Director of Public Prosecutions v Nawar; Director of Public Prosecutions v Turkozu
[2017] VCC 1015
•21 July 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01376
CR-16-01377
Indictment No.C1610520
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL NAWAR |
| and |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| METIN TURKOZU |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 7 June 2017 | |
DATE OF SENTENCE: | 21 July 2017 | |
CASE MAY BE CITED AS: | DPP v Nawar; DPP v Turkozu | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1015 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCE
Catchwords: Traffic methylamphetamine – recklessly cause injury – prohibited person in possession of a firearm – possess cartridge ammunition without a licence – committing an indictable offence whilst on bail –principles of Verdins – parity of sentences -
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited: R v Verdins & Ors (2007) 16 VR 269 – DPP v Millar [2017] VCC 731
Sentence: Nawar: 4 years and 11 months imprisonment with a non-parole period of 3 years – Turkozu: 4 years imprisonment with a non-parole period of 2 years and 4 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms P Thorp | Solicitor for the Office of Public Prosecutions |
| For the Offender Nawar | Mr W Barker | David Barrese & Associates |
| For the Offender Turkozu | Ms J Warren | Emma Turnbull Lawyers |
HIS HONOUR:
1 Daniel Nawar and Metin Turkozu, you both pleaded guilty to a number of offences.
Nawar
2 Mr Nawar, you have pleaded guilty to:
·one count of trafficking in a drug of dependence, namely methylamphetamine, or ice as it is sometimes referred to;
·one count of recklessly causing injury to one Brendan Canavan; and
·one count of possession of a firearm whilst a prohibited person.
3 In addition, you pleaded guilty to two summary offences which you have consented to having this court hear. They are, firstly:
· committing an indictable offence whilst on bail, and secondly
· possessing cartridge ammunition without a permit.
4 Further, you have appealed against a sentence imposed upon you by the Magistrates’ Court at Broadmeadows on 20 October 2016. On that occasion, you were convicted of:
· one count of burglary in that on 28 November 2015 you entered premises at 14 Grover Street, Pascoe Vale as a trespasser, with intent to steal;
· one count of theft of a watch, a wallet and house keys from that property; and
· one count of recklessly causing injury to one, Luigi Lasala, a neighbour who had seen you on the property and confronted you.
On those charges you were convicted in the Magistrates' Court and sentenced on an aggregate basis to a term of imprisonment of 9 months. 20 days of that sentence was reckoned as a period of imprisonment already served.
Turkozu
5 Mr Turkozu, you have pleaded guilty to:
·one count of trafficking in a drug of dependence, namely, methylamphetamine, and
·one count of recklessly causing injury to one Bradley Crawford.
Summary of Offending
6 The circumstances of your offending, are as follows.
7 On 16 December 2015, Mr Turkozu had arranged to meet Mr Crawford at Crawford's home to sell methylamphetamine to him. In the early hours of that morning you both attended at Crawford's home. A Mr Canavan was also present there at that time.
8 Mr Turkozu provided a sample of the drug to Crawford and Canavan. This conduct consisted of the joint offence of trafficking methylamphetamine, Charge 1, in both your cases.
9
Shortly after, a commotion broke out between Mr Turkozu and Crawford.
Mr Nawar produced a sawn-off .22 calibre bolt-action rifle but fumbled with it, at which point Crawford tried to run behind a work bench. As he began to run, Mr Turkozu grabbed a steel hammer from the work bench and struck Crawford on the head with it, causing head injuries. Crawford collapsed to the floor. This conduct constituted the offence brought against Mr Turkozu of recklessly causing injury to Crawford, Charge 2 of his case.
