Director of Public Prosecutions v Knight

[2021] VCC 1910

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00945

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARCY KNIGHT

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JUDGE:	Her Honour Judge Hassan
WHERE HELD:	Melbourne
DATE OF HEARING:	16 November 2021
DATE OF SENTENCE:	23 November 2021
CASE MAY BE CITED AS:	DPP v Knight
MEDIUM NEUTRAL CITATION:	[2021] VCC 1910

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence — prohibited person possess a firearm — attempt to manufacture firearm without dealers licence — possess ammunition without licence — possess prohibited weapon without exemption or approval — commit indictable offence whilst on bail — plea of guilty — prohibited person — bail — breach of bail — shotgun — cartridge ammunition — shotgun ammunition — knife — slam gun — early plea — COVID-19 — attention deficit hyperactivity disorder — ADHD — drug use — alcohol use — criminal history — relevant criminal history  — prior convictions — relevant prior convictions — family violence — essential working prisoner — serious offending — specific deterrence — general deterrence — denunciation — community protection

Legislation Cited:      Firearms Act 1996 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:-

Sentence:                  Total effective sentence of two years and 10 months with non-parole period of 525 days

Section 6AAA declaration: total effective sentence of four years with non-parole period of three years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P Pickering	Solicitor for the Office of Public Prosecutions
For the Accused	Mr D Gray	Rainer Martini & Associates

HER HONOUR:

1Darcy Knight, you have pleaded guilty to one charge of being a prohibited person in possession of a firearm, for which the maximum penalty is 10 years’ imprisonment. You have also pleaded guilty to attempting to manufacture a firearm, for which the maximum penalty is five years’ imprisonment.

2You have pleaded guilty to three summary charges, which are possession of ammunition, for which the maximum penalty is 40 penalty units, possessing a prohibited weapon, for which the maximum penalty is two years’ imprisonment, and committing an indictable offence while on bail, for which the maximum penalty is three months’ imprisonment or 30 penalty units.

3Tendered on the plea as exhibit 1 was a ‘Summary of Prosecution Opening’.

4In brief, the circumstances of your offending were as follows. At the time of your offending, you lived at an address in East Croydon. You were a prohibited person pursuant to the Firearms Act 1996 (Vic). You were also on bail at the time. On 16 June 2020, police from the armed crime squad executed a search warrant at your home. It is accepted by the prosecution that the armed crime squad were not searching your home in respect of any allegations concerning you. However, during the course of the search, police located a loaded sawn-off shotgun which was in three pieces inside a backpack in your bedroom (charge 1). Inside the backpack, police also located shotgun cartridge ammunition (summary charge 4).

5During the search of your bedroom, police found a safe which contained:

(a)   shotgun ammunition (summary charge 4); and

(b)   a flick knife (summary charge 6).

6Police searched the back shed at the house and located inside the shed a ‘slam gun’, which is a homemade firearm designed to fire a single shotgun shell (charge 2). Further shotgun ammunition was found (summary charge 4), and inside the shed, police also found various items including machinery and metal piping which were being used by you to manufacture the slam gun.

7You were arrested and taken to the Croydon police station for an interview and you made a ‘no comment’ record of interview.

8There was subsequent ballistic analysis of the sawn-off shotgun in the backpack and it established that it was a 410 bore Boito shotgun, Reuna model. The barrel had been sawn off and the buttstock had been sawn to form a pistol grip. Once assembled, it was able to be fired. The slam gun was a homemade 12-gauge single shot ‘slam fire’ gun, not serial numbered.  The barrel was constructed from tubular steel with a foregrip welded on, all painted black. It had the capacity for one 12-gauge shotgun cartridge. The slam gun could not be fired as it lacked a firing pin.

9This matter has a somewhat lengthy history in the Magistrates’ Court, where there were a number of mentions. I understand the issue which was preventing a more prompt resolution was your alleged manufacture of the firearm. The matter was able to be resolved when the charge was downgraded to the present charge of attempt to manufacture a firearm. It was resolved before a contested committal took place and is therefore an early plea of significant utilitarian value, particularly in the current context of the difficulties and the delays in the administration of criminal justice in this State caused by the COVID-19 pandemic. By virtue of your plea, you acknowledge your criminal responsibility for your actions, and I am prepared to find that your plea is indicative of some remorse on your part.

10Turning now to your background and, in doing so, I refer to the psychological report of Mr Warren Simmons, psychologist, which was tendered on your plea, and to the submissions of your counsel Mr Gray. You were born on 14 September 1986, so you are presently 35 years old. You were born in Lilydale and moved to Surrey Hills with your family. Your childhood was stable and unremarkable. You are an only child. Your parents separated when you were aged only around eight or nine. Thereafter, you lived with your mother, who is now 61 years old and with whom you have a good relationship. Your father died around five years ago.

11You were a poor student. You told Mr Simmons that you had a diagnosis of attention deficit hyperactivity disorder (‘ADHD’). You clearly had behavioural issues, as you were asked to leave school first in year 7 and then again from a different school in year 9. Year 9 was your last year of schooling. You have been in the workforce since this time. Your employment history is sporadic. You do not seem to have settled in any type of regular employment, although you have at times been employed as a painter and as a panel beater.

