Director of Public Prosecutions v Jolly
[2013] VCC 1178
•31 July 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL JOLLY |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 29 July 2013 | |
DATE OF SENTENCE: | 31 July 2013 | |
CASE MAY BE CITED AS: | DPP v. Jolly | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1178 | |
REASONS FOR SENTENCE
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Subject: Plea - sentencing
Catchwords: Possess equipment for trafficking - being a non-prohibited person possessing an unregistered longarm - possess handgun without a licence - possess prohibited weapon - fail to store firearms safely - fail to store ammunition safely - possess ammunition without a licence
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence: 6 months' imprisonment wholly suspended for 18 months and fines totalling $750
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. O'Doherty | Office of Public Prosecutions |
| For the Accused | Mr M. McGrath | C. Marshall & Associates |
HIS HONOUR:
1 Michael Jolly, you have pleaded guilty to one charge of possessing equipment for trafficking, two charges of being a non-prohibited person possessing an unregistered longarm, and one charge of possessing a handgun without a licence.
2 The maximum penalties for these offences are as follows:
- for possess equipment for trafficking: 10 years’ imprisonment
-
for non-prohibited person possess unregistered longarm:
2 years’ imprisonment or 120 penalty units
-
for possess handgun without a licence: 7 years’ imprisonment or
600 penalty units
3 You have also pleaded guilty to one transferred summary charge of possessing a prohibited weapon, one transferred summary charge of failing to store firearms safely, one transferred summary charge of failing to store ammunition safely and one transferred summary charge of possessing ammunition without a licence.
4 The maximum penalty for the summary offences are:
-
for possessing a prohibited weapon, 2 years’ imprisonment or
240 penalty units;
-
for failing to store firearms safely, 4 years’ imprisonment or
240 penalty units;
-
for failing to store ammunition safely, 12 months’ imprisonment or
60 penalty units;
- for possessing ammunition without a licence, 40 penalty units.
5 You have a criminal history which extends from when you were 19 years old in 1986 until 2008, about which I will say more later.
6 The circumstances of your offending on the principal charge, Charge 1, are that you permitted the keeping of paraphernalia and equipment associated with the manufacture of illicit drugs on your property at Smiths Creek. The materials were kept in a locked shipping container on behalf of another person and included a pill press. Whilst you did not have a key to the container, you were in possession of the equipment in the knowledge that someone else was going to use it for the purpose of trafficking in a drug of dependence.
7 While searching your property, police also discovered various firearms, imitation firearms and ammunition.
8 You are now aged 46 and at the time of the offending you were 43. You have been married for 21 years and have four children aged between 15 and 24. No-one else in the family has been in any trouble with the law.
9 You have been employed consistently since leaving school at age 14 and worked variously as a car detailer, in meatworks, in demolition, panel beating and painting. For the past five or so years you have worked for a local land development company as a machine operator and labourer.
10 Your wife has clearly been a tremendous support for you and has also worked consistently over the period of your marriage as well as caring for the children. As a consequence of your hard work and application, despite some very hard years financially the two of you have managed to develop your own property to the point of significant net ownership. All four children still reside at the home.
11
You have maintained a close interest in your children's sporting activities and have participated helpfully in local community sporting associations.
12 Unfortunately, you also have a criminal history, commencing with appearances in the Daylesford and Ballarat Magistrates' Courts when you were 19 years old for assault and property damage offences, for which you were fined.
13 There were several more appearances in 1988 and 1989 for burglary, theft and unlawful possession offences, for which you were variously gaoled, fined and put on a community-based order, which I note you breached. In 1996 you were convicted of drug offences, and in 2001 of handling stolen goods and reckless conduct endangering life, for which you received a term of imprisonment with a non-parole period of two years. Finally, in 2008 you were fined for careless driving and using threatening words in a public place and your driver's licence was suspended.
14 A report from psychologist Mr Bilyk was tendered at your plea. The report provides confirmation of your illiteracy and intellectual challenges. Your ability to comprehend, process and perceive information is markedly reduced and you are likely to be vulnerable to suggestibility.
15 Your offending on Charge 1 is particularly serious. Although it is not suggested that you were personally involved in the manufacture of illicit drugs, your possession of the equipment on behalf of someone else provided the means for that activity to occur. It thus sustained and promoted serious criminal activity.
16 The firearm offences are not trivial. The proper registration, licensing and safe care and storage of firearms and ammunition is very necessary for the maintenance of community gun control and safety. Even display weapons have to be carefully monitored because of their possible use in the wrong hands.
17 The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific to you as an offender and general to deter other like-minded individuals), rehabilitation, denunciation of the conduct by the court and protection of the community.
18 In sentencing, I must have regard to a range of matters, such as the seriousness of the offence or offences, your culpability for it, your personal circumstances and those of any victim or even potential victims. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
19 Ordinarily, having regard to the seriousness of the offence of possessing equipment for trafficking, a person with your consistent history of offending should expect a sentence of immediate imprisonment and for a significant period. Any conduct which may assist in the trafficking of drugs is to be deplored. Our communities in this State suffer enormously from this pernicious activity. Property is damaged, citizens are assaulted and lives are destroyed, and the motivation for the promotion of this activity is simply financial greed.
