Director of Public Prosecutions v Gerges
[2019] VCC 2230
•19 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00217
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL GERGES |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 22 July 2019 and 20 September 2019 | |
DATE OF SENTENCE: | 19 December 2019 | |
CASE MAY BE CITED AS: | DPP v Gerges | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2230 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: One rolled-up charge of importing firearm parts with the intention of trafficking (Cth), one charge of cultivating a narcotic plant (Vic), one charge of being an unlicensed person storing a firearm in an insecure manner (Vic) and one summary charge of possessing a registered firearm without being the holder of a licence.
Legislation Cited: Firearms Act 1996; Crimes Act 1958 (Vic); Crimes Act 1914 (Cth); Sentencing Act 1991; Confiscation Act 1997
Cases Cited: Director of Public Prosecutions (DPP) (Cth) v Munro [2019] VSCA 89
Sentence: Total Effective Sentence of 2 years’ imprisonment, with 32 days’ imprisonment to be served and the offender released on a Recognisance Release Order with security by recognisance in the amount of $3000.00.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms L Monagle | Solicitor for the Commonwealth Director of Public Prosecutions |
| For the Offender | Ms L Mendicino | Amad Lawyers |
HER HONOUR:
1 Paul Gerges, you have pleaded guilty to one charge of importation of firearm parts with the intention of trafficking, which carries a maximum penalty of 10 years’ imprisonment; one charge of cultivating a narcotic plant, cannabis, which carries a maximum penalty of 12 months’ imprisonment; and one charge of being an unlicensed person failing to store a firearm in a secure manner, which carries a maximum penalty of 4 years’ imprisonment. In addition, you have consented to the transfer of a summary charge from the Magistrates’ Court to this Court and have pleaded guilty to it: Charge 2, possession of a registered category A long arm whilst not being the holder of a licence, which is an offence that carries a maximum penalty of 2 years’ imprisonment.
2 The circumstances of your offending are set out in the amended summary of Crown opening for plea (Exhibit “A”). Charge 1 is a rolled-up charge which comprises five separate consignments which arrived in Melbourne between 1 March 2018 and 18 April 2018. Four of the consignments were from the United States and the fifth was from Poland. All consignments were addressed to yourself at your business, Aerospace Dynamics at 51 License Road, Diggers Rest, albeit that the four consignments from the United States had your surname misspelt as “Georges” rather than “Gerges”. All of the consignments from the United States were declared to contain “auto parts” and the one from Poland was declared to contain “sporting goods”, albeit that there is no evidence that you played any role in that false description.
3 You run a business testing, maintaining and repairing industrial laser machinery. In order to carry out your work, you regularly import components from all over the world, particularly from the United States. The major components which comprise turbine compressors and other high voltage power supplies can be very heavy. The vast bulk of the items in the consignments were of industrial equipment such as hoses, capacitors and terminals which were legitimately imported and required for your work.
4 Charge 1 comprises the illegal importation of 41 firearm parts including barrels, trigger mechanisms, revolving and other cylinders, a slide, a cut portion of a frame and a silencer. Once Australian Border Force (“ABF”) detected that the consignments contained firearm parts, all consignments were referred to the Australian Federal Police (“AFP”) for investigation.
5 Between 12 and 14 March 2018, you made four phone calls to Australia Post inquiring about the consignments. On 14 March 2018, you referred to two missing boxes of “industrial and automotive components”. You also stated that “There’s a variety of parts. We’ve got, um, special tools for grinding and machine parts … supplies, like industrial hoses …”.
6 On 20 April 2018, an AFP officer posing as an Australia Post employee telephoned you and requested that you attend Sunbury Australia Post Sorting Centre between 10.00am and 1.00pm on 23 April 2018, ostensibly to determine if a number of unlabelled parcels there were your missing parcels. You agreed to do so. At 10.55am on 23 April 2018, you arrived at the car park of the Sunbury Australia Post Sorting Centre and were arrested. You were taken to AFP Headquarters in Latrobe Street, Melbourne and between 8.22pm and 10.25pm that evening participated in a lengthy record of interview.
7 During the interview, you admitted that you imported the firearm parts. You initially stated that there were a couple of reasons for importing the firearm parts. One was to “help a friend repair two handguns” and the other was “muzzle breaks and stuff like that and scopes, which are for my friend, when we go hunting, cos he’s got high powered rifles and stuff”.[1] You stated that you had never possessed a firearms licence. It appears that, at some point in time, which was not defined, you had begun to look at what was required to obtain a firearms licence. However, you told police that you “stopped looking through it all because it was all too hard”.[2] You said your intention in importing the firearm parts was to repair “the old antiques ones,” and “the other parts” were for friends with whom you go hunting, who have licences for their firearms.[3] You told police that, in return for repairing the firearms, they would have to pay you. You did not know what the bill was. It would be, at least, the parts plus the labour. You said, “It would’ve been at least you know, fifteen hundred bucks, because you look at all the parts’ cost and, you know, would’ve been the time looking for that, that would’ve been the labour, and then you just put it together.”[4] You went on to say that the friend with the high powered rifle had a firearms licence, but you were not sure about the “handgun guy” and agreed that it is possible, or even probable, that they were illegal handguns.[5]
[1]Answer to Question 741
[2]Answer to Question 279
[3]Answer to Question 330
[4]Answer to Questions 452 to 458
[5]Answer to Questions 483 to 485
8 Your answers to police questions in the record of interview provide the only evidence for Charge 1, of you having imported the firearm parts with the intention of trafficking.