12You have used a variety of drugs since your teens and you have consumed alcohol since you were 15. Your drinking was heavy between the ages of 15 and 25, when you lost your driver’s licence.

13You have numerous prior convictions which relate to your drug use, including a prior conviction for trafficking.

14You have no history of physical or mental ill health.

15You told Mr Simmons that you had been in one serious relationship since the age of 24 with a woman with whom you have two daughters. You told Mr Simmons that you have had relationship problems which you did not wish to disclose and that you felt you were ‘in a losing battle to maintain the relationship’. You were clearly unprepared to talk candidly to Mr Simmons about your relationship, and it appears also that Mr Simmons did not have access to your criminal history.

16Your criminal history is somewhat difficult to decipher and, as most of your past appearances took place in the Magistrates’ Court, there is little information that can be obtained about your conduct which lies behind the charges. What is apparent is that you have numerous appearances for family violence against your partner, including contravention of family violence intervention orders, sexual assault and stalking. You have given instructions to Mr Gray about your history of family violence, but I do not accept the accuracy of your account. For example, you claim the charge of sexual assault related to touching your partner on the bottom, yet it resulted in a term of imprisonment, which seems wholly disproportionate.

17Your criminal history is not extensive but it is disturbing. As well as family violence offending, you have priors for weapon possession, including manufacturing a prohibited weapon which I am told was a sword, being a non-prohibited person in possession of a handgun, possession of a category A/B longarm without approval, possess cartridge ammunition without approval, possess a firearm without a serial number and, on one prior occasion, being a prohibited person in possession of a firearm.

18Your last appearance was an appeal in this Court before Judge Lacava on 12 September 2019 for contravention of a community correction order which had been imposed in conjunction with terms of imprisonment for 44 offences on appeal from the Magistrates’ Court and heard at this Court on 19 October 2017. You were sentenced by Judge Lacava to three months’ imprisonment.

19As I said, your criminal history is difficult to decipher, but what emerges is that you have a relevant criminal history, enlivening the sentencing principles of specific deterrence and community protection, and your present offending was in breach of bail, and this is an aggravating circumstance of the offending for which you now fall to be sentenced.

20It was submitted on your behalf that your current offending is not related to other criminal activity, but it is explicable by your fascination with weapons and weapons manufacture.

21Mr Pickering, who appeared to prosecute, submitted that while it was not alleged that your offending was linked to other criminality, still it remains unexplained. He pointed out that you were also in possession of ammunition so, whatever your purposes in possession of a firearm and in your attempt to manufacture a firearm, it is clear you meant to use these weapons.

22You have been in custody since 15 June 2020. You have used your time in custody productively. You are classed as an essential working prisoner and you work in the prison cafeteria. You have completed a number of courses and all drug screening tests have been negative for the presence of drugs.

23Your current pre-sentence detention is 525 days, not including today. It was really the joint submission of the parties that you required ongoing supervision, and this could be achieved either by time served in combination with a community correction order, with a sentence structured to meet the requirements of the Sentencing Act 1991 (Vic), or time served as a non-parole period in conjunction with a head sentence, under which of course you would come under the supervision of the Parole Board.

24Your offending is serious. Any offending which involves the unauthorised possession of weapons calls for the engagement of the sentencing principles of general deterrence and denunciation and, of course, community protection. As I have stated, specific deterrence is also engaged in sentencing you.

25I am guarded about your prospects of rehabilitation given your criminal history. This is your longest period in custody. It is to be hoped that it has a salutary effect on you and you realise that you must abstain from offending if you are to have a future in the community and a relationship with your children.

26I had you assessed for a community correction order, but I have concluded that the seriousness of your offending calls for a sentence of imprisonment to be served by way of a head sentence and non-parole period.

27I intend to sentence you as follows. On charge 1, you are convicted and sentenced to two years and six months’ imprisonment. On charge 2, you are convicted and sentenced to one year of imprisonment. On the summary charge of possess ammunition, you are convicted and fined $200, on possession of a prohibited weapon, you are convicted and sentenced to one months’ imprisonment, and on the summary charge of commit an indictable offence while on bail, you are convicted and sentenced to one months’ imprisonment.

28Charge 1 is the base sentence. I order three months cumulation on indictable charge 2 and one month cumulation on the summary charge of commit an indictable offence on bail.

29That makes a total effective sentence of two years and 10 months.

30I set a non-parole period of time served, which is 525 days. I make the forfeiture and disposal orders as filed today. The pre-sentence detention served in this matter is 525 days, not including today. The s 6AAA declaration pursuant to the Sentencing Act 1991 (Vic) is that if you had pleaded not guilty, you would have been sentenced to a total effective sentence of four years with a non-parole period of three years.

31Mr Knight, the effect of that is that your non-parole period is completed; you have served the non-parole period of your sentence, so you are in a position to apply for parole. That is not up to me, that is up to the Parole Board. But you have served that and you are in a position where you are able to apply for parole forthwith but, as I said, that is not for me, that is for the Parole Board. You must abstain from offending in the future, otherwise it is just more gaol and you are not going to have a relationship with your daughters, that is the bottom line.

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