Director of Public Prosecutions v Grixti
[2018] VCC 943
•14 June 2018
| IN THE COUNTY COURT OF VICTORIA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00410
| THE QUEEN |
| v |
| BRIAN GRIXTI |
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JUDGE: | O'Connell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 June 2018 | |
DATE OF SENTENCE: | 14 June 2018 | |
CASE MAY BE CITED AS: | DPP v Grixti | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 943 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Traffick drug of dependence; Prohibited person use firearm; Possession of unregistered firearms; Possession of silencers; Possession of cartridge ammunition; Possession of prohibited weapons; Commit indictable offence while on bail; Seriousness of firearm offences; General deterrence; Specific deterrence; Community protection; Denunciation; Family support; Early plea of guilty
Legislation Cited: Sentencing Act 1991 (Vic);
Sentence:Total Effective Sentence of three years imprisonment, non-parole period of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms H Bate | Office of Public Prosecutions |
| For the Accused | Ms H Cooper | Leanne Warren & Associates |
HIS HONOUR:
1 Brian Grixti, on 5 June 2018, you pleaded guilty to the following charges;
(1) That between 6 July 2017 and 2 September 2017, you trafficked in drugs of dependence, being methamphetamine and 1-4 Butanediol;
(2) That between 30 August 2017 and 2 September 2017, being a prohibited person, you used a firearm;
(3) That on 5 September 2017, you possessed more than three firearms that were not registered;
(4) That on 5 September 2017, being a prohibited person, you had in your possession three silencers;
(5) That on 5 September 2017 you manufactured firearms without a licence.
2 On that same day, you also pleaded guilty to three related summary offences.
(1) That on 5 September 2017, you possessed cartridge ammunition without a licence;
(2) That on 5 September 2017, you possessed prohibited weapons, namely two slingshots without exemption or approval;
(3) That on 5 September 2017, you committed an indictable offence, namely being a prohibited person in possession of a firearm whilst on bail.
I must now sentence you in relation to each of those offences.
3 On 2 September 2017, police commenced investigating a report from the occupants of 13 Falconer Court, Keilor, concerning a broken laundry window and a discharged ammunition round found inside their laundry.
4 Over the previous two or three days, residents told police that they had heard a number of loud noises, much like the sound of fireworks, coming from the rear garden shed of 8 Delaney Court, Keilor. Further examination revealed a small mark in the timber window frame of the laundry, approximately five centimetres long, consistent with being made by the bullet located inside. In the rear yard of the house, a small one centimetre hole in the leaf of a tree fern in line with the laundry window was also located.
5 Ballistics experts determined that the trajectory of the bullet came from the rear of 8 Delaney Court. Investigators established that you had fired a .22 bullet from a homemade firearm which penetrated the wall of the aluminium shed on your property and travelled into the adjoining property causing the damage to the laundry window at 13 Falconer Court.
6 At the time you discharged this firearm, you were a person prohibited by law from using a firearm. That conduct constitutes Charge 2 on the indictment.
7 On 5 September 2017, police executed search warrants at 8 Delaney Court, Keilor. You lived at that address with your parents, Joseph and Sheila Grixti. In your bedroom police located a slingshot, which constitutes part of the second summary offence; a round of ammunition; a firearm magazine; and a wooden box containing firearm parts. In the garage police located among other things: assorted ammunition, including shotgun shells and .22 rounds; various firearm components; paperwork related to gun manufacture; homemade firearms, one of which was loaded; a homemade pistol; two homemade silencers; and, another slingshot. Further ammunition was located in your car.
8 A ballistics expert, Leading Senior Constable Adam Pringle, prepared a report which made the following relevant findings.
(1) Item 33 was a 12 gauge homemade single shot shotgun with four parts missing. Had these parts been replaced the weapon would have been capable of discharge;
(2) Item 35 was a homemade .410 bore slam fire single shot shotgun, which was successfully discharged by police.
