Director of Public Prosecutions v Kroussoratsky

[2021] VCC 1092

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No. CR-19-00282

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER KROUSSORATSKY

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	26 April 2021
DATE OF SENTENCE:	05 August 2021
CASE MAY BE CITED AS:	DPP v Kroussoratsky
MEDIUM NEUTRAL CITATION:	[2021] VCC 1092

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:                 Sentence - Pleas of guilty - Charge 1 (Commonwealth charge) Intentionally importing tier 2 goods, being firearms parts, being reckless as to the fact that the goods were firearms parts - Charge 2 Being a non-prohibited person being in possession of an unregistered Category E longarm - Charge 3 Being an unlicensed person storing that firearm in an insecure manner - Summary charge of possessing cartridge ammunition whilst not the holder of a licence -  Interest in collecting World War 11 relics - Purpose of importation was for memorabilia display - On notice importation of firearms was prohibited - Failure to describe firearms parts as contained in second consignment posted - Suffers from depression and  Asperger’s Syndrome diagnosed early 2000s - Asperger’s Syndrome not treated for some years after diagnosis - Criminal record in relation to personal violence - Tendency to engage physically in moments of stress - Substantial delay

Legislation Cited:         Customs (Prohibited Imports) Regulations 1956; Firearms Act 1996

Sentence: Charge 1 Commonwealth charge convicted and sentence to 3 years’ imprisonment to be released forthwith on a Recognisance Release order giving security by recognisance of $5,000 to be of good behaviour for 4 years - Charges 2 and 3 convicted and sentenced to a Community Corrections Order for period of 18 months with conditions of unpaid community work and mental health treatment and assessment - Summary offence convicted and fined $300.00 with a stay of 3 months to pay - s.6AAA Sentencing Act 1991 declaration - Ancillary order - Forfeiture

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr K. Armstrong (Plea) Ms R. Fleming (Sentence)	Commonwealth DPP
For the Accused	Mr R. Hammill (Plea) Mr P. Cooper (Sentence)	Mr Peter Cooper

HER HONOUR:

1Christopher Kroussoratsky, you have pleaded guilty to one charge of intentionally importing tier 2 goods, being firearms parts, being reckless as to the fact that the goods were firearms parts; one charge of being a non-prohibited person being in possession of an unregistered Category E longarm; and being an unlicensed person storing that firearm in an insecure manner.  You have also pleaded guilty to the summary offence of possessing cartridge ammunition whilst not the holder of a licence.

2The maximum penalty in relation to Charge 1, which is a Commonwealth offence, is 10 years imprisonment or 2,500 penalty units, or both.

3The maximum penalty in relation to non-prohibited person possessing unregistered Category E longarm is:  (For a first offence, which I understand is your position) 600 penalty units or seven years' imprisonment, and for being an unlicensed person storing the firearm in an insecure manner – 240 penalty units or four years' imprisonment.

4The maximum penalty for the summary offence is 40 penalty units.

5In sentencing you I must take into account the maximum penalties as these reflect the seriousness with which the relevant Parliaments regard the offences.

6I was told that you were 59 years old at the time of the offending and were living in South Morang.  Between 19 July and 7 September 2018, on two separate occasions, you intentionally imported goods without the requisite approval, so Charge 1 is a rolled-up charge in relation to two occasions of such offending.

7The detail of your offending is set out in the prosecution opening but a slightly briefer summary is as follows.

8I was told that on or about 19 July 2018, a mail item with a tracking number ending in 0ES arrived into the Sydney Gateway facility at Clyde, New South Wales from Spain.  The item contained details including the tracking number and your name and address.  The addressor’s details were also set out indicating that the person was from Spain.  The description of the goods was listed as 'Metals non-precious/metals'.

9The Australian Border Force ('ABF') examined the parcel on 24 July 2019 and found a firearm part as defined by Regulation 4F of the Customs (Prohibited Imports) Regulations 1956. The prohibited firearm part was a trigger group. The ABF seized the parcel and transferred it into the custody of the Australian Federal Police ('AFP').

10On 1 August 2018, you left Australia for the USA. Before your departure you were stopped by ABF.  I was told that the officer who detained you was aware of the parcel which had previously been intercepted to which I have just referred.  You said to the You said to the ABF officer, Ms Davis that you collected World War II military related items, firearms and firearm parts and that you have previously held a firearms licence and been in the military.  You said you purchased a World War II relic online in Spain for about $465 USD.  The relic was from an STG44 rifle and you had not received any notification from ABF that a part had been seized.  You said you did not want the part to be destroyed and wished to arrange for a permit.  You said you were not aware that you would need a permit for the part as it was so old and that you had ordered similar parts via the post in the past and had not had any trouble.  You also said that you understood ignorance was no excuse.

11You were advised that you would need to apply for a permit before importing any other firearms parts.

12After this conversation and while you were in the USA, you purchased a firearm part which was mailed to your home address in South Morang.

