Director of Public Prosecutions v Racz

[2015] VCC 1513

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-00774

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA RACZ

---

JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:	19 June 2015
DATE OF SENTENCE:	16 October 2015
CASE MAY BE CITED AS:	DPP v Racz
MEDIUM NEUTRAL CITATION:	[2015] VCC 1513

REASONS FOR SENTENCE
---

Subject: Criminal law – sentence
Catchwords: Possess drug of dependence - possess firearm whilst prohibited – possess imitation firearm.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mrs D. Guesdon	Solicitor for the Office of Public Prosecutions
For the Accused	Mr G. Thexton	Thexton Lawyers

HIS HONOUR:

1Mr Racz, you have pleaded guilty to four counts of possession of a drug of dependence; three counts of possessing a firearm whilst prohibited; and one count of possession of an imitation firearm.  You can sit down for the moment, please.  In addition, you have pleaded guilty to summary charges of possessing property, namely a Honda motorcycle, reasonably suspected of being stolen or unlawfully obtained; and possession of a controlled weapon without lawful excuse, namely a black-handled hunting knife.

2The circumstances of the offending are as follows.  On 4 September 2014, police officers acting pursuant to a search warrant entered premises at Unit 3, 5 Northshore Drive, Patterson Lakes.  A number of tablets and pills were located there, and it was later established that these were methylamphetamine, or as it is also known, ice.

3On the same date, police located at the premises a phial of steroid, trenbolone, amphetamines, and numerous Diazepam tablets.  In your garage cupboard, police located a revolver, an 1892 model; a single-barrel shotgun; an H&R brand .22 revolver; and what is described as a Locke brand semiautomatic pistol, which I gather is now consented to be an imitation.  At that time, you were prohibited from possessing a firearm, because on 27 June 2014, you had previously been found guilty of possession of an unregistered, general category handgun.  Also located in the garage on date was the Honda motorcycle which had been reported as being stolen in December 2013.

4By way of background, you are now 32 years of age.  At the time of this offending, you were aged 31.  You were raised in Melbourne.  You were educated to Year 11. For the most part, you have been employed off and on in the building industry.  You joined the Army Reserves for approximately three years in your early 20s, and later attempted to join the regular army, but it appears that you were not accepted for that position.

5You were married in about 2005.  You have an eight-year-old daughter.  Your partner has two children from an earlier relationship, for whom you cared as a stepfather.  Up until about 2013, it appeared that you led a reasonably stable life in that family setting.

6Soon after, you and your wife separated.  You returned to live with your parents, and went through a difficult and unsettled period.  You fell in with a group of friends whose behaviour including the taking of a variety of drugs, including ecstasy and ice.  Prior to that time I was informed by your counsel that you were not involved with drugs.

7It was submitted on your behalf that the breakup of your marriage effectively led to instability and involvement with illicit drugs.  In addition, you began using various supplements, including a wide range of hormone treatments in the hope that they would aid you in your physical training and exercise, and generally improve your body and performance in the gymnasium.

8Following the discovery of drugs and other items at your home in early September 2014, you were charged with these offences and released on bail.  It appears that there has been no further offending on your part since that time.

9You have the one prior conviction of relevance.  In June of 2014, charges of possession of an unregistered handgun; dealing with property suspected of being the proceeds of crime; and possession of a drug of dependence, namely ketamine; and possession of ecstasy were found proven.  The charges were adjourned for one year without conviction.  When I described it as a prior conviction, I describe it in that context, that the charge was found proven, but no conviction was entered.

10Section 5 of the Sentencing Act1991 sets out the purposes for which I may sentence a person guilty of a crime.  Briefly stated, these include punishment; deterrence both specific and general; denunciation of the offender's conduct; protection of the community; and the establishment of conditions within which it is considered by the court that rehabilitation of the offender might be facilitated.

11Section 5(2) of that Act requires me to have regard to a number of specific matters, and I have taken these into account. In particular I note the following.

