Director of Public Prosecutions v Perera
[2024] VCC 786
•30 May 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-24-00247
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHAMIL PERERA |
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JUDGE: | HER HONOUR JUDGE KARAPANAGIOTIDIS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 May 2024 |
DATE OF SENTENCE: | 30 May 2024 |
CASE MAY BE CITED AS: | DPP v Perera |
MEDIUM NEUTRAL CITATION: | [2024] VCC 786 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms O. Richwol | Office of Public Prosecutions |
For the Accused | Mr J. Gullaci KC | Valos Black & Associates |
HER HONOUR:
1Chamil Perera, you have pleaded guilty to: one charge of using a carriage service to menace; one charge of possessing a firearm in contravention of a firearm prohibition order; one charge of possessing a firearm related item in contravention of a firearm prohibition order; three charges of possessing a drug of dependence; and one charge of persistent contravention of a family violence intervention order.
2You have also agreed to this Court hearing, and have pleaded guilty, to the following summary charges: contravene intervention order (x3), possess prohibited weapon, possess explosives, commit offence on bail, contravene conduct condition of bail, state false name, and knowingly use a tracking device.
Circumstances of offending
3The full circumstances of your offending are outlined in the prosecution opening, marked as Exhibit A, which is the factual basis upon which I sentence you.
4Your offending took place between 21 September 2022 and 8 June 2023 and involves six separate briefs and five individual informants.
5The primary victim of your offending is Alexis Lyons[1] who is your former intimate partner.
[1] A pseudonym.
6At the time of the offending there were various family violence intervention orders in place ('the orders'). While it appears that several orders are referred to in the prosecution opening, it has since been clarified that these were effectively the same intervention order, at interim, final and varied stages. All orders were on application by Victoria Police and were no contact orders.
Informant NICHOLSON – 21 September 2022
7On 5 August 2022 a full no contact interim order was served on you protecting Alexis Lyons.
8On 21 September 2022 police received a call from Ms Lyons’ father, expressing concern for the whereabouts of his daughter’s and suggesting that she may have been at your address on Brady Road, Dandenong North.
9Police attended the address and you answered. You were asked whether Ms Lyons was inside, originally you said no but then admitted her presence and police spoke with her.
10You were in breach of the order in that you were within 5 metres of Ms Lyons (Charge 4, Related Summary Offence).
11You told police that Ms Lyons had come over unannounced at approximately 6 pm to tell you that she was pregnant with your child and she wanted you to help raise the child.
12Ms Lyons provided a statement on 18 October 2022 outlining that she went to your house on this day, she did not want you charged and wanted to go on living together as a family.
Informant GUINEY brief - 7-10 November 2022
13On 5 October 2022 a full no contact order was served on you.
14On 7 November 2022 Sophie Lyons,[2] who is the sister of Alexis Lyons, received numerous messages from you demanding to know the whereabouts of Alexis Lyons.
[2] A pseudonym.
15The messages included reference to letting 'pellets fly' if you found out that she was with 'some guy', threatening to go in 'guns' blazing if you found out she was 'fucking around on [you]'.
16Just after midnight on 8 November 2022 Sophie Lyons received numerous messages from her sister's phone which she believed to be in your possession, demanding to know the whereabouts of her sister.
17The messages form the basis of Charge 1 on the indictment (Cth offence of Use Carriage Service to Menace) and Related Summary Offence Charge 2 on the first Guiney brief (contravene intervention order) by threatening to commit family violence against Alexis Lyons in contravention of the order served on 5 October.
18Sophie Lyons reported the messages to police on 9 November 2022 and made a statement.
19You continued to send messages on 10 November 2022, demanding to know the whereabouts of Alexis. Police applied for a family violence intervention order to protect Sophie Lyons.
20In the afternoon on 25 November 2022 police received a call from the daughter of Alexis Lyons stating she had concerns for her mother's safety and believed she was with you.
21Police attended the Brady Road address shortly after and spoke with you and observed Ms Lyons trying to leave the address. You were arrested and Alexis Lyons did not provide a statement to the police in relation to this offending. (Basis of related summary offence Charge 3 on Guiney brief.)
