Director of Public Prosecutions v Damien Joiner

[2020] VCC 994

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised

Not Restricted

Suitable for Publication

GENERAL LIST

CR-19-00838

CR-20-00699

Indictment Nos. J11258192

K13097335

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAMIEN JOINER

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JUDGE:	HER HONOUR JUDGE DALZIEL
WHERE HELD:	Melbourne
DATE OF HEARING:	23 June 2020
DATE OF SENTENCE:	9 July 2020
CASE MAY BE CITED AS:	DPP v Damien Joiner
MEDIUM NEUTRAL CITATION:	[2019] VCC 994

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Burglary – Theft of a firearm – Possess a

firearm as a prohibited person – Possess a drug of dependence –

Store firearm in an insecure manner when unlicensed - plea of guilty

Legislation Cited:    

Cases Cited:            

Sentence:                 Total effective sentence of 2 years 9 months imprisonment, 18

month non-parole period

Section 6AAA declaration: 5 years imprisonment, 3 year non-parole

period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Solicitor for the Office of Public Prosecutions
For the Accused	Mr G. Casement	Daniel Taylor Lawyers

HER HONOUR: 

1Damien Joiner, you have pleaded guilty to offences committed in May 2018 and in November 2019.

2The first indictment, J11258192, relates to a burglary which took place on
11 May 2018.  You identified the property in question to people to whom you owed a drug debt, telling them that firearms were stored there.  You went to the home of the victim and knocked on the door first thing in the morning and told the resident that you had run out of petrol.  You identified yourself as an acquaintance of the man’s son.

3You then left.  The next day the victim realised that 5 firearms had been stolen from his gun safe, in the shed.  These guns were:

-    two .303 rifles, one of which was of significant sentimental value to the victim;

-    a 12 gauge shotgun, and

-    two .22 calibre rifles.

I note that one of the .303's did not have the stock or woodwork attached, and that the bolts of both .303's had been stored separately and were not taken. 

4You were swiftly identified as a suspect and your property was searched the next day.  Police located one of the stolen .22 rifles, as well as a gun bag,
five shotgun cartridges, one 7.65 mm cartridge round, and three small amounts of Cannabis.  The other four guns have not been recovered.

5At that time you did not have a licence to possess a firearm nor ammunition, and indeed you were prohibited person in respect to the possession of firearms. 

6You were interviewed by police and told them that you had been pursued for a drug debt of $5,000, and as you did not have that money you instead told them you knew where some firearms were.  They had threatened your family.  You knew that there were guns stored in the shed.  You did not take part in the burglary yourself, only pointed out the location, but afterwards you were given one of the guns to 'Clean up', this being the .22 calibre rifle found when police searched your home.  You were to give that gun back to the men once you had got it gun working and tested it.  You said you did not think about what the drug dealers would do with the guns, you just wanted to clear your debt.  You were going to have to fix up another gun, as well. 

7Your liability on Charges 1 and 2 is upon the basis that you intentionally assisted the other offenders in the commission of the burglary and theft of the firearms.

8The second group of offences which are charged on indictment K13097335, were committed whilst you were on bail for the first set of offences.  Police searched your property on 29 November 2019.  You pointed out a .22 calibre Remington rifle barrel and firing mechanism assembly on the kitchen bench (Charge 1).  In addition to that firearm, police located the following items:

8.1.A home-made hand-gun with a knife attached to it (Charge 2);

8.2.A firearm magazine for a centrefire rifle, two firearm firing pins/mechanisms and three timber cut off firearm butt stocks;

8.3.A single .35 Whelan calibre cartridge ammunition round
(related summary offence 4);

8.4.A Cannabis plant and a zip-lock bag containing a small amount of Cannabis (Charge 4);

8.5.A Stihl demolition saw; (related summary offence 8); and

8.6.Three swords (related summary offence 9).

9Both firearms were not capable of being fired in their current condition.

10You did not have a firearms license, nor were you authorised to carry cartridge ammunition. You were a prohibited person in respect to the possession of firearms. The firearms, parts of firearms, and cartridge ammunition were not stored in accordance with the prescribed guidelines set out in Schedule 4 of the Firearms Act 1996.

11As you were on bail at the time of these offences you also face a charge of committing an indictable offence on bail which is summary offence 10.

12You told the police that you had dug up the barrel and firing mechanism, which were found in the kitchen, from your garden a week or so before and that you had forgotten that the handgun, which is the subject of Charge 2, was in the van.  You believed that the cartridge, the subject of summary offence 4, had been there since the police search a year or more before. 
I note, looking at the disorder apparent in the photographs, it is quite possible police did not see it in the earlier search.

13In respect to both sets of charges, the possession of Cannabis charge is put on the basis that the prosecution accept that it was for personal use only.

Personal Circumstances

14You experienced a difficult childhood during which your parents failed to provide a secure and nurturing environment.  You commenced an apprenticeship at age 16 and were able to complete that.  You added to your skills and for many years were gainfully employed.

15You have two children who are in their 20's and two younger children with your partner.  The youngest child has just started school, but you were not able to be there for that milestone, as you have been on remand.

