Director of Public Prosecutions v Moore

[2019] VCC 1023

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01623

DIRECTOR OF PUBLIC PROSECUTIONS

v

COREY MOORE
KANE DALRYMPLE

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	5 July 2019
CASE MAY BE CITED AS:	DPP v Moore & Anor
MEDIUM NEUTRAL CITATION:	[2019] VCC 1023

REASONS FOR SENTENCE
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Subject:Prohibited person possess firearm, possess drug of dependence, handle stolen goods, possess cartridge ammunition, possess prohibited weapon, carry on the business of a firearms dealer in a Category A longarm without a licence, deal property suspected of being the proceeds of crime, commit indictable offence whilst on bail.

Catchwords:  

Legislation Cited:  Criminal Procedure Act 2009, Firearms Act 1996, Sentencing Act 1991

Cases Cited:DPP v Felton [2007] 16 VR 214, DPP v Graoroski [2018] VSCA 332, Boulton v The Queen [2014] VSCA 342

Sentence:18 months imprisonment with a 30 month community correction order with 300 hours of community work and treatment and rehabilitation conditions.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Hamill
For Accused MOORE	Mr B. Johnson
For Accused DALRYMPLE	Mr W. Toohey

HER HONOUR: 

1Kane Dalrymple and Corey Moore, each of you made application for a sentence indication before me on 11 June of 2018.  The purpose of a sentence indication is to allow an offender to obtain a broad indication of the sentence they would likely face if they pleaded guilty to an offence or offences. Sentence indication schemes have been available in Victorian courts since 2008, in direct response to recommendations made by the Sentencing Advisory Council.

2A sentence indication is a process that permits a judicial officer to give a defendant a general indication of the sentence that would be likely to be imposed if the then defendant pleaded guilty at that stage of the proceedings.  A sentence indication is designed to resolve some of the concerns, if possible, about the likely sentence that may be causing the defendant to defer entering a guilty plea, or to elect to proceed to trial.

3Section 207 of the Criminal Procedure Act states that:

'At any time after the indictment is filed, the court may indicate that if the accused pleads guilty to the charge on the indictment at that time, or another charge, the court would or would not likely to then impose on the accused a sentence of imprisonment that commences immediately.'

4The indication given by me was that I would impose a sentence of imprisonment that commences immediately.  This was taking into account a range of matters that had been raised in both oral and written submissions.  Whilst not required to do so, my sentence indication at that time included my preliminary view that, based on the materials that I had before me, a combination of a term of imprisonment, combined with a community corrections order, would be something that I would be prepared to consider in the proper regard to all relevant sentencing matters.

5I was aware that each of you had considerable presentence detention available.  The Crown was asked if they had a position on the sentence indication and submitted that an immediate term of imprisonment was required.  The Crown was reluctant to make further submissions, unless pressed to do so.  I did not press the Crown further.

6Since the giving of that sentence indication, each of you have determined to plead guilty and have now been arraigned on indictment and entered pleas to summary offences.  You pleaded guilty to the indictment.

7Kane Dalrymple, you have pleaded guilty on indictment to two charges of a prohibited person possess firearm, two charges of possessing a drug of dependence and a charge of handling stolen goods.  You have also entered pleas of guilty to summary offences of possessing cartridge ammunition, possess prohibited weapon, carry on the business of a firearms dealer in a Category A longarm without a licence, deal property suspected of being the proceeds of crime and committing an indictable offence, namely handling stolen goods, whilst on bail.

8Corey Moore, you have pleaded guilty on indictment to two charges of prohibited person possess firearm.  You have also entered pleas of guilty to summary offences of possess cartridge ammunition and carrying on the business of a firearms dealer in a Category A longarm without a licence.

9The charges of prohibited person possess firearm carry a maximum penalty of 10 years imprisonment.  The charge of possess a drug of dependence carries a maximum penalty, in these particular circumstances, of 1 years imprisonment.  The charge of handling stolen goods carries a maximum of
15 years imprisonment.  The charges of carry on the business of dealing in firearm, Category A firearm, carries a maximum of 2 years imprisonment, as does the charge of possess proceeds of crime and the charge of possess prohibited weapon.  The charge of committing an indictable offence whilst on bail carries a maximum of 3 months imprisonment and the charge of possess cartridge ammunition carries a maximum of 40 penalty units.  These maximum penalties reflect the seriousness with which Parliament regards each of these offences.