Detective Senior Constable LORDANIC – 29 March 2023
22On 17 March 2021 a Firearm Prohibition Order was served on you, with an expiry date of the 16 March 2031.
23On 16 November 2022 a full interim order was served on you, protecting Alexis Lyons and her daughter.
24On 29 March 2023 members from the Echo Taskforce attended at the Brady Road residence to conduct a compliance search. Alexis Lyons answered the door and initially said that you resided at a different address. Upon further enquiries she admitted that you resided at the address but were not present. She also advised that she too resided there. A search of the premises took place and the following items were located and seized –
·A sawn-off shotgun (Charge 2 on indictment – Possess Firearm while subject to an Order.);
·25 x Remington ammunition cartridges (Charge 3);
·2 x 12 gauge cartridges (Charge 3);
·8 x various sized cartridges (Charge 3);
·Also, they located two resealable bags and one container containing a white crystal substance, believed to be Methylamphetamine (charge 4)
·Two resealable bags containing a yellow powder, believed to be Amphetamine (charge 5);
·A black sword (related summary offence, charge 7).
·A cake of fireworks (related summary offence, charge 8).
·A hardware device.
25Ms Lyons was arrested, taken to the police station, she gave a no comment interview and was then bailed. On 14 April 2023 you were arrested.
26On 26 May 2023 the hardware device containing CCTV was analysed by police. It showed you having been present at the Brady Road residence when the search on 29 March 2023 was conducted but having fled the premises.
27You were on bail at the time of this offending (related summary offence, Charge 9.)
Senior Constable PETRUCCELLI – 18th May 2023
28On 9 November 2022 an interim order was served on you, protecting Alexis Lyons and her daughter. On 9 May 2023 you were granted bail with a condition that you comply with the order.
29On 18 May 2023 police intercepted a Mercedes driven by Ms Lyons. You were in the car and identified by police using the IRIS device (Related summary offence on Petruccelli brief Charge 1 and Related Summary Offence Charge 2 Contravene Condition of Bail).
30Further, in respect of the summary offence Charge 3, you were asked to state your name, you provided the name of Shaun De Silva. You were arrested and then admitted to lying about your name.
Detective Senior Constable GUINEY - August 2023
31On 18 August 2023 a Family Violence support worker who was working with
Ms Lyons contacted police and advised that a technology sweep had been conducted on her black Mercedes and a possible tracking device located. The vehicle needed to be taken to a mechanic in order for the device to be retrieved.32On 25 August 2023 police attended the mechanic where Ms Lyons had taken her car.
33The mechanic located an Apple Airtag device in the tube beneath the driver's footwell. It was later discovered that the device was registered with Apple to you using your mobile number, home address and email address. (Related Summary Charge 9 on the second GUINEY brief – use tracking device.)
Acting Sergeant NEWGREEN (previous informant Connolly-Davis)
34In respect of Charge 6 on the indictment where Informant Newgreen is involved, the following is a brief summary of the circumstances which constitute the basis for the persistent contravene of the intervention order.
35At approximately 3.45 am on 30 May 2023 Ms Lyons was with her brother at their parents’ address in Noble Park. You attended in your mother's car thereby being within 5 metres of her in contravention of the intervention order.
36Ms Lyons left the premises in convoy with you with the intention of going with you to a rehabilitation centre where you were going to admit yourself.
37On 4 June 2023 Ms Lyons was staying at an Air BnB apartment in Glen Waverly. You and an associate visited her and CCTV footage captures both you and Ms Lyons at one point entering the lift to the apartment, thus in breach of the intervention order that was in place.
38Analysis of your call charge records reveal that between 6 May 2023 and 5 June 2023 you were in contact with Ms Lyons a total of 236 times in contravention of the order.
39On 8 June 2023 you and a Joseph Cebis were arrested at Essendon DFO. At the time of your arrest you were in possession of 4.5 grams of methamphetamine, which constitutes the basis of Charge 7 and Related Summary Offence Charge 28. You were taken to the Royal Melbourne Hospital for assessment.
