Director of Public Prosecutions v Portelli
[2020] VCC 1600
•5 October 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 20-00967
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICHARD PORTELLI |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 October 2020 |
| DATE OF SENTENCE: | 5 October 2020 |
| CASE MAY BE CITED AS: | DPP v Portelli |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1600 |
REASONS FOR SENTENCE
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Subject: Theft of car (2); possession of firearm and firearm related item contrary to firearm prohibition order; possess drug. Summary offences of fail to stop and drive whilst disqualified. Lengthy criminal history with related past offending. On CCO at time. 32 years old now.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Vella | Office of Public Prosecutions |
| For the Accused | Mr C. Nikakis | Haines & Polites |
HIS HONOUR:
1Richard Portelli, on Friday of last week (2nd October 2020), you pleaded guilty to five charges laid on the indictment filed in this Court. The indictment contains two charges of theft of a car, charges of possession of a firearm and of a firearm related item contrary to a firearm prohibition order (Ch 3 and 4) and a charge of possession of a drug of dependence. You have also pleaded guilty to two related summary matters, being charges of failing to stop and driving whilst disqualified.
2The maximum penalties are correctly set out in the prosecution summary and I see no need to repeat them now.
3You were born on 11 May 1988, so are now 32 years of age. You have admitted a lengthy criminal history with many relevant past matters. Further, you were on a community corrections order at the time, having been released from prison only shortly before this offending occurred.
4The matter was opened to me on Friday by Ms Caruso in accordance with a written plea opening dated 4 September 2020. That opening was marked as Exhibit A and Mr Nikakis who appeared for you told the Court that this was an agreed statement. There is then, no point in my slavishly setting out all the facts in these my sentencing remarks. I will sentence in accordance with the agreed statement. In addition, there are some photographs which were marked as part of that same exhibit showing the location of the handgun and ammunition, as well as the drugs.
5As it is an agreed summary, I will give only a very brief summary.
6The two car thefts relate to your driving of two cars, cars that had been previously stolen. It is not suggested you had actually stolen the cars at the burglary or aggravated burglary or that you had burnt one of the cars that was found burnt out. I am not dealing with you for any of those criminal acts.
7CCTV footage disclosed you had been driving them on the dates identified. The first of those occasions was on 11 November, only a matter of six or so weeks after you had emerged from prison onto a community corrections order. Some texts demonstrated an earlier link to that car, hence the between dates nature of that first charge. The second charge was a few weeks later, on 24 November, where CCTV footage showed you driving a Hilux. Your counsel completed the picture by telling me you had bought the cars and paid a small amount of money, for instance $1000, which was a pretty good deal for a $50,000 Range Rover. As I have said, your theft in each instance relates to driving the previously stolen cars.
8Moving forward chronologically, in the early hours of 2nd January 2020, police observed a Mazda travelling in Melton. It was 2 am. An attempted interception with lights and sirens was not successful and the car drove off at a fast rate. Enquires disclosed that you were the driver and had no business even being behind the wheel of that car as you were disqualified from driving.
9As to the Firearms Act offences, a 10 year firearm prohibition order had been issued against you in May 2019. It had been served on you and is at page 339 of the depositions.
10On 20 February 2020, police attended at your home to arrest you in relation to the car thefts I have described. During a search, in a heating vent alcove in the hall, the police found a black snub-nosed .22 calibre revolver. It was loaded with six live rounds. There were three other rounds of ammunition. Hence, the charges of possess firearm (Charge 3) and possess firearm related items, the ammunition, (Charge 4), contrary to the firearm prohibition order.
11A small quantity of 1-4 butanediol was also found in a car. Given the quantity, I am prepared to apply the lower maximum penalty to the possession charge, satisfied as I am that there is no basis to think that it is connected to any purpose relating to trafficking. The Crown concede as much and I shall scarcely mention the drug charge again. It is the least of your worries.
12Upon your interview on 20 February, you either declined to comment or denied the offending. You certainly denied the firearm and drug offending. You rather cockily asserted that your fingerprints or DNA would not be found on the weapon. See Q53. Having challenged the police to forensically link you to the firearm, they duly obliged with the DNA evidence overwhelmingly linking you to that handgun. You no commented in relation to the two car thefts. You made some very bare and incomplete admissions in relation to the fail to stop. Your counsel was not relying upon your interview in any mitigatory fashion. Your decision to answer as you did in the interview is not in any way a matter of aggravation.