10The circumstances of your offending are set out in a document entitled 'Prosecution Plea Opening' dated 12 June 2019.  As I understand it, it is an agreed document and will be annexed to these reasons.  It is on the contents of this document that you fall to be sentenced.

11In relatively short compass, the charges of being a prohibited person in possession of firearms are connected to the supply of firearms to Yacqub Khayre who, on 5 June 2017, attended at the Buckingham Serviced Apartments in Brighton in possession of a firearm.  Whilst at the apartments, he shot dead the concierge and took hostage an escort that he had arranged to meet at the apartments.  He contacted a news service, claiming his offending was for IS and for al-Qaeda.  When he left the confines of his apartment, he discharged multiple shots at police, who returned fire.  Three police officers were injured and Khayre was fatally wounded.

12Khayre had been released from prison on 14 December 2016.  From that date, to the date of his death, he had been on parole.  His conditions of parole included a curfew condition, which required him to be at his family residence between the hours of 10 pm and 6 am every night and he was also required to wear a GPS tracking device, which was attached to his ankle.  The prosecution plea opening details various contacts that you, Dalrymple, had with Khayre in the leadup to this siege.  It also details the contacts between each of you,
Mr Dalrymple and Mr Moore.

13On 13 April 2017, you, Mr Dalrymple, exchanged a series of text messages with Khayre, which related to his purchase of firearms.  After this message exchange, you then exchanged messages with Mr Moore.  You suggested to Mr Moore that he collect you and that you go to Khayre's address, because he, Khayre, was on curfew and said  '"He'll give over the fence." You,
Mr Moore, replied that you were working out transport, trying to find a licenced driver.  Clearly at this time you were both aware that Khayre's movements were restricted.  In any event, Khayre was known to each of you prior to this time.

14The messages between Khayre and you, Mr Dalrymple, continued.  At 2.04 am, you, Mr Dalrymple, again messaged Khayre, telling him that:  'We would probably taxi it, as there was too many five oh around' and confirming you would have to get the ‘things’ for it tomorrow.  Five oh is a common term for police.  You were clearly aware of the illegal context of your intended offending.  At 2.34 am, you, Mr Dalrymple, ordered a taxi to pick you up and take you to Khayre's address.  The taxi driver dropped off two passengers in Roxburgh Park and then left, those passengers being each of you.

15Khayre's tracking device showed he was at his residence at this time.  After you both arrived at Khayre's address, you passed two firearms over the fence to Khayre, in exchange for $1,000 in cash, representing the summary charge for each of you: carry on the business of dealing in firearms.

16What is clear from the conversations outlined in the Crown document is that
Mr Moore was responsible for sourcing two firearms.  Each of you were then responsible for providing those firearms to Khayre.  You, Mr Dalrymple, effectively acted as the middle man and arranged the sale to Khayre, with the guns changing hands during the early morning of the 14 April 2017 at Khayre's residence, as outlined.

17You, Mr Dalrymple, were responsible for a number of exchanges with Khayre post 14 April 2017, in efforts to assist him to access ammunition.  Indeed, later during the day, on 14 April 2017, you, Mr Dalrymple, messaged Khayre, suggesting the two of you meet, because you had the ‘things’ for him, which is a reference to the ammunition for the firearms provided earlier that day.

18You and Mr Khayre then met at a self-storage premises, which had been rented by you.  The purpose of the meeting was for you to supply Khayre with ammunition for the firearms.  This forms the basis of the summary charge to which you have pleaded - possession of cartridge ammunition.  No other detail is available as to that possession.

19In terms of those communications, on 20 April 2016, one week after the firearms transaction, Mr Khayre sent you, Mr Dalrymple, messages reflecting he was frustrated with having been supplied with firearms but no ammunition to fit them.  He messaged:  'You and your mate Corey have been nothing but headaches for a week now' with a message reading:  'I'm fucking frothing, Kane.  It's been a week and I've got a car with no engine and you and your mate are happy to take my money and not fix anything.'

20You appeared, at least in Khayre's mind, to be inept.  He also complained of the poor quality of one of the weapons provided.  The communications that did continue between you and Khayre post 14 April do reflect his continued frustration with having been supplied firearms but not ammunition to fit them and with the quality of at least one of those firearms.  These subsequent communications are not part of those matters for which you fall to be sentenced, but they provide the overall context for an assessment of the objective gravity of your respective offending and set context for the relationship between the two of you at the relevant time.