13On 7 September 2018 a mail item with a consignment number ending 2US arrived into the Melbourne Gateway facility at Melbourne Airport Tullamarine from the USA.

14The mail item was addressed to you at your home address and the consignee was listed with your name and an address in America which is set out in the prosecution opening.

15ABF examined the parcel which was declared as 'used auto parts, glassware and die cast cars'.  Along with other items in the parcel, ABF found two barrels and incomplete trigger mechanism, all of which constituted firearms parts as defined by Regulation 4S for an STG44 firearm.

16ABF seized the parcel and transferred it into the custody of the AFP.

17I understand that there were other items in this parcel which complied with the description 'used auto parts, glassware and die cast cars'.

18On 19 July 2018 and 7 September 2018 respectively, you had not obtained the requisite approval to import firearms parts.

19On 26 September 2018, Australian Federal Police executed a search warrant at your home address and found a number of items as follows:

20In the hallway cupboard underneath the stairs, a document entitled 'red army self-loading rifle'; a document entitled 'SVD/SVDS dragon sniper rifle'; and a document entitled 'SVT 40 rifle disassembly and reassembly instructions'.

21In the sitting room police found two bayonets;

22On the kitchen bench police found a US postage mail article addressed to you from a person in Maryland, USA with the contents noted as 'metal sleeve', containing a gas tube for an STG44 firearm.  A gas tube does not meet the definition of a firearms part in Regulation 4S.  However, I understand that it is covered by the State legislation which I will come to later on.

23In a cupboard or wardrobe in the hallway or foyer were various gun parts and cartridge ammunition.

24I was told that the gas tube on the kitchen bench and various gun parts found in the cupboard or wardrobe in the hallway or foyer included the majority of parts needed to construct an STG44 machine gun. These parts constitute a firearm and a Category E longarm as defined by s3 of the Firearms Act 1996 (Vic), giving rise to Charge 2.

25You have no firearms registered to you in the State of Victoria.

26The basis for Charge 3 is that the various gun parts to which I have previously referred were on open shelves within the hallway/foyer cupboard or wardrobe and as the parts constituted a firearm under the State legislation, you had stored them in an insecure manner contrary to s129A of the Firearms Act 1996.

27The basis for the summary offence is that there were 517 rounds of cartridge ammunition found by police in the hallway/foyer cupboard or wardrobe.  This included 14 rounds of cartridge ammunition in searched item 19 which were the appropriate calibre for use in an STG44 firearm.  At the relevant time you were not the holder of a firearms licence under the State legislation and had no firearms registered to you in Victoria.  Previously, you had held a Category AB longarm licence.  However, this had expired on 28 October 1988.

28On 27 September 2018, you arrived back into Melbourne from the USA and at 11:30 am you were arrested at Melbourne Airport by the AFP.  You were cautioned and advised of your legal rights and taken to the AFP Melbourne Headquarters where your belongings were searched.

29In your wallet police found a document entitled 'United States Postal Serve, Senders Information' with details in relation to the second consignment to which I have previously referred.

30You took part in a record of interview and said that the only firearms part that legally constituted a firearm was a receiver.

31In relation to Consignment 1 you said you bought the item online via eBay from someone called Juan and that the item was part of an assembly that houses the trigger group which is separate from the receiver and does not carry a serial number.  You said it was a part for an STG44.  You paid for the item via PayPal and recalled that it cost around $500 AUD.  You said you bought the items because of your interest in war relics or it was a war relic.

32In relation to Consignment 2 you said that you mailed the part to yourself in South Morang from Wisconsin.  The parcel contained two barrels for the same firearm – one, the actual barrel itself and the other a part that is commonly referred to as trunnion.  You said these could not be separated because they were so heavily corroded.

33You said that you bought it from a gentleman in Wisconsin, that you had a friend there and that there were several items as his place that you had sent there by other people who were unwilling to post internationally – auto parts, and various other things.  You said that they were unwilling to do this as they were lazy and unwilling to spend time at a post office which was the reason you had been given.  You said that the address you used in Wisconsin was 'Dan Schwark'.

34You said you regarded the items as a war relic but accepted that for legal purposes they are classified as a firearm part.  You paid for the items via PayPal and the items cost around $485 USD.  You agreed that your postal description of the consignment contents made no mention of the rifle barrel.  You said this was because you did not think it was relevant or important because it was a piece of rusted iron.

35You said that you purchased the items from a Jerry Prasser and you had a contact card for the seller in your wallet which you read during the record of interview.  You did not inquire as to the lawfulness of importing the two parts because your understanding was that only one certain part constituted a firearm and that was a receiver.

36You also said it was impossible to purchase a receiver for that type of firearm and that the two barrels were not the only items seized from the parcel.  You said that there was a hammer disconnector and trigger, which were new and made in the US.  You said that this was because other items listed in the search warrant had manufacturers’ stamp marks on them which meant that they were original from the period.