40Later in the evening you were discharged and a common law search was conducted during which police located a further small zip lock bag containing 0.84 grams of methamphetamine (part of Charge 7).
Gravity of the offending
41Mr Perera, that is a brief summary of your offending. I otherwise rely upon and obviously sentence you on the basis of the prosecution opening. In respect of Charge 1 I take into account that the period of offending was over three days. The messages were clearly threatening in nature and, as submitted by the prosecution, I accept that it can be inferred, given the nature of the messages and the subsequent report to the police, that Sophie Lyons would have experienced fear. Your actions also constituted a breach of the intervention order that was in place protecting Alexis Lyons.
42Charge 2 is the prohibited person possess firearm in contravention of the order, and as accepted by both counsel this is a serious offence. The firearm was a sawn-off shotgun, stored in what was described as a hiding hole in your kitchen, covered by skirting boards. The firearm was loaded, there being one unused and one used cartridge in it.
43Firearm offences are, by their nature, inherently serious. The circumstances of the offending are particularly serious given you were prohibited from possessing firearms under the Firearm Prohibition Order ('FPO') that had been served on you in March 2021. As was stated by the court in Bruce v The Queen [2022] VSCA 100:
As to general deterrence, the purpose of the FPO scheme is to promote community safety by ensuring that weapons do not fall into the wrong hands. It is important that the sentences imposed for possessing firearms in breach of an FPO are set at a level which will send a strong message to others who might be tempted to disregard an FPO to which they are subject (see also: Chief Commissioner of Police v Websdale [2019] VSCA 305 (17 December 2019)
44Contravention of such an order is clearly a serious offence, as marked by the maximum penalty.
45The prosecution did not expressly contend that the firearm was in your possession for a specific purpose of criminal activity. However, they did highlight that it was found in close proximity to drugs and at a time proximate to when threats had been made, involving the use of a firearm.
46I am unable to confidently infer or find that you possessed the firearm as part of an ongoing criminal activity or for a specific criminal purpose. Further, noting that there are many charges here for breaching intervention orders, it is not suggested that this firearm was used by you in any way in relation to those offences (see Berichon v R [2013] VSCA 319). However, as discussed at the plea hearing, the offending is serious and I do take into account in my overall assessment of the gravity of it, that the firearm was loaded, it was stored insecurely and drugs were located, which you admit to using. These factors, combine to heighten the risks associated with possession of a firearm. I also note that you have a prior history for such matters which is relevant, in particular, to specific deterrence.
47Returning to Charge [1], the offending period was between 7-10 November 2022 and, while your threats were concerning and referenced pellets flying, there is no reliable basis to find that you were in possession of the firearm the subject of Charge 2 on the indictment at that time. Given the interval of approximately five months between Charges 1 and 2, I do not accept that your subsequent possession of a firearm elevates the seriousness of the offending on Charge 1.
48In relation to Charge 3 on the indictment it is constituted by the location of the 25 Remington ammunition cartridges, 8 various seized cartridges and also the 2 x 12 gauge cartridges, one spent, that were in the shotgun. This is serious offending and your possession of these items was clearly in breach of the order. I am mindful of having taken into account the loaded state of the firearm (and therefore the 2 x 12 gauge cartridges) in my assessment of the gravity on Charge 1.
49The intervention orders were in place to protect Ms Lyons and 'intervention orders must be strictly adhered to'. The prosecution submit that your breaches of the orders were flagrant and persistent. I accept that your offending occurred over a reasonable period of time and there was a relatively high volume of communications.
50However, in relation to Charge 6, that is persistent breach, and the relevant summary offences, it is not suggested that the communications or contact between you involved intimidation or threats or violence on your part. The general context appears to be that your relationship had resumed at times within this period. This does not mitigate your persistent breach of the order – as your Counsel submits – 'all breaches of intervention orders are serious, manifesting a disobedience of court orders' - but it does provide a context which is relevant to an assessment of the gravity of the circumstances.
51In respect of the drug matters, as agreed between Counsel, on Charges 4 and 5, you are to be sentenced on the basis that the amounts were no more than a small quantity. In relation to Charge 7, the quantity of the drugs seized is outlined in the prosecution opening. I accept your counsel's submission that your possession of these drugs is consistent with your drug addiction and heavy drug use at the time and I sentence you on this basis.
