Director of Public Prosecutions v Bosa

[2018] VCC 376

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02187

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK BOSA

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JUDGE:	HER HONOUR JUDGE CONDON
WHERE HELD:	Melbourne
DATE OF HEARING:	21 March 2018
DATE OF SENTENCE:	23 March 2018
CASE MAY BE CITED AS:	DPP v Bosa
MEDIUM NEUTRAL CITATION:	[2018] VCC 376

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Pleas of guilty – Possess unregistered handgun – Possess firearm with no serial number – Unlicensed person fail to store firearm in a secure location – Possession of drug of dependence – Possess cartridge ammunition without licence or permit (Summary charge) – General deterrence - History of drug addiction – Prospects of rehabilitation very good

Sentence:Convicted and sentenced to 6 months aggregate term (on indictable offences) – Fine (Summary Charge) – Pre-sentence detention of 37 days declared – s.6AAA Sentencing Act 1991 declaration – Ancillary order Forfeiture and Disposal

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Fallar	Solicitor for Public Prosecutions
For the Accused	Mr C. Dane QC (Plea) Ms Z. Garde-Wilson (Sentence)	Garde-Wilson Lawyers

HER HONOUR:

1Mark Bruno Bosa, you have pleaded guilty before me to two charges of possession of an unregistered handgun, one charge of possess a firearm with no serial number, one charge of storing a firearm in an insecure manner, two charges of possession of a drug of dependence, and through your counsel you have agreed to have the summary offence of possess cartridge ammunition without licence or permit heard by me.

2The maximum penalty for possess unregistered handgun is seven years' imprisonment; for possess a firearm with no serial number, four years' imprisonment; for storing a firearm in an insecure manner, four years' imprisonment; for Charge 5, possess drug of dependence, five years' imprisonment; and for Charge 6, possess drug of dependence, one years' imprisonment.

3The exact circumstances surrounding your offending were contained in the prosecution opening for plea, which was tendered as Exhibit A upon the plea in mitigation.  However, I will briefly summarise the circumstances of your offending.

4On Thursday 1 August 2016 police attended to execute a search warrant at your residence at 1 Dolerite Place, Epping.  Police forced entry to the premises and found two occupants located in a bedroom of the house, subsequently labelled as bedroom No.3. They were Sam Abduleraham and Amanda Ale.

5You may be seated, Mr Bosa.

6You were not present at the time of the search, having earlier left for work.  Bedroom No.1 was determined to be your bedroom.  During the course of the search police found drugs of dependence, firearms and ammunition.  Both Abduleraham and Ale were arrested.  Police were tasked to locate you and attended at 8 Hanover Road, Bundoora and 60 Barry Road, Campbellfield but were unable to locate you.

7At the Epping premises and in relation to the drugs of dependence that were subsequently analysed, the following items were found:  MDMA, in your bedroom underneath a mattress a snap lock bag with a brown crystal substance was located.  Subsequent analysis revealed this to be two grams of MDMA.  Cocaine, in your bedroom on a plate in cupboards on the top right-hand shelf area, police located a white coloured substance.  Subsequent analysis revealed this to be 0.1 gram of cocaine.  Methamphetamine, located in the kitchen area were various substances later tested and analysed to be methylamphetamine.  8.4 grams located in the right side of the oven inside a black bag, 0.2 grams was located in the right side of the oven inside a cardboard box.

8The aggregate amount of the seized drugs of dependence, MDMA, cocaine, methamphetamine, falls under the category of possession of a trafficable amount.  This relates to Charge 6 on the plea indictment.

9Police located a grey 2016 Harley Davidson motorbike in the garage.  Near the air filter was found a cloth containing one snap lock bag with four similar snap lock bags, each containing a crystal substances.  Subsequent analysis revealed this substance to be 138.6 grams of methamphetamine with 80 per cent purity.  138.6 grams alone falls under the possession of trafficable quantity category.  This relates to Charge 5 on the plea indictment.