37You said you had previously held a shooter’s licence in Victoria but did not have a current one.  You let it lapse because of the changes in the firearms laws post 1996.  You said you did not attempt to obtain a permit to import firearms parts because your understanding was that only one certain part constituted a firearm being a receiver.  You did not attempt to obtain a permit to import because you did not regard the items as firearms parts but as war relics.  You said you had no intention to use them for the intended purpose because they were totally useless.

38You also said you had had a conversation with three ABF officers on 1 August and were asked by the officers about a shipment which had been intercepted.  You told the officers that you had purchased an item but you were not aware that it had been intercepted.  The ABF had advised you that they were not going to destroy the item and you would possibly be given an opportunity to apply for a permit to import it.  You said you made it quite clear to Border Force that you would make an application for a permit upon your return.  And you also said you were not aware that you were legally required to do so and suspect the legislation had changed on how firearms parts were defined.  You said you had every intention of making the application upon your return.  You had no knowledge that you needed a permit to import firearms parts until the evening of 1 August 2018.

39In relation to the items found at your home, you said the firearms parts listed on the warrant were not capable of reconstructing a firearm to the state where it was functional.  A lot of the key parts were missing and unobtainable.

40You said it was never your intention to make a functioning firearm out of those parts and you had collected the items over a period of time being several years.  You purchased these via eBay from overseas and imported them all over a period of several years.  You said that the parts were kept in a cupboard in the passageway and you were going to make a display of the parts once you had returned from overseas.  You said you were going to display the parts as individual parts rather than a total assembly.  You disagreed that the items in the wardrobe were not secured correctly as you did not consider them a complete firearm.  You said that some of the ammunition found at your house were rounds for the STG firearm.

41During the interview, you opened your wallet and produced a business card entitled 'RECON ORDANCE, Est. 1975 – Jerry Prasser, Machine Guns Suppressors, Destructive Devices'.

42Examination of the firearms parts was conducted.  The items were compared against an STG44.  AFP member Wayne Bennett assessed the alleged firearms parts.  However, as he became unavailable during the course of proceedings, another expert, Mr Paine, conducted an assessment of the parts also and provided a report which was tendered at the court hearing.  Mr Paine also gave evidence at the plea hearing.  However, Mr Bennett’s assessment of the alleged firearms parts was still relied upon and was as follows:

43In relation to Consignment 1, the trigger group contained in that parcel constituted a firearm pursuant to Regulation 4F and two barrels and incomplete trigger mechanism comprising of a trigger, selector and safety sear constituted a firearm part pursuant to Regulation 4F.

44In relation to items found at your house, the following either individually or together constituted an STG44 firearm pursuant to s3 of the state Firearms Act 1996 (Vic) – gas tube; gas piston and operating rod; receiver and bolt; wooden butt; gas piston; return spring; clip on fore end barrel shroud; two hand grips, gas piston regulator, barrel thread protector, front site cover shroud, trigger spring, rear sight parts, selector switch, cocking handle, safety switch, ejectors and magazine loading.

45Mr Bennett was of the opinion that the cartridge ammunition rounds would be able to be used in firearms chambers for those calibres and that criminals would certainly be in possession of firearms for many of the calibres.

46He went on to provide a table at paragraph 34 of the prosecution opening.  However, this was not relied upon by the Crown because he was not available as a witness at the hearing.  Rather, Mr Paine gave evidence in relation to the matters which were set out in paragraph 34 and a table was subsequently provided on the basis of Mr Paine’s evidence including his report.  As I understand the position, he had different terminology for some of the gun parts.  However, there was no substantive difference as to the various items which constituted a firearm part for the purposes of Charge 1 or which constituted a firearm for the purposes of Charges 2 and 3.

47I do not propose to go into the detail of the table but it will be incorporated into my sentencing remarks and I note that the parties have each received a copy of this.

48Essentially, Mr Paine gave evidence that the various parts that were referable to an STG44 could be put together in order to create such a firearm albeit in most rudimentary form.  He gave evidence that he put together the parts but he said that the weapon so assembled was not capable of functioning as it was designed.  Whilst the weapon was designed to work as a self-loading or full automatic firearm, the parts that he was able to assemble meant that he would have to manually cock the hammer and the absence of a receiver and back plate meant that 'the rearward force of the gas in the recoil (would) cause the bolt and the bolt carrier to move rearward with great force, damaging or injuring anything or anybody behind it'.  (T36) In cross-examination, he conceded that the gun as reassembled by him would 'definitely not be safe to operate'.  (T40)  He said that the weapon would not be safe to the operator and anyone or anything behind the firearm if it were discharged.  He said that he could not be certain that the weapon itself would be destroyed if fired, however, he could not be certain that it would not.  He said that he would not be comfortable with pulling the trigger himself.  (T40, 41)  He also gave evidence that there were other components that were not present but he agreed that he had outlined in his report the minimum components necessary to make the weapon function as it ought to.  He estimated that a fully functional weapon would comprise more than 50 different components including pins and springs and said that the various components that had been examined by him were substantially less than this number if the total number of components including pins and springs were included.  (T42)

49In re-examination Mr Paine agreed that there was a minimum of six further components needed to fire the weapon as intended but that more components were needed to 'complete the full package' in relation to the assembly of a functioning STG44.