(3) Item 37 was a nylon case containing a homemade .410 bore slam fire single shot shotgun. The firing pin was damaged and therefore not striking the primer. However, had the end cap been removed and the firing pin repaired, the weapon would have been capable of discharge;
(4) Item 40 was a homemade 12 gauge slam fire single shot shotgun, which was successfully discharged by police;
(5) Item 42 consisted of two homemade silencers, designed to render the sound caused by discharge less audible.
(6) Item 45 is a homemade PVC silencer, designed for the same purpose. Item 43 was a homemade .22 calibre single shot pistol, which was successfully discharged by police; and
(7) Item 44 was a homemade .410 bore slam fire shotgun which was successfully discharged by police as well.
9 In summary, six firearms were located, four of which were capable of discharge. The ammunition located at your premises was compatible with those firearms. Moreover, it is clear that you had the necessary skills to make the alterations required to discharge the firearms that were not in working order.
10 The matters I have just described constitute the bases of Charges 3, 4, 5, together with the first summary charge, possession of ammunition without licence.
11 After your arrest on 5 September 2017, you were interviewed by police but made no comment to all of the allegations. On 8 December 2016, you had been arrested and charged with possessing and the importation of prohibited items, firearm offences and trafficking drugs of dependence.
12 You were remanded in custody until 31 January 2017, and on that day you were granted bail on the following conditions:
(a) There was a $50,000 surety;
(b) You were to reside at 8 Delaney Court, Keilor;
(c) You were to surrender your passport;
(d) You were not to attend points of international departure;
(e) You were not to leave Australia;
(f) You were not to leave the state of Victoria;
(g) You were not to contact witnesses for the prosecution;
(h) You were not to leave your place of residence between the hours of 9 pm and 6 am;
(i) You were to comply with all the requirements of the Court Integrated Services Program;
(j) You were to present at the front door of your residence during curfew hours, upon request of any member of Victoria Police;
(k) You were not to attend licenced premises;
(l) You were not to drive a motor vehicle;
(m) You were not to consume alcohol; and
(n) You were not to use drugs of dependence.
13 It was whilst you were subject to that bail undertaking that you committed these offences, and that fact gives rise to the third summary offence, that of committing an indictable offence whilst on bail. I have been informed that the matters for which you were arrested on 8 December 2016, have now been resolved and are set down for plea in the Magistrates' Court on 15 June 2018.
14 Insofar as the first charge, that of trafficking and drugs of dependence is concerned, after your arrest, you were searched by custody officers at Sunshine Police Station, and a small Ziploc bag containing methylamphetamine was seized; 5.5 grams of 1-4 Butanediol was also located at your house. Interrogation of your mobile phone revealed a number of messages negotiating the purchase and supply of methylamphetamine and Butanediol in what was described as small street levels amounts, during the period 6 July to 2 September 2017.
15 Ms Bate, who appeared on behalf of the Crown acknowledged that the trafficking activity constituting Charge 1, could be fairly characterised as falling within the lower range. This was particularly so given that you have continued to grapple with substance abuse problems and that your own drug abuse provides the setting within which this trafficking occurs.
16 Ms Bate urged, however, that I take a much more serious view of the firearms offences. She referred me to the purposes of the firearms legislation which seek to ensure public safety by licencing and regulating the possession and use of firearms. It was submitted that your conduct seriously undermines that objective.
17 Whilst it is not suggested, and there is no evidence that you sought to traffick these firearms, the manufacturer and potential dissemination of these weapons is nonetheless an extremely serious matter. The increasing prevalence of the illegal use of firearms is of real community concern. General deterrence must, therefore, play a prominent, if not predominant, role in your sentence.
18 Moreover, given your prior history which I will detail shortly, and the fact that these offences were committed on bail, the sentences imposed should also seek to specifically deter you from future offending. Denunciation and community protection are likewise relevant.
19 Ms Bate noted in her written submissions that because you were on bail at the time of this offending, s.16(3C) of the Sentencing Act 1991 required that the sentences imposed here must be served cumulatively upon each other unless otherwise directed. Although, I should also note, that it was not suggested that the principle of totality should not militate that presumption. In all of those circumstances, the only appropriate disposition, according to the Crown, was the imposition of a term of imprisonment with a non-parole period
20 Ms Cooper, who appeared on your behalf, appropriately acknowledged the seriousness of these offences. She submitted, however, that once your early plea, your remorse and the rehabilitative efforts you have made whilst in custody over the last nine months or so are taken into account, it was open to the Court to impose a sentence of imprisonment in combination with a community corrections order.
