because the first summary charge does not carry imprisonment and strictly did not breach the order.

56The powers of the court I am dealing with - and it falls to me to deal with your breach of the Court of Appeal's order - the powers of the court in dealing with a contravention are either to confirm the order, or to cancel it and resentence for the original offending and if that is done, the court must take into account the extent of compliance with the order to date, or there is the power to vary the order either as to its duration or its conditions.

57Your counsel urged me to find the contravention proven and to simply confirm the order, or alternatively vary it by extending its duration.  The prosecution submitted that as the further offending occurred less than a month after the Court of Appeal imposed this CCO, albeit in lieu of the earlier one I had imposed, and the fact that it is for offending of the same nature, should persuade me to cancel it and resentence you on the original charges.

58I have already mentioned the seriousness of the fact that you obtained firearms and ammunition in considerable quantities only months after your release from prison for multiple charges including several of similar nature, and less than a month after the Court of Appeal found the original sentence was manifestly inadequate for the charges of possession of firearms.  The prosecution submits that the inference should be drawn that the CCO imposed was not sufficiently stern to deter you from repeating similar offending.  The problem with that argument in the current case is that there was also imposed a term of imprisonment originally for this offending in combination with the other sentences, and in combination you had served well over two years in prison; that also doesn't seem to have deterred you from further offending of this similar nature, at least insofar as possession of firearms was concerned.

59Amendments to the Sentencing Act that have come into force since my earlier sentence and the Court of Appeal decision, now prevent a CCO from being imposed after imprisonment if a parole period is also set - that is s.10 of Act no.65 of 2016 amending s.11 of the Sentencing Act.  Both counsel submitted that that would not prevent from me having the power to confirm the CCO, although the prosecution submitted that I should not do so in the circumstances.  I take those submissions to be because I am not now imposing sentence on this matter for those earlier charges, and also they are different charges than those for which you are today being sentenced.   I accept that I am not prevented by those amendment from confirming an existing CCO imposed before the amendments as I am not sentencing you for those offences. 

60However, as has been explained by the Court of Appeal, first in Boulton's case and since, it will rarely be appropriate for a CCO to be imposed to operate when a non-parole period has also been fixed, for both practical and conceptual reasons.  The fixing of a minimum period before parole does not guarantee you will be granted parole, but does anticipate that at some stage between it and the expiration of the head sentence, parole will be granted, although conditions for obtaining parole have been tightened in recent years and I recognise that.

61I accept that in your circumstances, an extended period of a CCO following both release from prison and any parole period might be a good form of supervision, provide ongoing program options, and you apparently do not mind undertaking unpaid community work of which the Court of Appeal's order still requires a lot from you; that is, more than 300 more hours.

62If I confirm the community correction order, there would be about two years of it still to run at the time you became eligible for parole, and even if parole were not granted, there would still be more than 12 months to run after the head sentence.  However, the practical situation seems to me to tell against confirming the CCO, as I anticipate that you will be granted parole, and come under its supervision which would then be concurrent with the ongoing CCO if I were to confirm it. 

63I have therefore decided that in the circumstances of your further offending not only breaching the CCO but attracting a term of imprisonment for which a minimum non-parole period will be set, I should cancel the CCO and resentence you for the possession of firearms charges for which it was imposed.   I stand to be corrected but I think that is what the CCO was imposed for?

64MR COLE:  Yes, Your Honour.

65HER HONOUR:  In doing that, in resentencing you for those charges, I must take into account and do, that the CCO was to follow 18 months' of imprisonment which you had already served, and that you were complying the CCO's conditions including having completed 84 hours of unpaid community work within the first six months.

66Recognising that the Court of Appeal made clear that the sentence I had originally imposed was manifestly inadequate, but taking into account the amount of the sentence on those eight charges already fulfilled, I resentence you on those eight charges to which the CCO applied to an aggregate further nine months' imprisonment.  Let me make clear that is in addition to the 18 months that you had served on those charges, and the five and a half months completed of the CCO. 

