Director of Public Prosecutions v Kent, Garry
[2013] VCC 49
•6 February 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| GARRY KENT |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 6 February 2013 | |
DATE OF SENTENCE: | 6 February 2013 | |
CASE MAY BE CITED AS: | DPP v Kent, Garry | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 49 | |
REASONS FOR SENTENCE
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Catchwords: Pleaded guilty – prohibited person in possession of firearm; related summary charges; extensive criminal record prior to 2005; 54 years of age; good prospects of rehabilitation; long delay.
Sentence: 12 months imprisonment wholly suspended for 12 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Kissane | |
| For the Accused | Mr G. Hughan |
HER HONOUR:
1 Garry Kent, you have pleaded guilty to one charge of being a prohibited person in possession of a firearm, and two summary charges, possessing ammunition in an insecure manner and storing unauthorised explosives without approval.
2 The maximum penalties for those offences are 10 years imprisonment being a prohibited person in possession of a firearm, 4 years for possessing ammunition in an insecure manner and 100 penalty units for storing unauthorised explosives without approval.
3 Police attended the premises where you were living in December 2010 and searched the property in the execution of a search warrant. In the kitchen/dining area they found a .32 automatic Colt pistol concealed in a shopping bag and this gun was later found to be unregistered. In an unlocked drawer, in the lounge area, they found six rounds of bullets for a .22 long calibre Winchester brand firearm. In an unlocked shed, at the rear of the property, they found a quantity of fireworks of various types, the details of which are set out in the prosecution summary of evidence which I shall annexe to these sentencing remarks and which is Exhibit A.
4 You were not the holder of a firearms licence at the time and, indeed, you were a prohibited person by virtue of being subject to a final order under the Family Violence Protection Act 2008, which was made on 16 January 2009. You were a prohibited person for five years from that date. You were arrested and interviewed by the police and you made no comments during that interview.
5 Through your counsel, you have explained the presence of these items as being due to their owner having left them in your possession. He was the subject of the police investigation for other matters that brought the police to your property. It seems that they were the same items for which you were charged and sentenced in 2002 and for some reason they were not seized by the police at that time. I note that there were other convictions in relation to firearms in 1984, almost 30 years ago.
6 As to being a prohibited person, that arose because an intervention order was made against you in rather unusual circumstances, in that a former employer had failed to pay your wages, and when you told him you were going to his premises to collect the money, he applied for and obtained an interim intervention order. You breached that order when you saw him in the street by chance and abused him for obtaining the order and that breach resulted in a fine.
7 You are now aged 54 and you have not been in any trouble with the criminal justice system for two years, approximately. You have indicated a desire to leave behind the criminal activities that you have been involved in, in the past, and that seems to have been demonstrated by your recent work ethic and motive to change.
8 Your background is that you fell into bad company as a teenager, living in a Ministry of Housing estate, following a childhood spent in boys' homes when your mother was unable to care for you.
9 You have an extensive criminal history, but following completion of your last sentence in 2005, you gave up the use of illicit drugs and alcohol and have successfully committed yourself to the workforce, although not without some difficulties along the way.
10 The WorkCover material that was tendered indicates that you had little if any formal education and have trouble with literacy. From 2011 until 2012, you were working as a driver and operator of a rubbish truck, collecting rubbish from commercial premises. You injured your left arm in an incident whilst working and stopped work three weeks later. The diagnosis was a torn biceps tendon and surgery was required, following which you have been unable to return to work. You are now receiving WorkCover payments and as of October last year you were declared to be unfit for all work duties and now you need further surgery to correct the damage to the muscle.
11 You now have the opportunity for employment, in Katherine, in the Northern Territory, as a supervisor on a cattle station run by your sister and her husband and that will bring the benefit for you and your partner of moving away from the influence of old associates and starting a new life. It seems this has been delayed only by these charges and the further surgery.
12 Your plea of guilty to these charges means that you are entitled to a discount on your sentence because the plea has avoided the expense and inconvenience of a trial and has therefore facilitated the criminal justice system. I accept it also as an indication of remorse on your part.
13 There has been a long delay since you were charged in December 2010, and that delay would have been even longer had the matter not been brought to court today with the resulting plea of guilty.
14 It is accepted that you are entitled to some leniency for that delay and, for a combination of reasons, I can conclude that it is appropriate to wholly suspend the sentence of imprisonment which I will impose. In doing so, I have considered the need for both general and specific deterrence, that it is a serious matter to be in possession of an unregistered firearm as a prohibited person, and that must be emphasised by the imposition of a sentence of imprisonment. The other charges attract a fine and I will allow some time for that to be paid. I will return to that in a moment.
15 I sentence you to 12 months' imprisonment for Charge 1, which will be wholly suspended for 12 months.
16 You will be fined an aggregate sum of $600 for the two summary charges and I will allow a six month stay to enable you to pay that.