10In bedroom No.1 a Beretta model 1951, 9mm luger calibre, semi-automatic handgun, which was loaded with one magazine, was located unsecured on the floor on the left-hand side of the mattress.  This relates to Charges 2 and 4 on the plea indictment.

11Upon later analysis it was revealed that the Beretta had no decipherable or identifying marks.  This relates to Charge 3 on the plea indictment.

12In bedroom No.3 police located a Browning model baby, 25 ACP calibre, semi-automatic handgun, loaded with one magazine on the bottom shelf section in the vanity unit.  This relates to Charge 1 on the indictment.

13You admitted to ownership of the Browning handgun in your record of interview, as you did ownership of the Baretta handgun.  Various ammunition cartridges were found in this house, this relates to summary Charge 5; possess cartridge ammunition without licence or permit.

14There were six 9mm luger ammunition firearm rounds in the magazine of the Baretta handgun, three ammunition firearm rounds in the magazine of the Browning handgun, and eight 9mm luger ammunition in the living room inside a poker chip set on the table.

15It was later discovered that you were not the holder of a firearms licence and that no firearms were registered to you in Victoria on 4 August 2016.

16On 5 August 2016 you attended at the Docklands police complex by appointment.  There you participated in a record of interview and stated that the drugs were all yours for personal use and that the guns were yours.  You told the police that you had been getting serious threats so you had them for your own safety and they had never been used.  You told the police that you lived at the residence in Epping, you said that nobody else lived there and it was like a bachelor pad.  You said that the rooms were all yours and that
Sam Abduleraham did not live there, that you were the sole resident.

17Aside from those admissions contained at Question and Answer 50 to 53 of the record of interview, you were otherwise circumspect with the police.  When asked further questions about the nature of the threats that led you to obtaining the firearms, you made no comment.  When you were asked how serious the threats were, you made no comment.

18You were remanded on 5 August 2016 and on 8 September 2016 you were granted bail.  On that date an offer to plead guilty was made in terms similar to that which you have ultimately pleaded guilty to.  There was some delay, through no fault of your own, in the final settling of the charges that related to the question of the proper charge, now Charge 5, to be laid in respect of the methamphetamine found in the motorbike.

19Be that as it may, on 21 October 2017, the matters resolved to the current charges and you pleaded guilty.  In the circumstances I find that it is a plea of guilty entered at the earliest opportunity and one designed to facilitate the administration of justice, and one consistent with remorse.

20Upon your grant of bail you sought treatment for you drug addiction.  Tendered on the plea was Exhibit 2, a report from Lamberti Associates, authored by Amanda Brown.  She states that you are clearly motivated to address the factors relating to your offending.  In particular, the behaviour reflected in Charges 5 and 6, being the possession of drugs of dependence.  She states that you were in a prolonged state of withdrawal from methamphetamines and cocaine for the first two months of treatment, and that in her view you have learnt your lesson and have taken active steps to correct your involvement in antisocial behaviour.

21While the term "antisocial behaviour" may well incorporate being in the grip of a drug addiction, it does not, in my view accurately, reflect the seriousness of the behaviour encompassed in Charges 1 to 4 on the indictment, being the possession of handguns and ammunition.

22While this is your first foray into criminal activity, Mr Bosa, you having no prior criminal history, it is in my view a serious and concerted first foray.  The offences relating to the firearms are serious.  Given the prevalence of firearm offences within the community, the sentence imposed by me must give full expression to the principle of general deterrence.

23You have acknowledged possession of two unregistered handguns, both loaded with ammunition, and both fully functional.  As I have already noted, you remained guarded with the police when pressed for the reason for your possession of the firearms.

24It is trite to state that there are lawful avenues available to citizens in the community when confronted with serious threats.  The threat here was such that you were not in a position to address it in a lawful manner, thus you armed yourself instead.