10 Soon after, Canavan observed Mr Nawar was holding the sawn-off rifle. He picked up a stool and attempted to hit Mr Nawar with it but missed. Mr Nawar ran from the shed. Canavan jumped up onto the work bench, grabbed a steel sash clamp and threatened Mr Turkozu with it. As he did so, Mr Nawar came back into the shed and fired one shot from the sawn-off rifle at Canavan, the bullet striking Canavan in the left leg. This conduct constituted the offence brought against Mr Nawar of recklessly causing injury to Canavan, Charge 3 in his case.
11 Canavan suffered a significant injury to his leg, which was described by the prosecutor, as a “through-and-through” wound to his leg.
12 Crawford sustained a depressed fracture of his skull as a result of being struck with the hammer by Mr Turkozu.
13 You, Mr Nawar, were arrested on 6 January. Police located in your vehicle:
· a loaded sawn-off .22 calibre bolt-action rifle, that constituting Charge 4, being a prohibited person in possession of a firearm. Also found was:
· a quantity of .22 calibre ammunition constituting the summary offence of possession of cartridge ammunition without a licence.
14 At the time of these offences you were on bail for other offences. That constituted the summary offence of committing an indictable offence whilst on bail.
15 You both made no comment interviews following your arrests.
Prior convictions - Nawar
16 Mr Nawar, you have a number of prior convictions, which I consider to be relevant, going back to July 2009 when you were aged 19 or thereabouts. At that time you were sentenced in the County Court for:
· armed robbery;
· recklessly causing serious injury;
· attempted armed robbery; and
· common law affray.
At the current plea hearing, I was provided with the Reasons for Sentence provided by Judge Ross of this Court on that occasion when he sentenced you in respect of those offences. The sentences he imposed were directed to be served concurrently. The effective sentence was two and a half years detention at a Youth Training Centre. His description of the offences showed that they were crimes of significant violence, unprovoked and directed at innocent individuals.
17 Your time at that Youth Training Centre produced no noticeable sign of rehabilitation.
18 In December 2011, you were convicted of:
· possessing methylamphetamine; and
· possessing ecstasy.
19 Later, in December 2011, you were convicted of:
· driving whilst your authorisation was suspended; and
· refusing a preliminary breath test.
20 In January 2012, you were convicted of:
· possessing an unregistered firearm;
· possessing an unregistered handgun;
· possessing methylamphetamine;
· possessing Ecstasy; and
· possessing a prohibited weapon without exemption.
21 In August 2012, you were convicted of:
· driving while your authorisation was suspended;
· driving whilst disqualified;
· handling, receiving or retaining stolen goods;
· possessing amphetamine, possessing a drug of dependence, and
· possessing a prohibited weapon without exemption.
22 In January 2013, you were convicted of:
· possessing a drug of dependence,;
· possessing cartridge ammunition without a licence or permit;
· carrying a prohibited weapon without exemption or approval;
· two counts of driving while disqualified;
· burglary;
· theft;
· threatening to inflict serious injury;
· assault with a weapon;
· assault in company;
· acting prejudicially to the security, or good order, or management of a jail, and
· assaulting police.
23 In February 2014, you were convicted of:
· refusing a preliminary breath test;
· possessing methylamphetamine;
· being a prohibited person in possession of an unregistered firearm;
· possessing an unregistered Category E handgun;
· possessing ecstasy;
· possessing a prohibited weapon without exemption, and
· speeding in a motor vehicle.
24 At the same time, you were convicted of:
· failing to stop a vehicle on police request;
· driving whilst disqualified; and
· theft of a motor vehicle.
25. In August 2015, you were convicted of:
· possessing methylamphetamine;
· possessing GHB;
· possessing a drug of dependence;
· going equipped to steal or cheat;
· dealing with property suspected of being the proceeds of crime;
· possessing a controlled weapon without an excuse;
· handling, receiving, or retention of stolen goods;
· possessing counterfeit money;
· committing an indictable offence whilst on bail; and
· driving whilst disqualified.