9 Police executed a search warrant at your premises at 51 License Road, Diggers Rest, where they found two mature cannabis plants. This is the basis of Charge 2, cultivating a narcotic plant. In addition, the butt of a rifle and barrel for the same rifle were located in a commercial air cooler in the rear shed of your property. This was a category A pump action .22 Rimfire rifle. You have no firearms registered to yourself in the State of Victoria and are not the holder of a firearms licence pursuant to the Firearms Act 1996. The presence of the butt and barrel inside a commercial air cooler comprises your offending on Charge 3, namely, failing to store the firearm in a secure manner whilst not being the holder of a licence. The fact that you were in possession of that category A long arm without being the holder of a licence is the subject of Summary Charge 2.
10 You are presently aged 39 years, having been born on 5 November 1980. You come before the court with the following criminal history:
· On 27 March 1998, you appeared before Broadmeadows Magistrates’ Court charged with going equipped to steal, burglary and theft. Without conviction, you were ordered to undertake a Community Based Order for 12 months.
· On 12 March 1999, you appeared at Broadmeadows Magistrates’ Court and were convicted of theft from a vehicle and ordered to pay a fine of $650, together with compensation of $4,669.96.
· On 6 July 1999, you appeared at Sunshine Magistrates’ Court charged with failing to comply with the Community Based Order given on 27 March 1998. You were convicted and fined $100 for the breach and resentenced on the original charges to a Community Based Order for a period of six months.
· On 25 November 1999, you appeared at Sunshine Magistrates’ Court for failing to comply with the Community Based Order given on 6 July 1999. You were convicted and fined $100 and the order was confirmed to 5 January 2000.
· On 12 November 2001, you appeared at Sunshine Magistrates’ Court on charges of burglary, theft, trespassing on Commonwealth land and being unlawfully on the premises. Your counsel stated that this offending occurred when you attended the RAAF base to look at aeroplanes and you entered part of a building where there were boxes of model aeroplanes, one of which you stole. On the charges of burglary and theft, you were convicted and sentenced to serve an aggregate term of imprisonment of one month, which was wholly suspended. On the other charges, you were convicted and fined an aggregate of $750 and ordered to pay compensation of $200.
· On 3 May 2011, you appeared at Sunshine Magistrates’ Court charged with cultivating a narcotic plant (cannabis), possessing amphetamine, theft of electricity, storing an unlicensed firearm in an insecure manner and storing unlicensed ammunition in an insecure manner. On the cultivation charge, you were convicted and sentenced to six months’ imprisonment wholly suspended for a period of two years. On the other charges, you were convicted and ordered to pay an aggregate fine of $1,000, together with compensation of $200. The firearm to which this charged related was an airgun which uses slugs, not ammunition. The ammunition forming part of your offending did not relate to this weapon.
· On 10 June 2011, you appeared at Sunshine Magistrates’ Court on a charge of possessing prohibited imports. You were convicted and fined $1,500. Exhibit “B”, a prosecution summary relating to this offending, shows that this charge related to you importing 23 laser pointers which you knew to be an illegal importation. You then pulled them apart and sold the parts separately on eBay as you knew that if would be illegal to sell fully-functioning laser pointers. Your counsel stated that these were green lasers used for astronomy. The prosecution was unable to clarify the matter further.
11 In a plea on your behalf by Ms Mendicino, the court was told that you grew up in Keilor in a loving family comprising your parents and two older sisters and one younger brother, all of whom are law abiding, decent, contributing members of society. You are single and have no children. You did well at school and, after completing Year 12, commenced a pre-apprenticeship course in aircraft maintenance and engineering, and also undertook some subjects in material science at Swinburne University. You had commenced your aircraft maintenance engineering apprenticeship with Ansett Airlines. After they ceased operating, you completed your apprenticeship at Rosebank Engineering, a military aircraft defence contractor in Port Melbourne.
12 You remained with Rosebank Engineering for two years after completing your apprenticeship and were then self-employed for a couple of years, working on lasers and buying and selling objects on eBay, whilst looking for a full-time job. You obtained part-time employment at Jet Turbine Services, which is no longer in operation, and then at John Holland Aviation Services, which also closed down.
13 You then obtained a full-time job at High Power Industrial Lasers, a company which cuts metal for the metal industry. Following this, you worked full-time for IMTS Laser Specialists, repairing and servicing lasers. This job involved a lot of travel around Australia, New Zealand and The Philippines. You became tired of travelling, so you left that work in order to start your own business, Aerospace Dynamics.
