Director of Public Prosecutions v Basic
[2015] VCC 1863
•14 December 2015
| IN THE COUNTY COURT OF VICTORI | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR -14-00578
CR-15-00203
CR-15-02091
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DENNIS BASIC |
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| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 & 30 November 2015, 14 December 2015 |
| DATE OF SENTENCE: | 14 December 2015 |
| CASE MAY BE CITED AS: | DPP v Basic |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1863 |
REASONS FOR SENTENCE
---Subject: Sentencing, pleas of guilty
Catchwords: Making explosive device; possession of firearms, explosive components and drugs; limited role in each offence; seeking membership of outlaw motorcycle gang; prior criminal history; need for general and specific deterrence and denunciation of offending conduct; declaration of less than actual PSD
Legislation Cited: Sentencing Act 1991 (Vic) ss 11, 18, 44, 6AAA
Cases Cited:R v Renzella [1997] 2 VR 88; Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342; DPP v Hutchison [2015] VSC 405; R v Hill [1996] 2 VR 496
Sentence:TES 23 months imprisonment to be followed by 18 month CCO with non-association, rehabilitative and supervision conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Raymond Gibson (at plea) Mr D. Bosso (at sentence) | OPP |
| For the Accused | Mr P. Dunn QC | Dean Cole and Associates |
HER HONOUR:
1Dennis Basic, you have pleaded guilty to one charge of making an explosive substance with intent to enable another person to endanger life or cause serious injury to property; one charge of knowingly possessing explosive substances for unlawful object; one charge of possession a drug of dependence, namely MDMA; eight charges of being a prohibited person in possession of a firearm; one charge of being a prohibited person possessing a silencer; and one charge of possessing ammunition without licence and stored insecurely.
2You have also admitted a prior criminal history, to which I shall refer later.
3The maximum penalty for the charge of making an explosive substance is ten years' imprisonment. Ten years' imprisonment is also the maximum penalty for each of the charges of being a prohibited person possessing a firearm. For being a prohibited person possessing a silencer, the maximum penalty is eight years' imprisonment. For possessing ammunition without licence or stored insecurely, the maximum penalty is four years' imprisonment. A maximum penalty of five years' imprisonment applies for charges of knowingly possessing explosive substances for unlawful object, and for possessing a drug of dependence, where the purpose of trafficking is not excluded, although it is only one year if the trafficking purpose is excluded.
4These maximum penalties are an indication of the relative seriousness with which Parliament regards these types of offences, and I must take them into account in assessing the objective seriousness of each offence.
5These charges arise out of events in late September 2013, and what police found when executing a search warrant at your residence on 1 October 2013.
6The background is your involvement with the Hells Angels outlaw motorcycle gang. From at least mid-2013, you were mixing with members or associates of that gang. By August, when your wife required you to leave the family home, you wanted to join that gang. You became what is known as a “prospect” member, and on 22 August 2013, you moved to live in a log cabin at the Langwarrin Log Cabin Caravan Park, which accommodation had been arranged for you through Hells Angels’ connections.
7Between that time and 1 October, a number of firearms and ammunition for them were brought to your cabin. So was a quantity of drugs, MDMA, namely 27.1 grams in tablets and 78.7 grams in powder form. These were all found when police executed a search warrant at your residence on 1 October. Also found there was a sports bag containing quantities of various materials associated with components of improvised explosive devices. These circumstances are the basis for the charges of possessing firearms, ammunition and a silencer, that is on Indictment D1295356B, and for charges of possession of explosive substances and drugs, being Charges 2 and 3 on Indictment D1295356A.3.
8Your counsel described your role as merely storing all of these items on behalf of the Hells Angels motorcycle gang, and because you wanted to join, you were obliged to obey such requests.
9The remaining charge is of making an explosive device. It arises from an attempted bombing on 30 September 2013, at premises known as the Nitro Gym, which was owned by the then president of the Comancheros outlaw motorcycle gang. At approximately 3am that morning, shots from a shotgun and other firearms were fired through the large front glass window, causing a large hole in the window. Two improvised explosive devices were placed through that hole. Forensic examination subsequently confirmed that the fuses were lit on both of these devices, but through a fault in the thread used for the safety fuse on each, neither in fact exploded. The devices were found the next morning when staff attended at the gym and the police bomb squad response unit attended.