25 In addition to those prior offences, I note that in August 2016, some 7 months after the commission of the subject offences, you were convicted of:
· possession of methylamphetamine;
· driving while disqualified;
· possession of counterfeit money;
· dealing with property suspected as being the proceeds of crime;
· possessing ammunition without a licence;
· failing to stop a vehicle driven by you on police request;
· driving whilst disqualified;
· theft of a motor vehicle;
· contravening a community correction order;
· possession of methylamphetamine;
· possession of GHB; and
· possession of a drug of dependence.
Such a criminal record is a truly breathtaking one for someone of your age. [1]
[1]See corrections noted in relation to Mr Nawar’s criminal record at pages 22 to 24 hereof, following discussion with his counsel.
Victim Impact Statement
26 In relation to Mr Canavan, no victim impact statement was tendered however I can infer from the nature of his injury that he would have suffered great pain at the time and suffered the effects of the injury for some time after.
Background – Nawar
27 By way of background Mr Nawar, you are now aged twenty-seven.
28 You were educated to Year 9 and left school part-way through Year 10.
29 Since leaving school, you have had a number of short-term jobs, but have not engaged in consistent or full-time employment.
30 You first commenced using cannabis when you were aged 16. At 17 you were introduced to ecstasy. You started using methylamphetamine at aged 18, and within a few weeks, you were using it daily.
31 A few weeks before the subject offences, you were shot in the stomach by someone, in an unrelated matter. You were subsequently hospitalised for some two weeks and required crutches after being released. Within weeks, you committed the offences for which you are currently before this court.
32 Although it was submitted that the subject offending caused you to suffer from post-traumatic stress disorder, there was no medical or psychiatric evidence before the court confirming this.
33 A report from Mr David Ball, psychologist, dated 23 September 2016, was tendered on your behalf. Mr Ball diagnosed you as having an intellectual impairment, which was likely to be lifelong. He considered that you would have been suffering from this impairment at the time of your offending. Further, he diagnosed you with:
· severe stimulant use disorder;
· an anti-social personality disorder; and
· post-traumatic stress disorder, which he considered was the result of being shot in December 2015, not the matters connected with these current offences.
34 He further noted that you suffered from insomnia, nightmares, flashbacks and other symptoms relating to that prior shooting incident.
35 He considered you had no mental impairment defence open to you.
36 He considered you required intensive and structured cognitive behavioural treatment and would require drug and alcohol relapse prevention treatment.
Mitigation - Nawar
37 Your counsel submitted that the following matters should be seen as mitigating your sentence.
·
Firstly, you were not the person who arranged the drug transaction with
Crawford or Canavan, and I accept this.
·Secondly, it was never intended that you would profit from the attempted transaction. There was no evidence concerning this but for the purpose of your plea I accept that this was the case.
·Thirdly, you were attempting to defend Mr Turkozu from Canavan at the time you injured him. That is, there was no premeditation involved in your violent conduct. However, I note that you had consciously brought a sawn-off rifle to the meeting in question. I infer that you believed that it might be required for one reason or another, if things turned awkward. The fact that you had been shot a few weeks before is hardly any justification for going so equipped.
·Fourthly, it was further submitted by your counsel that you initially left the shed without discharging the firearm but returned when Mr Turkozu did not follow you. The fact is that you and Mr Turkozu could both have left the shed earlier had you wanted to do so.
·Fifthly, you had the opportunity to take cash, it was submitted, that had been left on the ground by the victims, but you did not. Again, there was little evidence of that, but for the purposes of your plea, I accept that was the case.
· Sixth, I take into account that you offered to plead guilty to these charges on 2 September 2016, shortly after the committal hearing. That offer was initially rejected by the Director of Public Prosecutions but later reconsidered and accepted. I accept that your offer was made at a relatively early stage - not particularly early - it was after the committal proceeding. I accept that your plea of guilty has utilitarian benefit in that witnesses were not required to give evidence at a trial and valuable resources of the court were saved. Further, I accept that your plea of guilty is a sign of some remorse on your part and probably shows some insight into the wrongfulness of your offending and your acceptance of responsibility for it.
