Director of Public Prosecutions v Da Vinci (Jake)

[2015] VCC 248

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-02457

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAKE DA VINCI

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	6 March 2015
DATE OF SENTENCE:	6 March 2015
CASE MAY BE CITED AS:	DPP v DA VINCI (Jake)
MEDIUM NEUTRAL CITATION:	[2015] VCC 248

REASONS FOR SENTENCE
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Subject:Trial – sentencing

Catchwords:             Possess, carry or use unregistered long arm

Legislation Cited:     Sentencing Act 1991

Cases Cited:

Sentence:6-month Adjourned Undertaking

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Churchill	Office of Public Prosecutions
For the Offender	Mr M. Gumbleton	Robert Stary & Associates

HIS HONOUR: 

1Jake Da Vinci, you have been found guilty by jury verdict of one charge of possessing, carrying or using an unregistered long arm.  This charge carries a maximum penalty of 240 penalty units or four years' imprisonment.

2It is regarded as a serious offence because the control of weapons is an important aspect in our community and it enables the police to have an understanding of who carries what firearms in the community for reasons that would be obvious to anyone with any commonsense.

3You were born on 24 July 1992 and were aged 20 at the time of offending.  You are presently aged 22.

4Importantly, you have no criminal record. 

5Your personal circumstances have been set out in great clarity by Mr Gumbleton.

6In absolutely minimal summary, the fact is you progressed ordinarily and normally through school.  You have shown a commendable approach to your life at an early age by the hard work that you have done, firstly in order to try and assist in paying for private school fees.  It is a pretty uncommon feature.

7Generally what it shows is someone who is prepared to work hard, to apply themselves to that side of life.  You have maintained, as you have proceeded through your life, a good work record.  You have managed to train yourself for the most part now in the skill of locksmithing.

8You have not done that by any easy path.  You had the disadvantages of your parents separating at a young age.  You had the further disadvantages of physical disability from an early age which meant that you had to go through a lot of very painful experiences in the course of the management of a problem with your feet.

9Furthermore, you have not committed offences in the past.  You have had a time where you have experimented perhaps or found some relief from cannabis.  That is to be avoided if you can, but no doubt people do self-medicate, but since then what is clear from the material that came out during the course of the trial is that there was legitimate and appropriate legal medication that you were taking for issues that you had with anxiety.

10You went through a ghastly experience in the early hours of the morning that preceded the ultimate possession of the weapon and the commission of this offence by that possession.  A lot of people were prepared to provide, at very short notice, compelling evidence of your good qualities, the care and concern you have for people and your application to work.

11In those circumstances and having regard to the circumstances of your offending being, as the Crown has accepted, that it involves you simply handling this long arm, de-loading it and removing it consistent with taking it to a police station, your vehicle being apprehended at a place which was consistent with that proposition.

12Importantly, after having been through a quite terrifying experience where you might be expected to be not thinking as clearly as you otherwise might, and having seen the results of that shooting and the issue of your brother's circumstances, all those circumstances indicate to me that the submission by the prosecution that a Community Correction Order is an appropriate disposition really cannot be sustained.

13That disposition is more appropriately seen as an alternative to imprisonment and it is properly regarded as a very punitive process.  It is designed to embrace a punitive aspect of unpaid work conditions where that aspect of punishment is appropriate to the offending.

14It also has a very significant role to play in the other rehabilitative programs that can be embraced within such disposition, such as programs for mental health counselling and treatment where appropriate, drug abuse issues, other behavioural issues such as anger management and the like, and these are the sorts of things that are directed and applicable to a Community Correction Order.

15

In my view, based on your position, they are inapplicable to a person such as yourself.  I accept the submissions that have been made on your behalf by

Mr Gumbleton that the matter can be dealt with by either an adjourned undertaking or by a simple finding and discharge.

16In that area I think there are two important considerations.  One is the experience that you went through at the time immediately following your arrest whereby a young man, never before involved with any police interaction, is taken into custody in the early hours of the morning and, for a period of just short of 24 hours, is kept in an interview room immediately following the shooting; the other is the trauma of that experience in circumstances where it would have to be accepted that you already had issues with anxiety.