13You have been in custody since your arrest, a period of 225 days not counting the day of the plea or the days since.
14You pleaded guilty at the earliest opportunity. The chronology shows the efforts taken to keep the matter in the lower court. It was your right to make those applications and it must not in any way be held against you. Plainly, the Magistrate was entirely correct to refuse summary jurisdiction.
15You were committed to this Court on 7 August for a plea date last Friday.
16So much then for my summary of the summary. I will sentence on the basis of the more complete agreed factual statement.
Victim Impact
17There is no victim impact material before me.
In Mitigation
18Your counsel, Mr Nikakis conducted a very sensible and realistic plea on your behalf, one that as far as I am concerned, is actually far more effective than a plea containing overblown and extravagant submissions, the sort that we as Judges so often hear. He relied upon some written plea submissions as well as a report from a psychologist and a bundle of course certificates. There was also an impressive reference from your brother.
19He took me to your pretty unfortunate early personal background and made brief submissions as to the seriousness of the offending. He conceded that you had a poor criminal history and had displayed a lack of response to Court orders and had but guarded rehabilitative prospects. That is to say, some prospects.
20In truth there were not many matters in mitigation in this case. That is not his fault. It is just the fact of the matter.
21As I say though, it is actually refreshing to have sensible and realistic submissions made. They do not hurt you at all.
22He relied mainly upon;
· Your early guilty plea;
· The presence of some remorse;
· The increased prison burden owing to COVID 19.
He conceded the inevitability of a prison term and though his written submissions were hinting at the possibility of your pre-sentence detention being adequate, he did not pursue that at all, and from the outset of the plea, was speaking of the efforts you would need to make to obtain parole in the future. For obvious reasons he was not suggesting that a combination type sentence with a community corrections order was open here.
Prosecution
23As is often the case when a sensible plea is conducted, the prosecutor had little need to say much.
24Ms Caruso, who appeared on behalf of the Director, argued that your conduct was deserving of a head sentence and a non-parole period. So much had already been conceded. She had prepared some brief and entirely uncontroversial sentencing submissions.I will mark those sentencing submissions as part of Exhibit A, as well.
Background
25Before turning to these matters, I will say just a little about your background. It was set out in the report of Mr Bilyk as well as in the plea submissions. It was also touched upon in your brother’s letter. I see no need to set it out as I have no reason not to accept the personal family background placed before me. As briefly as I might, you are 32 years of age, born in May 1988. Though not the worst background imaginable, it was far from ideal, involving a disrupted childhood and adolescence. You were the youngest of three children from your parents’ relationship. Your father was very badly injured in a car accident in 1990 when you were 10. Your parents had separated before then and at one point when 8 or 9, you were actually removed from your mother’s care. Your mother abused drugs and neglected you when you were young. Child protection had been involved and there were a number of out of home placements, then movement to extended family members and then a return to your father’s care. Your brother who is just a couple of years older speaks of the impact of all of that upon you both.
26It was a difficult childhood and you have no contact at all with your mother or a sister. You are on close terms with your father, your brother Robert and a half-sister.
27You left school at the end of year 8. There had been difficulties at school and the suggestion of a diagnosis of ADHD. You went on to an apprenticeship as a spray painter and at one point, owned a panel shop. You worked as a spray painter until 2003. You then worked with your father’s business, a nursery in Sydenham. By then you were already offending and that impacted upon your ability to work. At least that contact firmed up your relationship with your father and brother. It is suggested that your relationships with family members have waxed and waned as you must have burnt a few bridges over the years with your conduct. However, you have family support presently. Your brother would be prepared to have you work with him subject to your ongoing rehabilitation. Again his letter is explicit in that offer but also in making it clear that you would need to totally change your ways. If not, he will not have a bar of you. He will not take that risk.
28Drugs have been a major issue for you for many years as the report makes clear. Mainly ice.
29You have two sons who are 10 and 6 but have had no contact with them at all this year. Your ex-partner disapproves of your lifestyle and who could blame her for that. Mr Nikakis says that you hope to play a meaningful role in their life and recognise the need for change. I suppose that might have been said at any time in the last decade. It is said to be a matter of motivation for you to change your life in the future.