21The most serious offences faced by each of you are prohibited person possess firearm and carry on the business of a firearms dealer, both of which had been completed by 14 April 2017.  The firearms and the other material located at the Brighton scene was subsequently forensically tested, including for DNA.  The testing established strong support for your DNA, Mr Moore, to be on one of the shotgun cartridges found inside a Barton shotgun.  This was not the weapon actually used during the siege.  There is insufficient evidence to establish that the weapon used by Khayre was a weapon supplied by either of you, or indeed, that either of the weapons located at the scene were weapons provided by either of you.

22At the time of this offending, each of you were classified as a prohibited person pursuant to the Firearms Act.  It is axiomatic that firearms should not be in the possession of those who have demonstrated they are unable to meet the standards of behaviour approved of by the community.

23You, Mr Dalrymple, were interviewed by police on 9 June 2017 and you agreed that you had known Khayre since you were young. When the messages exchanged between you and Khayre were put to you, you told police that they were about drugs and you denied the messages were referencing the exchange of firearms.

24You, Mr Moore, were interviewed by police on 13 June 2017 and essentially exercised your right to silence.  Upon search by police on 9 June 2017 at premises at which you resided Mr Moore, a box containing 16 shotgun shells was located.  Forensic testing of the cartridge cases established strong support for your DNA.  At that time you were not authorised to possess cartridge ammunition and this fact forms the basis for your summary charge of possess cartridge ammunition.

25It is not submitted by the prosecution that either of you were aware of the offending that Mr Khayre was likely to commit and indeed did commit.  However, one wonders how significant that point is, other than you do not fall to be punished for his acts.  Either way, each of you were responsible for an illicit trade in firearms and provision of those items to a person who was not entitled to have them.  This would at least have been a fact of which you were both aware, given the coded nature of your exchanges, the efforts to avoid police identification and the provision to Khayre of the firearms over his back fence, given his curfew condition, in the early hours of the morning.

26Each of you could have only had the view that the firearms would be used for an illegitimate purpose and of the obvious risks associated with such provision.  Your mutual use of drugs at this time in no way offers any excuse for this offending, which was motivated by profit. 

27Whilst, as I have said, it is not suggested you were aware of the actions Khayre would undertake and the prosecution cannot establish to the requisite standard of beyond reasonable doubt that any weapon he actually used was provided by you, the outcome, in this instance, would starkly and tragically indicate the kind of risks that can be realised when such trading does take place and why general deterrence is paramount in sentencing for such matters.  It is trite to say that this is extremely serious offending for its type.

28The prosecution has referred me to the decision of DPP v Graoroski [2018] VSCA 332, in order to assist me to assess the gravity of the prohibited person possess firearm charge and I have had recourse to its contents.

29I also bear in mind that you are charged as being prohibited persons in possession of two firearms, that such possession has occurred simultaneously and on the same date and for a relatively limited period of time, which is said to have been a matter of hours.  The charge of carry on a business of dealing in firearms occurs at the same time and is part and parcel of your joint possession of the two guns.  Care needs to be taken that you are not subjected to double punishment.

30Whilst, in my view, there is real gravity in the charge of carrying on the business of dealing in firearms, this is an offence which only carries a maximum of two years imprisonment.  In these circumstances the maximum appears wholly inadequate, but I am bound, for sentencing purposes, by it.

31In terms of Mr Dalrymple only, on 9 June 2017, a search warrant was executed at your residential premises, during which police located a set of knuckle dusters.  This forms the basis for the summary charge of possess prohibited weapon.

32Also located was a small ziplock bag containing only traces of methylamphetamine, a Red Bull can containing a light blue tablet and four separate bags containing small amounts of powder, all of which tested positive for MDMA.  This forms the basis for the indictable offences of possess drug of dependence.

33A number of items of electrical equipment, namely a Toshiba portable hard disk drive, two Western digital hard disk drives and an Apple Mac Pro laptop computer, which was stolen, were also located, forming Charge 5 on the indictment: handling stolen goods.  Further items suspected of being the proceeds of crime, which are particularised in the Crime opening, form the basis for the summary charge: dealing with property suspected to be the proceeds of crime.

34At the time of your offending on 9 June 2017, you, Mr Dalrymple, were on bail, comprising the summary charge of committing an indictable offence whilst on bail.  At the time of your offending on 14 April 2017, there was a warrant for your arrest in relation to matters that had been listed at Sunshine Magistrates' Court, for which you failed to appear.