52In respect of the use of the tracking device, I accept that the context of its use is indicative of an attitude of control and entitlement on your part.
53In relation to the breach of bail offences, I indicate that I have taken these into account in my assessment of the gravity of the principal offences and to avoid double punishment I propose to impose concurrent sentences on these matters.
54Mr Perera, I accept that you were heavily using methamphetamine and GHB during the period of offending and that this no doubt impacted your judgment and decision-making. Also, your Counsel submits that your possession of the firearm is explained by the fact that you were shot at home approximately five years ago which has heightened your safety concerns. Of course, none of these factors excuse your offending or mitigate your moral culpability or justify your possession of a firearm, and your Counsel did not suggest otherwise.
Plea of guilty
55Your plea of guilty on these charges was entered at an early stage and entitles you to a significant sentencing discount. Your plea has utilitarian value and has spared the victims the trauma of giving evidence in Court in a trial. Your plea represents an acceptance of responsibility on your part and a willingness to facilitate the course of justice. I accept also that it is indicative of remorse, consistent with the further representations that you have made to Mr Cummins and your family and friends.
56You told Mr Cummins that you feel ashamed of your behaviour and are grateful that you have ended up in gaol as it has 'opened my eyes to see the true extent that I went downhill on the drugs spiral'.
Personal circumstances
57Your personal circumstances were canvassed in the reports of Mr Cummins. In brief summary, your parents migrated from Sri Lanka to Australia and settled in Melbourne in 1990 when you were five years of age. While your family are Australian citizens, you are not.
58Your parents remain supportive of you and both were in attendance and are in attendance today at Court, along with your siblings. Your mother works as a cleaner and factory worker and your father is a qualified engineer, now retired. He also owned a 7-11 store for 10 years and then undertook electrical works on trucks. Neither has ever been in trouble with the law or had any substance abuse issues. It appears that they came to this country, worked hard, and provided well for you and your siblings. Your two other siblings have never been in trouble with the law. It appears that you ended up rebelling against your father's discipline.
59You studied up to Year 11 and have spent some periods studying in Sri Lanka. You gained entry to a business and hospitality diploma course at Swinbourne University and then withdrew from the course after a year to enter the workplace.
60You have a relatively solid work history. You have held various retail jobs in the past. You also took over running the family 7-11 at a time when your mother was diagnosed with cancer and your father was caring for her. It is during that challenging time that you strayed, or strayed further, into drug use, telling Mr Cummins 'I just became a psychological mess and I drifted into drugs and by 21 I was addicted to ice'.
61You were introduced to methamphetamine at around the age of 18/19. You were a casual user for several months but by the age of 21 you were a daily user and you have been a heavy user over more recent years. You have also experimented with other drugs and formed a dependence on GHB.
62In 2008/2009 it appears that you were sentenced to a 23 month term of imprisonment with a 13 month non‑parole period. During that parole period you returned to live with your parents and began working in Vodafone sales where you remained for some eight years. In more recent times you have been working from home in phone sales. That consistent employment seems to be reflected in your prior criminal history in which there appears to be a discernible gap between 2008 and 2020.
63Prior to that period of incarceration you met your wife and you were together for some 17 years and separated in 2019. In their letter to the Court your parents refer to your struggles during this time and, what they observed as your decline in mental health and overall wellbeing. You acknowledge that your drug use played a role in your separation. You have not had contact with your seven-year-old daughter now for some time.
64In respect of Ms Lyons, you told Mr Cummins that you dated for about two years and then she came to live with you at the Brady Road address. She was on Disability Support Pension, was struggling with her own health and drug issues and when you were together you would use ice and GHB. As already noted in the prosecution summary, she became pregnant and had a miscarriage. Now that you are detoxified you are able to reflect that you do not wish to return to your old lifestyle and will not have anything further to do with Ms Lyons. There is also a current final intervention order in place protecting her.
65You have suffered a range of serious physical injuries over recent years. Approximately five years ago you were shot in the stomach and upper thighs and now have a number of shotgun pellet wounds.