30Your background was to a degree dysfunctional and with a decent level of disadvantage. I sense that on occasions, you did not have the best of role models or any stability or consistency of parenting. Though many years ago now, that sort of background cannot be so easily shrugged off and these things leave a mark. It is hardly surprising that you ran off the rails. Your brother says that he did as well at one point, but hauled himself back onto the tracks. He hopes you can join him there. Anyway, I take into account your background as far as I am able to. See Bugmy[1] and Marrah[2].
[1]Bugmy v The Queen [2013] HCA 37; 249 CLR 571
[2]Marrah v The Queen [2014] VSCA 119
31I am not going to conduct a line by line audit of your criminal history. It is lengthy and obviously relevant. You will understand that. You have been dealt with for a variety of offences of varying levels of seriousness including a number of instances of trafficking. You have been dealt with for aggravated burglary, driving offences including multiple drive whilst disqualified or suspended, dangerous driving while pursed by police, assault, and other violence offences. There are dishonesty offences including car thefts as well as some Firearms Act offences, threats, criminal damage, robbery, and false imprisonment. It is an unenviable criminal record.
32You have been given very many opportunities and have not taken them. You have received suspended sentences and community corrections orders and have breached many court orders including orders that had you serve a prison component with release onto a community corrections order. That was the position as at the date of this offending. You had also been sent to prison for amongst other things, being a prohibited person in possession of a firearm. That was in 2015. The criminal history is highly relevant.
33You are no longer a silly teenager who might be indulged to some degree owing to youth and lessened culpability. You are a mature and seasoned offender, one who has been repeatedly sent to prison. You just will not learn. The need for specific deterrence and community protection is clear here. I want you to understand that I am not sentencing you again for any of those past crimes. You have received sentences and you do not fall to be re-sentenced again by me for any of that past conduct. I must pass proportionate sentences for your current offending and it is not aggravated by what you have done in the past. However, I am required make judgements as to your future risk of re-offence and your prospects of rehabilitation. I must consider the extent of the need to deter you as well as the need to protect the community from you. Your past criminal history and lack of response gives me no great cause for optimism. Nor the fact that you were reoffending whilst on a community corrections order and within a very short space of time of being released from prison. A community corrections order did not deter you. Nor seemingly did prison. Nor a firearm prohibition order served upon you. You must now expect that courts will focus less on your unfortunate early background, less on your rehabilitation and more on the other sentencing purposes. Let me turn then to some of the other matters raised in mitigation.
Guilty plea
34You have pleaded guilty at the earliest opportunity. I take that into account in your favour. You have facilitated the course of justice. You have taken that early responsibility for your crimes. The community has been saved the time, the cost and effort associated with a committal in the lower Court and a trial in this Court. Witnesses have been spared the experience of giving evidence. There is a utilitarian benefit in pleading guilty. The fact of the summary jurisdiction application stalling the matter a little bit is not a matter I can take into account against you in any way. It was your right to make that application. What is important is that you were always pleading guilty. I take into account your early guilty plea and will pass a lesser sentence owing to those factors. I also take into account the admissions that you did make in the interview as to the fail to stop. Your co-operation in the interview is really not your strongest point.
Remorse
35Your counsel argues that your plea is indicative of some remorse. You were not remorseful on the day of the police interview that is for sure, but that stance was then overtaken by your swift plea. A guilty plea is usually, though not always, indicative of at least some remorse. I am prepared to find that your guilty plea is indicative of some limited remorse in this case and I take that into account in mitigation. There is really no other material indicating any great remorse, though I acknowledge that you have used your time usefully in prison.
Rehabilitation
36As to your prospects of rehabilitation, your counsel submitted that you had some prospects. He conceded that those prosects were guarded. He could not put it any higher than that. That was as a result of the chronology, the past criminal record and lack of response to Court orders. Also, the issues you have had with drugs and negative peer associations for well over a decade. It is very difficult to make any optimistic predictions as to your future prospects.
37Against that though, you have had a trade in the past. You must have, at one point, been prepared to actually buckle down and work. That point is a number of years distant now of course.
38There is still some family support. Your brother’s letter is impressive. He will offer you work conditional upon you making big changes. Your father will offer you accommodation. So you have two things going for you, things that some prisoners could only dream of having.