16Your partner works several jobs and is studying to increase her skills and options.  At the time of your arrest. you had been looking after the children and working on renovating your home.

17You commenced drinking alcohol when you were a teenager, and this became a real problem for you.  You were able to control your addiction to alcohol when you were around 30. 

18You have used Cannabis most of your adult life, and it continues to be an issue for you.  You commenced using methylamphetamine in your early 40's and this rapidly became an addiction.  You took the significant step of engaging in residential rehabilitation with good results, so that by the time of the first group of offences in May 2018, you had managed to control that addiction.  

19Regrettably, the stressors of the last few years have caused you to relapse to a degree in respect to methylamphetamine use, although you were able to get yourself back on track for the few months leading up to November 2019.

20You have taken some steps in respect to both Cannabis and Ice, whilst in custody, although the COVID-19 restrictions mean less courses have been available to you whilst you have been on remand.

21Your time on remand has meant that your partner has had to carry the load of the family and financial obligations.  This time period has included the bushfires and the terrible fear and stresses associated with that disaster.

22Ms Rodgers, a psychologist, interviewed you in November 2018, and again in June this year.  She noted longstanding but until recently undiagnosed
bipolar disorder, and a history of unresolved trauma, relating to the matters set out in her first report.  Your symptoms relating to these matters were worse in June 2020, likely as a result of the stresses upon you at this time.

23You are anxious and depressed, and despite current medication you continued to experience depressive symptoms.  Your incarceration exacerbates your mental health issues and makes your period of imprisonment more difficult than it would be for a person without those issues.

24Significantly, you have a prior conviction for possession of a firearm whilst being a prohibited person, as well as possessing cartridge ammunition and a prohibited weapon, the firearm prior related to guns left to you by your grandfather.

Matters Raised on the Plea

25Your counsel relied a number of matters, on your behalf, including:

25.1   Your plea of guilty, as an indication of remorse, and for its utilitarian value, and the facilitation of the administration of justice;

25.2   The additional mitigation afforded to a plea of guilty in circumstances where the COVID-19 pandemic has restricted the operations of the Court;

25.3   Your remorse as indicated not only by the plea of guilty, but also the statements made by you to Ms Rodgers, and your steps towards rehabilitation;

25.4   Your admissions and co-operation with the police;

25.5   The passage of more than two years since the commission of the first lot of offences, during which time the matters have been hanging over your head, and during which time you have taken steps towards rehabilitation;

25.6   That your partner continues to support you and you have a strong motivation to remain out of trouble in order to support your family;

25.7   Your personal circumstances including the difficult childhood you endured, and your hardworking and motivated periods of life in the past;

25.8   That your possession of the firearms was not for the purposes of carrying out other criminal offences: rather, your offending in the first matter was done to protect your family from the threats of your drug debt creditors, and the second involved inoperable firearms;

25.9   Your period on remand has been your first time in custody, and during it you have been distressed by the difficulties encountered by your family and your inability to contribute and care for them.  Your time on remand has been also made more difficult by reason of the many issues associated with COVID-19; and

25.10   That your mental state is negatively affected by incarceration and makes imprisonment more difficult for you than it would be for a person without those issues.

26The prosecutor noted that the offending in May 2018 resulted in four firearms remaining in the community, and that you assisted in the theft of those guns, whilst being aware that the people taking possession of them were engaged in the drug trade.  You were in the process of cleaning up one of those guns, to workable condition.

27I have taken each of these matters that I have just referred to into account in arriving at the sentences I will impose.  In particular, your pleas of guilty, in the current situation, are very valuable and I will mitigate the sentences considerably for that reason.

Gravity of Offending

28Whilst I accept that in respect to the charges on the 2019 matter the guns were not working, by that time you should have fully appreciated your obligations regarding the lawful possession and storage of firearms.  In respect to the 2018 offending, whilst you were not planning on using the gun, the subject of Charge 2, for any criminal activity, you were fixing it up to be returned to people who were engaged in drug trafficking.

29Despite your limited role in the burglary and theft, you provided the information about the location of the guns to people who you knew were engaged in criminal behaviour.  That your motivation was to pay your debt and avoid harm to yourself and your family is not mitigating, but rather amounts to the absence of an aggravating motivation.

Other Sentencing Factors and Principles

30You have reasonable prospects for rehabilitation.  Your criminal history is limited, although relevant, and you have a strong motivation of your family to care for.  This is your first time in custody, and I am sure you do not wish to repeat this experience.

31The sentences I imposed upon you take into account the maximum penalty applicable to the charges, the nature and gravity of the offences, and your culpability for them.  In respect to Charges 1 and 2 of the 2018 offending I take into account the loss to the victim of his property, including a gun of great sentimental value.

32Whilst the 2019 offending was committed whilst you were on bail, and thus there is a presumption of cumulation, I am also mindful of the principle of totality.

33In sentencing you, I must have regard to a range of different factors.  I must give effect to the principles of both general and specific deterrence.  That is, I must deter others from behaving as you did, and I must deter you from repeating such behaviour.  I must also express the community's denunciation of your conduct and promote, if possible, your rehabilitation.

