Director of Public Prosecutions v Clarke

[2018] VCC 966

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00376

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER CLARKE

---

JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Melbourne
DATE OF HEARING:	18 June 2018
DATE OF SENTENCE:	25 June 2018
CASE MAY BE CITED AS:	DPP v Clarke
MEDIUM NEUTRAL CITATION:	[2018] VCC 966

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Hunter	Office of Public Prosecutions
For the Accused	Ms G. Boe	Doogue & George

HIS HONOUR:

1Christopher Clarke, you have pleaded guilty to one charge of possess a traffickable quantity of unregistered firearms, one charge of storing firearms in an insecure manner whilst unlicensed, one charge of possession of a drug of dependence, and the following summary charges, possess prohibited weapon, deal property suspected proceeds of crime, commit indictable offence whilst on bail. 

2These offences carry the following maximum penalties, possess traffickable quantity unregistered firearms, ten years' imprisonment or 1200 penalty units; unlicensed person fail to store a firearm in an insecure manner, four years' imprisonment or 240 penalty units; possess methylamphetamine, one year imprisonment or 30 penalty units; possess prohibited weapon without exemption/approval, two years' imprisonment or 240 penalty units; deal property suspected proceeds of crime, level 7 imprisonment (two years); commit indictable offence whilst on bail, three months' imprisonment or 30 penalty units.

3It is unnecessary for me to recount the facts of the matter in detail as they are on transcript and contained in Exhibit 1, the amended summary of prosecution opening upon plea.  That opening was accepted by you through your counsel.  I proceed to sentence you on the basis of the facts as opened by the prosecutor which I shall now summarise.

4On 11 August 2017 police executed a search warrant at your home in Cranbourne in order to retrieve property relating to a separate investigation.  During the search of your home police found an number of firearms, imitation firearms, componentry and ammunition.  None of the firearms were registered.  Full details of items located are described in paragraph 7 of the opening.

5Police located 35.7 g of white crystalline substances containing methylamphetamine.  Police located a machete style sword, three swords of different lengths and a samurai sword.  There were six firearms which are the subject of Charge 1.  None of the firearms or ammunition was stored in a secure manner.

6At the time of this offending you were on bail.  The firearms and the imitation firearms were analysed by a ballistics expert and his findings are set out in the table appended to paragraph 25.  A handgun was capable of discharge and the left barrel of a side by side shotgun was capable of discharge.  Although other firearms were not capable of discharge they could be rendered capable of discharge with further work. 

7You admitted to police in your record of interview that you manufactured a number of firearms including the pen pistol and silver homemade .22 calibre handgun.  You used a lathe at your home to make a number of the firearms. 

8Your explanation for your offending was that you were making imitation firearms as props for videos and you had an interest in and fascination with firearms.  I accept there is no evidence that the firearms were associated with any criminal activity. 

9I state to you that I have taken into account the following matters in mitigation of sentence.  You have pleaded guilty.  You are entitled to have that fact taken into account in your favour and I do so.  The community has, by your plea, been spared the time and cost of a trial, witnesses have been spared the ordeal of giving evidence upon your trial.  You pleaded guilty at the earliest opportunity, you cooperated with authorities.  I accept that you are genuinely remorseful. 

10I have been told something of your personal circumstances an these matters are set out in the outline of defence submissions.  You are 41 years of age having been born on 28 May 1977.  You were born in Cranbourne and you have lived in the family home all your life.  You childhood was stable and your school years unremarkable. 

11You were not suited to academic studies rather you are a practical man.  You commenced a mechanical apprenticeship but did not complete this apprenticeship because of a back injury.  You had consistent employment as a manual worker and you completed an apprenticeship as a fitter and turner when you were 30 years of age.  You worked as a fitter and turner until you were made redundant in December 2016. 

12You had been in a relationship and you are the father of Jacob, aged 19 years, and Cassandra, aged ten years.  You are also a father figure to your former partner's son, Iszack, aged 13 years.  Letters from DHHS described difficulties faced by the children and their separation from you as a result of your incarceration. 

13You started using illicit drugs in about 2012.  Your use of ice increased dramatically after you were made redundant in December 2016.  A the time of these offences you were using ice on a daily basis.  In your letter to me you describe yourself as a heavy ice user at that time.  You state that since you have been in prison you have not been using drugs.  This was your reason for constructing weapons, "I simply did it of the challenge of the mechanics in the making of them."

14You have been attending AA meetings at Fulham Correctional Centre.  A letter from your father describes your distress at your separation from family and your children.  Your father, brother and friends continue to support you. 

15I accept that you have been using your time in custody in a constructive manner working in the canteen and as a sanitary billet.  I assess your prospects of rehabilitation as being good, provided you are able to remain drug free.  If you relapse into drug use your prospects of rehabilitation will be adversely affected. 

16Against these matters in mitigation, however, your actions were very serious indeed.  There were a wide range of firearms in your possession, including a handgun, a pen pistol, a homemade Uzi and side by side shot gun.  You were also in possession of additional componentry and ammunition.  The firearms were not stored securely as required. 