17 I must advise you that if you were to break the law during the next 12 months, in any way which might attract a sentence of imprisonment, you will have breached the suspended sentence and you would have to return to court to be re-sentenced. You would then have to serve the sentence, unless you could show that there were exceptional circumstances as to why you should not, and that is very hard to do.
18 If you had pleaded not guilty to these charges, I would have sentenced you to 18 months' imprisonment, wholly suspended, and the fine would have been an aggregate sum of $800.
19 The prosecution seeks orders for the disposal of the fireworks and forfeiture of the gun and the ammunition. Through your counsel you have consented to those orders being made and so I make those orders.
20 (Disposal order signed and acknowledged.)
21 (Forfeiture order signed and acknowledged.)
22 Are there any other matters, Mr Kissane?
23 MR KISSANE: No, Your Honour.
24 HER HONOUR: Mr Hughan?
25 MR HUGHAN: No, Your Honour.
26 HER HONOUR: Thank you. Thank you for you assistance today.
27 MR HUGHAN: That is very kind of you. Thank you very much, Your Honour, for dealing with it, I know you have had a very busy day.
28 HER HONOUR: Not at all.
29 MR HUGHAN: And it did not make it easy, I suppose, at the end of the day to have to then sentence somebody, so I am very grateful that Your Honour has adopted that course.
30 HER HONOUR: We will adjourn now. Thank you.
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Court Reference: CR-11-02404
Indictment No: B10500373.1
IN THE COUNTY COURT OF VICTORIA
AT BENDIGO
CRIMINAL JURISDICTION
IN THE MATTER OF Section 182 of the Criminal Procedure Act 2009
THE DIRECTOR OF PUBLIC PROSECUTIONS
v.
GARRY KENT
SUMMARY OF PROSECUTION OPENING
________________________________________________________________________
Date of document: 6 February 2013
Filed on behalf of: The Director of Public Prosecutions
Prepared by:
CRAIG HYLAND Solicitor’s code: 7539
Solicitor for Public Prosecutions Telephone : (03) 9603 7666
565 Lonsdale Street Direct: 9603 7449
Melbourne Vic 3000 Reference: 1102761/J. Ekegren
________________________________________________________________________
THE INDICTMENT
The accused Garry KENT (dob 27/8/1958) was aged 52 years at the time of the offences. He has been indicted on the following charges;
1. Prohibited person in possession of firearm - s 5(1)(A) of Firearms Act 1996
SUMMARY CHARGES TRANSFERRED pursuant to s 145 Criminal Procedure Act 2009
Charge 3 – Possess ammunition in a insecure manner – s 129a of the Firearms Act 1996 - namely 6 rounds of ammunition
Charge 4 – Without approval store unauthorised explosive - s 54(5) Dangerous Goods Act 1985 - namely fireworks
SUMMARY OF EVIDENCE
On the 22nd day of December 2010 a search warrant was issued to search a property located at 68 Cemetary Road, Lockwood.
This location is the residential address of the Accused KENT and his partner WEBB.
During the course of the search a .32 Automatic Colt Pistol was located within the vicintiy of the kitchen/dining area. It was concelaed inside a shopping bag. (Charge 1.)
Inside an unlocked drawer in the lounge room area of the location 6 rounds of .22 long calibre, winchester brand round nose bullets.(Charge 3.)
In an unlocked shed at the rear of the property fireworks were located inside a bag on a shelf. This consisted of; 7 large coloured shot type fireworks, 2 small fireworks labelled "Coloured aviation Lamp", 3 fireworks mounted on propellers, 1 tropical storm small cake, 1 operation assault small cake, 1 box labelled "Tank Fireworks UN0336 1.4G Consumer Fireworks"- this contained 2 paper tanks, painted to represent armoured vehicles, each containing several small firworks. Also located was 1 firework labelled "Two Colour Wheel" labelled "Consumer Firework UN0336". (Charge 4.)
WEBB denied any knowledge of these items and stated that only she and KENT resided at the location.
Investigations have revealed that KENT has owned the property since 28th June 2005. The electricity has been connected in his name since 4th July 2005.
Investigations have revealed that KENT on 22nd December 2010 was not the holder of a Firearms license pursuant to the Firearms Act 1996.
Investigations have revealed that KENT on 22nd December 2010 was a prohibited person pursuant to the Firearms Act 1996 by virtue of being a person subject to a final order under the Family Violence Protection Act 2008, that order was made on the 16th of January 2009. KENT becomes a prohibited person for 5 years from the date of the making of that order.
Investigations have also determined that on 22nd December 2010 the Colt Make 1903 Hammerless 32 Pocket Model 32 AUTO Calibre Semi Automatic Handgun was not registered in the State of Victoria.
KENT was interviewed later that day and made no comment.
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