20 In all the circumstances, I am satisfied that the seriousness of the offence on Charge 1 taken together with your history of previous offending requires the imposition of a sentence of imprisonment. However, because of the mitigating circumstances, I am prepared to wholly suspend the commencement of that sentence. Those mitigating circumstances include:
·your pleas of guilty;
·the value of your guilty plea in the circumstances of the prosecution case;
·your work history, which has been consistent, reliable and conscientious;
·the support you have from your wife and your family;
·your contribution to the community;
·the lack of any other serious offending for the past 12 years now;
·the fact that you were not personally involved in any anticipated drug manufacture; and
·your vulnerability to the persuasion of others through your intellectual challenges, which I accept moderates your moral culpability.
21 I note that the prosecution accepted your counsel's submission that a wholly suspended sentence was within appropriate sentencing range in light of all the circumstances.
22 I intend to sentence you to a term of imprisonment, such term to be wholly suspended for a period of 18 months. The purpose and effect of the proposed suspension order is to grant you conditional freedom, the condition being that you avoid conviction for any offence punishable by imprisonment for, in this case, 18 months from its commencement, which is today. If you commit such an offence in that period, you will be liable to again attend court and, if necessary, that will be under arrest, and in the absence of exceptional circumstances you will be ordered to serve the whole of that suspended sentence. Do you understand that, Mr Jolly?
23 OFFENDER: Yes, Your Honour.
24 HIS HONOUR: On Charge 1 of possessing equipment for trafficking, you are convicted and sentenced to six months' imprisonment.
25 Pursuant to s.27 of the Sentencing Act, I order that this sentence be wholly suspended and I declare that the operational period of the suspended sentence is 18 months.
26 On each of Charges 2 and 3 of possessing an unregistered longarm, you are convicted and fined $100.
27 On Charge 4 of possessing a handgun without a licence, you are convicted and fined $100.
28 On the transferred summary Charge 7 of possessing a prohibited weapon, you are convicted and fined $50.
29 On the transferred summary Charge 9 of failing to store firearms safely, you are convicted and fined $100.
30 On the transferred summary Charge 11 of failing to store ammunition safely, you are convicted and fined $200.
31 On the transferred summary Charge 12 of possessing ammunition without a licence, you are convicted and fined $100.
32 The total sum ordered in respect of the fines is $750. I allow a stay of three months from today for final payment.
33 I declare that the period of 14 days is to be reckoned as time already served under the sentence, and I direct that the fact of this declaration and its details be noted in the records of the court.
34
Pursuant to s.6AAA of the Sentencing Act, I declare that but for your pleas of guilty, the total effective sentence that would have been imposed is
18 months' imprisonment with a non-parole period of 10 months.
35 At the plea hearing, orders were sought for the disposal of the equipment involved in the traffic offence and the forfeiture of items associated with the weapons offences. These orders were unopposed and I have made the orders today.
36 (Disposal order signed and acknowledged.)
37 (Forfeiture order signed and acknowledged.)
38 Counsel, any other matters?
39 MR O'DOHERTY: No, Your Honour.
40 MR McGRATH: Just two matters, Your Honour. In relation to the forfeiture orders, is that in relation of the shotgun?
41 HIS HONOUR: I have not made an order for forfeiture of the shotgun.
42
MR McGRATH: Yes. The other matter, Your Honour, is Your Honour's order that 14 days be reckoned. My understanding, Your Honour, is that if the sentence is wholly suspended, there cannot be any apportionment for
pre-sentence detention. I may be - - -
43 HIS HONOUR: It was something I considered. All I wanted was on the record that that is what the agreed time was.
44 MR McGRATH: Yes.
45 HIS HONOUR: It does not affect this sentence today, it is a fully suspended sentence. It will only be a matter of consideration if it is ever breached. If it is ever breached then it is noted. Now it may well not be relevant, is that right?
46 MR McGRATH: Yes, I am hoping it will not be, Your Honour.
47 HIS HONOUR: Do you think that the Sentencing Act indicates that you do not take into consideration the fact that he spent that time in custody? Well that is something that could be considered on another occasion, unless you are concerned about that, Mr O'Doherty.
48 MR O'DOHERTY: I am not concerned at all, Your Honour. Some judges do it the way you have just done it, others do it in another way, but as long as it is noted and he can be given credit for that if the need ever arises.
49 HIS HONOUR: The argument as to whether or not it can do, I cannot see why it would not be.
50 MR O'DOHERTY: No.
51 HIS HONOUR: Yes, but it should be on the record, I think.
52 MR O'DOHERTY: Yes.
53 HIS HONOUR: That has been agreed, it is part of the sentencing remarks that reflect the submissions in court.
54 MR O'DOHERTY: Yes, Your Honour.
55 MR McGRATH: Yes, Your Honour.
56 HIS HONOUR: All right. I will just leave the Bench now whilst the parties get ready for the mention of the other matter.
57 MR O'DOHERTY: Thank you.
58 HIS HONOUR: Anything else? All right. Thank you very much for your assistance, Mr McGrath.
59 MR McGRATH: Thank you, Your Honour.
60 HIS HONOUR: You will explain again - - -
61 MR McGRATH: I will, Your Honour.
62 HIS HONOUR: Clearly to Mr Jolly.
63 MR McGRATH: I will.
64 HIS HONOUR: What the position is?
65 MR McGRATH: Yes.
66 HIS HONOUR: All right, thank you.
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