· Finally, your relative youth.
38 I take into account character references from your aunt Katren Galea, and your brother, Demyana.
39 I note in particular Demyana’s comments that you have the continuing support of the immediate and extended family and that you have apparently turned to religion since being in custody on this occasion.
40 Notwithstanding, I consider your prospects for rehabilitation are at best, fair.
41 I note that, despite being shot in the stomach in December 2015, within a matter of weeks you took a rifle with you to premises where you were aware that a sale of methylamphetamine was likely to occur.
42 Rehabilitation will depend largely on your ability to remain abstinent from drug abuse once you are released from prison. This may also require you to address issues regarding post-traumatic stress disorder. Your prospects would also be assisted were you to obtain employment. Your counsel has submitted that your strongest desire is to remain abstinent from drugs. It remains to be seen whether you are able to achieve this.
43 Your counsel submitted to me that the principles espoused by the Court of Appeal in the decision of Verdins, are applicable to your matter, in particular, that is:
· that your judgement and ability to make a rational decision at the time of offending was affected by your intellectual impairment. I am not convinced that that is so. I think you were well aware that what you were doing on the night in question was very wrong;
· further, it was submitted that the general deterrence principle should be moderated due to the existence of your post-traumatic stress disorder, and the fact that it is unlikely to be properly treated while in custody, and I accept that submission.
· Thirdly, it was submitted that a sentence of imprisonment would be more onerous to you due to your - and perhaps another person - due to your suffering from an untreated post-traumatic stress disorder and I accept that submission.
Prior Convictions - Turkozu
44 Mr Turkozu, you also have a number of prior convictions of relevance.
45 In February 2012, you were convicted of failing to stop a motor vehicle driven by you after an accident.
46 In October 2012, that is when you were about 19, you were convicted of:
·three counts of burglary;
·robbery;
·intentionally causing injury;
·reckless conduct endangering serious injury;
·criminal conduct with intent to damage or destroy property; and
·two counts of armed robbery.
You were sentenced on that occasion by Judge Maidment of this court in respect of those offences, to be detained in a Youth Justice Centre for 3 years. I was advised at your plea hearing that you served 20 months’ of that term on parole.
47 In September 2014, you were convicted of:
·theft from a shop;
·entering a private place without authority or excuse;
·criminal damage with intent to destroy or damage property; and
·possession of cannabis.
48 In May 2015, you were convicted of:
·two counts of contravening a family violence intervention order;
·making a threat to kill;
·intentionally damaging property;
·unlawful assault;
·burglary;
·theft; and
·wounding of an animal.
You were sentenced to an aggregate term of 3 months’ imprisonment. In addition, you were sentenced to a Community Correction Order for twelve months, with various conditions, including treatment and rehabilitation with regard to abuse or dependency on drugs and a mental health assessment.
49 In June 2015, you were convicted of causing criminal damage (with intention to damage or destroy). You were sentenced to one month’s imprisonment, to be served concurrently with the earlier prison term.
50 In November 2015, barely a month before the subject offences, you were convicted of:
·possessing methylamphetamine;
·driving whilst disqualified; and
·careless driving of a motor vehicle.
51 The offences for which you are currently before the court, committed in December 2015, were committed some 7 months after the Community Correction Order was made, and about one month after your court appearance in November 2015.
52 I was provided with the sentencing reasons of Judge Maidment that he gave in 2012 for the offences that I have previously referred to. He indicated in those reasons that he had contemplated sentencing you to a substantial term of imprisonment in an adult prison despite the fact that you were only 19 at the time. He took into account, however, your co-operation with police, your plea of guilty to the offences, your age and, although guarded, what he considered to be reasonable prospects for rehabilitation. He considered that these matters tipped the balance in favour of sentencing you to a Youth Justice Centre instead. In his sentencing reasons, he said this to you:
"You have dodged the bullet on this occasion in terms of obtaining a very substantial term of imprisonment for such a young man and I hope that you regard this sentence as an opportunity as well as punishment for your offending conduct.”