67So it is a further nine months imprisonment.  I direct that four months of that sentence be served cumulatively on the other sentences I have imposed today.  That creates a total effective sentence of 28 months' imprisonment.

68I fix a non-parole period of 18 months as the minimum term before you may be eligible for parole.  I declare 405 days of pre-sentence detention as reckoned served.  I understand that does not include today?

69MR COLE:  Yes, Your Honour, that's right.

70MR BOSSO:  Yes, Your Honour.

71HER HONOUR:  That declaration of pre-sentence detention will be deducted administratively and I direct that it be recorded in court records.  To make absolutely clear, that is declared reckoned served in respect of a total imposed today of 28 months' imprisonment and a non-parole period of 18 months. 

72All right, now for the mechanics of this, I am going to ask have I - is there anything I have left out?

73MR BOSSO:  I think there is, Your Honour.

74HER HONOUR:  Yes, what's that?

75MR BOSSO:  There are two minor matters.  In relation to the community corrections order that was imposed originally by Your Honour and amended by the Court of Appeal ‑ ‑ ‑

76HER HONOUR:  Well, it was really replaced by the Court of Appeal.

77MR BOSSO:  Replaced by the Court of Appeal, yes, there was a further charge of being a prohibited person possessing a silencer and possessing cartridge ammunition.  That's a minor matter that were part of the original CCO.

78HER HONOUR:  That's where I forgot to the check the - that was on a different - one was summary ‑ ‑ ‑

79MR BOSSO:  They were part of those ‑ ‑ ‑

80HER HONOUR:  Same indictment?

81MR BOSSO:  Same indictment, yes, and part of the community correction order. 

82HER HONOUR:  Yes.

83MR BOSSO:  One was a related summary charge of course, and then there is of course - that's really a minor matter and I don’t think it will affect Your Honour's sentence.

84HER HONOUR:  Well, I think probably - thinking that through, those are matter that are fully satisfied by the amount of the aggregate sentence already served.

85MR BOSSO:  I don't suggest it would affect Your Honour's sentence, I'm just making sure all of the offences are accounted for.

86HER HONOUR:  Well, does that mean I - I just remember there were originally three indictments and some summary charges and I'm trying to picture the - my associate had prepared all these carefully for me and I haven't looked again, the ‑ ‑ ‑

87MR BOSSO:  I've got a copy of Mr Basic's prior history which notes which offences relate to the community corrections order if that assists?

88HER HONOUR:  I was going to go by the CLMS record of what, if I may - I see, Charges 9 and 10 were there.

89MR BOSSO:  Yes.

90HER HONOUR:  But possess ammunition without a licence is a summary offence.

91MR BOSSO:  It is, but it can still attract ‑ ‑ ‑

92MR COLE:  Can be given ‑ ‑ ‑

93HER HONOUR:  It was put up?

94MR BOSSO:  It can still attract a community corrections order

95HER HONOUR:  Yes, yes, it couldn't attract imprisonment?

96MR BOSSO:  Yes.

97HER HONOUR:  Which is why I included it in the - that's why it was structured that way.

98MR BOSSO:  Yes.

99HER HONOUR:  But I just hadn't remembered it being on the indictment. 

100MR BOSSO:  There is one other matter, Your Honour, which is perhaps of more ‑ ‑ ‑

101HER HONOUR:  Well, how do you suggest - I set aside the - sorry, I've cancelled the community corrections order but I resentence and I had imposed an aggregate sentence.  Again, not what the Court of Appeal would have done but I follow that, and I follow why but I had imposed it and they didn't overset that.  Now, what can I then - so you're saying that it should include Charges 9 and 10 because they were part of the original aggregate so it should ‑ ‑ ‑

102MR BOSSO:  The difficulty of course ‑ ‑ ‑

103HER HONOUR:  ‑ ‑ ‑ specifically be - it's hard to disaggregate it at this stage.

104MR BOSSO:  ‑ ‑ ‑ Your Honour can't impose a term of imprisonment for the possession of the ammunition.