35You, Mr Moore, were the subject of a community corrections order at the time of your offending on 14 April 2017.  Your offending, whilst subject to court orders, Mr Moore, is an aggravating feature which, in Mr Dalrymple's case, is the subject of a separate charge and will be dealt with accordingly.  Each of your respective inability to abide by court orders shows a lack of respect for the law and raises concerns in terms of your future prospects.

36Turning to parity, the parity principle demands that any sentence imposed reflects difference in the culpability and personal circumstances of co-offenders and avoids unjustifiable differences in co-offender sentences.  This principle has application to the charges of prohibited person possess firearm and to the charge of dealing in a firearm.

37The most serious offending before me is undoubtedly those charges.  Each of you played an essential role in the offences in circumstances where your likely motivation, profit, was the same.  There is no reason to form any other view than your moral culpability was both high and mutual.  Each of you, as I have said, have now pleaded guilty post sentence indication.  I note that your decision to plead guilty is approximately two weeks prior to the time at which your trials were scheduled to commence on 1 July of this year.

38I still accept that your plea has utilitarian value and has saved the court time and expense, as well as the witnesses the need to subject themselves to cross-examination in what would have been a complex trial.  I also accept that your plea is a taking of responsibility for your actions, but note that I am required to take into account in any sentence the stage of the proceedings at which you pleaded guilty, or indicated an intention to do so.

39I note that at the conclusion of committal proceedings, you, Mr Dalrymple, indicated that you would plead guilty in relation to the drug possession charges and the handling charge and this will be reflected in the penalty imposed for those matters.

40There are differences in your personal circumstances, to which I will later refer.  You, Mr Moore, are somewhat older than Mr Dalrymple and have relevant prior convictions for prohibited person possess firearm.  I note you both have fulsome criminal histories.  You, Mr Moore, have a more recent history of very positive rehabilitation, which also needs to be taken into account and reflected.

41However, taking into account all relevant matters, in dealing with the offending which relates to 14 April 2017, there seems to be little basis to differentiate between the two of you in terms of any sentence to be imposed and on questioning by me, all parties accepted this position.

42Turning to you now, Mr Dalrymple, in terms of your personal circumstances, I do take into account matters personal to you, as I am required to do.  You are presently 33 years of age.  You grew up in the Broadmeadows area and left your secondary education before completing Year 10.  I am told your biological parents separated in 1992 and your mother subsequently re-partnered.  When aged in your early to mid-teens, your mother Kate was unfortunate to be hit by a train and required hospitalisation for approximately a year and has continued to suffer a response to this incident.  Her hospitalisation left you residing with your then stepfather, who is described as a heavy drinker and a man who declined to set appropriate boundaries for you.

43You commenced using drugs in your teens and by the age of 18, primarily methylamphetamine.  Your use of that drug has since played an intrinsic role in your decision making and has affected your ability to maintain employment.  You have had some work in menial-type roles.

44Your prior criminal history is unenviable and commenced in 2005, when aged approximately 18 years.  On 4 May 2005, you appeared at Broadmeadows Magistrates' Court for a range of driving offences, as well as theft of motor vehicle and you were convicted and fined.  There are have been nine appearances since that time prior to this offending.

45In short compass, your criminal history is reflective of dishonesty offences, driving offences, drug possession and failing to abide by court orders, including bail orders, suspended terms of imprisonment and intensive corrections orders.

46On 14 March 2007, you received your first term of immediate imprisonment at Broadmeadows Magistrates' Court.  The term imposed at that time was one of six months imprisonment for driving related offences, assault and resist police.

47The term imposed at Broadmeadows Magistrates' Court on 14 March 2007 was one of six months imprisonment for driving related offences, assault and resist police, some dishonesty and failing to answer bail.  You received a similar term at Broadmeadows' Magistrates' Court on 6 January 2014 for driving related offences.

48The matters before me represent the most serious offending in your criminal history overall and as a direct result, you have spent the longest time you have ever spent in custody.  You have no prior history relating to firearms and a very limited history for violence.  You are not to be punished for your criminal history a second time, but it is relevant to the assessment of your prospects for rehabilitation, the need to give weight to specific deterrence, that is, putting you off further offending, denunciation and of course, the need to protect the community from you.

49In terms of your prospects for rehabilitation, they can only be described as somewhat guarded, but not to such a level that those prospects should be ignored.  You were remanded into custody on 9 June 2017 and remained so until your release on bail on 14 June of this year.  On 13 July of 2018, you were sentenced in the Magistrates' Court in relation to driving offences to three months imprisonment.  Presentence detention, which is directly referrable to the matters before me is 646 days.