21 For the purposes of your plea hearing, you wrote a letter which set out your background and personal history. In that letter, you describe how you completed your VCE at Catholic Regional College in Sydenham and started an apprenticeship with Master Plumbers'. After the break-up of a serious relationship, when you were 21, you lapsed into heavy drinking and some amphetamine abuse.
22 At the age of 25, you were introduced to ice and shortly afterwards you were made redundant from your employment as a plumber. In 2012 you were involved in a motor vehicle collision after a police pursuit and remanded in custody for the first time. You were charged with a number of dishonesty and drug offences, including traffick amphetamine, possessing cartridge ammunition without a licence and possessing a prohibited weapon. After serving three months you were placed on a community corrections order with 350 hours of community work.
23 In August 2014 you were dealt with for the breach of that order, through the commission of further drug and driving offences. You were placed on a further community corrections order, but this time with conditions directed towards treatment of your drug problem.
24 You responded to this order by complying with the treatment conditions and obtained a job as a cleaner. You explained in your letter that because you were working six days a week, you were unable to complete the community work component of the order and on that basis, you were again breached.
25 Your prior criminal history report confirms that on 21 August 2015, at Sunshine Magistrates' Court, you were dealt with for that breach and ordered to perform 40 hours of unpaid community work. You finally completed the community corrections order successfully.
26 During 2016, you lost your job and lapsed back into drug use. After being granted bail in January 2017, you were subject to the very strict conditions on your bail, which I have already set out, including: that you report daily to the police; that you not drive a motor vehicle; that you observe a curfew and undertake regular counselling sessions through the Court Integrated Services Program.
27 Whilst it appears you complied with these conditions, once the CISP program had been completed you again lapsed into drug use. Over this time you explained that you would occupy yourself with small engineering or mechanical projects, such as restoring and modifying cars, motorbikes and engines. You say that you then came across simple homemade single shot firearms plans online which intrigued you. You appear to have enjoyed the challenge and this is put forward as to why you constructed the firearms the subject of some of these charges. With the benefit of hindsight, you describe that as stupid and self-destructive behaviour.
28 It is apparent that since you have been remanded in custody you have made significant efforts to take advantage of the programs and courses that are now more readily available to remand prisoners. The programs you have completed include a 24 hour drug and alcohol program, a managing emotions program, a managing worry and a change on the inside program. Furthermore, 11 certificates in further education have been tendered on your behalf. The courses you have completed generally involve vocational training in areas such as cleaning, kitchen operations, construction, small business, first aid and the like.
29 You also have been randomly tested as to the use of drugs on three occasions and all of those results have been negative. You have been working in the metal factory at Marngoneet for the last eight months and you have been recommended for a peer listener position within the prison. You have been working on your physical health through an exercise regime and you have started to read on a regular basis for the first time in your life.
30 You say in your letter that you have wasted the last eight years of your life and that you are determined to get your life back on track. It is, very much to your credit, that you have used your time in custody gainfully.
31 A forensic psychologist, Dr Aaron Cunningham, provided a report of 23 May 2018, Exhibit 2 on the plea. Doctor Cunningham administered some psychometric testing and concluded as follows.
"Mr Grixti's full scale IQ was assessed as 102, within a range of 98 to 106. He performed better than 55 per cent of his age peers, where 45 per cent of his age peers would do better. His overall thinking and reasoning skills were in the average range. However, Mr Grixti evidenced significant differences between his index scores. As a result, an overall average of Mr Grixti's cognitive ability is difficulty on the basis of the full-scale IQ alone. Mr Grixti's profile indicates significant weaknesses in verbal comprehension and significant strengths in non-verbal reasoning."
