Director of Public Prosecutions v Bernath

[2018] VCC 782

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-18-00707

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN BERNATH

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	30 May 2018
CASE MAY BE CITED AS:	DPP v Bernath
MEDIUM NEUTRAL CITATION:	[2018] VCC 782

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Warren	Office of Public Prosecution
For the Accused	Mr S. Peterson	Stephen Peterson Lawyers

HIS HONOUR:

1John David Bernath, you have pleaded guilty to one charge of burglary, four charges of prohibited person possessing a firearm, one charge of possess a drug of dependence, one charge of possess substance and equipment for the purposes of trafficking in a drug of dependence and three charges of possessing a precursor chemical.

2You also pleaded guilty to a significant number of uplifted Magistrates' Court matters in regard to prohibited weapons.  Insofar as the charges that do not carry gaol are concerned, that is 13, 14, 53 and 54 I convict and discharge.  I will be giving an aggregate sentence on the rest.

3You are 51 years of age.  You pleaded guilty at the earliest reasonable opportunity and as I understand it there was a delay because of forensic testing still having to be carried out up until the time of the committal.  You must therefore get the utilitarian benefit of that plea of guilty.

4Insofar as remorse is concerned, I would be highly sceptical but the fact of the matter is, you have pleaded guilty and you must get a benefit for that.

5You have a significant criminal history.  I know there is none for violence in the sense that I normally understand, but there is a lot for drugs, there is a lot for driving and there is quite a few for dishonesty.  You have been incarcerated on a number of occasions.  The two most significant ones being for trafficking amphetamine back in 1999 when you received five and a half years with two years and eight months as a minimum term, and again in 2005 when you received three years with 18 months of that suspended.

6Your history is a little bit misleading in terms of the convictions because of appeals and things like that, but the fact of the matter is that you essentially kept out of the courts at least, in respect of this type of offending, between 2005 up until the relatively present time.

7A summary of the offending is that on 7 February 2017 two premises occupied by you were searched by warrant.  Some jewellery was found which went back to a burglary which occurred on 12 February 2016, when you burgled a private property in Yallourn North.  You stole jewellery, you were seen by the occupant and you ran.  You were later identified as I have just indicated from jewellery as well as your fingerprint being inside the house.

8In any event, police executed a search warrant at Cross Street, Newborough on Tuesday 7 February 2017.  You were arrested and were then taken to hospital as I understand it, with a heart condition.

9In that search were found, in the bedroom an Organo air rifle, a loaded Colt 45 handgun and three loaded magazines, (that gives rise to prohibited person possess handgun), various rounds of cartridge ammunition, fireworks, knuckle knife and a flick knife.  Police also found glass wear for the manufacture of drugs of dependence.

10On the same day they executed a search warrant at Vasey Street in Morwell which is a property rented by you.  At that address was found a small amount of methamphetamine.  Police also found several precursor chemicals at that location, all substances of which can be used in the making of amphetamine.  There were three of those.

11They also found five handgun magazines, boxes of ammunition, Tasers, capsicum spray, a finger knife and a flick knife and a nunchaku.  They are some of the matters in relation to a lot of those as well as ones that were on the actual indictment.

12You were then charged with all these matters, and I assume you probably were not interviewed because of your medical condition, but in any event you have resolved the matters and pleaded guilty.  The two most serious charges in my view are the loaded handgun which was in the bedroom ready for use, that is what gets people killed,  Mr Bernath, I am sure you know that, and the possess equipment for the manufacture of a drug of dependence, namely amphetamine.

13Your counsel has correctly pointed out that there was insufficient materials there for a manufacturing to take place, both in terms of chemicals and in terms of glass wear.

14I can therefore safely sentence on the basis that a manufacturing was not imminent.  However there is also the suspicion which crossed my mind that rather than them being preparatory, they are in fact the leftovers from an earlier cook.  But be that as it may, you have been in this game for a long time,
Mr Bernath and I am sure you are as careful as you can be with things.  Essentially what's been found are all the accoutrements of, really, a professional criminal and I do not think you would shy away from that description.

15I must be careful to only sentence you for what you have been actually charged with.  It was pointed out to me during the course of the plea that you have two brothers with extensive criminal histories and both of them are known to me and I accept what Mr Peterson said on your behalf.

16As indicated, you pleaded guilty at the earliest reasonable opportunity.  I have a letter before me from a prisoner officer saying that you were doing well in gaol and that you are well behaved, always have drug screens which show that you have not been using.

17You grew up in St Albans and your father left when you were two years of age.  I accept that you had a violent father.  You got about halfway through Year 8.  At 15 years of age you got a job in timber and hardware.  After that you went and worked in the woolsheds.  You were under the influence of your two older brothers and as I said, each of those have a significant criminal history to say the least.

18You, at around about the age of 20, started tattooing and had a mobile tattooing business and you also worked for other people.  You did that until you were around about 40.  The last job you had was as a removalist was in the early 2000s.  You worked in that until around about 2009.

19Since then you have been your former partner's carer.  She has a number of conditions and has been bed-ridden for a few years and you looked after her.  You did that for some seven and a half years.  She has put that when you were charged with this offending, she found out that you had a gun, that was the end of the relationship.  I treat that with a grain of salt, but in any event the relationship has not resumed.

20You have been using amphetamine on and off since you were about 16.  When you had money you would use.  You have two children; a 12 year old and a 15 year old.  They live with their mother in Ballarat and I accept that you care about those two children and you do what you can to see them.  There is a consent arrangement between you and the mother in terms of custody of them.  You talk to them on the phone from gaol.

21In terms of your physical health, you have had a number of heart attacks.  There is nothing to suggest that you cannot be properly treated in gaol.  You have got an arthritic condition again, nothing to suggest that that cannot be treated in gaol, and there is no Verdins principles involved.

22You experience depression and anxiety in custody as is not unusual and that does not take the matter much further either.

23In all of the circumstances, all I can really do is sentence you for what you have been found with.  You cannot be in the business that you have been in for a long time and not expect to get significant gaol sentences, but as I say, it has got to fit the crime.

24Your prospects of your rehabilitation are entirely up to you, Mr Bernath.  The risk of you reoffending would have to be regarded as high bearing in mind your lifestyle.

25Doing the best I can, taking into account all the matters that have been succinctly as I might add on your behalf by your counsel;

26On the charge I have already indicated is convicted and discharged.  On all the other summary matters, an aggregate sentence of nine months;

27On the indictment:

Charge 1, six months;

Charge 2, three months;

Charge 3, 18 months;

Charge 4, one month;

Charge 5, 18 months;

Charge 6, three months;

Charge 7, three months;

Charge 8, six months;

Charge 9; six months; and

Charge 10, six months.

28I direct that two months of the sentence imposed on Charge 1, nine months of the sentence imposed on Charge 5, which is the have equipment charge, one month of Charge 8, one month of Charge 9 and one month of Charge 10 be served cumulative upon each other and upon the sentence imposed on
Charge 3.

29I direct that four months of the nine months imposed on the summary matters be served cumulatively upon that effective sentence.

30On my calculations that gives rise to a total effective sentence of 36 months with a minimum term I will impose of 21 months. 

31Pursuant to s.6AAA of the Sentencing Act, I say that but for your plea of guilty you would have been sentenced to be imprisoned for a period of four years with a minimum term of three years.  I direct that 477 days be reckoned as having being served under this sentence.

32There is no other orders I have to make?

33MS WARREN:  No, Your Honour.

34HIS HONOUR:  All right, I will just leave the Bench and you can just keep him there for a second if you want.

35MR PETERSON:  Thank you, Your Honour.

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