Director of Public Prosecutions v Orani
[2023] VCC 141
•8 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR- 22-00727
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TYRONE ORANI |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 November 2022 | |
DATE OF SENTENCE: | 8 February 2023 | |
CASE MAY BE CITED AS: | DPP v Orani | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 141 | |
REASONS FOR SENTENCE
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Subject:Criminal Law. Sentence upon plea of guilty.
Catchwords: Prohibited person possessing a firearm – Damage property –
Common assault - Possess cartridge ammunition whilst not the
holder of a licence - Possess a prohibited weapon without exemption
Safety and family violence intervention order - Prior criminal history
- Evidence of remorse - Drug and alcohol abuse - Positive prospects
of rehabilitation.
Legislation Cited:
Cases Cited:Berisha v The Queen [2013] 40 VR 490; R v Graham [2007] VSCA
252; Armastedt v The Queen [2011] VSCA 11; R v DJ [2007] VSCA
148; Sultan v The King [2022] VSCA 205; Worboyes v The Queen
[2021] VSCA 169; Bugmy v The Queen (2013) 249 CLR 571.
Sentence: Total effective sentence of 116 days imprisonment followed by a
Community Corrections Order for 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Struthers | |
| For the Accused | Ms S. Upperton |
HIS HONOUR:
1 Tyrone Orani, you pleaded guilty to a charge, that being a prohibited person you did possess a firearm, a charge of damaging property and one of common assault. You also pleaded guilty to two related summary offences of possessing cartridge ammunition whilst not the holder of a licence under the Firearms Act or a permit, and possessing a prohibited weapon without exemption or approval under the relevant legislation, namely a Taser.
2 Both Charges 1 and 2 are rolled up charges. The firearms in question referred to in Charge 1 are referred to in the schedule to the indictment.
3 The circumstances of your offending may be briefly stated and are summarised in a prosecution opening document tendered as an exhibit to the court upon your plea as agreed facts.
4 For about two weeks, you have been residing in an address in Craigieburn with the victim in this matter, Ms Patrinos, who was 27 years old at the time, you were 32. Your relationship had been ongoing for some year and a half but on 27 May 2021 she had obtained a family violence intervention order against you. The order had not yet been served by police upon you.
5 The offences took place on 5 December 2021. You were a prohibited person for firearms as you are a respondent in a final personal safety intervention order and a family violence intervention order, both of which expired in April of 2020. At the conclusion of those orders, prohibition against you lasted for five years.
6 On 5 December 2021, an argument occurred between you and Ms Patrinos and you left the address. The victim fell asleep in the living room, and it was in the afternoon. At 9.45 pm, you returned and woke her up. You weren't making much sense and she told you that she would call her brother or the police. You grabbed her phone and threw it, cracking the screen and rendering it inoperable, that was Charge 2.
7 You then proceeded to physically manhandle her by throwing her onto various objects around the house, including the ensuite basin, the bed and over the couch. She hit her elbow on the table near the couch, causing soreness, Charge 3. During this behaviour, you punched walls in the bedroom and hallway causing damage, also part of Charge 2.
8 After this incident you started packing up your belongings and Ms Patrinos saw a firearm in one of your bags along with ammunition. She decided to leave the address and went to a neighbour's house where she called Triple 0. You left in your vehicle while she was away.
9
Just after 11 pm that evening, two police officers came to the address where the offences had taken place and spoke to Ms Patrinos. They also observed several weapons in the front bedroom and seized them. They were a
Bolt Action Centrefire Mauser Rifle, which had been modified. A
12 Gauge Single Barrel folding Stirling Shotgun which had been modified. A .22 Long Rifle Bolt Action Lithgow repeating rimfire rifle, which had been shortened and had one round it its chamber.
10
A Bolt Action Centrefire Parker Hale Mauser Rifle. A .41 Rimfire Colt Derringer Single action handgun. A double action .455 calibre Webley Revolver, which had been disassembled. A disassembled pen pistol, barrels and stock from a savage rifle .22 calibre, as well as ammunition being the subject of
Summary Charge 21. That is two containers of 12 x 12 gauge shotgun rounds, 70 x .30 rounds, two magazines with .30 rounds, 106.22 rounds of
H shotgun shells. Also found and charged by Charge 23 of summary offences, four knuckledusters, two Tasers, two butterfly knives, a flick knife, a laser pointer and a slingshot.
11
On 6 December police returned to that address and another search of the same bedroom revealed further items being subject of Summary Charge 23.
Three credit card knives, another Taser, a machete, 10 knives and a miniature imitation firearm replicating Desert Eagle, with a magazine inserted into the firearm.