14 Your counsel stated that, although Aerospace Dynamics had been registered as a business in 2006, initially, you only undertook jobs on the side whilst you were still in full-time employment with IMTS Laser Specialists. It was not until 2015 that you devoted all your energy to this business. It involves overhauling, repairing and testing industrial lasers, which have two major components, namely, a turbine compressor and high voltage power supply unit. These components can weigh up to 300 kilograms. Your clients, who are said to be reputable, and a list of which were tendered as Exhibit “2”, send you components from all over the world. Mostly the components come from the United States for you to overhaul, repair and test.
15 Your counsel stated that this is the first time that you had imported firearm parts. You stood by your explanation given to police in your record of interview, that the parts which you imported were purchased to repair antique firearms for one friend, and other firearms that were used for the purpose of lawful hunting by a fully licensed firearms owner, who was another friend. It was submitted that there was no evidence that the firearm parts were to be used in any criminal enterprise, and there is no evidence of enrichment. Your expectation, as you told police in the record of interview, was that you would be paid approximately $1,000 to $1,500 by your friends for sourcing the parts and possibly repairing them. The parts were inexpensive and purchased from eBay, not some illegal source, and you purchased different versions of the same parts as you were not sure which parts would suit the firearms to be repaired.
16 Ms Mendicino told the court that, when you imported the firearm parts, you were unaware that to do so was unlawful. It was the first time that you had done it and you used the consignor or freight forwarder in Los Angeles whom you usually engaged for your laser repair business, Aerospace Dynamics. Your practice was to wait until you had sufficient equipment to fill a container before requesting that it be consigned to you. The firearm parts were put in with various pieces of equipment that you needed for your own business, as it is the most economical way to transport equipment which, otherwise, would be very expensive if individual parcels were sent by post.
17 Your counsel stated that there was no attempt to disguise what you were doing, in that the consignments were all addressed to yourself at your company with its correct address. You were also fully cooperative with the police. After you were arrested, you permitted them to search your home and participated in a very lengthy record of interview in which you made full admissions about your involvement in the importation offence.
18 As far as Charge 2 is concerned, the two cannabis plants had been planted in pots of earth. They had been growing outside and you brought them inside as it was cold, and placed lights over them to protect them. It was not a sophisticated growing enterprise and was for your own use, as you are a cannabis user. It was submitted that the objective gravity of this offence is low.
19 As far as Charge 3 is concerned, your counsel stated that you had forgotten that you had this firearm in your possession. It is the same firearm that is the subject of the summary charge of possession of a registered category long arm whilst not being the holder of a licence. Your counsel stated that this firearm is, in fact, registered to a person who is known to you.
20 Tendered into evidence as Exhibit “1”, were references from your brother and two sisters. Your brother, Anthony, in his reference, stated that your family has a history of mechanical interest and knowledge on both parents’ sides and, from an early age, you demonstrated an obsession with constructing and building various devices. He stated that for many years you have operated a legitimate business from your home and garage. He appended photographs to the reference, demonstrating a significant workshop, with large items of machinery and equipment, together with photographs of a ute transporting lasers and turbines. He stated that your elderly parents, and the rest of the family, were deeply concerned about you having been taken into custody without their knowledge. He expressed the disappointment of the family about the stress and anxiety that your offending has occasioned.
21 Your sister, Leila, wrote of your offending being an error in judgement in the context of you being an eccentric character, consumed by your passion for mechanical technology. She stated that the family find you both lovable, but infuriating, and have been concerned about your mental health for some time, as you appear to be lonely and isolated, and do not seem to look after yourself very well. She describes you as a sweet, sensitive person, who is probably somewhat of a genius in your field. Although the family try to check up on you regularly, you are not very emotionally connected and she states “as siblings, we have long speculated that he is on the spectrum and I have been concerned about his mental health for some time”. She expressed concern about the effects that prison life may have on your wellbeing. Similar sentiments were expressed by your other sister, Yvette.
22 Tendered as Exhibit “2” was 8½ pages setting out the names and addresses of your various clients, many of whom seem to be individuals or companies in the United States, although there are others in Canada, Germany, Italy, Mexico, the United Kingdom and Australia. Your counsel urged that there was no evidence of enrichment. When I asked for evidence of your earnings, your counsel stated that you had not filed a tax return for ten years. You have all relevant invoices and receipts, and evidence of payments, but would need to collate them, and you do not have an accountant. She stated that you estimate that your income is approximately $50,000 per year.
23 At the hearing on 22 July 2019, your counsel asked for the matter to be adjourned so that a psychological assessment of you could be obtained. Accordingly, the matter was adjourned for further plea hearing on 23 September 2019, but subsequently, administratively adjourned for further hearing on 6 December 2019. The reason for the administrative adjournment was that your solicitors obtained a report from Mr Patrick Newton, clinical and forensic psychologist, dated 9 September 2019, which stated that on 28 August 2019, your completion of a Personality Assessment Screener gave results that indicated a high risk of problems in the realm of psychosis and/or Bipolar Mood Disturbance, which he considered were consistent with your presentation to him. Accordingly, Mr Newton considered it more appropriate for you to undergo a psychiatric assessment.