50Whilst you were on remand you managed to use your time wisely.  You firstly remained drug free.  Seven clean urine screens were tendered on your behalf to support that submission.  You have completed courses where able, including a course in relation to Ice effects and managing craving.  You also obtained a billet’s position whilst on remand.  I understand these positions are ones of trust and is reflective of your general attitude and compliance whilst on remand.

51You were bailed on 14 June 2019 and returned to reside with your mother in Mount Eliza.  Whilst on remand, it came to your attention that your mother had been diagnosed with cancer.  As a result of that, your father has also returned to the family home in order to assist with your mother's care.  You also desire to assist with your mother's care, something you simply cannot do unless you remain drug free.

52Since your release, I am told you have been compliant with what was extremely stringent bail conditions.  You attended for an assessment for drug treatment and the report provided to me would indicate that you have been responsive to that assessment.  You desire to remain drug free and you also desire to return to work.

53No psychological material has been tendered.  There is nothing to indicate that you present with any mental health problems.  It would appear, with that in mind, that if you can maintain abstinence from drugs, you can avoid intersecting with the criminal justice system.

54Mr Moore, I also take into account your personal circumstances such that they are known to me.  You are now aged 49 years.  I am told you have one adult son and currently reside in what is stable accommodation with your parents.  You have apparently been the victim of childhood trauma, but have been reluctant to discuss the circumstances of that trauma. You also grew up in the Broadmeadows area and attended secondary schooling in that area.  In the main, you have had work as a welder.

55You have a past history of using cannabis, cocaine, heroin, GHB, speed, hallucinogens and non-prescribed sedatives.  You started smoking methamphetamine upon suffering a back injury in the workplace in 2015, which stopped you working.  Your use of methamphetamine was to relieve your pain more effectively than you found prescribed medication did.  You became addicted and your offending was in that context.  You are now medicated legally through Tramadol and Valium to deal with your back pain.  I am told you ceased drug use post being the victim of an assault around April of 2017, which is also around the time of the offences the subject of the indictment.

56You have a lengthy criminal history spanning some 30 years and 13 court appearances.  Your offending history has included driving offences, drug trafficking, dishonesty and, relevantly, possession of weapons, including two prior convictions for being a prohibited person possessing a firearm.

57Notably, there has also been significant gaps in your offending history, including a five year gap between the year 2000 to 2005 and a ten year gap between 2005 and 2015.  This would indicate that there are periods in which you can comply with community's expectations.  The longest gaol sentence you have otherwise been required to serve is one of four months imprisonment imposed upon you on 9 March 2005 at Broadmeadows Magistrates' Court for charges of prohibited person possess unregistered firearm, unlicensed storage of firearm ammunition, handling stolen goods and possessing ammunition.  Your period on remand also represents the longest period you have ever spent in custody.

58Likewise, you are not to be punished a second time for your prior criminal history, but again, it bears relevance in the way I have already outlined.  That is, in the proper consideration of the need to give weight to specific deterrence, denunciation and protection of the community.  You were arrested for matters before me on 13 June 2017 and remanded in custody.  You have served 347 days by way of pre-sentence detention.

59In terms of your rehabilitation, you were released on bail on 18 May of 2018 and it would appear you have not looked back.  Since that time, you have complied with strict bail conditions.  There has been no further offending.  In addition, whilst on bail, you complied with the Court Integrated Services Program.  You were required to attend regularly on a case manager and to follow referrals for treatment in relation to your drug addiction and mental health.

60Tended on your behalf were three progress reports from that program and I have had recourse to the contents of those reports.  You have completed a making choices program and talking change program held at the neighbourhood justice centre.  Tendered on your behalf were certificates of completion of each of those programs.  On 14 August 2018, you were placed on a community corrections order for contravention of orders that had been imposed upon you prior to the offending before me.

61The order will expire on 13 August of this year.  You have been fully compliant with the corrections orders imposed on you. 

62Tendered on your behalf was a letter authorised by Ms Hayley Allen: alcohol and drug counsellor, at the Substance, Treatment and Recovery Program.  You were referred to that agency as part of your corrections order.  She reports that you engaged well with alcohol and drug counselling.  She described you as being highly motivated, future focused and goal orientated.  She further described you as being dedicated to your recovery and continuing to make positive changes to your future.  In addition, you were randomly tested for drug use and returned only negative results.