66In 2020 you came off a motorcycle and injured your left shoulder. You have subsequently suffered from chronic left shoulder pain and experienced frequent dislocations.
67Also, while working you suffered a back injury and associated back pain, which you continue intermittently to experience. You reported to Mr Cummins most recently that you are having recurring problems with your left shoulder in custody and that treatment is complicated and limited.
68In respect of your mental health and drug use, you did receive some counselling on your previous CCO and also attended a residential rehabilitation facility in Seaford where you stayed for 30 days (Note: as pointed out at sentence, this period was in fact 11 days). You are keen upon your release to return and complete this program.
69Mr Cummins opines that you have suffered from symptoms of a Major Depressive Disorder with associated features of anxiety. While it is difficult to make such a diagnosis when a person has been dependant on illicit drugs for a protracted period of time, on the information available to him, Mr Cummins was satisfied that you had intermittently suffered from this condition.
70In sentencing you, Mr Perera, I take into account your personal circumstances and the matters canvassed in Mr Cummins' reports.
71You have an extensive and relevant prior criminal history. In particular, on 25 November 2008 you served a term of imprisonment that I have already referred to. Your counsel told the Court that this offending occurred when people threatened to run through your house. You attended their address with a gun, made threats and fired a shot into the air. You were 23 at the time. I also note that the offending on 8 June 2022 which attracted fines related to the same victim in this matter, which is Ms Lyons.
72Your Counsel makes the point that you have no priors for assaulting, or threatening to assault a domestic partner or, within such a context any prior matters for aggravated burglary.
Other factors
73You are concerned that you might be deported. You told Mr Cummins that while you were serving your previous 13 month sentence you were notified that you could be deported and you wrote a letter stating that you wanted to remain in Australia and nothing more happened. You are now however worried that you will be deported and your sleep is disturbed because of the stress this is causing.
74Under the Migration Act the Minister for Immigration must cancel a person's visa if the person is sentenced to a term of imprisonment of 12 months or more. The Minister may revoke the cancellation if satisfied that there is a reason to do so and the person may seek to review the decision (see Matamata v The Queen [2021] VSCA 253). As the Court stated in Akot v The Queen ([2020] VSCA 55):
the potential for an offender to be deported at the completion of a sentence is relevant to sentencing in two ways. First, the prospect of deportation renders the imprisonment more onerous because the prisoner will face the prospect of deportation. Secondly, the deportation, should it occur, would constitute an additional punishment because it destroys the opportunity for an offender to settle permanently in this country.’
75The Court also stated that the extent to which these factors moderate sentence in a given case is difficult to calibrate.
No fixed rule can be formulated. It will be a matter for the sentencing judge as to the weight that this factor is to be given.
76Relevant matters include whether an offender has established ties to the Australian community (see Konamala v The Queen [2016] VSCA 48).
77In your case, I accept the two limbs have application and that the prospect of deportation is of some significance. You have resided in this country since the age of five. Your parents and siblings all live here and are Australian citizens. Your young daughter is also a citizen, residing in the country. Further, I accept on the evidence that this has been weighing heavily on you.
78While the sentence imposed must still reflect the nature and gravity of the offending, I have taken this factor into account in sentencing you.
Prospects of rehabilitation
79The position of both counsel, Mr Perera, is that your prospects of rehabilitation are inextricably linked up with your ability to address your drug issues and remain abstinent and I agree with that assessment.
80You have a number of protective factors in your favour. On your release from custody, you have accommodation available with your parents and their ongoing support, along with that of your siblings. Your parents confirm that they also visit you regularly in custody and 'despite the difficulty in seeing [you] imprisoned, [they] are pleased to see the progress that [you have] made personally'. It is clear they support you and want the best for you.
81You also have a positive work history and you have the offer of employment upon release. Denise Zumpe provided a reference and attended Court in support of you. She is the managing director of a consultancy practice specialising in the area of heavy vehicle safety and compliance services. She has known you for some five years through mutual friends. She confirms that she is able to assist with employment to help you re-establish your career. She is familiar with the details of your offending and notes that it is difficulty to reconcile this detail with how you otherwise present; that is respectful, responsible and intelligent. She offers some further insights into your recent history and considers that you have a lot 'to offer as an employee, friend, son, sibling, father and partner'.