24 At the adjourned hearing on 6 December 2019, a report from Dr Remy Glowinski, psychiatrist, dated 22 November 2019, was tendered as Exhibit “4”. Also, and a brief supplementary report clarifying one issue, dated 1 December 2019, was tendered as Exhibit “5”.
25 Dr Glowinski took a history that you have limited physical contact with your family, although you have some more regular contact by way of telephone calls and texts messages. You gave a history to him of a difficult time, with no friendships in primary school, and a somewhat better time in secondary school, where you completed Year 12 and performed well academically, with no disciplinary issues. After completing your apprenticeship in aircraft maintenance engineering, you had a period of unemployment before you worked with a laser specialist for five years, until 2015. Thereafter, you have been self-employed, and describe, at times, being too busy and being overloaded by work, such that you have time for little else.
26 Dr Glowinski stated that you felt confused and overwhelmed during your period of being remanded in custody for a month. After being bailed, your business was in financial difficulties because, whilst in custody, you had accrued a $15,000 airport storage debt, and you also discovered that a police investigation at your property had caused some damage. You feel that your professional reputation has been damaged due to incarceration. You harbour a fear that your life and business will be destroyed if you are returned to custody. You told Dr Glowinski that you have been extremely busy repairing four turbines. You stated that you were probably exhausted on the day that you went to be assessed by Patrick Newton because you had been up late communicating with colleagues in different time zones, and often do not get to sleep until 4.00am. As you feel overloaded by work, you are apparently training a couple of people in the United States and one person in Melbourne to do some of your work with turbines.
27 Your explanation to Dr Glowinski for the offending was that you imported firearm parts for acquaintances whom you now know were not actually your friends, and both of these so-called friends have now disappeared. You described yourself as having been stupid because there was no concrete deal in relation to payment, but only a loose plan for you to receive the required parts and then discuss with the friends how you might go about fixing the firearms in question. You told Dr Glowinski that “I might have been desperate for something different socially”. You describe that you can become overwhelmed when you cannot complete all the tasks that you hope to do in one day and your main social interaction is with two technicians in the United States and three to five business associates in Australia. Apart from that, you have four friends outside your work environment and you see them every week or two. Although you told Dr Glowinski that you have had relationships with women in the past, you are single with no children.
28 Dr Glowinski assessed you as having no current symptoms of psychosis or traumatisation, no formal thought disorder, no significant depressive themes and no suicidal ideation. He did not consider you had a psychiatric disorder and had no treatment recommendations. He did not consider that the offending behaviour was impacted upon by symptoms of significant mental illness and described your explanations for your offending as being “shallow” and “not [adding] to the Court’s understanding of these matters”. He stated that you described periods of loneliness and that some of your offending might be related to a desire to expand your social circle. He considered that some aspects of your account, in particular your past offending, your social connections and your obsessional tendencies, suggested a possibility of psychological vulnerability, but the overall picture did not suggest a personality disorder.
29 In the light of your claimed belief that the parts that you imported for hand guns were for antique firearms, I asked the prosecution to provide clarification as to their nature. At the adjourned hearing on 6 December 2019, a report clarifying these matters was tendered as Exhibit “C”. This is a report authored by David Wayne Bennet, an employee of the Australian Federal Police attached to the Firearms Identification and Armoury Team, Forensics and Specialists Operations, based in Sydney. Mr Bennet’s qualifications were appended to the Report and no issue was taken with them by defence. He stated that under the Firearms Act, in s3, an “antique handgun” is defined as one manufactured before 1 January 1990, that uses percussion as a means of ignition and does not take commercially-available cartridge ammunition. He confirmed that the Kolb brand new Baby model revolver was not an antique firearm. Thus, the barrel and cylinder assembly and trigger-mechanism parts for such a handgun are “firearm parts” imported by you in accordance with definition in the Customs (Prohibited Imports) Regulations 1956. He noted that a number of the parts imported by you for the Beretta-brand model U22 pistol, the Windicator-model revolver and the Heritage-brand Roughrider model barrel, were all new parts. However, the parts for the Harrington and Richardson-brand revolvers, the Kolb new Baby revolver, and some others, were parts from old, used revolvers. Nevertheless, as they all fire commercially-available ammunition, they are not antique handguns, and the parts are not for antique handguns. He noted that although some of these pistols may have been designed to fire rounds loaded with black powder only, which is less powerful than rounds from smokeless powders, such pistols are still capable of causing death or injury and, therefore, are not considered to be less dangerous.