34On Indictment J11258192:

Charge	Sentence	Cumulation
1.    Burglary	9 months	3 months
2.    Theft of Firearms	1 year 3 months	6 months
3.    Possession of a firearm whilst being a prohibited person[1]	1 year 6 months	Base
4.    Possession of a drug of dependence, namely Cannabis L	Convicted and discharged
Related Summary offence
4.    Possession of cartridge ammunition whilst not holding a licence	Fine of $50
Total Sentence on Indictment J11258192	2 years’ and 3 months’ imprisonment Fine of $50

[1] The Summary of Prosecution Opening incorrectly stated that the maximum penalty for this offence is 5 Penalty units.  It was correctly stated in the Opening on the other indictment, as 10 years or 1200 penalty units.

35On Indictment K13097335:

Charge	Sentence	Cumulation
1.    Possession of a firearm whilst being a prohibited person	1 year	Base
2.    Possession of a firearm whilst being a prohibited person	1 year	3 months
3.    Storing a firearm in an insecure manner, when unlicensed to possess a firearm	Fine of $250
4.    Possession of a drug of dependence, namely Cannabis L	Fine of $50
Related Summary offences
4.    Possession of cartridge ammunition whilst not holding a licence	$50
8.    Possession of property suspected of being the proceeds of crime	7 days
9.    Possessing a prohibited weapon	7 days
10.  Commit indictable offence on bail	7 days
Total Sentence on Indictment K13097335	1 year and 3 months’ imprisonment Fines totalling $350

36I realise I did not set out the cumulation orders on the original indictment, so I am going to go through those figures again and tell you what the cumulation is for them.

37MR CASEMENT:  I would be grateful if you could go through those again, Your Honour.  I missed Charge No.2 on the subsequent indictment, what that sentence was.  Sorry, Your Honour, Your Honour cut out.

38HER HONOUR:  Is my voice coming through clearly?

39MR CASEMENT:  It is, but it just blacked out just at that critical time.  I was furiously writing, Your Honour.

40HER HONOUR:  I will go through each of the indictments again.  I will just read out the charge number but not the charge title. 

41So indictment commencing with J, which is the first set of offences;

41.1   Charge 1, nine months

41.2   Charge 2, one year three months

41.3   Charge 3, one year, six months

41.4   Charge 4, convicted and discharged

41.5   Related summary offence, fine of $50

42On that indictment, the sentence on Charge 3 which was one year and six months, will be the base.  Accumulate three months of Charge 1, and six months of Charge 2 upon each other, and upon Charge 3.  So, that means on that indictment, it should be two years and three months' imprisonment with the fine.

43MR CORDY:  Yes, Your Honour.

44HER HONOUR:  On the second indictment commencing with K;

44.1   Charge 1, one year

44.2   Charge 2, one year

44.3   Charge 3, $250 fine

44.4   Charge 4, $50 fine

44.5   Related summary offence 4, $50 fine

44.6   Related summary offences 8, 9, and 10, seven days each

45On that indictment, Charge 1, which is the sentence of one year, will be the base sentence, and three months of the sentence on Charge 2, will be cumulated upon that.  So, that on Indictment K, the total effective sentence is one year and three months' imprisonment, with fines totalling $350.

46I direct that the sentence of two years and three months on
Indictment J11258192 is to be treated as the base sentence as between the two indictments.  I direct that six months of the sentences imposed on
Indictment K13097335 be served cumulatively upon the sentences imposed on Indictment J11258192.  This makes a total effective sentence of two years and nine months' imprisonment in respect to all of the matters.  In addition, there is a total of $400 in fines.

47Pursuant to s.11 of the Sentencing Act 1991(Vic), I direct that you must serve a period of 18 months before you are eligible for parole.

48Pursuant to s.6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of five years, with a non-parole period of three years.

49If I could be told the PSD, please.

50MR CORDY:  The PSD as I calculate it, Your Honour, is 223 days, not including today.

51HER HONOUR:  Mr Casement.

52MR CASEMENT:  Yes, that is right, Your Honour.  I am just checking my note here.  Yes, that is right, Your Honour.

53HER HONOUR:  223, not including today.

54MR CORDY:  Yes, Your Honour.

55Pursuant to s.18(4) Sentencing Act 1991 (Vic), I declare that you have served 223 days, not including today, of pre-sentence detention and I direct that this be entered into the records of the court.

56I will make the disposal and forfeiture orders which have been applied for by the prosecution.

57MR CORDY:  As Your Honour pleases.

58HER HONOUR:  Was there anything else, gentlemen?

59MR CASEMENT:  As Your Honour pleases.

60MR CORDY:  No, Your Honour.  That covers the field as I understand it.

61HER HONOUR:  Thank you all.  Adjourn the court.

62MR CASEMENT:  If I could just say to my client, Your Honour, if he could make contact with my instructor's office; both my instructor and I are in Bairnsdale at the moment.

63HER HONOUR:  Thank you, all right.

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