39Who knows, perhaps you can move back into a law-abiding life but it is a long road back for you. I am not saying it is totally impossible, but it would require a complete turn-around in your life. You have been deeply submerged within a criminal milieu for so long. Mr Nikakis tells me you are reassessing your life and hope to have a meaningful role in your children’s lives. I wonder how many times that has been said on your behalf to a Court. Words are easy enough. Actions are much harder and you have been unable to break away from serious criminal conduct. You are, at least, using your time wisely in custody and have done a number of courses.
40The making of the prohibition order no doubt had regard to your criminal history, associations and risk. The fact is, you would by any measure, have been a person prohibited from possessing any firearm. The order taken out took it to the next level. It was not just some consequential effect of a Court sentencing order. It declared directly to you that you must not hold weapons and to expect to be searched and the like. Yet you breached the order and possessed a fully loaded hand gun.
41Perhaps there will be some deterrent effect from the time you have already spent in custody as well as the sentence I will soon pronounce but it must be said, past sentences have not greatly deterred you.
42I do believe though that you have at least some prospects of rehabilitation. If asked to apply an adjective to describe them today, I would say they are relatively poor. I hope I am wrong. It is hard to rate those prospects any higher than that, owing to the factors that I have already mentioned. It would be easy enough to write you off but I will not. Maybe, just maybe, you are at last, at an age where you may actually want to change, recognising as you surely must, how unsatisfactory a life it is to be in and out of prison. Your brother comments on all the milestones you have missed out on in your two son’s lives. Well, the ones you have missed cannot be unmissed but there are so many that lie ahead in the future. Are you going to miss them as well? That will be your choice. You had a mother who was absent from your life, a very damaging aspect of your life. You run the risk of imposing that same sad state of affairs on your own children. No doubt they would want you in their lives and no doubt you wish to be, but unless you change, you will not be. It is that simple. The clock is running. You must make better choices. You must change. If not now Mr Portelli, well when? Just imagine the next 10 years matching the last 10 years. You will barely be a figure in their lives if that is the way it pans out and that is a pretty miserable thought for you and them. It is not too late for you and as I say, I will not write you off, but I can only be quite guarded as to your prospects into the future.
Mr Bilyk’s report
43I have mentioned the report of Mr Bilyk. I am not going to set out slabs of that report. It contained useful material as to your background and to your drug use and your hopes and thoughts for the future. It casts some light onto your possible reasons for starting drug use. The report is not relied upon in any Verdins[3] fashion. Mr Nikakis was explicit in that regard and that concession was correctly made. The report also gives your account of the offending. I take it into account in the ways urged upon me.
[3] [2007] VSCA 102; 16 VR 269; 169 A Crim R 581
COVID-19
44I accept that the COVID-19 virus and the response to it by those running the prisons has increased and will continue to increase your prison burden. Prison is currently a more stressful environment. Social distancing is not easy. No doubt there is worry about catching the virus in such a setting where there is no level of autonomy.
45I cannot know precisely how the virus or the response to it by those running the prisons will impact upon you in the future. There are some lockdowns but they do not exist across all prisons. I cannot conclude that they would necessarily apply to you in the future. Visits have already been suspended though and so have some courses and programs. I cannot know how long those things will persist but they are things you have had to deal with already.
46There has been a state of disaster declared in this State with a roadmap to reopening but things are looking a good deal more positive at the moment than they were looking as we headed into this phase well over 6 weeks ago. Some further relaxations were announced a week or two ago. That still does not suggest to me that there will be any prospects in the short term of the prison conditions being returned to the pre COVID-19 setting. So, as I have said, prison life is tougher. I would expect that there will be less time out of cells, less access to programs and courses and no access to in-person visits for quite some time. I accept then that there is an increased custodial burden in your case. I take this into account in your favour.
The Offences
47I must pay regard to the nature and gravity of the offences before the court. I turn then to the offences and see no need to descend back to the facts. The most serious offences are in my view the breach of the firearm prohibition order and the possession of the gun the most serious of those by far. As I said earlier, even without that order, you would have been a prohibited person given the recency of your release from prison and the existence of a community corrections order with supervision, upon your release. But this specific order focussed your mind on that actual prohibition. It was not just some consequence of a Court order perhaps not fully explained to you or understood by you. You were directly on notice of the need to surrender any firearm or related item and not to acquire or possess any such item and the seriousness of breaching the order. The penalties were spelt out to you. You knew you were totally banned by this specific order taken out against you. Your preparedness to breach it is disturbing. You have a highly relevant criminal history. You have previously been imprisoned, as I have said, in part for being a prohibited person in possession of a firearm.