30 At first blush, this offending seemed very serious, indeed. It involved five separate consignments imported over a period of 7 weeks and a total of 41 firearm parts were imported, spread across those five consignments. It is not surprising that Federal authorities treated the detection of firearm parts mixed in with legitimate imports as a matter of grave concern. However, on close examination of the circumstances, it is my impression that the offending was nowhere near as sinister as it may have first appeared. I say this for the following reasons:
(i)the prosecution does not dispute that you do run a genuine business repairing turbines and laser equipment generally. At the adjourned hearing, four character references from people who rely upon your skills and knowledge in order to be able to run their businesses, were tendered as Exhibit “5”. Two of the references were from customers in Victoria, one from Mexico and one from Queensland. One referee has known you for 8 years, two others for 9 years and the other for “a couple of years”. It is clear from these references that you have created a niche market of repairing and refurbishing laser equipment in a highly skilled manner, and undertake work because you have a passion for it, in circumstances where others may not bother;
(ii)I accept your explanation that you were unsure which particular firearm parts might be suitable to repair, what you had mistakenly believed to be two antique firearms, and for this reason you picked up various firearm parts on eBay cheaply, thinking that, amongst them, there would be parts that would be suitable. Somewhat naively, you formed the view that because the parts were for sale on eBay they must somehow be legal. Although your mistaken belief is not mitigatory, it does explain your offending conduct;
(iii)the only evidence that you were importing firearm parts with the intention of trafficking comes from your own admission in the Record of Interview about your intention of either repairing what you mistakenly believed were two antique handguns for a friend, or giving the parts to him to repair them, and repairing a rifle used for hunting for another friend. The prosecution concede that there is no evidence that you intended to use the imported parts for other than the limited purposes which you admitted to police and that there is no evidence that you were involved in criminal activity. Further, the only evidence about the financial gain which you hoped to make from the importation, is of an ill-defined agreement whereby you expected to be paid for the parts, plus your labour, which you estimated would have been around $1,500;
(iii)there was nothing covert or sophisticated about your offending. All five consignments came to you via someone with whom you regularly dealt in the United States in order to forward freight relating to your legitimate business. All five consignments were addressed to you in your own name, at your own address. There is no suggestion that you played any role in describing the contents of the consignments, as they left their place of origin, as “auto parts” or “sporting goods”. Moreover, when the consignments were not delivered to you, you made no less than four telephone calls personally, and in your own name, to Australia Post, to enquire about the reason for the lack of delivery. I am satisfied, on the balance of probabilities, that your primary concern in chasing up the consignment was to get the industrial components so that you could proceed with your work repairing laser equipment. In addition, you personally attended the Sunbury Australia Post Sorting Centre to see if you could find your missing parcels. The complete lack of any attempt to disguise or conceal your identity, or to distance yourself from the importation of the consignments, in my view, is consistent with someone who was genuinely concerned about obtaining parts for a legitimate business and who did, albeit erroneously, consider that there was nothing illegal in bringing in parts of firearms, as distinct from whole firearms;
(iv)It was not entirely accurate for the prosecutor to have described during the plea hearing that the 41 parts illegally imported by you were able to be assembled to make up almost 7 revolvers. Amongst the firearm parts imported by you, there were no full frames for any firearm, so the parts, alone, could not have been used to construct a working firearm. Further, the prosecution have conceded that, if the parts were used on an existing, but not functioning, firearm, or to construct a firearm (provided a frame were made available) then such firearm could have a lawful purpose. It has been acknowledged by the Court of Appeal that cases involving possession of a firearm capable of lawful use will be viewed less seriously than those involving firearms which have no lawful use (such as a sawn-off shotgun);[6]
(v)the evidence before me paints a picture of you as a somewhat isolated, eccentric person, who is consumed by your work of maintaining and repairing laser equipment, even though it is not particularly profitable. You appear to be something of a loner, whose main interaction with other human beings is associated with the work that you perform. You have converted your home into a workshop in an idiosyncratic way, as demonstrated by photographs, which, in my view, show that your existence is effectively defined by you living in your workspace. The material before me indicates that, although you are very intelligent and skilled in your area, you are also somewhat unworldly, and neglect and are disorganised in relation to such things as your business records for tax returns and ensuring that you have a functioning mobile phone or keep it switched on so that you can be contacted by your family. My assessment of you is that your offending shows a carelessness in your failure to ascertain whether the firearm parts could be legally imported, and a naivety in trusting the two people who asked for your help to repair their firearms, rather than a gravely criminally-motivated person, who was planning on any significant commercial enterprise of trafficking in firearm parts.
[6]Director of Public Prosecutions (DPP) (Cth) v Munro [2019] VSCA 89 at paragraph [17(1)]
31 Charge 1 is the most serious charge on the Indictment. However, your offending lacks many of the aggravating factors of some other firearm importation cases, which can involve dealings via “the dark web”, where communications are encrypted and there can be illegal importation of fully-operational firearms, and it is plain that significant amounts of profit are to be made from them. It is still a serious charge. Nevertheless, the charge to which you have pleaded guilty is still serious because the parts imported by you had the potential to be used to make completed firearms which could be used by unscrupulous persons for illegal purposes in the community.
32 Parliament has made it clear that the object of offences like Charge 1 is to deter and eliminate conduct which frustrates the orderly and controlled importation into Australia of dangerous weapons, and thereby shield the community from harm that may be caused by such weapons. The Second Reading Speech on 17 July 2014, by the then Justice Minister, expressed concern about the entry of illegal firearms into the Australian community, increasing the size of the illicit market. He noted that there was a growing pool of firearms that were able to be accessed by groups and individuals to commit serious and violent crimes that could result in death.