53 Your criminal record since 2012 demonstrates that you did not regard his sentence as an opportunity to alter your ways. To the contrary, your appalling criminal record demonstrates that you have very little respect for the law.
Victim Impact Statement
54 A victim impact statement from Bradley Crawford was tendered. In that statement he reports that, as a consequence of being struck by you he suffered a fractured skull, a brain injury which results in headaches and short term memory loss. He reports that he is scared to leave his own home. He has not resumed his normal employment since the offending occurred. A report from Dr Yoni Goldenberg of the Alfred Hospital confirmed that Crawford suffered a depressed fracture of his skull and extradural haematoma.
Background - Turkozu
55 By way of background Mr Turkozu, you are currently aged twenty-four.
56 You completed Year 12 at school in 2011. You obtained a plumbing apprenticeship which you did not complete because of your sentence to the Youth Justice Centre previously referred to.
57 Two character references were tendered on your behalf. The authors, Hulya Kasap and Melanie Brown, both described you as caring, respectful, loyal and compassionate. Those descriptions are, in my view, inconsistent with a person with your criminal record. Mr Kasap states that it came as a surprise to him that you have been violent and have been trafficking illegal substances. It is likely that he does not know you as well as he thought he did.
58 You have never been diagnosed with any mental health disorder.
59 It would appear that you were brought up in a loving and caring home environment. No excuse can be found for your behaviour in that area.
60 Your counsel submitted and I accept that the following matters should go in mitigation of your sentence:
· Firstly, your relative youth; and
· Secondly, your plea of guilty having utilitarian value and reflecting that you had taken some responsibility for your conduct.
61 It was also submitted on your behalf that your behaviour with regard to the current Community Corrections Order was relatively good, and that you had engaged well with Corrections Victoria, notwithstanding a period of disengagement. I reject that submission. Having read the report of your case manager dated 2 June 2017, I consider your performance pursuant to that order has been far from satisfactory. I have been told as recently as this morning that you are continuing to engage with Community Victoria and of course, the fact that you have done so goes in your favour.
Maximum Penalties
62 The maximum penalties for the offences I have referred to are as follows:
·Trafficking a drug of dependence – 15 years’ imprisonment;
·Recklessly causing injury – 5 years’ imprisonment;
·Possessing a firearm whilst a prohibited person – 10 years’ imprisonment or a fine of 1200 penalty units, noting that a penalty unit is something in the region of $140;
·Committing an indictable offence whilst on bail – 3 months’ imprisonment or a fine of 30 penalty units;
·
And possessing cartridge ammunition without a licence – a fine of
40 penalty units.
Sentencing Principles
63 The purposes for which a court may impose a sentence in respect of offences committed by a person include a number of matters including the denunciation of the offending conduct, deterrence of the offender and the deterrence of others in the community from committing such offences in the future, and the protection of the community in general.
64 I am required to have regard to a number of matters, including the seriousness of the offences, your culpability for them, your ages, your personal circumstances and your prior convictions. I have taken into account each of the matters set out in s.5(2) of the Sentencing Act 1991.
65 I am also required to apply principles of parity in sentencing the two of you at least in respect of the offences of trafficking methylamphetamine.
66 Whilst I accept that it was Mr Turkozu who arranged the sale of the methylamphetamine, Mr Nawar you were a willing participant in the attendance at Crawford's premises, taking with you a sawn-off bolt action rifle presumably because you appreciated that it might be required if things turned out to be difficult. You were well aware of the purpose of the visit. Your willingness to accompany Mr Turkozu is likely to have encouraged him to attend.