48The weapon I am dealing with was a functioning loaded weapon.
49Guns falling into the hands of the wrong people has always been of real concern in these courts.
50There have been many cases dealing with a somewhat related offence of a prohibited person possessing a firearm. See cases of Best[4], Powell[5] and Simpson[6], which all refer to the earlier case of Berichon[7]. That offence has undergone many changes in definition and even in penalty with penalty increases and penalty reductions from time to time.
[4]Best v The Queen [2015] VSCA 151
[5]Powell v The Queen [2015] VSCA 93
[6]Simpson v The Queen [2015] VSCA 210
[7]Berichon v The Queen [2013] VSCA 319
51Those cases described the two broad categories of offending, as well as sentencing practices and range for each band. The first being the least serious where it is not open to conclude that the possession was associated with some ongoing criminal purpose and the more serious second category where the evidence enables that conclusion of possession for a criminal activity or specific criminal purpose. For example, in the context of criminal activity to provide security, or as a means of enforcement. The prohibited person charges can cover a multitude of factual settings. A person could have a non-functional firearm without any ammunition, one obtained years earlier out of curiosity or interest, but left for years undisturbed down the back of a garden shed or hanging on the wall with no movement of the weapon or desire to move it or touch it at all, but a prohibition arising as a result of a court outcome. Conversely, a person could be perched outside a TAB almost ready to press a firearm into use in a serious criminal offence and there is virtually everything between these two extremes.
52The same matters could be the setting for a breach of the prohibition order.
53I am not dealing with such an offence but those cases must surely give me some limited form of guidance. I am dealing with the breach of the prohibition order constituted by your possession, but it is unthinkable that the Parliament had in mind that such a charge laid against someone who would otherwise be a prohibited person would confer some sentencing benefit upon that person. Probably the converse is true.
54Mr Nikakis concedes the seriousness of the offence relating to the handgun and conceded that if we were making the Berichon type assessment, that the possession would fall into the more serious second category.
55You were in possession of a functioning and loaded handgun in direct breach of a specific order made against you. So the gun and the ammunition, each of them possessed in breach of the specific order.
56Your account of having it for some form of personal protection owing to the discharge of a weapon into your house is really not greatly mitigatory. We do not want the wrong people with guns. Full stop. The wrong people having them even for personal protection is not something that can be countenanced at all. Guns up the ante in a demonstrable fashion and there seem to be a good deal of them out in the community at the moment. Hardly a week goes by without some shooting incident. So a criminal such as you having one because another criminal has one is not to be countenanced by the courts.
57It is conceded that had I been dealing with you on a prohibited person charge, you would not fall into the lesser Berichon type category. Here I have a fully functioning loaded weapon possessed by a man who was on a community corrections order, one who had previously been imprisoned for possessing a firearm whilst prohibited and who moved in a criminal milieu and on your instructions, had armed yourself in self-defence.
58Now there is a strong connection between Charge 3 and 4. Each possession separately breaches the order but they relate to the gun itself and to the ammunition placed within the gun or the other loose rounds. Mr Nikakis and for that matter, the prosecutor reminded me that normally possession of ammunition could not even be dealt with by a prison term. Only fines are provided for that offence. That is so, but you are possessing that item in breach of this order. It is a different offence, altogether more serious than the mere fact of possession without such an order applying. Still, I recognise the close connection. I must avoid double punishment. As far as you were concerned, you had the weapon and it was loaded. There is such a close relationship that in my view, complete concurrency would be justified.
59The other offences are not connected to those offences or to each other. Separate crimes of theft, separate vehicles and dates. Each a serious enough offence by a man with many past such offences. A separate occasion of driving and failing to stop on another day altogether, one where you were disqualified. There is obviously the need for some cumulation. The possession of the drug charges is, as I said earlier, the least of your concerns.
Purposes
60I have to consider a number of purposes of sentencing. I do pay regard to your prospects of rehabilitation. Those prospects are relatively poor. They must surrender sizeable ground to other sentencing purposes. But they are still relevant and I still actually give them some weight. I might well be the last judicial officer to give some weight to rehabilitation.
61I am required to punish you justly and proportionately. Punishment is an important sentencing purpose here.