33 The Court of Appeal has likened the harm caused by the importation of firearms (or in this case firearm parts) to that from the importation of drugs, except that drugs are ultimately consumed and taken out of circulation, whereas firearms may continue to exist indefinitely and, hence, the potential for harm caused by firearms is not extinguished.[7] For this reason, general deterrence must be the predominant sentencing consideration. This means sending a message to others who may be minded to engage in the illegal importation of firearms or firearm parts for trafficking purposes that it will not be worth their while and they will be appropriately punished.
[7]Director of Public Prosecutions (DPP) (Cth) v Munro (supra) at paragraph [80]
34 The Court must impose a sentence of a severity appropriate in all the circumstances of the offence. In addition, I am obliged to take into account such of the matters in s16A(2) of the Crimes Act 1958 (Vic), as are relevant and known to the Court. I have already referred to the nature and circumstances of the offence and the fact that the gravamen of the charge is the potential for the parts to be used to make actual firearms which could be used illegally. However, it is relevant to note that, in this case, there has been no injury, loss or damage resulting from the offending.
35 There is some need to emphasise specific deterrence, as Charge 1 is a rolled up charge involving 5 consignments. However, I consider that the material before me shows that you have genuinely anguished over your involvement in this offending and, indeed, found the period of time that you were remanded in custody traumatic, and I assess there is somewhat less need for emphasis on specific deterrence now, than there may have been at the time you committed the offences. However, there is still a need to ensure that you are adequately punished for this offence, particularly in circumstances where you acknowledged to police that the person whom you were assisting with the repair of two handguns was probably not the holder of a licence to possess firearms.
36 As far as your personal circumstances are concerned, I take into account that, when you were arrested, you did cooperate with police, in participating in a very lengthy Record of Interview comprising 861 questions. In my assessment, you answered the questions truthfully and to the best of your ability, albeit that you declined to provide police with the names of the two people who owned the guns for which you were obtaining parts. By the date of the second plea hearing on 6 December 2019, you were prepared to provide those names and the matter was stood down so that you could have a discussion with the informant. However, the prosecution advised the Court that the informant considered that the lapse of time since April last year was such that it was not of sufficient assistance to mount an investigation and, indeed, you conceded that you had cut off contact with those two people after re-evaluating their connection with you as an adverse one, where you felt that you may have been used by them, and they were not real friends. Thus, minimal weight can be given to your delayed co-operation in providing the names of the owners of the weapons to police.
37 It is noteworthy that from the date of your arrest on 23 April 2018, after you were released from 32 days spent in custody, you adhered to relatively onerous bail conditions which required you to report to police four days per week, until the matter came before me on 22 July 2019, when the reporting condition was reduced to one day per week. In addition, you pleaded guilty to the offences at the earliest possible opportunity. I am satisfied that your pleas have utilitarian benefit, but, also, that your pleas are motivated by remorse. The extent to which you cooperated in answering the many questions asked of you in the Record of Interview, in my view, is indicative of remorse, as well as the pleas themselves. You are entitled to a high discount on the sentence, which, otherwise, might have been imposed by reason of the early and remorseful pleas of guilty.
38 I take into account that, whilst you were in custody for 32 days, you suffered some form of extra-curial punishment, in that you were unable to attend to your business affairs during that time, which resulted in you incurring $15,000 in storage fees for consignments which arrived, relating to your business activities.
39 I have already noted that you do have some prior criminal offending for dishonesty offences when you were much younger, some two decades ago. Of more relevance, are your more recent prior convictions in 2011 to which I have referred. Thus, you do not come before the court as a person of unblemished character.
40 I have wrestled with the sentence to be imposed on Charge 1. Whilst acknowledging that general deterrence and protection of the community is of crucial importance in sentencing, upon analysis of all the circumstances, I do not regard your offending as being of the type that was in the forefront of the minds of parliamentarians when they introduced this legislative provision albeit that your behaviour clearly comes within it. I am not satisfied, beyond reasonable doubt, that there was any significant commercial element to your trafficking which was confined to assisting two people to repair guns for an ill-defined and probably minimal amount in the order of $1,500. Indeed, the only evidence of your intention to traffick in the firearm parts comes from your own honest admissions during your Record of Interview.
41 Although there was potential for the parts to be used to render other firearms functional, the fact of the matter is that there is no evidence of any intention on your part to do so beyond what you admitted. Nor can I be satisfied, beyond reasonable doubt, that the firearms which you intended to repair were going to be used illegally. As I have said, on its face, your offending initially looked very sinister, because firearm parts appeared to be hidden or disguised within consignments which were heavily laden with parts which were legally imported for your legitimate business. However, I have accepted the way this came about was that you incrementally purchased parts that you saw on eBay and thought might be suitable to repair the firearms in question. I have also accepted that, for the purposes of economy, you would wait until you had a full container of items before organising for the container to be consigned to you.
42 I am not satisfied that there was premeditated deceit on your part to try to hide the items amongst legitimate items. This is not a case where the circumstances raise concerns that you may somehow have been in league with an organised crime syndicate. Thus, although it is not mitigatory that you believed the firearm parts to be for antique weapons, I do accept that as an explanation.