50In answer to a question from me, Mr Paine said that pins would be readily available for such a weapon but the purchase of springs would be a bit more difficult to source in Australia.

51It appeared to be agreed between the parties that a number of the parts that you had obtained were in very poor condition and it was accepted by the prosecution that the STG44 was a weapon of historical significance due to its origin in the Second World War.

52On the basis of all of the evidence before me and submissions made in this regard, I accept that you had an interest in collecting World War II relics and it was in this context that you imported the items that you did and it was your intention to display the items which went to make up an STG44 on a piece of backboard, rather than to assemble a weapon for actual use.

53Having found this, although I accept that you did not offend for a sinister purpose, the fact remains that you imported and obtained various items which could well be used for sinister purposes if further components were obtained.  There was a potential for danger in relation to what you were doing especially as items already in your possession were not stored securely.  Whilst I accept that there was a good degree of ignorance more than anything else associated with your importation of the first consignment, you were placed on express notice before leaving for the United States of America that importing items to do with firearms was prohibited.  Knowing this, you proceeded to post the second consignment home, deliberately leaving out any description pertaining to firearm parts which is most concerning indeed.  I regard your offending as serious and deserving of appropriate punishment in all of the circumstances.  Your conduct must also be appropriately denounced.

54Your matter was at the stage of being a trial when you entered pleas of guilty to the matters now before me.  Therefore, ostensibly the stage at which you entered pleas of guilty were rather late in the piece.  However, I was told that you were representing yourself for some time and there were some complexities of the law which needed to be ironed out even when you were represented in circumstances where you were apparently of the view that you had not done anything wrong.  Having said this, clearly your mindset in relation to that second consignment must have been different at the very least for the reasons I have previously enunciated.  However, in all the circumstances, I will allow for a discount that is not insignificant notwithstanding the late stage at which you entered pleas of guilty in view of the fact that there were a number of complexities of law that needed to be addressed in your particular case and you were for the most part open and honest with authorities, commencing with the officers at the airport, giving more information than they needed to know in relation to your penchant for collecting war relics including firearm parts.

55Your mindset is a rather concrete one which is explicable when one considers the expert material in your case.  You have been diagnosed as having Asperger’s Syndrome.  You were diagnosed with this condition in the early 2000s and you were not properly treated for it a number of years thereafter.  Mr Hammill, who appeared on your behalf at the plea hearing, described you as being a black and white thinker with certain fixed ideas about things which are difficult to be shaken from you.  You were described by your psychologist as having poor interpersonal skills.  You were diagnosed in 2005 in the context of Family Court proceedings where your younger children who are now adult were in need of consideration for those proceedings.  I understand that your son also has Asperger’s Syndrome.

56I take into account your background as follows:

57As at the plea hearing date you were 63 years old; you are of Macedonian descent, although you were born in Carlton, Victoria.  You were educated to Year 11 level and you are literate and numerate. 

58I was told that you had been in the Army Reserve but that after an accident, you were required to leave due to medical conditions.  I was told that you crewed a Leopard tank and used to possess firearms.  The accident involved the use of a forklift.

59I was told that you had been trained by the military and you were used to possessing firearms for which you had previously held a licence.  However, it was after the Port Arthur shootings that you let your licence lapse, reflecting your non-prohibited status.  Mr Hammill made the point that you could have obtained the necessary permissions you needed to have for firearms in such circumstances but that you had not.  I queried whether this could have been obtained in view of your violent history.  However, Mr Hammill submitted that you would not have been precluded from applying at the very least.  He  said that the point of his submissions was that you did not maintain your firearms licence in circumstances where you could have and that you surrendered the firearms that you had when required to do so.  He could not say whether you would have been granted a firearms licence subsequently in view of your criminal history, however.

60You were divorced a number of years ago and have three adult children and you have good relations with each of them as well as with your former wife.  You now have a number of grandchildren that you dote upon.  Your present partner of 3 and a half years wrote a character reference in support of you.  You live with her in a stable environment and you are now well medicated with respect to your medical/mental health conditions to which I will refer in due course.  You are now wishing to have a quiet life and this has been the kind of life that you had led.

61Your primary enjoyment in life is dancing and one of your character referees heads the dance school where you and your present partner attend, again, this character reference is most supportive of you.  No one in your broader family has had any involvement with the police.