62So too is denunciation of your conduct.
63I must pay due weight to deterrence, both general and specific. There is the need for this court to seek to deter you and others from offending in the future. Specific deterrence is plainly important in this case. Courts have tried to deter you on multiple occasions. They have also on occasions tried to foster your rehabilitation by structuring your release onto a community corrections order with treatment to the fore. That happened only months before this offending. It didn’t work. You need to be deterred. I will try again.
64Community protection is also plainly of importance.
65General deterrence is a significant sentencing purpose. We are sick of guns and especially guns in the wrong hands. It is a serious crime indeed to breach one of these prohibition orders. You knew that and it did not stop you from doing so. The courts must convey the message through the sentences imposed that sizeable sentences will be imposed on those who choose to commit crimes such as yours.
66I must have regard to the maximum penalties.
67I do pay regard to current sentencing practices. It is not a single controlling factor.
68There is no material that I can find dealing with the offence of breaching a firearm prohibition order. No-one could take me to any other case where a sentence had been passed. There is no sentencing practice that I can discern but there surely must be at least some guidance from offences that have some similarities, such as the offence of being a prohibited person in possession of a firearm, which also happens to have the same maximum. As I said earlier, it is inconceivable that the purpose of the offence was to confer a benefit upon a person who previously might have been a prohibited person irrespective of the order, as you were. I mentioned some of those cases earlier in these reasons. What that offence does not involve is the discrete taking of a formal step by the Chief Commissioner, or his delegate, to make the order and the service upon the offender of the order and a full explanation of the potential ramifications of breaching the order. All those things have taken place here.
69Theft covers a multitude of settings and there is just no utility looking at statistical material or other cases. I am well aware of sentencing practices for the crime of theft of a car.
70Prison is always a disposition of last resort. Your counsel concedes that prison is warranted. He conceded the inevitability of a prison term and one where a non-parole period would be fixed.
71He was not suggesting that a combination order was open and plainly it was not here, owing to the seriousness of the offending and your many past failures on such orders. A combination order simply could not achieve the relevant purposes of sentencing especially punishment, deterrence and community protection.
72I will fix a non-parole period and in this way, will provide for the possibility of your early release. That is all it is, a possibility. I must work on the theory that you will serve the full head sentence. I cannot assume you will be paroled. The Adult Parole Board will make that decision and it has nothing at all to do with me. In fact, it is between you and them. Given the dimensions of the sentences I will be imposing, I am required as a matter of law to fix a non-parole period
Totality
73I must and I do consider whether the effect of the sentences is just and appropriate and commensurate with your overall criminality.
Ancillary Orders
74Now, there are some formal orders that are applied for here, some ancillary orders relating to the weapon, the ammunition and the drugs.
Forfeiture
75Firstly under the provisions of the Firearms Act 1996, s.151, application is made for forfeiture of the revolver and the various rounds. There is no issue taken with the making of any of these orders. I am satisfied that it is appropriate to make that order under the provisions of s.151 of the Firearms Act and order that the items referred to in the schedule will be forfeited to the relevant Minister.
Disposal
76Secondly, there is a disposal order sought in relation to the plastic container containing the clear liquid which was the drug. Again, there's no opposition to the making of this order.
Confiscations Act
77Again, I am satisfied that the criteria for the making of the order under the s.78 of the Confiscations Act 1997 are made out here and that item referred to in the schedule be forfeited to the State and be held and dealt with in the matter contemplated by the signed order.
78I would normally get you to stand up at this stage. I am certainly not going to do that. You are viewing this down the line on the WebEx so I will have you remain seated. I will have to pronounce individual sentences. I will spell out then the extent of the cumulation; only then will you understand the head sentence and then I will fix a non-parole period. You will get some greater appreciation at the end of my remarks as to what it all amounts to.
Sentence
79I move now to pass sentence:
80On Charge 1, theft of the Range Rover, you are convicted and sentenced to eight months' imprisonment.
81On Charge 2, theft of the other car, being the Hilux, likewise you are convicted and sentenced to eight months' imprisonment.