25On the plea it was submitted by your counsel that a community corrections order was an appropriate disposition to meet the sentencing principles of punishment, deterrence; both specific and general, rehabilitation, denunciation, and protection of the community.

26As I made clear in the course of the plea of mitigation, I was, and still am of the view that your offending is too serious to warrant a non-custodial disposition.  While I accept that you have made concerted efforts towards addressing at least a partial motivation for your offending, being your addiction to drugs, this does not, in my view, surpass the need to impose a sentence which adequately reflects the gravity of the firearms offences.

27I turn now to your personal circumstances.  You are now 27 years of age and you were 26 at the time of the offences.  Tendered on the plea and marked as Exhibit 3 was a copy of your curriculum vitae.  Your CV reveals that you attended Parade College, Bundoora, where you completed Year 11.  On completion of school you embarked upon an apprenticeship as an electrician and completed your apprenticeship.  Since then it is abundantly clear from your CV that you have been gainfully employed.  I accept that you are indeed a person who has an admirable work ethic.

28Tendered on the plea and marked as Exhibit 1 were character references on your behalf.  One was from a long term family friend, Mr Vita Jessep, who described you as a kind, caring, compassionate and generous person.  She was also present in court on the plea in mitigation.  Your uncle John Mikael also provided a written testimonial.  He describes you as generous, extremely loyal and loving.  He was also present in court to support you, as were your mother and father.

29Given your lack of antecedents, your impressive work history and the character references put before me, I am of the view that your prospects for rehabilitation remain very good.

30The basic purposes for which a court may impose a sentence are punishment; general deterrence, specific deterrence, denunciation and protection of the community.  In sentencing you I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it and your personal circumstances.

31In the course of the plea in mitigation your counsel relied upon the following factors in amelioration of sentence:  Your early plea of guilty and remorse, your admissions to police as to the ownership of the drugs and guns found at your premises, your lack of criminal history and prior good character, your efforts at rehabilitation upon release from custody in September 2016, and your stable support network as evidenced by the presence of your family and friends in court on the plea in mitigation.  I take account of all of those factors in sentencing you.

32As I have already expressed, this is, in my view, serious offending.  A submission was made by your counsel to the effect that your moral culpability in relation to Charge 1 was less than that of Charge 2.  The basis for this distinction was said to be the fact that the co-accused, Abduleraham, is facing the same charge in relation to the Browning handgun, the subject of Charge 1.  I reject that submission.  There is no proper legal or factual basis for making a distinction in the manner in which it was urged upon me.

33In sentencing you I am also required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and reintegrated into society.

34Please stand, Mr Bosa.

35In relation to Charges 1 to 6 on the indictment, being two charges of possess unregistered handgun, possess firearm with no serial number, store an unlicenced firearm in an insecure manner, and two charges of possess drug of dependence, I sentence you to an aggregate term of imprisonment of six months.  I have determined it appropriate to impose an aggregate sentence in this case, as each of these offences form part of a continuing episode of offending in a short timeframe.

36In relation to the summary of Charge 5, being the summary charge of possess cartridge ammunition without licence or permit, I convict you and impose a fine of $500.

37Pursuant to s.19(4) of the Sentencing Act I declare that you have spent 37 - not including today- days in custody.

38Pursuant to s.6AAA of the Sentencing Act I declare that were it not for your plea of guilty I would have imposed a term of imprisonment of two years, with a non-parole period of 12 months.

39I make the disposal forfeiture orders in the terms sought.

40MS GARDE-WILSON:  As the court pleases.

41HER HONOUR:  Is there anything else counsel?

42MS FALLAR:  Just wondering.

43HER HONOUR:  Yes.

44MS FALLAR:  It's a matter for defence whether they'll be seeking a stay in relation to fine or perhaps not.

45HER HONOUR:  To the fine?

46MS GARDE-WILSON:  No, Your Honour.

47HER HONOUR:  No stay sought?  All right.  Yes, thank you, adjourn the court sine die please.

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