62You have a solid work history, having been a driver with a number of articulations on your licence which had allowed you to drive various sorts of items and vehicles and you have been employed as a driver in various capacities most of your life.  Unfortunately, you lost your employment before the COVID‑19 pandemic and your prospects for further employment were described as being reasonably slim given that you are now 63 years old.  As at the plea hearing however you were looking for work and I note that from My Cooper today that there is an opportunity for a full time job, which he described this morning which would mean that you were occupied again.  And that occupation would involve you, as I understand it, dissembling car parts.  You are currently receiving social security benefits.

63You have a criminal history as follows:

64On 24 November 2009 in the Magistrates' Court you were convicted and fined $1,000 for criminal damage, possess dangerous article in a public place, assault with a weapon and unlawful assault.

65On 5 March 2013 you were convicted and placed on a 12 month community corrections order for one charge of unlawful assault, with one of the conditions requiring you to receive treatment for your mental health.

66On 13 May 2015 you were convicted and placed on another 12 month community corrections order for another charge of unlawful assault, and there was a condition that you undergo assessment and treatment for your mental health.

67On 13 December 2016 you were convicted of one charge of intentionally causing injury and were placed on yet another community corrections order with one of the conditions being for assessment and treatment for your mental health.

68On 22 June 2017, you were dealt with for breaching the community corrections order imposed on 13 May 2015-the breach was found proven and the previous community corrections order was confirmed.

69I was urged by Mr Hammill to see your criminal history in the context of someone who had been afflicted by Asperger’s Syndrome for his entire life but who was only diagnosed in 2005 in the context of the Family Court proceedings.  I was told that it was only in about 2017 that you started to take your condition seriously and that your medication was changed in around 2017/2018.  I have taken into account the report from your general practitioner in relation to this aspect.  I understand you commenced counselling before the end of 2018 and you continue to see Mr Prodrimidis, having seen him more than 50 times as at the date of the plea hearing.  You continue to see him and have appropriate insight in relation to the need to receive counselling and remain compliant with your medication.

70I understand that you have previously received some psychological intervention as part of Community Correction Orders, which I have just set out.  However, your counsel submitted that you did not really become serious about your mental health issues until your current offending was exposed.  Your mental stability has also been assisted by your current partner’s presence in your life in conjunction with your psychologist and your medication under the supervision of your general practitioner.  I should note that you also suffer from depression and some other ailments that your counsel submitted were not of great relevance save that if you were to be imprisoned these conditions combined with Asperger’s and depression may well make time in gaol a good deal harsher than might otherwise be the case.

71In relation to your criminal history, I was told that the matter in 2015 concerned events that you have no real memory of.  However, Mr Hammill pointed out that in the breach proceedings in 2017 the order was confirmed and included a condition for mental health assessment and treatment.  This was in relation to an unlawful assault.

72You recalled that the matter of 2016 – intentionally causing injury – and the matter in 2013 also involved an assault.  You instructed your counsel that both of these matters concerned moments of stress when you were driving in your professional capacity and the conduct of other drivers led you to engage in physical confrontations.

73I was told that the 2009 matter concerned you physically striking another car which was involved in a car accident when you were driving and you were also dealt with for an assault with a weapon on the basis that you placed another person in fear.  You were dealt with for that by way of fine.

74Mr Hammill acknowledged that the prior matters to which he referred were relevant in that it indicated that in moments of stress you had a tendency to act poorly and engage physically.  However, he urged me to read the medical material in conjunction with the stories behind your prior convictions as there had been no further offending since the matters now before me.  He submitted that you were now stable and well medicated with a well-founded and continuing mental health care plan supported by both your general practitioner and psychologist and you now recognise the need to stay complaint with your mental health treatment.  Further, that you had done so.  He referred to the fact that your current partner also said that you were in the best place that you had been in for a number of years.

75In sentencing you, I have taken into account all of the material submitted on your behalf including the report of Mr Prodrimidis.  It was not said that your mental health conditions ought ameliorate your moral culpability.  However, I factor in that any time in gaol which you might spend would be a harsher form of custody because of your mental health condition.

76I factor in that there has been substantial delay in this matter, some of which was attributable to the fact that you were representing yourself of a good while, albeit in circumstances where you were somewhat hampered by your concrete thinking borne of Asperger’s Syndrome.  However, once you were represented, the proceedings moved as quickly as they could with further delay being involved due to COVID-19 limitations.  I allow that the delay has resulted in you having the anxiety of matters hanging over your head for a good while but that also in the intervening period you have been able to demonstrate your capacity for rehabilitation.  I accept that the defence that you were seeking to run without the benefit of legal representation was not entirely pointless but that once you were represented and legal minds took over, you took advice to plead guilty to the matters now before me notwithstanding that even those legal minds took some time to come to a resolution as to the likely correct position at law.