32 Doctor Cunningham found that you appear to be a person with limited ability to cope and that you would often feel overwhelmed when living in the community. He goes on to state:
"In my opinion, Mr Grixti's psychological and emotional maturity does not appear commensurate with his age. Mr Grixti's sense of being overwhelmed by stress and immature presentation is consistent with his deficits in verbal reasoning. His non-verbal reasoning strengths indicate a preference for working through problems in a tangible hands on fashion. This limits Mr Grixti's ability to reason and manage emotional states and problem solve stress wars. Drug use has been his main method of coping with emotional problems. In my opinion, Mr Grixti's drug abuse and association with drug abusing peers are the main contributors to his offence behaviour."
33 It is significant in my view that your parents have been actively supportive of you and provide stability for you. They have attended virtually every court case, including your plea hearing and have written a helpful reference of 30 May 2018, in which they confirm both their continuing support and the positive changes you appear to have made whilst in custody. I have also taken into account a reference from Ms Tania Krzyzanski, also of 30 May 2018.
34 As part of the material filed on your behalf by Ms Cooper, a procedural chronology was provided, which demonstrates that the resolution of your matter was delayed either because ballistics and drug analysis reports were not available, or because you were not brought to court as required by the Magistrates' Court. None of that delay was attributable to you.
35 In those circumstances, I accept that the pleas you have made in respect of these charges should properly be characterised as being entered at a very early stage of the proceedings and that you are accordingly entitled to a significant sentencing discount by reason of those pleas.
36 They not only evidence a willingness to facilitate the course of justice and an acceptance of responsibility for your offending, but they do support Ms Cooper’s submission that you are genuinely remorseful and motivated to change the circumstances that have led to your offending in the past. Accordingly, your plea of guilty merits a substantial reduction in the sentence that might otherwise have been imposed.
37 Whilst I am impressed with the efforts that you have made in custody and whilst I accept the explanations you have provided with respect to your previous breaches of community corrections orders, I am not persuaded that a sentence which combines a term of imprisonment with a community corrections order would adequately reconcile the various sentencing purposes that must be recognised. These offences, as the Crown have submitted, are very serious and in my view require the imposition of a head sentence with a non-parole period.
38 I do note, however, that you have not received such a sentence before and that the efforts you have made in custody are particularly relevant to the length of the minimum term that must be imposed.
39 Mr Grixti, on Charge 1, that of trafficking in a drug of dependence you will be convicted and sentenced to nine months imprisonment. On Charge 2, that of a prohibited person using a firearm, you will be convicted and sentenced to 12 months imprisonment. On Charge 3, that of possession of a trafficable quantity of firearms, you will be convicted and sentenced to 18 months imprisonment. On Charge 4, that of a prohibited person possessing three silencers you will be convicted and sentenced to six months imprisonment. On Charge 5, that of manufacture general category firearms without a licence, you will be convicted and sentenced to 21 months imprisonment.
40 On the first summary offence of possession of cartridge ammunition without a licence, you will be convicted and sentenced to two months imprisonment. On the second summary offence of possessing prohibited weapons, you will be convicted and sentenced to 14 days imprisonment. On the third summary offence of committing an indictable offence, namely a prohibited person in possession of a firearm whilst on bail, you will be convicted and sentenced to two months imprisonment.
41 I will order that three months of the sentence on Charge 1; three months of the sentence on Charge 2; six months of the sentence on Charge 3; one month of the sentence on Charge 4; one month of the sentence in respect of the first summary offence of possess cartridge ammunition without a licence; and one month of the third summary offence of commit an indictable offence whilst on bail be served cumulatively upon the sentence imposed in respect of Charge 5. I make no order for cumulation in respect of the second summary offence of possess prohibited weapons.
42 The total effective sentence will, therefore, be three years imprisonment. I will fix a non-parole period of 18 months. I will declare, pursuant to s.18 of the Sentencing Act, that the period of 282 days be reckoned as already served. I will further declare pursuant to s.6AAA of the Sentencing Act, that but for your plea of guilty you would have been sentenced to a total effective sentence of four years with a non-parole period of two years and six months. I will make the orders sought by the Crown with respect to both disposal and forfeiture.
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