17You had medication that you were not able to take until you had been in custody for many hours.  You were facing the prospect of being charged with a serious offence involving shooting somebody, with which you ultimately were charged, and that aspect of your experience would have to be regarded in my view as an issue that can be taken into consideration in a punitive way, as something which would dissuade you in the future from doing anything that might ever put you back in a position of that nature, and is likely to be a feature of deterrence in itself.

18So that otherwise reduces what would need to be applied in the sentencing discretion to give effect to principles of deterrence to you.  In the particular circumstance of this case I do not think general deterrence, that is, making an example of you for how you have committed this type of offence to deter other people from such offending, is appropriate because of the unusual circumstances in which you came into possession of this weapon.

19The other aspect I think important in this consideration of what the final determination is is the fact of your work as a locksmith.  I did read, and I can accept as highly likely, the information that was given by Elizabeth Court about the fact that you were able to do work for the Department of Defence which required an ASIO clearance.  I accept the submissions of Mr Gumbleton and accept that there are other aspects in your industry that are likely to require that.

20I think that, with a person who has applied himself so conscientiously and successfully to hard work to build up his life, to ultimately impose a disposition that is going to affect the continuation of that by impeding your practice in the industry you are in by a conviction is really unnecessary.

21Ultimately, what you should have done is maintain the scene and rung the police.  As I said, the circumstances were such that they do militate against whether you had the clarity of mind to really think all that through at that time.  I think for a young person aged 20 in those circumstances it is understandable that you may have made the wrong decision, and why you did, and you do not need to be punished any more for what you have been through and the mistake you made in that decision-making process.

22If anything needed to be added to that, there is the experience of going through a criminal trial in the County Court itself.  Many people do not realise just what that does to a person, the strain it puts on them, the sleepless nights, the worry and anxiety, and that itself is an experience that you have gone through for that mistake you made on that night.

23All these things add up in my mind to persuade me that you are a person of otherwise good character who, by virtue of all this experience, is extremely unlikely to reoffend in a similar way again or perhaps even in any other way.

24In those circumstances, and giving expression to the fact that I do not think you should be penalised by having a conviction which might impede your progress as a locksmith, I am persuaded not to impose a conviction for this offending.

25I still think there is however a need to give expression to the fact that you did not have the foresight to simply ring ‘000’ and ring the police, and I think in these circumstances - although it is mitigated by all the matters that I have described - I think that it is necessary in these circumstances that there be an undertaking to be of good behaviour for a period of time.

26I do not think that needs to be an extensive period of time.  So what I propose to do is to release you on an adjourned undertaking to be of good behaviour for a period of six months. 

27On Charge 3 of possessing, carrying or using an unregistered long arm, without conviction, you are released on an adjourned undertaking. 

28The undertaking starts today.  It goes for a period of six months from today.  The conditions of the undertaking are that you must be of good behaviour during the period of the undertaking.  You must attend before the court if called upon to do so, during the period of the adjournment.  Do you understand that?

29OFFENDER:  Yes, Your Honour.

30HIS HONOUR:  Now the only reason you would, would be if you breach that undertaking and then I can revisit this whole matter.  So do you understand and agree with these conditions?

31OFFENDER:  Yes, Your Honour.

32HIS HONOUR:  All right.  If your circumstances materially alter, or if it appears that you are no longer willing to comply with the conditions of the undertaking, then either you, the Director of Public Prosecutions or the police may apply for a variation or cancellation of the undertaking and I recommend that you obtain legal advice if such an application is made.    

33However, I must warn you that if you breach any condition of this undertaking, you will be brought back before me to be re-sentenced on the original charge and dealt with for the breach.  So, do you understand the consequences of breaching an adjourned undertaking?

34OFFENDER:  Yes, Your Honour.

35HIS HONOUR:  All right, well that will be prepared for you shortly and then it will be provided to you to sign.  You can leave the dock now and just take a seat behind Mr Gumbleton if you would.

36OFFENDER:  Thank you, Your Honour.

37HIS HONOUR:  Yes.  Just pass that down there for signing. 

38All right, thank you was there anything else from either counsel?

39MS CHURCHILL:  No, Your Honour.

40MR GUMBLETON:  No, may it please the court.

41HIS HONOUR:  All right, quarter past two on Tuesday.

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