12 The next day you went to the Craigieburn police station with Ms Patrinos, you were interviewed and made a number of admissions. You told police you found the firearms on 5 December near the Craigieburn Creek by train tracks in a bag in some bushes. You had picked them up because you were drunk and you looked through them in your bedroom. As to why you had thrown them over the victim's fence you said, 'Because you didn't want her to see them and freak out'.
13 You admitted punching the walls, also because you were drunk and over-reacting. As to the weapons in the bedroom you admitted having bits and pieces particularly of the Taser, a couple of knives and on 22 December 2021, police took the firearms to the Ballistics Unit of Forensic Services of Victoria Police, to have them categorised.
14
You do not have and have never had a firearms licence authority or permit, or for any of the other weapons located by police. You were remanded in custody and bail was granted on 1 April 2022. The week later the matter resolved at committal case conference. An application for summary jurisdiction was refused in May 2022 and on that day you were committed for a plea hearing having entered pleas of guilty. Having been arrested and remanded on
7 December 2022, you were granted bail on 1 April 2022. That should read December 21. And have therefore spent on my calculation, 116 days in custody by way of pre-sentence detention.
15
I note that as to the firearms, a statement was obtained from Leading Senior Constable Batten from the Ballistics Unit of Victoria Police. He examined
seven items being a number of firearms and photos. The Mauser Bolt Action Rifle had its serial number partially erased and was able to be restored. Its barrel had been shortened at some indeterminant point, and had several modifications including enabling shotgun cartridges to be fired. The bolt had also been replaced. The 12 Gauge Stirling Single Barrel serial number was erased with several modifications and had propellant visible in the bore and abled to be fired which was able to do before jamming.
16 The Lithgow Long Rifle serial had been erased and reduced in length and was in very good condition. It had propellant visible in the bores. It was able to be discharged. The Mauser 98 Bolt Action Rifle was in good condition with telescopic sights. The propellant was visible in the bore and was able to be discharged.
17
The Colt Blank Derringer Handgun was able to be discharged. The test bullets and fired cartridges taken from these exhibits were input into the
Australian Ballistic Information Network and compared against the national database of outstanding firearm related crime.
18 No resulting link was shown. It was accepted and conceded during the plea that there is no evidence to indicate that the firearms are associated with ongoing criminal activity. There is no evidence as to how the firearms came to be in your possession, and no evidence that you had anything to do with their current status or alterations.
19 It was accepted by the defence and is indicated by me during the plea, that clearly your explanation as to how you came by them was plainly and self-evidently untruthful.
20 This fair concession by the prosecution is important, because as the Court of Appeal has explained in Berisha v The Queen [2013] 40 VR 490, possession of a firearm by a prohibited person, can be placed in one of two categories. This is by reference to R v Graham [2007] VSCA 252 and Armastedt v The Queen [2011] VSCA 11.
21 The first category is where it cannot be concluded that the firearm or firearms is associated with ongoing criminal activity, and the second where there is such evidence. It is clear that as to the first category, a lower range sentence is usually appropriate unless previous criminal history warrants a more severe disposition. And that the second category would usually justify a more severe sentence.
22 Your case falls within the first category. I note that in Berisha, His Honour acting Justice of Appeal Robson, concluded that in such a category of low order of imprisonment in the sentence range, of six to 18 months, are ordinarily imposed unless a more substantial sentence is warranted by previous criminal history proportionate to the gravity of the offence. See R v DJ [2007] VSCA 148.
23 The court noted that prior convictions in conjunction with circumstantial evidence may also enable the conclusion to be drawn that the possession is for some unlawful purpose or activity. It should be understood that in order to avoid double punishment and lawful activity must be something separate from a criminal conduct the subject of the other charges on the indictment which here are criminal damage and assault.
24 And in any event these charges are not said to be aggravated in themselves by possession of these firearms. The two matters remain unrelated. As I will note in a moment, you have prior criminal convictions, but you have no criminal convictions which relate to firearms. Some of the convictions that you have are of some relevance to the other charges.
25 And I conclude in relation to the most serious charge, Charge 1, that you fall to be sentenced according to the categorisation of seriousness which pertains to the first category and in the lower range. However, this is not to say that this was trivial offending in relation to the firearms. The number of firearms, the types of firearms and modifications to some of them, which has turned them from long arms into handguns, five of them being able to be discharged and particularly one being loaded, nevertheless makes this concerning offending, which enlivens community protection considerations.
26 The way the firearms were found around the residence, is not only utterly reckless and dangerous, but in the context of what was then a volatile relationship and your use of alcohol it makes for circumstances of your offending which are serious.