10Once dismantled, the explosive devices were examined. Both consisted of a jerry can containing 20 litres of petrol, with a 1.6 litre plastic container taped to its side. Inside each container was an ammonium nitrate based emulsion explosive substance. The brand name seemed to be Power Gel or Sentinel. There was 1.6 kilograms in one and 1.12 kilograms in the other. Each had a G Booster and detonator, with detonating cord connected and burnt at the other end.
11These devices were considered to be designed to spread burning fuel through the interior of the gymnasium, in addition to any blast damage they might cause. If detonated or ignited, each was capable of causing extensive damage to property, and death or serious injury to any person in the vicinity.
12The basis on which you have pleaded guilty to the charge of making an explosive substance with intent by means thereof to endanger life or cause serious injury to property, is that you had supplied the petrol for one of these devices, and acquiesced in their preparation and use.
13There was evidence of you attending a service station across the road from where you lived about 9.30 pm the night before this incident, purchasing 20.93 litres of unleaded petrol, and filling a container with that at bowsers. There was also evidence of you leaving the caravan park about 1.16 am and from there attending at the Hells Angels premises.
14I am told that you had been telephoned and asked to bring the petrol. You did that, unaware at that stage of the intended purpose, but once present at the Hells Angels premises, you were made aware that the petrol was being used in construction of a bomb. You also became aware of where it was intended to be used. You had, by these circumstances, become party to the preparation of the two devices.
15I must assess the seriousness of these offences and your role in each of them.
16In relation to making the explosive device, it is not suggested that you were one of the people who attended at the Nitro Gym, shot at the window, or placed the bombs. The charge against you is of making an explosive substance, with the intention that someone else use it. That could be extremely serious, but I accept that you did not plan any part of the bombing or retain the persons who did place it. I accept that when you supplied the petrol, it was in response to a request for just that, and that when you brought it, you had no reason to believe that it was for any untoward purpose, as it was common for supplies of petrol to be brought to the gang's premises for use in vehicles. However, once at those premises, you were told the purpose and you stayed there while the two explosive devices were constructed, and knew where they were intended to be detonated.
17They were intended as retribution for actions that had also involved you. I have been told of the stealing of your motorcycles from the home of another associate with whom you had stored them, and then a meeting to retrieve them, in which you and others had been assaulted. That happened in the days before the devices were made and placed. Notwithstanding that connection, I accept that you were not part of the planning of the placing of the devices, and also infer that it would probably have occurred without your bringing the petrol or being present at construction of the devices at all.
18Objectively, the setting of explosions is clearly serious and dangerous conduct. The inclusion of quantities of petrol reflects that it was intended to increase or spread the damage they would cause, and these are serious examples of intended explosions which must be denounced and met with stern punishment. Given that they were placed and ignited in a building in a factory area at 3am, I infer that it was not intended that any person be actually harmed, but the damage to property would have been major if the explosions had worked.
19I am not persuaded by the prosecution's submission that in the current age of various terrorist acts, placing the community in some fear of matters such as explosions, there is more need for general deterrence against the use of improvised explosive devices. I consider that the setting of such devices is serious without association with political terrorism. Here it was for reason of retribution between gangs, which some would regard as another form of terrorism. In my view, general deterrence is important without any association with terrorism.
20Taking the limited intent inferred from time and place into account, and your even more limited role, I assess your culpability at a relatively low end of the scale of seriousness for an offence of this type. Nevertheless, general deterrence should still be an important sentencing factor to discourage others from being tempted to engage in this type of offending, and to convey the community's unequivocal denunciation of such conduct.
21
In relation to the guns and ammunition, when police executed a search warrant at your cabin about 5 pm on 1 October 2013, their initial check found a loaded semi-automatic rifle beside the bed in the bedroom; two loaded revolvers and a shotgun in the overhead cupboard in the bedroom; a
bolt-action rifle in a gun case, also containing a silencer and a quantity of ammunition for the rifle; a separate silencer; and a 12 gauge shotgun inside a case located in the wardrobe of the bedroom.