63You currently volunteer two days a week at the Northpoint Church, assisting to coordinate a program that delivers food to both the homeless and the poor.  You had originally been required to complete the community work component of your recent community corrections orders with Northpoint.  Tendered on your behalf was a letter authored by Leslie Baul, project manager at Northpoint Centre.  In that letter, you are described as being a person of integrity, to work well with others and to demonstrate quality workmanship in your role with Northpoint.

64With them, you have been involved in their food relief program in forklift operations, warehousing and logistics, as well as delivery activities.  Your work ethic is described as tenacious and you have supported a team of 100 volunteers and staff to distribute 3,000 food parcels.  You are described as an asset to the organisation.  You revealed your charges to the author of the letter, which is a further positive indication of your clear desire to turn your life around in a different and more positive direction to the life you have once led.

65You continued volunteer work post completing the community work component of your corrections order.  You have now been offered employment with your brother, which you intend to take up upon your release.  You have maintained a long term relationship with your partner Ms Alison O'Hagan, who has been present through the hearings in relation to these matters and you have maintained stable accommodation with your parents.  You are drug free.

66Whilst your turnaround is relatively short lived, in the context of your long criminal history and history of drug use, it is nothing short of remarkable.  You should be commended for the efforts you have made, which have clearly made a positive contribution to your own life and those that support you, as well as the lives of others, particularly those which have been the recipients of your volunteer services.  If you can maintain your current trajectory, your prospects of rehabilitation will be good.  It is in both yours, and the community's interest, that your continued rehabilitation be supported.

67However, as part of the sentence indication I gave, your offending is so serious that, in my view, there is no alternative but to return you to the prison system.  It is hoped that this return, together with supported release, will properly reflect aspects of deterrence, denunciation, as well as affording protection of the community and rehabilitation fostered through a supported release.

68In terms of sentence, the Crown's submission is the only way that the relevant sentencing considerations can be properly reflected is for me to impose a head sentence with a non-parole period.  That submission is made in relation to each of you and encompassing all the offending.

69The submission made on behalf of Mr Dalrymple is that all relevant sentencing considerations can be properly reflected in the imposition of a gaol term, combined with a community corrections order.  Submissions made on behalf of Mr Moore were in a similar vein.

70I have had each of you assessed as to your suitability for a community corrections order as I cannot make such an order without having such an assessment undertaken.  The assessment outcome report relating to you, Mr Dalrymple, finds that you are a high risk of reoffending, but that you are suitable for a community corrections order, with appropriate conditions.  The author, Mr Paul Sguerzi, reports that you presented as willing to comply with a community corrections order and that you engaged appropriately during the assessment process.  You were frank in that assessment and told the assessor that your previous times in custody had not had a significant impact on you.  However, you told him your time on remand for these matters had made a significant impact.  I can only hope that that is true.

71You have apparently realised that, should you continue to make poor life choices, you will spend the majority of your life in and out of gaol.  You also told the assessor that on previous orders, you were not treatment ready and that your lifestyle was chaotic.  You are now keen to engage in treatment to ensure that you do not reoffend and you have the benefit of stable accommodation.  It is clearly in yours and the community's interests that you maintain your current resolve for positive change.

72The assessment outcome report for you, Mr Moore, assesses you as presenting with a medium risk of reoffending.  You were also assessed as suitable for a community corrections order.  The assessor, Sanja Vucic, was able to confirm that your recent progress on two community corrections order was extremely positive.  These orders expire on 13 August 2019, as I've said.

73During her assessment process, you were described as polite, that you engaged well and that are willing to participate in in depth offence specific discussions.  You are further described as demonstrating insight into your offending, your criminal history and your achievements thus far to turn your life around.

74Given your progress, both under the auspices of the current corrections order and of your own volition, it was not recommended that there be any therapeutic component to any imposed corrections order.  However, given my ultimate conclusion is that you must be returned to prison for a short period, I see merit in transitioning you back into the community with appropriate supports.

75The basic purposes for which a court may impose a sentence are punishment, general deterrence that is, sending a message into the community, specific deterrence, as outlined, sending a message to each of you, rehabilitation, denunciation and protection of the community.  In sentencing you, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of any victim.  This is a balancing process.

76I am also required to balance the interests of the community in denouncing criminal conduct, with the interests of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.

77I have taken into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act, where relevant.  I have taken into account the current sentencing practices for the offences to which you have pleaded guilty, noting there is limited, if no information, on the current sentencing practice of the charge of carry on the business of dealing in firearms.