27 Indeed, it was said in Sultan v The King [2022] VSCA 205 at paragraph 38.
That the principle stated in Berisha do not establish the fixed sub-categories of offending, which constrain the sentencing discretion. And even if not the case that the procession was directed to criminal purposes, nevertheless a more severe sentence might be justified.
28 The matters I have just referred to are such circumstances in my view, an assessment of the objective gravity of your offending and your subjective culpability, ultimately in relation to this offending, in relation to the firearms, is to be assessed within the tension of the one hand of your lack of history in criminal offending involving firearms, and on the other hand the nature of the other offending on this occasion.
29 Together with your current and personal circumstances the maximum sentence for a firearms offence reflects the gravity of the offence and the desire of the law to protect the public safety and peace. Protection of the community remains with general deterrence an important sentencing consideration and the court must denounce the conduct that possessing firearms which represent an ever-present serious threat to the community safety.
30 You also had a number of controlled weapons, bringing firearms and weapons into the victim's home was reprehensible and dangerous. The possession took place in the context of a relationship in which an intervention order had been previously issued and which on this occasion was the subject of domestic violence.
31 In this later context the courts have asserted rightly, that assaults committed in family environments are serious offending requiring deterrence and punishment as conduct which is totally unacceptable. It is noteworthy that the final personal safety intervention order and family violence intervention order have both expired in April of 2020, and therefore you were a prohibited person as a result of the order for five years.
32 The manhandling of the victim fortunately did not result in injury and the damage was limited, but nevertheless this was an assault upon the victim. You presented voluntarily to the Craigieburn police station with the victim two days later and cooperated with the police.
33 I take your plea of guilty into account. I accept that the offer to plead and your later acceptance of a prosecution proposal for plea took place in a timely manner and I consider it was a reasonably early indication of your intention to plead guilty.
34 There was an application for summary jurisdiction which was refused, and you were remanded in custody. In April there was a variation allowing contact with Ms Patrinos again in September 2022.
35 I accept also that the plea is accompanied by remorse. I accept that the plea has a utilitarian value of having avoided the criminal trial. Further it was made at a time of pandemic, when the justice system has been severely impacted in delivering justice outcomes and therefore of assistance in the resolution of the matter. The plea was made with prospect of some detention at a time of pandemic and as outlined in Worboyes, 'The court should and will assign a more pulpable reduction in sentence'.
36 Given the kind of reclusion experienced in your 116 days of pre-sentence detention, including greater restrictions and lockdowns and severe limitations on services and programs during that time.
37 I take your personal circumstances and background into account.
38
You are 33 years of age, you were raised in Melbourne. Your parents separated when you were aged eight years of age. You have three siblings and
three half siblings and three step siblings with whom you have a good relationship. Your biological father was an alcoholic drug user who was verbally and physically abusive. At a young age, you stepped into a caring role to assist your mother and left school at age 13. After the split your father still had contact with you and you accompanied him to the pub where he worked as a security guard.
39 You witnessed violence there involving him and patrons and you lacked a positive fatherly model. At age 14 you began to use drugs like ecstasy, cocaine and marijuana. At age 17, you suffered a serious assault required hospitalisation for head injuries. At 18 you began ice use and you began your offending history, which remained a recurring feature of your life until age of 30.
40 At 30 years of age, you underwent detoxification whilst in custody and you have remained abstinent since that time. However, alcohol abuse remained an issue. This apparently ceased after your arrest in these matters.
41
At the time of the offending, you'd been in a relationship with Ms Patrinos for
one and half years. The intervention order that she had sought was revoked enabling you to vary your bail conditions permitting contact with her. Since you have resumed your relationship and have reconciled, Ms Patrinos is pregnant and expecting your first child soon.
42 These three factors, your abstinence from alcohol, your renewed relationship with Ms Patrinos, and your impending fatherhood, I consider to be important considerations which I should take into account. Also, it would appear that you had abstained from drug use after your release in 2014. However, together with alcohol use, you admitted to police that on the night in question, you had used drugs.
43
You have engaged in alcohol and drug counselling whilst on CISP bail and the progress reports I have read attest to your consistent and positive participation and intention to continue to abstain, with the reports outlining what they consider to be good engagement of an exceptionally high standard. Also, since
October 2022, you have attended upon many separate counselling sessions and men's peer support appointments, particularly with your case manager.
44 You have voluntarily engaged in additional emotional management courses and a men's behaviour change course. This effort stands in contrast to your prior criminal history and is an indication that you have embarked on a course of rehabilitation, which should be encouraged and preferably not delayed or obstructed.