12The maximum penalty prescribed by Parliament in relation to these offences are follows:

a)    In relation to possession of a drug of dependence in a case where a trafficking purpose had not been excluded, 400 penalty units or five years' imprisonment, or both. 

b)    Where possession of a drug of dependence for a trafficking purpose has been excluded, 30 penalty units, or one years' imprisonment, or both.

c)    Possession of a firearm whilst prohibited, as I understand it, is a firearm or imitation firearm, the maximum penalty would be 1200 penalty units or ten years' imprisonment.

d)    Possession of a controlled weapon, 120 penalty units or one years' imprisonment. 

e)    Possession of goods reasonably suspected of being stolen, one years' imprisonment.

13Plainly, I regard the offences for which you have pleaded guilty serious ones.  At the time police found the drugs at your home, they also located two sets of digital scales; two diaries and handwritten notes referring to drugs, quantities and cash amounts; a cash counting machine; and a vacuum sealer.

14By reason of such equipment being found at the premises, I am not satisfied on the balance of probabilities that your offences were not committed for purposes related to trafficking in a drug of dependence. Accordingly, the maximum penalty that can be applied in relation to the offences relating to possession of a drug of dependence is 400 penalty units, or five years' imprisonment, or both, by reason of s.73(1)(c) of the Crimes Act.

15Three character references, fact now four after the additional one filed today, were tendered on your behalf.  I note in particular the one from Matthew White, your current employer.  He notes that you have worked off and on for his company for many years, and recently commenced working for you again from March 2015.  He describes you as an honest and reliable worker, highly skilled in the chalking duties.  He's hopeful that he will have the opportunity of employing you permanently in the future.

16References also from Tony Hagan, Chris Coombes, and the more recent character reference from - what is the gentleman's name, Mr Thexton?  Just excuse me, I have just momentarily misplaced it.  It was a long, complex name as I recall it.  Not one that rolls off the tongue easily.

17MR THEXTON:  Yes, and apologies, Your Honour.  I only had the one copy.

18HIS HONOUR:  Yes.

19MR THEXTON:  There is some difficulty with perhaps my client, it was Victor.

20ACCUSED:  Victor.  It was Victor.  His last name's very long, but it starts with V-a.

21

HIS HONOUR:  Well I do not know where it's gone to, but bear with me, and

I will find it.  In any event, the character reference that was provided this morning was essentially to the same effect as the earlier references that

I have referred to.

22Some of those reference, those of Mr Hagan and Mr Coombes, persons who have known you for most, if not all, of your life, speak of your strong Christian values, high integrity, and strong family values.  On the basis of those references, it would seem that the committing of these offences by you was indeed out of character.

23I am nevertheless troubled by the finding on the premises of weapons, in particular of the firearms, and no explanation for possession of those weapons was really ever put forward.  These might seem to point to a more serious criminal lifestyle, and do not appear to be indicative of strong Christian or family values.

24I take into account, however, that you have a relatively clean record. Whilst details of your prior conviction were not fully explained to me in court, I note that the magistrate for each of those prior offences adjourned the matter for 12 months without conviction, leading me to conclude that the magistrate considered that the offences were not at the serious end of the scale.

25The offences for which I have to sentence you, however, are serious.  The combination of weapons and drugs is a dangerous one, and I have no doubt that your culpability in respect of each of these offences is high.  You could have been under no illusion that what you were doing constituted serious breaches of the law.

26

I take into account that you entered a plea of guilty to these offences at the earliest stage.  I take into account your relatively good prior record, and

I sentence you on the basis that you were a person of reasonably good character before your offending.

27I form the view that your prospects for rehabilitation are reasonably good.  This view is confirmed by the screen testing results that were handed to me this morning, demonstrating that essentially, you have tested clear of drug of dependence in recent times.

28Taking those matters into account, I have come to the conclusion that the purposes for which I must sentence you can be achieved without a period of immediate incarceration.  Although you could not, strictly speaking, be considered as a youthful or even reasonably youthful offender, you are nevertheless still of an age where the vast proportion of your life lies ahead of you.