22In addition, in a vehicle you had hired only some hours earlier that day, they found in the driver's door a loaded Smith and Wesson semi-automatic handgun, and a loaded magazine containing further ammunition for it; and behind the passenger's seat, a gun case containing a 12 gauge Winchester shotgun, as well as further ammunition for the shotgun. A wallet containing your personal ID cards was located in the driver's door next to the handgun. Also found in the vehicle were two balaclavas and a Hells Angels jacket with a “prospect” patch attached to it.
23
Although it is said you were storing the firearms for the motorcycle gang, I do not accept that your role was merely passive. You kept a
semi-automatic rifle loaded near your bed. You had obviously placed two guns, with extra ammunition, into the vehicle you had hired only hours earlier, with one in the driver's door. I regard this quantity of firearms and ammunition, together with a separate silencer, and the fact that many of the firearms were kept loaded, as indicating a readiness for use, even if not all by you. Further, whether or not on someone else's orders, you had transferred two firearms into the vehicle to take with you when you next drove away, one loaded and in the driver's side door. This reflects an immediacy to the intended use of these guns, which in my view takes this offence to a level of seriousness well above the lowest end of the potential range for possession of firearms.
24That you had brought your children for a visit at the cabin in the preceding days, only need be stated to indicate the potential harm of even having these guns in your possession.
25The drugs found in your possession are also said to have been brought there by motorcycle club associates. It is acknowledged that you knew they were there, and there is nothing suggested that could enable me to find that these were not for trafficking purposes. That means that the higher potential maximum penalty of five years' imprisonment applies to my consideration of the relative seriousness of that offence. Nevertheless, I regard this part of the offending as the least serious overall.
26Finally, the charge of possessing explosive substance for unlawful object, is based on the presence in your cabin of a sports bag, found on 1 October during the police search, which contained quantities of various materials which were of the same types used as components in the improvised explosive devices placed at the Nitro Gym. There is nothing to indicate that you personally used any of the contents to try to make an IED, but by your possession of them, even if only storing these materials for others, you were acquiescing and at least passively facilitating the availability of them for illegal purposes.
27I turn now to your personal circumstances. You are now aged 36. You were born in Melbourne and raised in a family of Croatian background, your parents having migrated to Australia from what was formerly Yugoslavia. You completed Year 12 at school, during which time you worked part-time with your mother, who was working as a cleaner.
28
You commenced a civil engineering course at RMIT, whilst still living at home, but apparently there was pressure to get what your parents regarded as a "real job". You therefore left university and started working in the construction industry, doing paving. Through that work you came into contact with a
Mr Joseph Lee, who invited you to work for his father's company. You started working for that company, and as a result met Kim Lee, your boss's daughter, and friend's sister, and you subsequently married her.
29
In 2004, your first child was born. At that stage you were living in Patterson Lakes, where you had renovated a house, but had apparently overreached in borrowings for that house and faced financial problems. You committed an armed robbery, about which I shall say more shortly. You were imprisoned as a result, for what I had assumed was the minimum term of
18 months, but I have learnt this morning that you subsequently served a further three months of that sentence.
30In 2005 or 2006, you were released on parole, and you returned to your wife and young daughter, and to working for your wife's family company. I am told that in 2007, your second child was born, and that in 2009, the Lee family bought acreage at Mt Eliza and you and your wife built a house as part of that family compound. This house was apparently of considerable comfort and size.
31You continued to work for that company, as I understand it, for a further year or two.
32I am told that in 2010 or 2011, following a very significant defalcation at the Lee family company, your wife returned to work there to run its financial affairs. Initially she apparently worked three days a week, but then took on a greater role in running the company, and as a result, you ceased working as a paver and stayed home to run the household and look after your children, and that, of course, included taking them to and from school and kindergarten, respectively.
33I am told that you found yourself in a large and comfortable home, with extensive money resources available to spend on what you wished, including on vehicles, both cars and motorcycles, which were of interest to you, I am told that you became bored and looked for completeness amongst motorcyclists, and that over time you and your wife drifted apart. There were problems in the marriage from early 2013 at least, and by June, you had started riding motorcycles with what was known as the Darkside Chapter of Hells Angels, which had opened in Seaford. In August your wife required you to leave the house, and you moved, at first into the Seaford Motel, but after two or three weeks, the Hells Angels connections arranged for you to live at the log cabin park at Langwarrin.