78Sections 9(4) and 9(4)A were inserted into the Sentencing Act, as a response to the Court of Appeal's decision in the DPP v Felton [2007] 16 VR 214. The purposes of the changes introduced were explained by the then Attorney-General, Robert Clark, in his second reading speech in 2012, in which he said:

'Division 3 of Part 4 of this bill amends the Sentencing Act to clarify the use of aggregate sentencing in the County Court and the Supreme Court and to provide that the technical requirements imposed by the Court of Appeal in Felton's case no longer apply.  The amendment will make clear that in the course of imposing an aggregate sentence of imprisonment, a sentencing judge is not required to identify the separate events giving rise to the specific offences, the individual sentences that would have been imposed for each specific offence, or whether those sentences would have been imposed concurrently.  This change simplifies the sentencing process, reduces the risk of technical appeal points and addresses the onus limitations imposed by the decision in Felton's case.  The bill also applies these principles of aggravation to sentences involving fines, as well as those involving punishment.'

79For each of you, I propose to impose an aggregate sentence in relation to the two charges of prohibited person possess a firearm and the offence of carry on a business of dealing in firearms, as I am satisfied that the offences are founded on the same facts, or form, or are part of, a series of offences of a same or similar character.

80In so doing, I also bear in mind the principles of totality and proportionality in the sentence which is to be imposed for those offences. Section 44 of the Sentencing Act states that when sentencing an offender in respect of one or more than one offence, the court may make a community corrections order in addition to imposing a sentence of imprisonment, only if the sum of all the terms of imprisonment to be served (after deduction of any period of custody that under s.18 is reckoned to be a period of imprisonment, or detention already served) is one year or less.

81Kane Dalrymple, for the two charges of prohibited person possess firearm and the charge of carry on a business of being a firearms dealer, you are convicted and sentenced to 18 months imprisonment.  Six hundred and forty six days is declared as having been served pursuant to that sentence.  This sentence is to be combined with a community corrections order of 30 months duration, during which you are to perform 300 hours of community work and to submit for treatment and rehabilitation in relation to drug use and abuse.  You are to be supervised by the Office of Corrections and to complete programs to reduce the risk of reoffending.  One hundred hours of the treatment conditions will be offset against the community work.  So, more treatment, less community work.

82In relation to the two charges of possess drug of dependence, you are convicted and fined the amount of $800 as an aggregate.  They are Charges 3 and 4 on the indictment.  They were relatively small, if not minute amounts, in which you were found to be in possession.

83In relation to the charge on the indictment of handling stolen goods, Charge 5, the related summary offence of deal proceeds of crime and commit indictable offence whilst on bail, I also intend to impose an aggregate sentence, as all of the items, the subject of those charges, were located at your premises by police on the same occasion, that being at the time of their search of your premises on 9 June 2017 and the offending again, in my view, is part of the same series.  The offending, which occurred whilst on bail, was that of handling stolen goods.  So again, forms part of the same series of offences of a same or similar character, all of which occurred on 9 June 2017.

84So, for those three offences, you are convicted and placed on another community corrections order for a period of 18 months, during which you are to complete 180 hours of community work.  Seventy-five of those hours are cumulative on the 300 hours I ordered on the other matter and therefore represents additional punishment.  I will also impose a judicial monitoring condition for the first period of that order, so that I can see you regularly, keep my eye on you and make sure you are complying with the orders.  You will be first required to appear before me for judicial monitoring on 13 September at 10 am.  I appreciate you have some distance to travel.  It is also intended that I can maintain my supervision of the Office of Corrections, so that interventions to reduce your risk actually occur and do take place.

85On the summary charge of possession of cartridge ammunition, you are convicted and fined the amount of $1,700, bearing in mind the maximum penalty is 40 penalty units.  That, in my view, takes into account the level of seriousness of your particular, factors in your plea of guilty and the other relevant factors.  For the summary charge of possess prohibited weapon, which was the knuckle dusters located on 9 June, you were convicted and fined $1,000.

86Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed if you had not pleaded guilty.  If not for your pleas of guilty, I would have sentenced you to a total effective sentence of 30 months, with a minimum of 24 months before being eligible for parole.

87In terms of you, Mr Moore, on the charges which are the subject of the indictment, those being prohibited person possess firearm and the summary charge of carry on the business of firearms dealer, I also intend to impose an aggregate sentence, bearing in mind the principles of totality and proportionality.  You are convicted and sentenced to 18 months imprisonment, 347 days are declared as having already being served pursuant to this sentence.