29I have been provided with a report dated 27 February 2015, from a Dr Michael King, a clinical psychologist.  He has performed a number of tests and assessments of you.  In particular, he found that you had a reasonably low level of intellectual function.  His cognitive evaluation of you leads him to expect that you would be likely to follow what other people were doing, and that you would necessarily fully comprehend in a verbal or logical sense what was going on.  Inevitably, he considered that you would be associated with poor decision making in real life.

30Your counsel submitted to me that these findings constituted a sound reason why sentencing you to prison would be undesirable.  In prison, I agree, you would be likely to associate with more hardened criminals, and there would be a very real prospect that you would be further led into criminal activities by others, rather than being rehabilitated in any significant way.  I accept that submission.

31Dr King was of the view that the first step in treatment of you would be a more formal and complete medical and neurological evaluation, to determine the presence or absence of definable causative factors.  He considered that you had a major and disabling level of neurological disorder, which would affect your decision making.  It appeared to him that this disorder had been present for a prolonged period.  He considered that you would be strongly advised to avoid gym related supplements, at least without specific medical advice.

32Further, he considered that you should also seek ongoing counselling from a practicing clinical psychologist who would be able to advise and assist you in recognising what was or was not risky in the social and legal sense, in connection with your life choices.

33Your counsel has referred me to the guideline Court of Appeal decision of Bolton, with which I am familiar.  I consider that in all the circumstances relating to you, a community correction order of three years' duration is the appropriate penalty to impose upon you.  I do so particularly because such an order would enable you to obtain the sort of treatment referred to by Dr King, and would enable you to retain your current - well, it is not strictly speaking current in view of your injury, but would enable you to retain what is hoped to be full time employment in the future.

34I was informed by your counsel that you have not used drugs of any nature since your arrest in relation to these offences, and it is to be hoped that your abstinence from drugs, continued full time work, and continued appropriate treatment as outlined by Dr King, will result in your leading a more stable and constructive life.  It is also to be hoped that you will be able to resume a meaningful parental role with your daughter. 

35I am in possession of a report from Corrections Victoria, dated 19 June 2015, indicating that the author considers you are suitable for a community corrections order. 

36In all of the circumstances, I consider that it is appropriate to sentence you to such an order, however before doing so, you should be aware of the conditions that I would impose in connection with such an order.  I would only make a community corrections order if you indicated your consent to such conditions.  I am going to read them out, so just listen to them if you would. 

37Firstly there are mandatory conditions, pursuant to s.45 of the Sentencing Act that must be imposed in relation to such an order. 

·They are, firstly, that you must not commit, whether in or outside Victoria during the period, during the three year period of the order, an offence punishable by imprisonment. 

·Secondly, that you must comply with the obligations or requirements provided by any regulations. 

·Thirdly, that you must report to and receive visits from the Secretary of the Department of Justice, or his or her nominee, as directed, during the period of the order. 

·Fourthly, that you must report to the Community Correctional Services office at 431 Nepean Highway, Frankston, within two working days from the date of this order, that is, by 4 pm on Tuesday of next week, 20 October 2015.

·Fifthly, that you must notify the Secretary of any change of address or employment within two clear working days after such a change.  What that means is, what it says, if you change your job, you must notify the Secretary, or someone at Corrections Victoria.  If you restart your old job, you must notify the Secretary, et cetera. 

·Sixthly, that you must not leave Victoria, except with the permission of the Secretary.  Leaving Victoria might include going to Albury, might include going to Cobram.  If you step over the border, you have left Victoria.  You must not do so, except with the permission of the Secretary.

·Finally, that you must comply with any direction given by the Secretary that is necessary in order to ensure that you comply with this community corrections order. 

38Now in addition to those mandatory conditions, I intend to impose a number of other conditions. 

·Firstly, there will be a condition that you perform 300 hours of unpaid community work, pursuant to s.48(C) of the Sentencing Act.  Unpaid community work, your counsel might explain the details of that in more detail to you.  It could be any one of a number of things.  It could be painting the fence at the old folks' home, trimming the hedge of the local municipal park, it could be any one of a number of things and the hours, as I understand, are designed to cater for people who are in part-time work or full-time work.  It might mean that they have got to be done on weekends or after normal working hours. 

