Director of Public Prosecutions v Stibilj
[2019] VCC 1255
•13 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00970
Indictment No. J13101070
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAN STIBILJ |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 16 July 2019 | |
DATE OF SENTENCE: | 13 August 2019 | |
CASE MAY BE CITED AS: | DPP v Stibilj | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1255 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Carry on a business of dealing in category D Longarm and handguns; Carry on business of dealing Catgeory B firearm
Legislation Cited: Firearms Act 1996; Crimes Act 1958; Criminal Procedure Act 2009;
Cases Cited: R v Verdins; R v Buckley; R v Vo (2007) 16 VR 102
Sentence: Imprisonment 10 months and Community Corrections Order 18 months with conditions
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APPEARANCES: | Counsel | Solicitors |
| For the DPP (Plea) (Sentence) | M J Manning Ms D Tang | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms T Di Paolo | Stary Norton Halphen |
HIS HONOUR:
1 Mr Stiblj on 16 July 2019, you pleaded guilty to the following charges:
Charge 1, at Melbourne in Victoria between the 26 September 2018 and 7 October 2018, you carried on the business of dealing in a Category D long-arm, namely a Mossberj 12-gauge 500 ATP8S pump-action shotgun with serial number erased, and two handguns, contrary to s59(2) of the Firearms Act 1996.
Charge 2, at Coburg in Victoria on 28 November 2018, you dishonestly handled stolen goods, namely identification cards in the name of Lucy Cosentino, knowing or believing such goods to be stolen, contrary to s88 of the Crimes Act 1958.
2 You also pleaded guilty to two summary offences that were transferred to this Court pursuant to s145 of the Criminal Procedure Act 2009. The summary offence referred to as Charge 5 relates to a breach of bail, namely that at Coburg between 26 September 2018 and 7 October 2018 you did commit an indictable offence of carrying on a business of dealing in firearms.
3 The second summary offence, referred to as Charge 7, charges that at Coburg on 28 November 2018, you did fraudulently alter a licence that is authorised by or required by or under the Road Safety Act 1986.
4 On 1 August 2019, you pleaded guilty to a further summary offence, referred to as Charge 8, that between 26 September 2018 and 4 October 2018, you did carry on a business of dealing in a Category B firearm, being a Parker-Hale Birmingham Arms 270 Winchester bolt-action rifle, without a licence to do so.
Maximum penalties
5 Charge 1 carries a maximum penalty of 240 penalty units or 4 years’ imprisonment. Charge 2 carries a maximum penalty of 15 years’ imprisonment.
6 Summary Charge 5 has a maximum penalty of 30 penalty units or 3 months’ imprisonment; summary Charge 7 of 10 penalty units or 2 months’ imprisonment and summary Charge 8 of 120 penalty units or 2 years’ imprisonment.
Circumstances of offending
7 A Summary of Prosecution Opening was tendered on the plea hearing and marked Exhibit “A”. It is an agreed summary.
8 Your offending may be summarised as follows. In May 2018, the Northwest Metropolitan Regional Crime Squad commenced operation CARACALS-2018, an investigation which focused on drug and firearms trafficking within the northern metropolitan region. The initial target of this operation was a co-accused, Rosario Latina. The police monitored two phone numbers belonging to Mr Latina from 4 September 2018. That monitoring revealed a large amount of contact between his mobile phone numbers and a phone number 0435 742 454, which was used by you.
9 On 25 September 2018, police covert operative 298 (“CO 298”) sent a text message to Latina, asking if he had any news on the firearms for sale. Latina advised CO 298 that the firearms were not ready for sale, but he believed they soon would be.
10 On 26 September 2018, Latina received a text message containing photographs of two long-arms, being a rifle and a shotgun. The image was sent from your mobile phone number 0435 742 454. On 30 September 2018, you advised Latina that your “mate is going to be home in about twenty minutes and will ‘bring it to (you) and do that thing’.” Latina asked you if you were talking about “what they were waiting for”. You confirmed that was so. On 1 October 2018, you advised Latina that your mate has “two” for him. In a later contact, you told Latina that you would go and see him. Telephone records show that you travelled to Fawkner around 11.27 pm that evening. Latina lived in Fawkner at the time.
11 On 2 October 2018, you sent the same photograph of the two firearms to CO 298, to which he replied “How much?” He did not receive a response from you. On 4 October 2018, CO 298 purchased two firearms from Latina for a total of $8,000.
12 The firearms sold to CO 298 are the Mossberg pump-action shotgun, a Category D long-arm that forms part of Charge 1. The second firearm was the .270 Winchester calibre Parker-Hale brand rifle (Category B long-arm), being the firearm referred to in Summary Charge 8. That gun had been reported as stolen during a burglary in July 2018.