34As a prospective member of that gang, you agreed to have your life governed by its hierarchical and structured rules. This included that you were required to do what was asked of you by more senior people in the club, called "full" or "patched" members, and you were to regard your property as their property, allowing them to use your vehicles. In fact, you had left your motorcycles at another associate's house, and they were taken by a rival gang and ultimately lost to you soon afterwards. I am told that in what had become your gang's effort to retrieve those bikes, you were involved in a fight in which you were outnumbered and suffered some injury. This was in the days leading up to the events in question for which I sentence you.
35Your counsel submits that I should assess your offending in the context of your having turned to the Hells Angels for friendship and support at a time when your life had taken a major downturn, and you were adrift from all you had known for many years. You had been forced to leave your comfortable home and lifestyle of some affluence, your marriage of more than a dozen years, and the children with whom you were close. Further, you could not return to your previous employment, which for so long had been with your wife's family company.
36I accept that after many years of marriage and being close to your children, you would have felt bereft and at an immediate loss when your wife brought your marriage to an end, but that that does not wholly explain your involvement in this offending. It would appear that you had begun your association with Hells Angels members or associates, a few months earlier than that, probably when the marriage was showing signs of disintegrating, but your wish to join that gang was a voluntary submission to its ways. You were not unaware of the requirements if you wanted to be associated with the Hells Angels, nor of the types of behaviour in which you might be required to participate. You apparently had some involvement with a previous motorcycle club in about 2004. You also had some criminal history which was not attributable simply to obeying orders of others.
37Your prior criminal record must be taken into account. First, there were offences of violence that took you before the Magistrates' Court in 2001. Those arose from a fight at a hotel, involving a large number of people. From the summary I have read, you did not start it, but you did join in violent behaviour, including being seen to throw an empty beer bottle, striking another man in the face. You were 21 years of age when you came before the Melbourne Magistrates' Court for that, and were sentenced to some months’ imprisonment, to be served by way of an Intensive Corrections Order. I have this morning learnt that you breached that order, but I have not heard that you were required to serve the balance of the sentence in prison.
38A further charge of recklessly causing injury was dealt with in August 2002, by imposition of a fine without conviction. Then, in August 2005, you were sentenced in the County Court for armed robbery, as well as intentionally causing injury and assault. These charges arose from an incident in which you and another man targeted a man you knew to be taking his business takings to a bank. You grabbed him from behind, and you struck him to the back of the head with a metal baton. This was a planned and violent attack, and you received a total effective sentence of four years' imprisonment, with a non-parole period of 18 months. That was a serious incident committed in company. I have read the sentencing remarks of His Honour Judge Hicks, that you were facing financial difficulties related to house repayments, but otherwise had a happy marriage with a baby daughter and a supportive wife.
39Therefore, although you have no prior offences involving firearms or explosives, for the purposes of my sentencing of you, you do have a history of violent offending, and it cannot be said that you come before the court with no prior blemishes on your character. Nor can it be said that they all occurred when you didn’t have the stability of marriage and parenthood.
40As you heard me discuss with your counsel this morning, I have also learnt this morning that you breached your parole and ended up serving a further three months in prison in about 2008, before being re-paroled. That, of course, sent you back to living in the stable family situation, as described to me.
41With your criminal history, specific deterrence is of importance in your sentence, that is, to discourage you from committing further offences. You have already served more than two years in custody since and in respect of these charges. I accept that that should have been sufficient to impress on you that if you resume involvement in offending on your release, you can expect stern punishment.
42I also accept that your history is not of sustained, entrenched or regular offending, and it is not suggested that you have underlying problems, such as intellectual or mental health conditions, nor addictions, which are likely to cause ongoing instability, or to increase the risk of future offending. It will fall to you to turn your back on all temptations to revert to any associations which led to your past offending.
43
I take into account what has occurred since this offending and how it relates to sentencing considerations. Following the search at your residence on
1 October 2013, you were arrested and remanded in custody and have been there ever since. I am told that during that time, your wife divorced you. Your children are living with her and I am told you have not had visits from them, but you do still have some contact with them by phone. You do remain close to your parents and to a group of friends with Croatian background, and you have had a show of that support here in court.