·Secondly, you must undergo assessment and treatment, including testing, for drug abuse or dependency, as directed by the Regional Manager, including if considered necessary, assessment and treatment at a residential facility. 

·Thirdly, you must undergo any mental health assessment and treatment considered necessary. 

·Fourthly, you must participate in programs that address factors relating to your offending behaviour. 

·Finally, you are to be supervised, monitored and managed, as directed by the Secretary, for the period of the community corrections order, pursuant to s.48(e) of the Act. 

39I have had regard, in making these orders, to the information, matters and recommendations made in the report from Corrections Victoria, and the report from Dr Michael King. 

40I need to know whether you consent to such an order being made with such conditions being imposed.  Mr Thexton, do you want a moment with your client?  Do you want me to leave the Bench just for a moment?

41MR THEXTON:  If I may.

42     MR THEXTON:  Yes, he does accept those conditions.

43     HIS HONOUR:  Yes, thank you, Mr Thexton.

44     MR THEXTON:  Thank you, Your Honour.

45     HIS HONOUR:  I should say, just in case there is some lack of        clarity in what      I have just said, that that order is made on an aggregate basis      in respect of       the eight offences to which you have pleaded guilty.

46 Pursuant to s.6AAA of the Sentencing Act, I declare that had you not pleaded   guilty to these offences, I would have sentenced you to an aggregate sentence of 12 months imprisonment, with a period of six months before you      were eligible for parole.  I direct that a declaration to that effect be recorded in     the records of this court.

47     Now, in terms of ancillary orders, there is an order for - under s.464ZF sought,   is there?

48     MS GUESDON:  Yes, there is three orders, Your Honour.  There is - - -

49     HIS HONOUR:  Disposal?

50     MS GUESDON:  - - - a 454ZF order.

51     HIS HONOUR:  Yes. 

52     MS GUESDON:  A disposal order for the drugs and various other items found   in the house. 

53     HIS HONOUR:  A forfeiture order, I see.   

54     MS GUESDON:  And a firearms forfeiture order for the firearms.

55     HIS HONOUR:  Yes.  Well let's take them one by one.  Firstly, Mr Thexton, is      the order under s.464ZF, is that by consent?

56     MR THEXTON:  Not in the position to oppose that.

57     HIS HONOUR:  Well, that is all right.

58     MR THEXTON:  And once again, I should - for the purposes of today, I'll get      the nod again from my client that he consents to giving his DNA. 

59 HIS HONOUR: Let me read out the order that I propose to make, Mr Racz. Pursuant to s.464ZF(2) of the Crimes Act 1958, I order that Joshua James Racz undergo a forensic procedure for the taking of a scraping from the mouth, and/or a blood sample, in accordance with Subdivision 30A Part III of the Crimes Act 1958, until a sample of sufficient standard is obtained for placement on then database.

60     A further order that, pursuant to sub-s.2 of that      section, Joshua James Racz,       for the purpose of undergoing the said procedure, report to the officer in     charge of the Chelsea Police Station at 312 Station Street, during the period   of four weeks, commencing 28 days after the day of sentence, that is after               today, or once any instituted conviction appeal is finally determined and the      conviction for the forensic sample offences upheld, which is the later.

61     I indicate that having considered the seriousness of the circumstances of the     forensic sample offences listed, I am satisfied in all the circumstances that the    making of the order is justified for the reason of the seriousness of the circumstances of the offending warrant. 

62     I should ask you whether you consent to that sample being taken, Mr Racz.

63     OFFENDER:  Yes, Your Honour.

64     HIS HONOUR:  Thank you.  Notwithstanding that consent, I should tell you    also, I am required to tell you that if come the time you do not consent to the      taking of the mouth scraping under the supervision of an authorised member        of the police force, then the sample to be taken will be a blood sample and    police may use reasonable force to enable that forensic procedure to be     conducted.