13 Both firearms were capable of discharge. It is noted that the maximum magazine capacity of the shotgun was seven cartridges and that of the rifle was five cartridges.
14 The firearms sold to CO 298 on 4 October 2018 were identical to the firearms in the photograph that you sent to Latina on 26 September 2018, and to CO 298 on 2 October 2018.
15 It is alleged by the prosecution that you were the ‘facilitator’ of a transaction between your unidentified associate and Latina for the sale of the two firearms that were conveyed to Latina’s address late on 1 October 2018. You do not dispute this. On 6 October 2018, you contacted Latina and offered to sell him two handguns. You and Latina discussed the location of the handguns and arrangements to have the cash ready. The offer to sell the two handguns also forms part of Charge 1. The evidence does not show that you ever obtained the two handguns or that the transaction occurred.
16 On 9 October 2018, police attended at your address in Coburg. You were in possession of an Apple iPhone that was connected to phone number 0435 742 454. On 28 October 2018, police intercepted a call on Latina’s number from a male who identified himself as “Shags”, using the phone number 0401 866 071.
17 On 28 November 2018, search warrants pursuant to the Crimes Act and Firearms Act were executed at your premises at 1/64 Quarry Circuit, Coburg.
18 The following items were located:
(a) mobile phone handset linked to telephone number 0401 866 071;
(b) the following items in the name of Lucy Cosentino:
(i) driver’s licence;
(ii) Westpac debit card;
(iii) Westpac credit card;
(iv) Working with Children card; and
(v) Qantas card.
19 Investigations revealed that the Cosentino items had been stolen from her on 18 September 2018 at the Austin Hospital. They are the items referred to in Charge 2. The driver’s licence in the name of Lucy Cosentino had been altered to depict an image of you. This forms the basis of Summary Charge 7.
20 You were interviewed by police and stated that you were often referred to as “Shaggy” by your friends. You otherwise largely answered “no comment” to questions put to you.
21 Your offending in relation to these matters occurred while you were on three sets of bail. This further offending is the basis for Summary Charge 5.
22 You were arrested on 28 November 2018 and have been in custody ever since.
23 You entered pleas of guilty to these matters, having indicated your intention to do so at a committal mention on 21 May 2019.
Role in offending
24 As already mentioned, the prosecution submits that your role in relation to Charge 1 and Summary Charge 8 was that of a ‘facilitator’ between an unidentified associate and Latina.
25 The learned prosecutor pointed to a number of features of your offending, including that:
(a) you facilitated the sale of the firearms to Latina;
(b) you offered to sell two handguns to Latina;
(c) you acquired photographs of the guns;
(d) you forwarded those images to Latina and the undercover operative;
(e)you did, or attempted to, acquire or source handguns, although it is accepted that there is no evidence of the existence of the handguns;
(f)there are three firearms which are the subject of Charge 1 and one firearm the subject of Summary Charge 8;
(g)the two long-arm firearms were capable of discharge;
(h)you have never held a firearm licence of any description;
(i)it is to be inferred that you were motivated by financial gain, whether that gain be used to extinguish debts or otherwise;
(j) your conduct spanned an eleven-day period;
(k)you had the use of two mobile phones, both of which were registered in fictitious names;
(l)the language employed in the intercepts was careful and deliberate so as to avoid revealing the fact that you were talking about firearms.
26 It was submitted that there was some sophistication to the offending constituting Charge 1 and Summary Charge 8 and that this was not amateurish offending. Nor could it be said to be offending that was impulsive or arising from any social misunderstanding.
27 It was also submitted that the conduct in question could be distinguished from overt business dealings where a person is simply unlicensed. Here, it is submitted, there was surreptitious dealing, which made the offences more difficult to detect.
28 As to the reason for your offending, you instructed your counsel that Mr Latina was a seller of methamphetamine, you were a user of that drug and you regularly purchased methamphetamine from Mr Latina. Ms Di Paolo stated that you were in debt to Mr Latina and that is consistent, she submitted, with an intercepted conversation wherein Mr Latina said “Shags, I need the money”.
29 It was further submitted by Ms Di Paolo that there is no evidence of you receiving cash for the guns and she submitted that the sale of the firearms was to make up for the debt owed to Mr Latina. It was not clear on the evidence, who instigated the transaction, that is, who approached whom regarding the sale of the guns, but it was accepted that your role was that of a facilitator.
30 Ms Di Paolo submitted that the commencement of your use of methamphetamine coincided with the disintegration of the support you were receiving from the Transport Accident Commission. This was as a result, it was submitted, of your frustration and anger with TAC, not their withdrawal of services. You instructed your counsel that your use of methamphetamine assisted you to cope with the pain of your injuries.