82In this regard, I also note that your parents consider that a lasting motivation for you is to continue – or re-establish - the relationship you have with your daughter.
83Your sister-in-law, Grace Kelzi and your brother Wayne Perera, also offer their ongoing support and report on your recent devotion to your rehabilitation.
84In custody you have gained weight, are engaged in exercise and motivated to change. Mr Cummins was impressed by the level of insight you were displaying during his assessment and considered that you present as very motivated to receive further treatment. Your sister in her letter also refers to your dedication to 'self improvement' and she considers that you are now 'more mindful, considerate, and deeply committed to living a life of honesty and accountability'.
85You have completed the whole Atlas Program and the PEACE course, which is an anger management program focused on non-violent conflict resolution. You have completed a 24-hour alcohol and drug course, a 12-hour alcohol and drug course along with other courses. The court was also provided with two urinalysis screens. You are held in mainstream and you work in the kitchen.
86Mr Cummins assessed your risk of violent offending as low-moderate and identifies that your primary risk factor would be a return to illicit drugs use – primarily methamphetamine. Mr Cummins did not consider that you present with any personality disorder or trauma, or bipolar or manic disorders.
87As submitted by your Counsel, your current resolve will need to be tested in the community. You have made rehabilitative efforts in the past, which ultimately have not been successful or sustained. I do accept however that they indicate on your part an ongoing desire to change your life and remain drug free. In all the circumstances, I consider that your prospects of rehabilitation are reasonable. In this regard I have taken into account your efforts to date; your acceptance of responsibility for this offending; your remand in custody – which has been salutary - the supports available to you in the community, along with the offer of employment and your previous good work history.
Sentencing principles
88The purposes for which sentences may be imposed are just punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community. I have already referred to the prominence of general deterrence in offending of this nature. Further, specific deterrence and community protection must play a significant role in the sentencing synthesis.
89I have had regard to the sentencing guidelines as outlined in s5 of the Sentencing Act 1991, where relevant in your case. I have also taken into account the maximum penalties for each offence. I have also considered the landscape for sentencing in this offending, in particular in relation to what I consider to be the most serious charges before the Court, which relate to the possession of the firearm and firearm related items in contravention of the order.
90I have had regard to the cases provided by Counsel. Current sentencing practices are to be considered, but as acknowledged by Counsel they are limited and turn on their own facts and circumstances. As we discussed today for example, in some of the cases, the charges of possess firearm while subject to an FPO were rolled up charges, constituted by the possession of multiple firearms.
91There is no dispute between Counsel that your offending warrants a term of imprisonment structured by way of a total effective term. I consider that this is the only just and appropriate sentence. I sentence you, Mr Perera, on the basis that you may be required to serve every single day of the sentence I impose. However, I do intend on imposing a non-parole period that will reflect the relevant sentencing principles and promote your rehabilitation, which in turn also serves the community.
92The principle of totality is important in your case. While your offending is constituted by separate incidents, they are within a relatively confined period of time, with Charges 2 through to 5 in particular, occurring on the same day and arising from the same search on your premises. The effect of the totality principle is to (Mill v The Queen [1988] HCA 70):
…require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is just and appropriate.
93In your case, this has required an adjustment and moderation of the orders for cumulation and concurrency. I also note for completeness that in relation to Charge 1, which is the Commonwealth offence, that I have had regard to the non-exhaustive list of factors as outlined in s16A2 of the Crimes Act (Cth).
94MR GULLACI: Thank you, Your Honour.
Sentence
95Mr Perera, just give me one moment and I have arrived at the sentence which I will go through slowly, counsel, because there are a number of matters.
96Mr Perera, on the indictment matters, you are convicted and sentenced as follows.
97Now counsel, I am going to deal with Charge 1, but I will return to that because I need to stipulate the commencement date, but what I am doing on count 1, you will be convicted and sentenced to a period of four months' imprisonment.
98Charge 2, you are convicted and sentenced to 21 months' imprisonment.