65     Now, in respect of the disposal order, Mr Thexton, you have seen the    proposed order?

66     MR THEXTON:  Yes, I have.  I can indicate further consent to the disposal   order - - -

67     HIS HONOUR:  All right.

68     MR THEXTON - - - and forfeiture.

69     HIS HONOUR:  I will make the disposal order in the form provided to me, and    of which I understand you have seen.

70     MR THEXTON:  Yes.

71     HIS HONOUR:  Thank you.  Just bear with me if you would.

72     The forfeiture order relates essentially to the firearms.  Have you seen the   forfeiture order sought, Mr Thexton?

73     MR THEXTON:  Yes, I've also seen that and we consent to that, Your Honour.

74     HIS HONOUR:  Thank you.  Is there more than one of each of those orders for the client, to be signed?

75     MS GUESDON:  I think there's three copies of each, Your Honour. 

76     HIS HONOUR:  You need three, do you? 

77     MS GUESDON:  I can hand up some further copies, Your Honour.

78     HIS HONOUR:  If you have got them there it will save time here.

79     MS GUESDON:  I will hand up a further two for each of the disposal and      firearms.

80     HIS HONOUR:  Do you need three of the s.464?

81     MS GUESDON:  Yes, all right, I'll hand up - - -

82     HIS HONOUR:  Just while I am doing this, Mr Racz, you are require to sign a      document relating to that community corrections order, which sets out the conditions and you are required to sign that you understand the effect of the     conditions set out and I will hand, when they are prepared, which is now, I will                  hand them to your counsel and he might discuss those with you whilst I am signing these other orders. 

83     Well, that is right.  I may have mis-described the aggregate nature of the     sentence, in that it is aggregate of the eight charges to which you pleaded      guilty, together with the two - - -

84     MS GUESDON:  Summary charges.

85     HIS HONOUR:  - - - summary charges to which he also pleaded guilty last   June.  So if there is any further clarification needed, I think that is sufficient, is     it not?

86     MS GUESDON:  Yes, Your Honour.

87     HIS HONOUR:  Is there any issue with either of those summary charges, that     a community corrections order is not appropriate?

88     MS GUESDON:  No.  No, Your Honour.

89     HIS HONOUR:  Thank you.  So I will give you - get my associate or tipstaff to      hand the community corrections order with the terms.  You might take that to your client and have him sign it.

90     MR THEXTON:  As Your Honour pleases. 

91     HIS HONOUR:  And explain what needs to be explained. 

92     MR THEXTON:  There was just a clarification, Your Honour. 

93     HIS HONOUR:  Yes. 

94     MR THEXTON:  In respect of a - there is Item No.37 on the disposal order is a Toshiba hard drive.

95     HIS HONOUR:  Yes.

96     MR THEXTON:  To be removed, I understand. 

97     MS GUESDON:  Yes, it's just been brought to our attention and there's - - -

98     HIS HONOUR:  On the disposal order?

99     MS GUESDON:  Yes.

100   HIS HONOUR:  Just a moment. 

101   MS GUESDON:  Prosecution - - -

102   HIS HONOUR:  Number 37, yes. 

103   MS GUESDON:  The prosecution is happy to remove that, Your Honour. 

104   MR THEXTON:  If they're happy to remove that, perhaps they may also be   happy to remove No.38, Your Honour, which is the two scandisk USB      devices.  My client just provided me with instructions he has his taxation    information for his business - past business on that.

105   MS GUESDON:  No issue with that, Your Honour.

106   HIS HONOUR:  I will delete 37 and 8 and I will initial - deletion in relation to each. 

107   MR THEXTON:  As Your Honour pleases, thank you. 

108   HIS HONOUR:  Is there anything else that counsel (indistinct) I need to discuss?

109   MR THEXTON:  That is all, Your Honour. 

110   MS GUESDON:  No, Your Honour. 

111   HIS HONOUR:  Yes, thank you. 

- - -