67 Although the respective injuries caused by both of you were different in nature, they were both performed:
· in a manner likely to caused substantial injury;
· violently; and
· in the context of illegal trafficking of a drug of addiction.
68 Mr Turkozu, on the material before me, you are likely somewhat more intelligent than Mr Nawar. You have no mental health issues.
69 However, Mr Nawar, your criminal record is truly appalling and even worse than that of Mr Turkuzo.
70 You are both of similar age or thereabouts.
71 I consider that the important sentencing principles applicable here are the need for denunciation of your actions, the need to deter you both from further similar offending, the need to deter other members of the community from committing similar offences, and the need to protect the community from both of you.
72 In all of the circumstances of the offending, I conclude that your respective culpability for the events that occurred that night were approximately equal.
73 In relation to the charge against Mr Nawar of possessing a firearm whilst a prohibited person, I consider this to be a serious offence. It was a sawn-off rifle. I consider that such a weapon has no sporting or otherwise innocent reason for possession and that its inevitable use would be in one form of illegal, violent activity or another.
74 I have taken into account the document entitled Sentencing Snapshots relating to causation of injury recklessly published by the Sentencing Advisory Council and which was tendered by the prosecution at your plea hearing.
75 I have read the sentencing reasons of Judge Sexton in the matter of DPP v Millar, handed down in June 2017. I considered that the offence of recklessly causing injury in that case by Millar was committed in relatively similar circumstances to those of Mr Nawar. Judge Sexton described the actions of Millar in firing a rifle into the victim’s leg as a “most serious example” of the offence - that is, the offence of recklessly causing injury. She noted that the firing of the rifle was in the context of a disputed drug deal between Millar and his victim, as appears to have been the case here.
76 I consider the same comments could be made in relation to the use of a hammer by Mr Turkosu to strike and cause a depressed fracture to Crawford's skull.
Sentences
77 Given the serious nature of the offences for which you are both to be sentenced, your respective prior convictions and taking all of the circumstances into account, I am satisfied that the purposes for which these sentences are to be imposed cannot be achieved by a sentence that does not involve a significant period of immediate incarceration in both of your cases.
78 On the respective charges of trafficking in a drug of dependence - that is, methylamphetamine – you are both convicted and sentenced to 3 years' imprisonment. That is Charge 1 in respect of you both. In each of your cases, that will be the base sentence.
79
On the respective charges of recklessly causing injury (in the case of you,
Mr Nawar, recklessly causing injury to Canavan and in the case of you, Mr Turkozu, recklessly causing injury to Crawford), you are both convicted and sentenced to 2 years' imprisonment, 12 months’ of which is to be served concurrently with the respective base sentences.
80 On the charge of possessing a firearm whilst a prohibited person, Mr Nawar you are convicted and sentenced to 12 months' imprisonment, 6 months of which is to be served concurrently with the base sentence.
81 Mr Nawar, in relation to the summary offence of committing an indictable offence whilst on bail, you are convicted and sentenced to 3 months' imprisonment, to be served concurrently with the base sentence.
82 In relation to the summary offence of possessing cartridge ammunition without a permit, you are convicted and fined the sum of $1000.
83 In relation to the appeal brought by you Mr Nawar, the three offences in question were committed by you in November 2015. You and a co-offender attended at a home in Pascoe Vale, forcing entry via the back door. You ransacked the house, opening drawers, searching cupboards. You stole a watch, wallet and house keys.
84 A neighbour, Mr Lasala, observed you and your co-offender in the house. He called out to you and your co-offender. You ran out. He confronted you in the street and asked you what you were doing. Your co-offender had a screwdriver in his hand. You were urging him to stab Mr Lasala with it. Fortunately, this did not occur. You then punched Mr Lasala in the face, causing a black eye and a swollen cheek. You then left the scene.
85 I do not consider that the reckless causing of injury to Mr Lasala, although serious and doubtless frightening for him, is of the same seriousness as your causing of injury to Mr Canavan.