77In assessing the value of your plea of guilty I have also taken into account that there was no committal hearing conducted.  There was only to be one witness at trial, the officer at the airport, Ms Davis, as there was a real dispute as to her recollection of the conversation you had with her and yours.  Therefore, you saved the witnesses the time and trouble of giving evidence at a committal hearing and you saved the one witness to be called at trial the time and trouble of giving evidence.  You have also saved the community the time and expense of running those contested proceedings.  Indeed, Mr Hammill indicated that the anticipated questioning of Ms Davis at the pre-trial stage was with a view to finally determine whether you ought run a trial.  Mr Hammill frankly submitted that even on your own narrative, however, once the element of recklessness was sorted in the scheme of things, you were going to be hoisted on your own narrative and therefore you pleaded guilty on advice from your representatives.

78Mr Hammill pointed to the fact that the search of your premises did not reveal any modern weapons of any kind, bolstering the argument that the items that you imported and which were in your possession at your home were all about collecting war memorabilia rather than an interest in weaponry per se.  He submitted that everything that was found by the police pertained to the STG44 which you were interested in assembling for diorama purposes.

79In view of the character material in support of you, your significant steps towards rehabilitation during a substantial period, your acceptance of responsibility and preparedness to engage in ongoing treatment, as well your pleas of guilty, I assess your prospects of rehabilitation as being quite good and I place less than moderate weight on specific deterrence and protection of the community.  Strong weight must attach to general deterrence in a bid to deter others from offending such as yours.  As I have previously said, even if it is the case that you were collecting these firearms parts to make a diorama, it only took for these to be stolen from you for the potential of a lethal weapon to be created and such conduct must be deterred.  Also, detecting items such as these being imported into our country is no doubt difficult and time consuming.

80I have taken into account that when you were arrested you spent several days in police cells which is a harsh form of custody and that if you were to return to prison there would be the harshness of COVID-19 restrictions impacting upon you as well as your mental health conditions which would make time in gaol harsher for you than for others.

81The prosecution submitted that a term of immediate imprisonment was warranted in your case.  However, your counsel urged me to impose a Community Correction Order which would see you continuing on a path of rehabilitation.

82I was taken to a number of cases in order to assist me with current sentencing practice and I have had regard to these.  Current sentencing practice is but one consideration and is not a controlling one when it comes to imposing a sentence.

83Mr Armstrong, on behalf of the prosecution, very fairly conceded that the case that was closest to yours in respect of its facts resulted in a Recognisance Release Order being imposed.  However, as I have said, this does not mean that it is appropriate in your case, as current sentencing practice is but one consideration.  Having said all of this, I am of the view that your criminality, although most concerning, especially in view of the second importation, is tempered by the fact that your intention in gathering the pieces together was for the display of war memorabilia rather than any sinister purpose.  In view of your steps toward rehabilitation and developing insight into the need for you to obtain ongoing treatment and medication, I see no utility in imposing a sentence of imprisonment for you to serve immediately.  However, I make it very clear that if you do not take advantage of the opportunity or opportunities I am about to give you, then you face the very real prospect of serving a gaol term in the future.

84I have received a most comprehensive and helpful extended or extensive report in respect of your suitability for a community corrections order.  You have been found suitable, with the author saying:

‘In consideration of Offence Specific Programs Mr Kroussoratsky would certainly be encouraged to continue seeing his psychologist one on one rather than be put in a group setting considering his diagnosis, breaking or disrupting his already solid therapeutic alliance with his psychologist could be detrimental to his case.’

85As you have been assessed as being low risk of re-offending, the author took the view that there ought not be too many conditions imposed which might have the effect of overwhelming you and therefore having a detrimental effect on your rehabilitation.  I have been assisted in that regard with the appropriate course to take.  In my view, although a community corrections order is warranted in relation to the state offences, a recognisance release order which would see you being released immediately is appropriate in relation to the Commonwealth offence.

86Please stand up, Sir.

87You are convicted of the offences.

88In respect of Charge 1, you are sentenced to three years' imprisonment which will commence today however, I direct that you be released immediately upon a recognisance release order in the sum of $5,000 to be of good behaviour for a period of four years.

89This means that you have been sentenced to a term of three years' imprisonment, but you will not have to serve that term unless you commit another offence within the next four years.  If you commit a criminal offence within the next four years from today then unless you can give a justifiable excuse, you will be required to serve three years' imprisonment and may also be required to pay the sum of $5,000.

90I have imposed this sentence because of the seriousness of the offence that you have committed and to give appropriate weight to all relevant sentencing principles in your case but I have decided to release you immediately in view of the matters in mitigation in your case.

91I am required to tell you that the recognisance order can be varied or discharged under s20AA of the Crimes Act 1914 (Cth) upon application by you or a person described in s20AA(1) of that Act.

92In relation to Charges 2 and 3, I intend to impose a community corrections order but I can only do so if you agree to the order that I propose so please listen carefully:

93The community corrections order would run for 18 months.