44I have also taken into account that some of the time you have spent on remand has been in more restrictive conditions than usual, due to extensive lockdown conditions imposed immediately after the disruptions at the Metropolitan Remand Centre, where you were in June of this year. You have remained there, and that reflects you were not associated with the actual disruption there.
45
Some details were obtained of your circumstances and it seems that you were subject to extremely restricted airings from your cells until early-September, that being some seven to eight weeks, after which you were allowed some outings into the yard. On 20 October, you were moved to a management unit, due to an incident about which I have no details, and that I infer would be more restrictive, but you do get access to a small yard there. I am not aware of your level of culpability for that move, so I have not taken it into account.
I have allowed some mitigation for the more onerous conditions of your incarceration between at least the beginning of July to 20 October of this year.
46I have read references from two of your friends, Mr Mikic and Mr Filipovic. I accept that they have known you for many years and regard you not only as a good friend, but as someone to whom family means everything, particularly your children. Neither of them mentions knowing of your previous offending which led to your being imprisoned some ten years ago, nor indeed returned to prison for some three months, although each has known you for much longer than that. Both speak of noticing a change in you after your marriage ended. Mr Mickisch described you as a shattered man, and Mr Filipovic as a totally different man, as if something died inside you.
47I accept that you have shown your friends over the years, a number of good and admirable qualities, and that they remain supportive and will be able to be of company and support to you on your release from prison.
48I have also read a reference from a charity called "City Life", which provides care and support for disadvantaged and distressed people in the Frankston community. This letter states that you were a regular weekly volunteer from 2009 to 2012, and also donated financially. I accept that the reflects well on your being concerned enough for the underprivileged in your local community to give your own time, as well as money, to assist, and reflects a community spirit and level of generosity towards those less fortunate than you. This reflects well on this aspect of your general character.
49In considering your prospects of rehabilitation, I consider that those prospects are really entirely in your own hands. With your criminal record, you have shown that imprisonment was not sufficient deterrent to prevent you from ever being tempted to engage in illegal activity again. Nevertheless, as you have no underlying conditions or addictions likely to undermine your resolve, if you resolve to stay away from the types of associations that have led you into offending before, and that would include applying yourself on your release from prison to finding new employment and starting afresh outside your marriage, with the support of those family and friends you have around you, I consider your prospects of rehabilitation to be fair.
50
I do note a report this morning, that under the assessment tool used by Community Corrections Services, you are assessed as at medium risk of re-offending. That probably is a reflection of what I had not known when
I made my earlier assessment of your prospects of rehabilitation, that you had breached both an Intensive Corrections Order, imposed some 15 years ago, and also the parole order granted to you some nine to ten years ago, but given the passage of time since then I still assess your prospects of rehabilitation as fair.
51I have taken into account in mitigation your pleas of guilty. In relation to the two charges involving explosives, you did not plead guilty until the second day of a scheduled trial for these offences, although I accept that charges relating to two other incidents involving explosions, with suspected motorcycle gang involvement, were part of the same trial and those were ultimately not pursued against you.
52You indicated an intention to plead guilty to the firearms charges early this year, and you get more credit for that, as there was earlier acceptance of responsibility by you for that offending.
53In relation to all of the offences, there is utilitarian value in avoiding what was scheduled to be a three week trial, and you are entitled to some leniency for that. Your pleas also reflect acceptance of responsibility for your involvement in these offences and I am prepared to accept that they reflect some degree of remorse, although not fulsome, given the timing of the entering of the pleas of guilty. I will indicate after I have told you the sentences I am going to impose, what they would have been had you not pleaded guilty to these charges.
54I was urged by your counsel to impose a sentence of imprisonment, to be followed by a Community Corrections Order. This was urged on me as an appropriate sentence to help promote your rehabilitation, by providing a supervised regime on your release from prison, and also allowing you to give back to the community through unpaid community work.
55I raised with both your counsel and the prosecutor, whether such a sentence was even possible in your case, as you had already served more than two years on remand for these charges, and s.44(1) of the Sentencing Act 1991 (Vic) only permits a Community Corrections Order to be imposed in conjunction with a total of no more than two years' imprisonment.