43 Although the court was told that you are experienced in hunting, there is no suggestion that you had any particular experience with handguns albeit that your elite mechanical expertise made you confident that you could probably repair handguns. This comes in a context of you being presented to the court, particularly in references from your family, as a person who, from a young age, was obsessed with mechanical things and a desire to understand how to construct new devices, someone who was always pulling things apart to see how they worked and creating new contraptions.
44 Further, the references from your clients (Exhibit “5”) confirm your “nerd-like” eccentricity. One referee describes your spending “many hours discussing lasers, electronics and mechanical issues that the general community would consider dull and pointless”.[8] I am conscious, in all of the circumstances, of the lack of sophistication of the offending on Charge 1, also of your co-operation in your record of interview, early pleas of guilty, which I regard as remorseful, and the lack of any significant commercial aspect to your offending, or any evidence that it would necessarily have resulted in the illegal use of firearms in the community.
[8]Reference of Pat Mulhern dated 4 September 2019
45 I consider also that, although you do have prior convictions relating to firearms which are of a relatively minor manner compared to Charge 1, you have learned your lesson very seriously in relation to what you did in offending on Charge 1. I am mindful of the need for consistency across all jurisdictions in Australia in relation to sentencing for Commonwealth offences. I have had access to the limited number of sentences available for offences like Charge 1, but have not found them to be comparable in any useful way other than as potential yardsticks indicating the range of sentencing. In all of the circumstances, I consider that your prospects of rehabilitation in relation to the serious offending on Charge 1 are probably very good.
46 I consider that the principles of general deterrence, specific deterrence and protection of the community, as well as just punishment, can be met by the imposition of a Recognisance Release Order on Charge 1. Thus, although I consider that the imposition of a term of imprisonment is the only appropriate sentence for this charge, in all of the particular circumstances of your case, I am convinced that a Recognisance Release Order for a period of two years will be a reminder to you that, if you are ever again tempted to engage in illegal activity, you will breach that order, and you will be brought back before the court and most likely imprisoned.
47 As far as Charge 2 is concerned, there is no issue that the cultivation comprised two pot plants which were for personal use. Although you have a prior conviction for cultivating cannabis, which resulted in a term of imprisonment of six months being wholly suspended for a period of two years, I understand that to have been a more sophisticated operation by way of a hydroponic set-up, involving theft of electricity. The cultivation for which I must sentence you is of a relatively insubstantial nature. The total weight of the plants in the pots was 621 grams. I consider that a fine is the appropriate sentence.
48 Charge 3 and the summary charge refer to the same weapon. The butt of a rifle and a barrel for the same rifle were in a commercial air cooler in the rear shed of your property. The parts of the rifle were not connected albeit that they were capable of being put together to make a useable firearm. However, no ammunition for this firearm was located. That rifle was in fact registered in the name of Peter Patterson. It is not entirely clear why it was stored in your shed and your explanation was that you had forgotten about it. Although the firearm was not stored in an appropriate and secure fashion, and you had no licence for it, I regard this as being on the lower scale of offending. The prosecution has fairly conceded that the manner in which the firearm was stored did not make it readily accessible or able to be fired.
49 It seems to me relatively unlikely that a child or unsuspecting person would come upon it and be able to cause injury to themselves or others, particularly given the absence of ammunition for it.
50 However, you should be well and truly aware of the need to hold a licence in order to be in possession of a firearm and of the regulations relating to safe storage. You do have a prior conviction for this offence back in 2011, but I also have noted that on that occasion the firearm was an air rifle, that is one which does not use live ammunition. In the circumstances, I certainly could not be satisfied that the only appropriate sentence for these offences is a term of imprisonment. Although you have shown a careless disregard for the regulations regarding the licensing and storage of firearms, I consider that Charge 3 and the summary charge are appropriately dealt with by way of a fine.
51 Mr Gerges, on Charge 1, I can only make the order that I have proposed, namely a Recognisance Release Order, if you consent to it. This order essentially involves sentencing you to two years’ imprisonment and directing that you serve 32 days of that term (which you have already served) before being released upon entering into a recognisance in the sum of $3,000 to be of good behaviour for the balance of the two year period. The order does not involve you having to pay $3,000 now, but if you were to breach the order by further offending, you will be brought back for resentencing, and the high probability is that you would be ordered to serve the balance of the term of imprisonment. Do you understand this?
52 OFFENDER: Yes, your Honour.
53 HER HONOUR: Are you prepared to consent to an order in the terms that I have just described?
54 OFFENDER: Yes, your Honour.
55 HER HONOUR: Alright, would you stand up please, Mr Gerges?
56 On Charge 1, importation of firearm parts with the intention of trafficking, pursuant to s20(1)(b) of the Crimes Act 1914 (Cth), you are sentenced to a term of imprisonment of two years. I order that you serve a period of 32 days’ imprisonment before being released, upon giving security in the sum of $3,000 and on condition that you be of good behaviour for the balance of the term of two years. I declare that this sentence is to commence today. I further declare that a period of 32 days’ pre-sentence detention be reckoned as time already served under the sentence imposed this day, and that this be noted in the records of the court.