94The conditions of the order would be as follows:

95Firstly, the mandatory terms that apply to all community correction orders which are:

96You must not commit another offence for which you could be imprisoned during the time that the order is in force;

97You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011;

98You must report to, and receive visits from, the Secretary to the Department of Justice (or his or her delegate);

99You must report to the South Morang Justice Service Centre before 4 pm within two clear working days of today.  And it has been indicated by the author of the report that the preferred time of you actually reporting is between 2 pm and 3 pm.  So that is between 2 pm or 3 pm either tomorrow or on Monday-  no later.

100Also, you must let a community corrections officer know within two clear working days of you changing your address or job;

101You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice (or his/her delegate);

102You must obey all lawful instructions from and directions of the Secretary to the Department of Justice (or his/her delegate).

103The conditions that apply in addition to the mandatory terms listed are:-:

Community Work

104You must undergo 100 hours unpaid community work within 18 months.  Up to 100 hours of this condition may be satisfied by the equivalent period of successful completion of the treatment and rehabilitation condition.

Treatment and Rehabilitation

105Now the treatment and rehabilitation condition is, you must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment if necessary in a hospital or residential facility, as directed by the Regional Manager.  In this regard I express the strong wish that you continue on with your own psychologist on a one on one basis.

106So they are the conditions of the proposed order, community corrections order, do you consent to the terms and conditions of the order?

107OFFENDER:  I fully understand and accept the conditions.

108HER HONOUR:  Thank you.

109Now I should tell you that if you do not comply with all of the requirements of this community corrections order then you will face proceedings before me.  You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charges-in which case you may well be sentenced to a period of imprisonment.  I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.

110Do you understand this? Do you maintain your consent to the order?

111Therefore, in relation to the charges, you are convicted and sentenced to a CCO in the terms and conditions that I have just set out.  Do you understand this?

112OFFENDER:  I fully understand.

113HER HONOUR:  And you still consent to the order?

114OFFENDER:  Yes, I do.

115HER HONOUR:  Thank you.

116Therefore, in relation to Charges 2 and 3 you are convicted and sentenced to a community corrections order in the terms and conditions that I have just set out.

117In a moment I will ask your counsel to assist you with the signing of the community corrections order and also with the signing of the recognisance release order.

118In respect of the Summary offence, you are convicted and fined $300-you have three months to pay this fine.

119Now I indicate pursuant s6AAA of the Sentencing Act (Vic) – if not for your pleas of guilty I would have sentenced you to a term of imprisonment which would have the effect that you would be required to serve a total effective sentence of three and a half years in gaol with a minimum term of 18 months.

120All right, take a seat please, sir.  Is there anything arising from those sentencing remarks?

121MS FLEMING:  No, thank you, not from the prosecution's perspective.  Your Honour, apologies.  I can indicate that I can provide Your Honour's associate with a draft recognisance release order if that would assist.

122HER HONOUR:  Thank you very much.  We have actually printed up a document, but I will be thankful if you could have a look at it before we then hand it on.

123MS FLEMING:  Certainly, Your Honour.

124HER HONOUR:  We will all probably have to do hand sanitising from one step to the next if that is all right.  But yes, I appreciate your assistance in that way.  Yes, Mr Associate, if you would not mind handing a copy of that recognisance release order to the learned prosecutor for checking.  Thank you.  Mr Cooper?

125MR COOPER:  May I just check, Your Honour, I am a little bit deaf.  In fact, quite a lot of deaf.

126HER HONOUR:  Right.

127MR COOPER:  As to the sentence, as Your Honour pleases.

128HER HONOUR:  Yes, thank you.  Thank you.  Yes?

129MS FLEMING:  Your Honour, there is - I'm not sure if Your Honour's received it.  I did email Your Honour's associate this morning a draft.

130HER HONOUR:  Well that is what we were sort of trying to chase up and unfortunately my regular associate had a commitment this morning, which was most unusual for her to be away from the court.  But what you are seeking a forfeiture order in relation to the firearm parts, are you?

131MS FLEMING: Yes, I apologise for the late notice, Your Honour. Your Honour's associate did contact me yesterday afternoon and I indicate no. However, after taking further instructions from the informant the prosecution's instructed to seek one pursuant to s151(1) of the Firearms Act, with respect to the state charge.  Apologies, Your Honour, it's the longarm - well, what was characterised as the category E longarm and the 517 rounds of ammunition.

132HER HONOUR:  Yes, any objection?

133MR COOPER: If I may speak briefly to it, Your Honour, because it's a - and I have a copy of s151, which I'm very happy to make a brief submission of, and that is s151(1).

134HER HONOUR:  Yes?

135MR COOPER:  There is no dispute that my client fits the criteria of - - -

136HER HONOUR:  Yes.