17You were using ice heavily  and you were in possession of methylamphetamine.  You were in possession of a samurai sword.  You had possession of a passport and birth certificate in the name of Clint Hallwood. 

18Further aggravating factors are that the offences were committed whilst you were on bail and whilst you were undergoing the sentence of a 12 month community corrections order. 

19You have admitted before me prior convictions.  On 16 June 2015 at the Frankston Magistrates' Court without conviction, you were fined $600 for possession of drugs, possession of a controlled weapon without excuse, and a motor vehicle offence.  On 2 June 2017 at Frankston Magistrates' Court you were convicted and sentenced to a 12 month community corrections order for motor vehicle offences and refusing to accompany police for oral fluid test. 

20The nature of the prior convictions for possession of drugs and a controlled weapon is relevant to my task of sentencing you today.  After you received the community corrections order on 2 June 2017 you committed further offences.  On 3 July 2017 you committed the offences of theft of a motor vehicle, possess methylamphetamine and GHB and motor vehicle offences. 

21You were convicted and sentenced to four months' imprisonment at the Frankston Magistrates' Court on 8 December 2017 for these offences and for the breach of the CCO.  You served this four month sentence from
8 December 2017 to 7 April 2018.  You have been remanded in custody for these matters on 11 August 2017.  Your remand continued after 7 April 2018.  There are 197 days of pre-sentence detention.  You have been in custody for a total of 318 days I have taken this period into account. 

22As well as the matters to which I have referred I must also take into account the need for general and specific deterrence.  Specific deterrence is relevant as you have prior convictions for weapon offences and drug offences.  General deterrence is also of considerable importance in a case such as this.  General deterrence is a very important consideration in respect of the offence of possess a traffickable quantity of firearms.  This type of offending must be discouraged. 

23I am called up by the Sentencing Act to manifest the community's denunciation of your conduct and, generally, to impose a just punishment.  Your counsel submitted that a combined sentence of imprisonment and a CCO was appropriate.  It was accepted by the prosecution that such a disposition was open to me. 

24I do not however consider this to be an appropriate case for a combined sentence of imprisonment and a community corrections order for these reasons.  When you committed these offences you were undergoing a community corrections order.  You breached this community corrections order by both non-compliance and further offending.  In my opinion the sentencing principles of general and specific deterrence, denunciation and just punishment require a sentence of imprisonment with a non-parole period.

25You are 41 years of age.  I found the general circumstances of this offending, namely that you were a 40-year-old unemployed ice addict in possession of a traffickable quantity of firearms and you provided what I consider to be a most unusual explanation for your conduct, to be very troubling.

26The possession of a traffickable quantity of unregistered firearms is the most serious offence.  The sentence on this charge is the base sentence.  I have taken into account the range of separate offences and I have directed a degree of cumulation in respect of other offences, including a degree of cumulation in respect of the summary offence of committing an offence whilst on bail.

27I have directed a significant gap between the total effective sentence and non-parole period as you have good prospects of rehabilitation provided you remain drug free, you are using your time in custody constructively and you are well supported by family and friends.  Having regard to all relevant facts and appropriate sentencing principles I sentence you as follows:

28Charge 1, convicted and sentenced to 18 months' imprisonment; 

29Charge 2, convicted and sentenced to four months' imprisonment;

30Charge 3, convicted and sentenced to one months' imprisonment;

31Summary Charge 30, convicted and sentenced to three months' imprisonment;

32Summary Charge 36, convicted and sentence to three months imprisonment;

33Summary Charge 38, convicted and sentenced to one months' imprisonment.

34Thee base sentence is the sentence of 18 months imprisonment on Charge 1.  I direct that two months of the sentence imposed on Charge 2 and one month, namely the sentence imposed on Charge 3, and one month of the sentence imposed on Summary Chare 30, and one month of the sentence imposed on Summary Charge 36, and the one month sentence imposed on Summary Charge 38 be served cumulatively upon the sentence imposed on Charge 1 and upon each other.  Otherwise the sentences be served concurrently. 

35The total effective sentence is two years' imprisonment.  The non-parole period is the minimum term that justice requires you to serve, having regard to all the relevant circumstances that exist.  For that reason, it cannot be fixed automatically; all relevant factors and sentencing principles that are to be taken into account.  I have to consider when you should be eligible for mitigation of confinement and, in turn, rehabilitation under conditional supervision. 

36In all the circumstances, I direct you serve a minimum term of 12 months imprisonment before becoming eligible for parole is prescribed by s.18(4) of the Sentencing Act.  I declare that the period of time you have spent in custody is 197 days, which is to be reckoned as time already served under the sentence.  I direct that such be noted in the records of the court.

37I have made the disposal and forfeiture orders sought by the prosecution. Pursuant to s.6AAA of the Sentencing Act, I state that the sentence and non-parole period of what I have imposed, but for the plea of guilty is three years' imprisonment with a non-parole period of two years.  Does that cover all the formalities?

38MS HUNTER:  It does, thank you.

39MS BOE:  Yes, thanks a lot. 

40HIS HONOUR:  I will sign those orders downstairs.  I will just stand down temporarily and the prison can be removed.  Thank you. 

- - -