86 Taking into account the circumstances of that offending, your personal circumstances referred to previously, and your criminal record, I consider that the term of imprisonment imposed by the Magistrates' Court was, on an aggregate basis, appropriate. Further I consider that, by reason of s.9 of the Sentencing Act 1991 (Vic), it is appropriate to impose an aggregate sentence in respect of the three offences the subject of the appeal.
87 However, application of principles of totality cause me to consider that 4 months of that 9 month term should be served concurrently with the base sentence I have referred to.
88
Accordingly, I order that the orders of the Magistrates' Court made on
20 December 2016 be set aside and in their stead, I order that you are convicted of the offences of burglary, theft and recklessly causing injury to Mr Lasala. You are sentenced, on an aggregate basis, to a term of imprisonment of 9 months, 4 months of which shall be served concurrently with the base sentence referred to earlier.
89 Mr Nawar, it follows that you are sentenced to a total effective term of imprisonment of 4 years and 11 months. I direct that you not be eligible for parole until you have served 3 years of that term.
90 Both the prosecutor and your counsel have agreed, I understand, that you have served 531 days of pre-sentence detention. Firstly, can I confirm that that is correct?
91 MR PARKER: Yes.
92 MS THORP: Yes, Your Honour.
93 HIS HONOUR: Ms Thorp? Thank you. And I direct that that period be recorded on the records of this court as time served in respect of the sentences.
94 Pursuant to s.6AAA of the Sentencing Act 1991 (Vic), I declare that had you not pleaded guilty to these offences, I would have sentenced you to a total effective sentence of five years and 6 months imprisonment.
95 Mr Turkozu, I have sentenced you to a total effective term of imprisonment of 4 years. I direct that you not be eligible for parole until you have served two years and 4 months of that term.
96 Counsel are in agreement that you have served 213 days by way of pre-sentence detention and I direct that that time be recorded on the records of this court as time served in respect of these sentences.
97 Pursuant to s.6AAA of the Sentencing Act 1991 (Vic), I declare that had you not pleaded guilty to these offences, I would have sentenced you to a total effective sentence of 5 years imprisonment.
Ancillary Orders
98 Now, in respect of ancillary orders sought.
99 MS THORP: Your Honour, we want to withdraw our request for disposal order in relation to the hammer. As it turns out - - -
100 HIS HONOUR: Good. I was going to ask you why on earth that should not go back to its owner. Perhaps I raised that on the last occasion, did I?
101 MS THORP: I will let my learned friend speak to that.
102 HIS HONOUR: In any event - all right. You still wish to have the forfeiture order made or forfeiture orders made - - -
103 MS THORP: And the other - yes.
104 HIS HONOUR: That is, one relating to the ammunition?
105 MS THORP: Yes.
106 HIS HONOUR: And one relating to $333.25 of cash and the two Samsung mobile phones.
107 MS THORP: Yes, that is correct, Your Honour.
108 HIS HONOUR: Any dispute about that? Those forfeiture orders?
109 COUNSEL: No, Your Honour.
110 HIS HONOUR: Right. I will make those and I have signed them. Are there any other ancillary orders sought?
111 MS THORP: No, Your Honour.
112 HIS HONOUR: Nothing under 464ZF, already made?
113 MS THORP: Already made, Your Honour.
114 MR BARKER: There is one matter I wanted to raise, Your Honour.
115 HIS HONOUR: Yes?
116
MR BARKER: In the sentence for Mr Nawar, Your Honour went through
Mr Nawar's priors and you read out a matter in 2012 - on 28 May 2012 where there is the charge of possessing a firearm as well as a charge of possessing an unregistered handgun.