45 Your criminal record does not contain firearms offences and I have mentioned that, but it is not insubstantial. It starts in 2008, age 19, when you were ordered to report to youth justice for an assault, after which your undertaking was dismissed in 2019. However, thereafter in 2010, aged 21, you have relevant priors for a number of counts of criminal damage, damaging property, theft and burglary.
46
You were incarcerated but on appeal you were placed on a
Community Corrections Order, which you breached in 2011 as a result of an assault on police and you were imprisoned upon the Community Corrections Order being cancelled for the old offences and new offences of assault and aggravated burglary. This was a substantial sentence of three years and three months with a non-parole period of 15 months. I note this part of the history goes back to 2011. In 2015, you were placed on a Community Corrections Order for driving offences. Driving in a manner dangerous and alcohol related driving. You completed that order. In 2019, you were convicted for stalking and the matter was adjourned with condition that you engage in counselling for emotional regulation.
47 The aspects of this history which relate to criminal damage and assaults as well as the stalking are relevant priors and of concern. However, given the timeframes involved and the punishment meted out, I consider that on balance your recent efforts indicate that I should take a merciful approach to your sentencing.
48 Prior criminal history is relevant as an indicator for moral culpability, your prospects of rehabilitation, your propensity if dangerous, and the community's need for protection from you, as well as the increased importance of specific deterrence as a factor in the sentencing process.
49 In my view your moral culpability is a serious factor which calls for deterrence and punishment. Your propensities appear to me to have modified with time, but you are still troubling should you fail to rehabilitate from angry conduct, fuelled by alcohol.
50 I do not consider that the community's protection needs to be enforced, only by imprisonment. And that your prospects of rehabilitation are positive. Specific deterrence is still relevant but can be moderated. General deterrence is of primary importance in relation to each of the offences, particularly those relating to firearms.
51 You were educated until age 14. After being released from custody, you obtained full-time employment as a renderer and have so remained for some 10 years. You then started your own rendering business and partnership with your brother, employing some members of your family, many of whom had struggled with unemployment, particularly during the pandemic period.
52 This work history is to your credit and shows that you do have the capacity for employment productively. Your use of alcohol is an issue that will continue to require attention and rehabilitation. You have made some effort since December 2021, and it is said in the plea material and I accept, you can see the benefit of abstinence and your mood, mental health, and relationships have benefited.
53 This was also mentioned in the CISP material to which I will refer in a moment. Your period on remand was difficult and onerous given the pandemic situation of quarantine periods and restrictions.
54 As I come to sentence you, you present with an existing good business and good work history, family support, stable accommodation, substance-free recent past, willingness to engage in therapy and treatment. Whilst on bail, which included compliance with the Court Integrated Services Program, you have made excellent progress as outlined in the reports which the court received from that agency. I have read the initial assessment from the Australian Community Support Organisation of April 2022. With the progress reports of September 22 and the CISP progress reports of April 22, June 22 and August-October, and the latest one in February of 2023, which I received just before handing down the sentence, which is a CISP final report, which notes that since the bail was granted, you have continued to engaged positively and with the men's behaviour change program, maintained your employment and commitment to self-improvements, making necessary pro-social changes and improving your well-being.
55 I take into account in assessing your prospects, your mother's evidence given on your behalf, particularly in the context of the submissions that the Bugmy principles should apply here. Kathleen Tilley gave evidence that you helped her with six children while she worked full-time in the period when she was effectively a single mother for some four years and you were 14 or 15 years old. Her partner was abusive and controlling but denied that there was physical violence at all. Your father was an alcoholic and said that - encouraged you and your siblings to fight. Alcoholic use with time increased and became problematic over time.
56 The submission about the application of the Bugmy principles in your case was founded when your instructions about verbal and physical abuse, the evidence of your mother in the presence of the children, and also the taking of you by your father to his night shift work, as a security guard, where it was said that you were exposed to alcohol fuelled violence.
57 Your mother when asked about this said that there was no violence in the home and that as far as going with your father to his work, she didn't know what you witnessed there.
58 There is also your reporting to the ACSO assessment manager that you experienced physical abuse by your mother. These matters were not raised at all in her evidence. I am unpersuaded that the Bugmy principles should apply to reduce your moral culpability. Such significant and profound childhood deprivation abuse and alcohol milieu require an appropriate level of evidence, which is not sufficiently met here.
59 I take into account the number of written references tendered on your behalf. Mr Gopold from Henley Properties has known you for eight years and writes of your mentoring and training of your employees. He says you are dedicated to a high standard of work. You have worked on a number of Royal Children's Hospital Good Friday Appeal homes volunteering your work. He writes highly of your character.