56Both your counsel and the prosecution supplied written submissions and also in the meantime I read the decision in the DPP v Hutchinson[1], (from August) in which Osborn JA discussed the interplay of ss.11,18 and 44 of the Sentencing Act. In that case, His Honour decided that to facilitate the imposition of a Community Corrections Order to follow a term of imprisonment and to overall meet sentencing requirements, he should direct that the pre-sentence detention in that case not be reckoned served.
[1]DPP v Hutchison [2015] VSC 405
57It seems to me that a similar approach could be taken in your case, notwithstanding that there is already more than two years of pre-sentence detention, if a CCO to follow that imprisonment is preferable to the setting of a non-parole period. In those circumstances the total sentence could not be as great as the total time already spent on remand and that extra time would not be declared reckoned served under s.18, but should be taken into account under the principles in the case of R v Renzella[2].
[2]R v Renzella [1997] 2 VR 88
58
There is an artificiality to such a sentence structure, but not out of keeping with the approach taken by Osborn JA in Hutchinson, nor indeed some time earlier in the context of a youth detention order in Hill's case[3].
I therefore decided to request a pre-sentence report on your suitability for a CCO and that was conducted this morning. It raised some further facts of concern, in particular that you had breached the parole order under the sentence imposed in 2005, which had not been made known to me. I have heard your counsel explain those circumstances. They seem to me to reflect that you were not wholly compliant with that parole order, and did not regard all of its restrictions seriously enough and you were, as a result, apparently required to serve three further months imprisonment before being re-paroled. Nevertheless that was some 8 to 9 years ago.
[3]R v Hill [1996] 2 VR 496
59What was also raised in that report was that you were abusing alcohol and taking drugs, in company with your Hells Angels associates in the months leading up to these offences. Although there is nothing to connect that drug or alcohol abuse with the circumstances of these actual offences, they reflect the type of risks you were prepared to take in that company.
60I have decided that sentencing factors of general and specific deterrence, community denunciation of each of those types of offending, as well as some facilitation of your rehabilitation, to benefit the community as well as you personally, can be met by a sentence that enables a CCO to follow the imprisonment you have already served. You have in fact served more than the term of imprisonment I shall impose to achieve this result, and some of that in more onerous than usual circumstances.
61What you do with your life from here on, Mr Basic, is for you to decide. It depends on you deciding whether or not to stay away from circumstances which you are well aware run the risk of leading you into further trouble.
62Would you stand up now please.
63Dennis Basic, you are sentenced as follows:
64On Indictment D1295356A.3, on Charge 1 of making an explosive device, you are convicted and sentenced to 18 months' imprisonment.
65On Charge 2 of possessing explosive substances for unlawful object, you are convicted and sentenced to 12 months' imprisonment.
66On Charge 3 of possession of a drug of dependence, you are convicted and sentenced to four months' imprisonment.
67I direct that two months of the sentence on Charge 2 be served cumulatively on the sentence on Charge 1, and by operation of law, the sentences will otherwise be served concurrently.
68That creates a total effective sentence of 20 months' imprisonment on this indictment.
69On Indictment D1295356B, you are convicted on each of Charges 1 to 10, and sentenced to an aggregate sentence of 18 months' imprisonment, to be followed by a CCO to last for 12 months'. That if for the entirety of the ten charges relating to possession of the firearms, ammunition and silencer.
70The conditions on the CCO are:
·that you will be subject to supervision;
·that you must perform 100 hours of unpaid community work; and
·be subject to a condition that you not associate with any member or associate of any chapter of the Hells Angels motorcycle gang.
71
Now, the recommendation from the Community Corrections officer who assessed you, was that it would also be useful for you to be referred for assessment and treatment, if directed, for alcohol abuse and drug abuse.
I had not been aware that those were part of the background problems for you, but I am prepared to facilitate all prospects of rehabilitation by including those conditions. You will have to attend for the assessments and it is up to Community Corrections to decide, after those assessments, whether you require treatment for those habits.
72Now in addition, all usual terms of a CCO apply and I will go through those with you shortly.
73But what I return to now is the totality of the sentences. As I have said, on this indictment there is an aggregate sentence of 18 months', to be followed by a CCO to last for 12 months'.