105HER HONOUR:  No.

106MR BOSSO:  So Your Honour's left with two options, I think.  You can impose a fine or you can dismiss the ‑ ‑ ‑

107HER HONOUR:  I cancel the community corrections order ‑ ‑ ‑

108MR BOSSO:  Which then reopens Your Honour's discretion.

109HER HONOUR:  What I'll order is that on Charges 9 and 10 for which it was originally imposed there be no further order.

110MR BOSSO:  Yes, Your Honour.

111HER HONOUR:  And I resentence for Charges 1 to 8 inclusive – I mean the possess firearms charges, to, as I've said, a further term of nine months' imprisonment.

112MR BOSSO:  Yes, Your Honour.  There was one other matter that I'd seek to raise.

113HER HONOUR:  Yes.

114MR BOSSO:  And that's in relation to the actual breach offence.

115HER HONOUR:  Yes, yes, I'm sorry, I had noted - I had a squiggle and I forgot to go back to it.  I find the breach proven.  I should indicate the seriousness of that type of breach by imposing a separate sentence, but it will be a sentence of two weeks imprisonment to be served concurrently with the other sentence.

116MR BOSSO:  As Your Honour pleases.

117MR COLE:  As Your Honour pleases.

118HER HONOUR:  Thank you for raising that.  Logistically, these matters haven't been the easiest to construct.  Now in relation to making clear that the resentencing is to a further nine months, do you say that's sufficient?  See, the problem is there's 18 months that was declared reckoned served at the time, and also I've taken into account the five and a half months of the community corrections order so I thought by wording it "Further nine months" should be clear.

119MR BOSSO:  I think as long as Your Honour's orders are clear, that the overall total effective sentence on both CR numbers equates to the 28 months' imprisonment.

120HER HONOUR:  I was going to set a non-parole period separately on the plea indictment but then that requires a -

121MR BOSSO:  I think that would be more complicated, Your Honour.  I think the way Your Honour's structured it is simpler.

122HER HONOUR:  All right, I hope it works.  Well, I'll see if the system will take it on the plea indictment, there will be included at the bottom note that the total sentence with the other matter is 28 months with a non-parole period of 18 months the 405 days reckoned served so that both pick that up. 

123MR BOSSO:  Yes, Your Honour.

124HER HONOUR:  All right.  Mr Cole, is there anything you want to raise?

125MR COLE:  That just leaves the stay in relation to the fine, Your Honour, and if - may I just briefly approach the dock?

126HER HONOUR:  Yes.

127MR COLE:  Thank you.  Thank you for that opportunity, Your Honour.  May I just seek a stay of one month in relation to the fine there?

128HER HONOUR:  Yes, to be included in the order in relation to the fine will be payment stayed for one month and there are options to convert it.

129MR COLE:  Yes.

130HER HONOUR:  But you can talk to your client about that.  All right, it's complicated and I hope you've followed it Mr Basic but the total effect overall is I'm cancelling the CCO.  I understand that you thought that might be some good supervision and assistance to you, but it really doesn't sit well with a non-parole period, and you won't have to do another 315 or so hours of unpaid community work when you come out.  If you want to come out and volunteer, that's up to you but you won't be required to do that.

131But you no doubt know the conditions about applying for parole.  You've got about four and a half months before you'd be eligible for parole, then it's up to you to convince the Parole Board that you really can start again and do better next time.  So the total is 28 months with 18 months before eligibility for parole, and the net effect is in about four and a half months, the minimum term will be up.  And the $1500 fine for the ammunition. 

132MR BOSSO:  As Your Honour pleases.

133MR COLE:  As Your Honour pleases.

134HER HONOUR:  All right, I will adjourn the court and do the orders as soon as possible but they're complicated.  The disposal and forfeiture orders I've already signed.

135MR BOSSO:  I've got those, Your Honour.

136HER HONOUR:  Yes, all right.  Can we adjourn until 10 o'clock tomorrow morning please?

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