60 Your mother also provided a letter. You have assisted a brother of yours in his mental health and drugs issues providing accommodation and support. You have apprenticed your younger sister helping her to study law. She writes of you as a loving and supporting son, determined to get your life in order in anticipation of fatherhood.
61 Elizabeth Patrinos has written that you are generous and kind and an appreciative boss at work. She attests to your alcohol abstinence and consequent change. Your brother Jordan has written about the dramatic change in you and the support you have provided for him.
62 Construction supervisor Luke Ryan writes of your work ethic and reliability. A reference from Sarah Lappin, family violence means behaviour change facilitator, wrote of your attendance and involvement in the program.
63 You also authored a letter to the court in which you express your remorse and acceptance of responsibility. You describe your youth and family experience. You confess to having told the police a false account of your possession of the firearms in question. You wrote of your struggle to deal with the death of a lifelong friend and the mental consequences as well as your abuse of alcohol. You also wrote of the future, your hopes and plans, your experience in custody of solitary isolation, and your reflection on the bad choices that you made. You sought a merciful disposition. I take all these letters into account, I find your letter to be a genuine plea motivated by real desire to reform and reclaim your life. I take that into account.
64
Ultimately, having asked myself whether prison is the only option open to the court or whether a community disposition could meet the sentencing principles to be applied, I have concluded that I should impose a combination sentence, which includes time already served. In a situation like yours the
Community Correction Order has significant work it can adequately do, to address deterrence and rehabilitation, just punishment and denunciation as well as provide for the kind of community protection which is most useful in the long term.
65 Please stand.
66 On Count 1, being a prohibited person in possession of firearms, you are convicted and sentenced to 216 days imprisonment - sorry 116 days imprisonment and to be followed by a Community Corrections Order for two years, with a component of unpaid community work of 100 hours. You will be under the supervision of Community Corrections and will undertake treatment and rehabilitation for drugs, alcohol, mental health and participate in programs that reduce reoffending as directed. I make the order with your consent. You will report to Community Corrections in Coolaroo within two days from today.
67 On Count 2, damaging property, you are convicted and sentenced to one month imprisonment.
68
On Count 3, of common assault, you are convicted and sentenced to
three months' imprisonment.
69 I order that the periods from Count 2 and 3 be concurrent with that on Count 1.
70 On the related summary offence of possessing a cartridge ammunition, you are fined $250.
71 On the related summary offence of possessing a prohibited weapon, without exemption or approval you are fined $300.
72 I have signed orders for forfeiture of the items in the schedule to the order pertaining to knives, Tasers, imitation firearms and the weapons. I have also signed a forfeiture order for the items in the schedule which includes the firearms and pieces of firearms and ammunition.
73 But for your plea I would have sentenced you to 12 months' imprisonment.
74 HIS HONOUR: So, Mr Orani that means that you will be released from now. You will be subject to this order. The main object of the order is to help you to progress in the way that you have done, particularly now that you are about to become a father. If you breach that order and you are not of good behaviour or you commit offences during that period, you will be brought back before me and I will deal with you in relation to that breach by penalty, but I will probably also re-sentence you for these offences. And then re-sentencing you given what you've done with the order, I will probably send you to gaol. Do you understand?
75 OFFENDER: Yes, Sir.
76 HIS HONOUR: Now, I don't think that that's going to be necessary because, I think that you've come to a point where you understand that work and family obligations and fatherhood and all the rest, without alcohol and drug use is the way that you can lead your life productively, but that is a matter for you. I'm giving you this opportunity to show not just the court but perhaps to your partner and to your child, that you can actually be a man. Don't breach it.
77 OFFENDER: I will not be back here.
78 HIS HONOUR: You can step out of the dock. There's some paperwork that you need to sign, read it carefully. I advise you that the best thing you can do is that when you report to corrections, they will be there in order to assist you. Stay in contact with them. If you can't turn up at an appointment, let them know why. If they ask for a certificate or whatever other reason, just talk to them, don't disengage.
79 OFFENDER: Yeah.
80 HIS HONOUR: All right? That's the best advice that I can give you about how you're going to keep this order. Once you do your 100 hours of community work which you can do in bits and pieces over that period of time together with your work you'll be done with the order and you can move on with your life, all right?
81 OFFENDER: Yes, yeah, that's - - -
82 HIS HONOUR: And forget about guns.
83 OFFENDER: Yeah, no, it's - it's I'm - I'm done, no, yeah.
84 HIS HONOUR: Good, so am I. Sine die.
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