74I direct that three months of the sentence of imprisonment on this indictment, be served cumulatively on the sentence imposed today on Indictment ending A.3.
75
That means that the effective total of the sentences I impose today is
23 months' imprisonment, to be followed by a CCO which will commence on completion of that sentence, and last for 12 months.
76Now, subject to this figure being checked with counsel, I declare 700 days of the time which you have spent in custody on remand for these charges as reckoned served. That would be the entirety of the 23 months on my calculation.
77Returning to the CCO, the usual terms of a CCO also apply. They, I know, will have been outlined to you, but I will run through them briefly here. You must report within two working days of being released from prison, to the nearest CCO office to which you will be living. I think you must have told the Corrections officer where that was.
78MR DUNN: Sunshine, Your Honour.
79HER HONOUR: So it is the Sunshine office. All right.
·During the 12 months of the order, you must notify Community Corrections officers of any changes in the address of where you are living or where you are working, and you must notify that change within two clear working days of it occurring.
·You must obey all lawful directions of Community Corrections officers and submit to visits by them.
·You must not leave Victoria without prior permission of Community Corrections officers.
·Finally, but very importantly, you must not commit any offences during the period of operation of the order. That is the 12 months.
80Do you understand the conditions and terms of this Community Corrections Order?
81OFFENDER: Yes, Your Honour.
82HER HONOUR: Do you agree to comply with them?
83OFFENDER: Yes, Your Honour.
84HER HONOUR: Now, I must warn you that if you contravene the Community Corrections Order, either by not complying or by committing any further offences, you can expect that contravention proceedings may be brought against you and that would bring you back in front of me. Contravention of a Community Corrections Order is itself an offence. My powers on dealing with a contravention of the Community Corrections Order component of your sentence include that it can be varied to extend the period or the conditions, it may simply be confirmed, or the remaining part of the Community Corrections Order can be cancelled and you can be re-sentenced by me for that component of the sentence for which the CCO was imposed.
85That would depend on the circumstances of any contravention and your own personal circumstances at the time, but you need to be aware that contravention of that order has serious consequences.
86I also state, for the purposes of s.6AAA of the Sentencing Act, that if you had not pleaded guilty to these charges but been found guilty of them after a trial, I would have sentenced you to a total effective sentence of four years and three months' imprisonment, with a non-parole period of three years and two months.
87COUNSEL: As Your Honour pleases.
88Finally I will make the disposal and forfeiture orders that were sought.
89MR DUNN: Yes, no objection to that, Your Honour.
90HER HONOUR: Take a seat, Mr Basic, while I have the orders created and you will have to sign the Community Corrections Order and I will too, before leaving the courtroom. You can take a seat for the moment.
91
Now, coming back to the declaration of pre-sentence detention, 23 months
I worked out by saying, neither of the last two years has been a leap year, whereas next year is - 365 days by two, less 30 days, but I stand open to be corrected if you - the actual pre-sentence detention is 805 days.
92MR DUNN: And five, yes. We think that's right, Your Honour.
93HER HONOUR: But I will only be declaring the part I have imposed as imprisonment.
94MR DUNN: Yes.
95HER HONOUR: Do you both agree with 700 days?
96MR BOSSO: I think we do, Your Honour.
97MR DUNN: Yes, Your Honour.
98HER HONOUR: All right.
99MR DUNN: May I approach the dock, Your Honour?
100HER HONOUR: Yes. Can I - just before you do, Mr Dunn, the address where your client is going to be living is 24 Rice Flower Road, Sunshine North, is that right?
101MR DUNN: That is right.
102HER HONOUR: All right, yes, you are free to approach and I will just - unfortunately the - with all the swapping of the charges between the different indictments, the system has thrown up a slight difference in what should be on - different description of one of the offences on Indictment ending B.
103MR DUNN: Right.
104HER HONOUR: And we just have to have that corrected for the CCO to be produced correctly, because that is what the CCO is going on.
105MR DUNN: Thank you, Your Honour.
106HER HONOUR: Sorry, there is a problem with the description of one of the charges and we cannot get the CCO printed out without that being corrected and someone remotely does it, I believe.