88This sentence is to be combined with a community corrections order of 30 months duration, during which you are to perform 300 hours of community work and to submit for treatment and rehabilitation in relation to drug use and abuse and to be supervised by the Office of Corrections.  I do not propose to include a condition that you complete programs to reduce your risk of offending.  A hundred hours of treatment conditions will be offset against the community work component.

89You are to commence this order upon your release from the immediate imprisonment component of the orders that I have made this day and it is designed to support your release after your return to custody.  In relation to the offence of possess cartridge ammunition, you are convicted and fined the amount of $1,800.  The number or the amount of ammunition was particularised in your particular case.

90Section 6AAA of the Sentencing Act also requires me to state the sentence I would have imposed if you had not pleaded guilty.  If not for your plea of guilty, I would have sentenced you to 28 months, with a minimum of 20 months, before being eligible for parole, bearing in mind you face less charges than your co-accused overall.  You can be seated, if you wish.  I can only place each of you on corrections orders if you are prepared to sign documents to that effect.  Are you prepared to do so?

91ACCUSED MOORE:  Yes Your Honour.

92ACCUSED KANE:  Yes Your Honour.

93HER HONOUR:  Ancillary orders were also sought for forfeiture and disposal and I'll make those orders.  Generally, in addition to the conditions that I have imposed on your respective corrections orders, there are standard conditions.  The first and foremost of those is that you must not commit any other offences during the 30 month period, which are punished by imprisonment.  That means that you will have a level of supervision hanging over your heads for two and a half years and you need to comply with that supervisory regime.  You must also report within two working days, as of today, in your case,
Mr Dalrymple and two days upon release, in your case,
Mr Moore, to your nearest community corrections office.  You are required to advise your supervising corrections officer of any change of address, or of where you are living or working and you must do so within two clear working days.

94It is a term of all community corrections orders that you must submit to visits as directed and you must obey all the instructions and directions of a community corrections officer.  You are not able to leave the State of Victoria without the prior permission of your supervising corrections office.

95Each of you should be under no illusion that this outcome presents you with an opportunity to further change your life in a positive fashion should you choose to take up that opportunity.  The corrections order can be breached, as I have said, if you do not comply with it, or if you reoffend during its operation.  If this occurs, you are required to appear before me for a contravention hearing.  I will have to resentence you for the original charges, as well as consider the charge of contravention of the community corrections order.

96As was stated in the guideline judgement of Boulton v The Queen, sentencing courts do now have more discretion in terms of choosing a sentencing disposition, which does enable all the purposes of punishment to be served simultaneously in a coherent and balanced way in preference to the option of imprisonment, which is necessarily skewed toward retribution and deterrence.

97In this particular instance, I am of the view that a community corrections order can be punitive, achieve deterrence, both general and specific, and is suitable, even in the case of relatively serious offences which might previously have attracted a medium term of imprisonment.

98In your particular cases, I am satisfied that a combination of gaol, to be followed by a corrections order in the terms that I have outlined is punitive, can act as deterrents for each of you and also mark the court's disapproval of your actions.  The corrections orders I have made are tailored to meet your particular circumstances and the causes that led to this offending.  It is directed at your ultimate rehabilitation and in that sense, the community's protection.  It is important that the courts do look to the future, as well as the past.  Thank you.

99MR JOHNSON:  As Your Honour pleases.

100HER HONOUR:  Is there anything I have missed?  All right.  If either of you wish to assist your clients with signing those orders, you are welcome to do so.

101MR JOHNSON:  As Your Honour pleases.

102HER HONOUR:  Are there any issues arising, Mr Johnson?

103MR JOHNSON:  Just confirming, Your Honour, that judicial monitoring was not ordered in relation to my client.

104HER HONOUR:  I am confident that if your client can maintain the progress that he's made and his current resolve, that I don't need to keep such an eye on him.  I don't have, at this stage, the same confidence with Mr Dalrymple, but I hope that, at some stage, I obtain that confidence.

105MR JOHNSON:  As Your Honour pleases.

106MR TOOHEY:  That date for appearance by Mr Dalrymple ‑ ‑ ‑

107HER HONOUR:  Yes.

108MR TOOHEY:  ‑ ‑ ‑ was 13 September, is that so?

109HER HONOUR:  It's Friday 13th.

110MR TOOHEY:  Yes.  I just wanted to make sure of that.

111HER HONOUR:  Yes, thanks very much.  Is there anything else?

112MS HAMILL:  No, Your Honour.

113HER HONOUR:  I thank the parties for all their assistance in what was a difficult sentencing exercise.  I'll close the court sine die if I may, Mr Marsh, thank you.

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