99Charge 3, you are convicted and sentenced to 12 months' imprisonment.
100Charge 4, seven days' imprisonment.
101Charge 5, seven days' imprisonment.
102Charge 6, seven months' imprisonment.
103Charge 7, two months' imprisonment.
104I am going to come to orders for cumulation shortly. Counsel, I was also proposing on some of the summary matters, because I considered that they form, part of the same course to impose some aggregate terms. Do either counsel wish to be heard?
105MR GULLACI: No, Your Honour.
106HER HONOUR: That's my reasoning. I have referred back to charges, but I am told that because of the way in which this matter has come to this Court, the charge numbers may not make particular sense so I am going to be really explicit. Just because they are separated in some way, I do not regard it as preventing me from imposing an aggregate term on those matters. It is just that from an administrative point of view, when my associates come to do the orders, it may be confusing so let me be entirely clear. And I will actually specify the summary charges so if I can have counsel perhaps follow along with me.
107Charge 2, which is a contravention of the intervention order between 7 to 10 November, the term imposed there will be two months' imprisonment.
108Charge 3, which is the contravention of intervention order 25 November 2022, that is a term of four months' imprisonment and it is an aggregate term. So I am going to identify this charge as the 25 November 2022.
109Charge 4, which is the breach of intervention order, 21 September 2022, is part of the four month aggregate term.
110I am just going to ensure that counsel are still following along.
111MR GULLACI: Yes, Your Honour.
112MS RICHWOL: Yes, I'm confused, so sorry.
113HER HONOUR: Ms Richwol, yes.
114MS RICHWOL: Could you give me the date again kindly?
115HER HONOUR: So Charge 2, contravention of intervention order 7-10 November, two months.
116MS RICHWOL: Yes.
117HER HONOUR: Charge 3, 25 November, contravention of intervention order, four months' aggregate term. Charge 4, breach intervention order, 21 September 2022.
118MS RICHWOL: Yes.
119HER HONOUR: Yes.
120MS RICHWOL: Yes, that's the Nicholson brief, yes.
121HER HONOUR: Yes. I just haven't referred to the informants again.
122MS RICHWOL: That's fine, no, no. The date is ‑ ‑ ‑
123HER HONOUR: That's part of the four month aggregate term.
124MS RICHWOL: Yes.
125HER HONOUR: Charge 7, which is the possess prohibited weapon is seven days. Charge 8, possess explosive firearms with conviction, $200 fine. Charge 9, commit offence on bail, 29 March 2023, that is two months and it is an aggregate term. The next one Charge 1 on the Petruccelli brief, 18 May 2023, contravene intervention order, that is part of the four month aggregate term. The next Charge 2, contravene conduct condition of bail – I am just referring to these in shorthand counsel, you'll understand – 18 May, that is part of the two month aggregate term imposed on the commit offence whilst on bail, 29 March 2023. State false name, Charge 3, is with conviction $200 fine. Knowingly use tracking device is one month imprisonment, so that is Charge 9. Charge 17, commit offence on bail on 8 June, is part of the aggregate term of two months which was imposed for 29 March 2023 matter and also 18 May 2023 matter. Charge 28, commit indictable offence on bail is also part of the aggregate term of two months.
126So I think that should hopefully be abundantly clear.
127MS RICHWOL: Yes, Your Honour. It is, yes.
128HER HONOUR: Yes, all right, thank you. Now in terms of orders for cumulation, I intend to cumulate on the Commonwealth matter – I am going to return to this. I intend to cumulate two months of that sentence, that is my intention, all right but putting that aside for a moment, I will return to the indictment.
129Charge 2, the 21 months is the base sentence.
130Charge 3, where I have imposed 12 months, I am cumulating three months.
131Charge 6, I am cumulating three months.
132So counsel that should just the State sentences, come to 27 months; 21 plus three plus three.
133MR GULLACI: Did you say 27 or 29, Your Honour?
134HER HONOUR: Did I say 27?
135MS RICHWOL: Yes.
136HER HONOUR: Yes, that's what I should have said. 21 plus six.
137MS RICHWOL: Yes.