107MR DUNN: That sounds strange.
108HER HONOUR: The charges get loaded up elsewhere - - -
109MR DUNN: Right, elsewhere.
110HER HONOUR: - - - onto the system.
111MR DUNN: Yes, right.
112HER HONOUR: And my associate can change some things but not others.
113MR DUNN: Right.
114HER HONOUR: And this is not only for the purpose of the formal court record order.
115MR DUNN: Right.
116HER HONOUR: But it transfers that same issue into the - it is all right, you can stay seated, Mr Dunn.
117MR DUNN: Yes, thank you.
118HER HONOUR: Into the actual CCO, at the top.
119MR DUNN: Yes.
120HER HONOUR: So it came out with one more - it is the possession of the silencer that did not find its way there, but something else did.
121MR DUNN: Right.
122HER HONOUR: It was too easy to make them all the same.
123MR DUNN: Yes.
124HER HONOUR: I am not making light of it, it is just that - - -
125MR DUNN: No.
126HER HONOUR: - - - technically we have got to get the orders right. I think the reality, Mr Dunn, is your client needs to be taken back into custody.
127MR DUNN: Yes.
128HER HONOUR: In order to be processed to be released.
129MR DUNN: Yes.
130HER HONOUR: But he will be released today, on my calculations.
131MR DUNN: May Mr Cole approach him and ask him about some other question now, Your Honour?
132HER HONOUR: Yes.
133MR DUNN: Thank you.
134HER HONOUR: I have also got to give leave to the prosecution to amend some file numbers.
135MR BOSSO: Yes, Your Honour, I'll do that now.
136HER HONOUR: I think you were forewarned, Mr Bosso.
137MR DUNN: Well thank heavens Mr Bosso was informed.
138MR BOSSO: I was, Your Honour.
139HER HONOUR: That is because at the beginning of the trial, if you remember the drugs charges were separated off onto a separate indictment and a separate file was opened, and then they were transferred back onto the final indictment A.3. And in this new age we do not have paper files, so it has all got to be correct in the computer.
140MR DUNN: Mr Bosso's doing it with a red pen, which is the proper way to do it.
141HER HONOUR: Well, I am impressed by that.
142MR DUNN: I am.
143HER HONOUR: But I don't know if the computer will notice.
144MR DUNN: Well traditionally that's how it used to be done anyway.
145MR BOSSO: They have been amended, Your Honour. I will return those to your associate.
146HER HONOUR: Thank you. I have got copies of the disposal and forfeiture orders.
147MR DUNN: Yes.
148HER HONOUR: For each side.
149MR BOSSO: Thank you, Your Honour.
150HER HONOUR: This is the CCO.
151MR DUNN: Yes.
152HER HONOUR: I will have it shown to both counsel and then - - -
153MR DUNN: I will take it to him to sign, Your Honour?
154HER HONOUR: I will have my associate - - -
155MR DUNN: All right, thank you.
156HER HONOUR: If you want to approach too, you can.
157MR DUNN: I will just - yes.
158HER HONOUR: Or your instructor.
159MR DUNN: Best to - - -
160HER HONOUR: Mr - - -
161MR DUNN: Or Mr Cole can go do it.
162HER HONOUR: All right. This is the CCO. I have explained the terms, but it is best you - and your counsel has checked them, but best you read it through to check you understand it. All right, I just signed that.
163MR BOSSO: Thank you, Your Honour.
164
HER HONOUR: All right, that is a copy for each side of the CCO. What I will do is, adjourn. The orders are going to take a bit - they have got to be
re-typed in, but I will sign them as soon as they are ready.
165MR BOSSO: Yes, Your Honour.
166MR DUNN: If I could be excused then, Your Honour, thank you?
167HER HONOUR: Yes.
168MR DUNN: Thank you.
169HER HONOUR: I will adjourn the court and Mr Basic will be taken back to be processed.
170MR DUNN: Yes, thank you, Your Honour.
171HER HONOUR: But I will get the orders signed as soon as I can.
172MR DUNN: Thank you, Your Honour.
173HER HONOUR: All right.
174MR BOSSO: If Your Honour pleases.
175HER HONOUR: We will have Mr Basic removed from the court first please.
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