82I believe it is both open and in fact appropriate to pass an aggregate sentence in relation to Charges 3 and 4. They relate to the same legislative provision and connect up either to the gun or to the ammunition loaded into the gun as well as the three loose rounds. The ammunition is the ‘firearm related item’ in Charge 4. It just seems unnecessary to pass individual sentences and then to do what I undoubtedly would do, to make the sentence on the far less serious Charge 4 concurrent with that imposed on Charge 3. Anyway, I am going to pass an aggregate sentence. On Charge 3 and 4, you are convicted and sentenced to two years, three months' imprisonment. That will be the base sentence.
83On Charge 5, possession of a drug of dependence, given the small quantity of the drug and a purpose connected to trafficking excluded, I do not believe a prison term is even warranted in relation to that matter. You are convicted and fined $500 on that charge.
Related summary matters
84On the summary offences of fail to stop and drive whilst disqualified, again I believe an aggregate sentence is open and appropriate. On those two charges, I convict and sentence you to an aggregate of two months' imprisonment.
Base sentence
85The base sentence is therefore the two year 3 month aggregate term imposed on Charges 3 and 4.
Cumulation
86I direct then that:-
· two months of the sentence imposed on Charge 1
· two months of the sentence imposed on Charge 2; and
·one month of the aggregate sentence imposed on the two summary matters;
are to be served cumulatively upon the base sentence and upon each other.
Total Effective Sentence
87These orders result in a total effective sentence of 32 months or two years and eight months' imprisonment.
Non-parole period
88I fix a period of 18 months during which you will not be eligible for release on parole.
Section 18 pre-sentence detention.
89You have already served 228 days by way of pre-sentence detention and that declaration is to be entered into the records of the court.
Section 6AAA.
90I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury, I would have sent you to prison for four years. I would have fixed a non-parole period of two years and 10 months' imprisonment. That statement is also to be entered into the records of the court.
Licence order
91Finally, on the charges of theft, Charge 1 and 2, I must make a licence order. On each charge, all licences to drive are cancelled and you are disqualified for a period of 12 months. On the charge of fail to stop, I am also going to make a licence order. On that charge, all licences are cancelled and you are disqualified for a period of six months.
92I have considered whether I should defer the commencement of these licence orders or for that matter link them to a future event such as your first release from prison so that they actually can have a real impact upon you. I have decided not to do that. They will run from today’s date. The existing licence order made in January 2019 extends for three years from that date. I see no utility adding to that already lengthy prohibition.
93A final word of advice, if not warning. Take it or leave it, the choice is entirely yours. Today may very well represent the last occasion where a judicial officer will pay any significant regard to your background and to your prospects of rehabilitation.
94I do actually hope you can change. But if you cannot or will not, bear in mind that the prohibition order will be on foot for very many years to come. Breach it again and you would be an older man coming before the court with prior convictions for being a prohibited person in possession of a firearm as well as these two breaches of the prohibition order, one who has been sent to prison on this occasion. Breach the prohibition order again and you really should expect that you will be sent to prison for a very sizeable period indeed. You should expect that a Court will throw away the key.
95Let me just see if there are any other matters I need to deal with. Are they all the matters I need to deal with Mr Vella?
96MR VELLA: (Indistinct) .
97HIS HONOUR: Mr Vella?
98MR NIKAKIS: I think he is having trouble.
99HIS HONOUR: Are there any other matters I need to deal with at all?
100MR NIKAKIS: No, Your Honour.
101HIS HONOUR: All right. Mr Nikakis, any other matters from you at all?
102MR NIKAKIS: No, Your Honour, just ask that Mr Portelli give me a ring so we can have a talk, that is all; which I am sure he heard.
103HIS HONOUR: He can do that. If you - I mean it is up to you, if you want to do what we did the other day, I am happy to leave the Bench and you can do it here.
104MR NIKAKIS: No, that is okay.
105HIS HONOUR: That would be in the presence of my staff.
106MR NIKAKIS: Yes.
107HIS HONOUR: So you will make ‑ ‑ ‑
108MR NIKAKIS: As long as he rings me. That is fine, Your Honour.
109HIS HONOUR: He will ring you. Okay, well ‑ ‑ ‑
110MR NIKAKIS: Thank you for the opportunity.
111HIS HONOUR: All right, that is fine then, all right, well you heard that Mr Portelli, so you need to ring Mr Nikakis to have a bit of a chat about what has occurred here today, but that completes the matter then, so I will, I think at this stage, I will simply adjourn the court until 9.30 tomorrow then. Thank you.
112MR NIKAKIS: As Your Honour pleases.
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