138HER HONOUR: Mr Gullaci, you're looking ‑ ‑ ‑
139MR GULLACI: Sorry, I keep looking at the Commonwealth one, I'm sorry, Your Honour. I'm sorry.
140HER HONOUR: Yes, no I haven't dealt with that at the moment.
141MR GULLACI: No, maths is not my strong suite, but that's what I – sorry.
142HER HONOUR: No, no that's all right. So 27.
143MR GULLACI: Yes.
144HER HONOUR: Turning to the summary charges. I cumulate on the four month aggregate term and that is the one I have imposed for the breach of intervention order, 25 November, 18 May 2023, and 21 September. So that aggregate term of four months I am cumulating one month. And I cumulate a further on Charge 2, which is the contravention of the intervention order, 7-10 November 2022 cumulating seven days. On Charge 9, the knowingly use tracking device, I cumulate seven days.
145So counsel that arrives at 28 months and 14 days. Then I make plain again that I have cumulated and I will cumulate two months of the Commonwealth matter. So for our purposes effectively that arrives at 30 months and 14 days. In other words, two years and six months and 14 days. That is the total effective term, all right.
146But I need to stipulate a commencement date for the Commonwealth matter and in my reading of the cases and understanding and it's DPP v Swingler [2001] VSCA 26, where the Court of Appeal referred to the complexities but I trust that this sentence is not as complex as some others, given it's a straight term. All I'm wanting to do is cumulate two months of it. But they suggest that you deal with the State sentences first, because they have to commence first, and the Commonwealth later.
147I am prohibited from fixing a non-parole period in relation to Commonwealth and State matters together but that doesn't, as I understand it, cover this situation where I simply cumulate and then I am going to set a non-parole period that ought to apply to the entire sentence. That's my understanding. That's my intention and if it is not translated we can make some enquiries with the Sentence Management Calculation Unit, but if that is not what in fact is produced, then it needs to come back before me. It shouldn't be complicated. My intention is very clear and simple.
148All right, so this is what I intend to do then. The State matters then arrive at a total sentence of two years four months and 14 days. The Commonwealth sentence is to commence two years two months and 14 days prior to the expiry of the State sentence, which then would add the two month cumulation. Which ought to arrive at two years six months and 14 days.
149Then taking into account all matters that I have referred to I consider – along with the relevant sentencing principles – I consider that the appropriate term for setting a non-parole period is one year and seven months, and that is the term that I have set.
150Mr Perera, there is some complication with your sentence because of the Commonwealth matter. At the end of the day though I just want to make clear and you will have a moment to speak briefly to Mr Gullaci, but what I've given you overall is two and a half years and 14 days, and one year and seven months is what you have to serve on the bottom, and I'm taking away pursuant to s18 the 357 days that you have served. All right, is that clear enough?
151OFFENDER: Yeah, yes, Your Honour.
152HER HONOUR: If there is a problem and my intention is not reflected, we'll return it and if counsel are both content with that and consider that I am empowered to do it, which I do consider I am.
153Section 6AAA declaration, but for your plea of guilty I would have sentenced you to some three years and seven months with a non-parole period of two years and eight months.
154The ancillary orders that are sought that have been provided are unopposed, is that right, Mr Gullaci, you have them all?
155MR GULLACI: Yes, Your Honour. Thank you.
156HER HONOUR: So that is a draft disposal order in the terms sought. A draft firearm forfeiture order in the terms sought. And a draft disposal order control of weapons in the terms sought.
157MR GULLACI: Yes, Your Honour.
158HER HONOUR: So I will make those orders. Counsel, is there anything further?
159MR GULLACI: No, Your Honour.
160MS RICHWOL: No. No, Your Honour, thank you[3].
[3]On 7 June 2024 the order was amended, after discussions with parties and by consent, in Court pursuant to s.412 of the Criminal Procedure Act and/or s.104B of the Sentencing Act. To give effect to the intended order of the Court, the following corrections/amendments were made to the sentence: A global effective state sentence before being eligible for parole was set at 1 year and 5 months and the commencement date of Charge 1 (Cth) was directed to commence on 30 May 2024.
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