137MR COOPER:  In respect to this.  So I have only one comment to make, that the Supreme Court or the court who makes the finding or order may order the forfeiture to the Crown of these firearm, cartridge ammunition, silencer and it's essentially the ammunition that's there.  First of all my submission is of course is that none of this returns to my client.  It's clear from the point of view of his prohibited person status and all other issues that come to him.  However, they would be available to someone if Your Honour was minded to say that they're not forfeited to the Crown.  They could be sold, they could be made available to other collectors of ammunition.

138HER HONOUR:  Well how would that happen?

139MR COOPER:  Well they would be - first of all Your Honour would have to say, 'I'm not forfeiting them', and then - - -

140HER HONOUR:  If I didn't forfeit them they go back to your client.

141MR COOPER:  And then - they can't go back to my client because my client's not eligible to hold them, but they can go to a licenced dealer and be converted into money.

142HER HONOUR:  I'm against you.  Thank you.  Yes.  No, I'm going to grant the forfeiture application.

143MS FLEMING:  As Your Honour pleases.

144HER HONOUR:  Yes, thank you.

145All right, now have you been able to check - - -

146MS FLEMING:  Apologies, Your Honour, I should have done that in that - - -

147HER HONOUR:  No, no, that's all right.  Yes.  No, that's all right.

148MS FLEMING:  It's just missing one line, Your Honour.

149HER HONOUR:  Yes?

150MS FLEMING:  If I could - --

151HER HONOUR:  Right.

152MS FLEMING:  I'm not sure what the easiest way of amending this - - -

153HER HONOUR:  I think we can do it pretty quickly.

154MS FLEMING:  Thank you, Your Honour.

155HER HONOUR:  It's probably been my fault because I probably blanked out too much.  What's the line?

156MS FLEMING:  It's in terms of where it says, Your Honour, 'This order has been issued because', it does need to note the period of imprisonment that Your Honour has imposed.

157HER HONOUR:  Yes, all right.

158MS FLEMING:  So it just needs to state that the court has sentenced the defendant to a term of three years' imprisonment.

159HER HONOUR:  Yes, all right.

160MS FLEMING:  That could be - and apologies, Your Honour, and then after that, 'The court has decided that the defendant is to be released forthwith if the defendant complies with the conditions of the order.

161HER HONOUR:  Right.

162MS FLEMING:  Those two paragraphs are ordinarily included.

163HER HONOUR:  So I probably accidentally deleted too much.  I'm sorry about that.  Mr Associate, I've probably led you astray there with my tinkering's.  Are you able to fix that up?  Thank you.  Thanks, madam prosecutor.

164MS FLEMING:  I'm happy to email those two lines if that assists?

165ASSOCIATE:  Yeah.

166MS FLEMING:  Just so that it can be inserted.

167HER HONOUR:  That'd be great, thank you very much.  While that's being done it just occurred to me that if there is a lockdown your client should know that he just needs - he should ring South Morang community corrections office instead of turning up there.  That might be the best thing to do anyway ahead of time, because he mightn't be able to visit there in person.  I'm not sure.  Would it help if my associate emailed to you and then you correct it and send it back, is that all right?

168MS FLEMING:  I can certainly do that, Your Honour.

169HER HONOUR:  Sorry, it just might be maybe an easier way to do it.  They're forms that we're not overly familiar with.  Mr Associate, did you email to the prosecutor?

170ASSOCIATE:  Just about to now.

171HER HONOUR:  Okay.

172MS FLEMING:  I've received it.  Thank you, Your Honour, I'll just be a moment. Just returned it, Your Honour, by email.

173HER HONOUR:  Yes, thank you.  It's all right, it often takes a while, doesn't it?  Needs to update.  No, that's all right.

174MS FLEMING:  Technology.

175HER HONOUR:  Just wondering is there any way we can get what you've done printed or if you just could show on your computer my associate what you've done.  Bring up the document and just insert in the way that you have.

176MS FLEMING:  If I can - thank you, Your Honour.

177HER HONOUR:  Yes.  Might need to hand sanitise guys.  Thank you for that.

178MS FLEMING:  Thank you, Your Honour.

179HER HONOUR:  I'm just wondering, while we're waiting the community corrections order is that ready for signing?  That's not ready for signing either.  All right.  That's okay, all right.  Look, it seems there's some difficulties with our technology.  We're in a position to have the recognisance release order signed.  I'll accept
Mr Kroussoratsky's verbal consent to the order as - I'll put that into the records and that will be accepted instead of his signature.  So I'll just acknowledge that he's agreed to the terms and conditions of the order.  All right, now did you - the recognisance release order needs to be signed by Mr Kroussoratsky.  Mr Cooper, could you approach the dock and assist him with the signing of that document, please.  Thank you.  And again you'll probably both need to hand sanitise.  Thank you, madam.  Yes, you can approach the dock.  Yes, all right.  Thank you, that's been signed.  And the recognisance has been signed also.

180All right, is there anything further, counsel?

181MS FLEMING:  No, thank you, Your Honour.

182HER HONOUR:  No, thank you.  That's all done so we'll now adjourn.

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