57 On Charge 2, cultivating a narcotic plant, you are convicted and sentenced to pay a fine of $200.
58 On Charge 3, being an unlicensed person who stored a firearm in an insecure manner, you are convicted and fined $300.
59 On Summary Charge 2, of possessing a registered category A long arm whilst not being the holder of a licence, you are convicted and fined $300.
60 Pursuant to s6AAA of the Sentencing Act 1991, I state in relation to Charge 1 that, had it not been for your plea of guilty, the total effective sentence imposed would have been a term of imprisonment of three years to be released on recognisance after serving a term of 18 months.
61 On Charge 2, I order pursuant to s78(1) of the Confiscation Act 1997, that there be forfeiture to the State of two cannabis plants, hydroponic lights and transformers.
62 On Charge 3 and Summary Charge 2, pursuant to s151 of the Firearms Act, I order that there be forfeited to the Minister one .22 calibre pump action rifle, one .22 calibre firearm ammunition casing and one spent Winchester branded 270 casing.
63 HER HONOUR: Is there anything that I have forgotten, Ms Simpson?
64MS SIMPSON: No, Your Honour, I think that is correct.
65HER HONOUR: Ms Mendicino?
66MS MENDICINO: No, Your Honour.
67HER HONOUR: Thank you. I'll just have a Recognisance Release Order prepared, Mr Gerges. I will be necessary for you to sign it. I will ask you please, Ms Mendicino to ensure that Mr Gerges does understand the full consequences of this order.
68MS MENDICINO: Yes.
69HER HONOUR: He does seem to understand. He has indicated that in court, but I would like you to ensure that that is so.
70MS MENDICINO: Yes. May I approach Mr Gerges?
71HER HONOUR: Yes. I will just wait until I have the Recognisance Release Order for him to sign.
72I am just going to hand down this form of order to you, Ms Simpson, if you would be good enough to check that it is in the appropriate form.
73MS SIMPSON: Yes, Your Honour.
74HER HONOUR: Is it actually necessary in the form of the order to mention the immediate custodial term of the imprisonment?
75MS SIMPSON: Yes, Your Honour. I would suggest that the 32 days reckoned as time served be included in the order. I do have a draft.
76HER HONOUR: Do you? Thank you.
77MS SIMPSON: I have a draft recognisance I can hand up.
78HER HONOUR: The 32 days reckoned as time served will certainly be recorded in the records of the court.
79MS SIMPSON: Yes.
80HER HONOUR: But I was just wondering on the face of the actual Recognisance Release Order.
81
So Ms Simpson, if the order is to read as follows, the court orders the release of the defendant under paragraph 20(1b) of the Crimes Act after serving
32 days of the term of imprisonment of two years upon the defendant giving security by recognisance of $3,000 to comply with the following condition that the defendant is to be of good behaviour for two years. Is that adequate?
82MS SIMPSON: Yes, Your Honour or rather than saying two years, you could say the balance of the two years if Your Honour wished. That was how I understood Your Honour's intention.
83HER HONOUR: Yes.
84MS SIMPSON: It is not a full two years.
85
HER HONOUR: Yes, all right. Yes, for the balance of the two years.
Mr Tipstaff, would you please take two copies of each of those orders and give them to each counsel?
86All right, thank you. Ms Mendicino, if you would be good enough to take this order.
87MS MENDICINO: Yes, Your Honour.
88HER HONOUR: And give it to Mr Gerges to sign the acknowledgement appended to it. Thank you.
89Mr Gerges, would you stand up please? Is this your signature on this document?
90OFFENDER: Is it?
91HER HONOUR: Is this your signature?
92OFFENDER: Yes. Yes, Your Honour.
93HER HONOUR: Yes. By that signature, do you acknowledge that you have had had the order and the Recognisance Release Order explained to you?
94OFFENDER: Yes, Your Honour.
95HER HONOUR: And that you understand its purpose and effect?
96OFFENDER: Yes, Your Honour.
97HER HONOUR: And the consequences that may follow if, without reasonable excuse, you fail to comply with it by being of good behaviour over the next two years minus 32 days?
98OFFENDER: Yes, Your Honour.
99HER HONOUR: You understand that this order may be discharged or varied?
100OFFENDER: Yes, Your Honour.
101HER HONOUR: And you agree to be bound by the order?
102OFFENDER: Yes, Your Honour.
103HER HONOUR: And you haven't yet been given but you will be given a copy of it. For some reason, it has the signature witnessed by the judge's associate. So I will get you to do that, Mr Associate. Thank you, be seated.
104
Thank you. Now there is no need for any other formal process given that
Mr Gerges has not been in custody, is there? He is free to go?
105MS SIMPSON: No, Your Honour. If a passport has been surrendered, I will organise for the return.
106HER HONOUR: All right. Mr Gerges, you are free to leave the dock and, as the prosecutor said, if there was a passport that was surrendered, that will be returned to you.
107Please adjourn the court sine die.
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