117 HIS HONOUR: Just a moment. Hang on. This was in 2012?
118 MR BARKER: Yes, 28 May. Under the appeal for - - -
119 HIS HONOUR: January 2012?
120 MR BARKER: Well, in reference to that matter, yes.
121 HIS HONOUR: Mr Nawar's criminal record was tendered. Just let me - - -
122 MR BARKER: Your Honour might have read - - -
123 HIS HONOUR: Are you thinking that that is incorrect?
124 MR BARKER: No, no. Well, you read something else that was read out that was incorrect.
125 HIS HONOUR: Just point me where - - -
126 MR BARKER: The reality is that Your Honour read out that Mr Nawar has those charges again where it was actually the same charges re-listed in 2014. And in circumstances where they are extremely relevant to this offending.
127 HIS HONOUR: I see.
128 MR BARKER: Your Honour read that he has four charges for possessing weapons, firearms where he in fact only has two.
129 HIS HONOUR: Yes. Well, how did I - just a minute. I am sure I would have taken that straight out of the criminal record.
130 MR BARKER: It is recorded. I can take Your Honour to the page which would have constituted the error.
131 HIS HONOUR: I have got 21 pages of prior convictions.
132
MR BARKER: Yes, I have a different style of print-out so I have got
different - - -
133 HIS HONOUR: All right. Well, go to the dates that you are referring to.
134 MR BARKER: Your Honour read out that in 2012 he has a prior for a number of charges but in those charges were possession of unregistered handgun - - -
135 HIS HONOUR: Yes.
136 MR BARKER: - - - and a prohibited person possessing an unregistered firearm.
137 HIS HONOUR: Correct.
138 MR BARKER: There is no issue with that because he was convicted of that in 2012 and then appealed that sentence in 2012 and that is fine. But then - - -
139
HIS HONOUR: It comes up as the appeal, does it, rather than a fresh
offence, does it?
140 MR BARKER: No, that was not the error. But on appeal, he got a CCO, community corrections order.
141 HIS HONOUR: Yes.
142 MR BARKER: And then Your Honour read on 21 February 2014, which is the breach of that order - - -
143 HIS HONOUR: Yes.
144 MR BARKER: - - - which lists the charges again but Your Honour read that out as if it was additional charges of possessing those two firearms. So effectively saying - - -
145 HIS HONOUR: February 2014?
146 MR BARKER: Yes. It says "Breach re 28 May 2012".
147
HIS HONOUR: What I read out, I thought, was that in February 2014,
Mr Nawar was convicted of refusing a preliminary breath test, possessed methylamphetamine, being a prohibited person in charge of an unregistered firearm.
148 MR BARKER: Correct.
149 HIS HONOUR: Is that the double-up is it?
150 MR BARKER: And then the next charge you would have read out which is unregistered handgun, which - those are charges - - -
151 HIS HONOUR: Possession of an unregistered Category E handgun. So they are not - - -
152 MR BARKER: Yes, those are charges which you had already read out once in his priors and which were not committed again but (indistinct words).
153 HIS HONOUR: Yes. Well, Mr Barker - I might be criticised somewhere for not standing this matter down and going and having a long hard think, but this is - as I have pointed out - an extraordinary criminal record in terms of its length and its variety and in terms of its offences relating to dishonesty and violence.
154 MR PARKER: Yes.
155 HIS HONOUR: And I accept what you say now that he did not commit a third and fourth firearm offence. I take it Ms Thorp that is correct?
156 MS THORP: That is correct, Your Honour.
157 HIS HONOUR: Yes. But in all the circumstances, it would not cause me to review or reduce the sentence that I have imposed.
158 MR PARKER: As Your Honour pleases. I would be criticised for not raising it as well so - - -
159 HIS HONOUR: No. And I appreciate you bringing it to my attention. Thank you.
160 MR PARKER: It helps that it is on the same record.
161 HIS HONOUR: Yes. Are there any other matters that I should be turning my attention to?
162 COUNSEL: No, Your Honour.
163 HIS HONOUR: Yes, thank you. Mr Nawar and Mr Turkozu can be taken downstairs. Thank you.
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