31 I was told that your period of incarceration is the longest period you have gone without methamphetamine since you commenced its use in 2015.
32 You admitted your criminal record. You have prior convictions for theft, criminal damage, recklessly causing injury, using cannabis, receiving property being the proceeds of crime, possession of a prohibited drug, and possessing or using a prohibited weapon without a permit, and driving a vehicle with an illicit drug present in your blood.
33 Relevant to the current charge is that on 10 May 2016, at the Wagga Wagga Local Court, you were found guilty of three charges, one of which was for possession or use of a prohibited weapon without a permit. That weapon was a “taser”. You told your counsel that the taser belonged to a friend and that you pleaded guilty because it was found in your car.
34 It was submitted on your behalf, and I accept, that that prior conviction represents offending at a different level to the offences for which I am to sentence you. Despite that, it nevertheless has some relevance in sentencing.
35 Your record shows that during the period 9 April 2001 to 10 May 2016, you were not in any trouble with the law.
36 I am also told that on 29 November 2018, you were convicted of theft, assault and committing an indictable offence whilst on bail. The commission of those offences predates the commission of the current offences but they do not constitute prior convictions. I consider the subsequent convictions as being of some relevance only to the question of your character and prospects for rehabilitation.
Background and personal circumstances
37 You were born in Slovenia on 15 October 1980. Your parents separated when you were a young child. You remained living with your mother.
38 At the age of 10, you migrated to Australia with your mother and sister. Before long, your mother entered into a relationship with a man by the name of Bogomir Stibilj, who became your stepfather.
39 Upon your arrival in Australia, you were not able to speak English but you acquired the language relatively quickly.
40 You attended school at Hadfield Secondary College and Box Forest Secondary College where you completed Year 10. You left school part way through Year 11 in 1999.
41 You report that your childhood was a difficult one marked by frequent moves of house and schools, as well as suffering frequent verbal and physical abuse from your stepfather.
42 Your home life was disrupted due to your stepfather’s abuse and your relationship with your mother, as a result of that abuse, was strained. Your mother and stepfather are still together.
43 On leaving school, you commenced work as a trade’s assistant with South City Holden. It was at this job that you met Loretta Meilak, whom you married in April 2004.
44 You have had a number of jobs since leaving school and, it seems, a good work history up until the time you were involved in a serious motor car accident on 27 March 2009.
45 Your employment also included working for a butcher in Reservoir, employment with a caravan manufacturer, and a number of jobs working as a printer operator. You became a leading hand at Visy Board. At the time of the car accident, you were employed as a printer operator with Abaris Printing.
46 You and Ms Meilak have a daughter who was born in January 2009 and a son who was born in February 2012. You separated from Ms Meilak in late 2011 but you remain on good terms with her.
47 On separation, you returned to live with your mother but eventually moved into your own apartment in 2014. That apartment is very close to where Ms Meilak and the children live and you were able to enjoy frequent contact with your children before your incarceration. You still own that apartment and plan to return to live there upon your release.
Medical history
48 As mentioned, you were involved in a serious motor car accident on 22 March 2009. A friend of yours died in that accident. There can be little doubt that you sustained very serious injuries as a result of that accident.
49 I have been provided with psychological reports from Susan Carey, clinical neuropsychologist. Those reports are dated 14 January 2019, 15 January 2019, and 1 July 2019. The reports were tendered at the plea hearing and marked Exhibit 1.
50
Ms Carey was not able to obtain the Royal Melbourne Hospital reports concerning the car accident. However, she did obtain a neuropsychological report prepared by Dr Lindsay Vowels who assessed you in 2013 on behalf of the Transport Accident Commission. At paragraph 17 of her report dated
14 January 2019, Ms Carey sets out part of Dr Vowels’ 2013 report, which is as follows:
"Mr Stibilj sustained traumatic brain injury plus other significant injuries to the cervical and thoracic spine, the ribs and both scapulae including disruption of one shoulder and facial injuries. The brain injury involved diffuse axonal damage with bilateral frontal and occipital and temporal lobes and a left sided subdural haematoma.”
51 You received acute treatment at the Royal Melbourne Hospital and were later transferred to the Epworth Hospital on 1 April 2009 where you remained for eight weeks because of problems with confusion and disinhibition behaviour, as well as poorly managed pain from the skeletal injuries. It is reported that you spent 23 days in post-traumatic amnesia.
52 Although you were discharged from the Epworth, you were later readmitted for “subacute rehabilitation” which was then followed by two years of outpatient community-based rehabilitation. Dr Vowels noted that despite all the admirable efforts directed to your treatment and rehabilitation, your cognitive, behavioural and psychiatric disabilities continued to be disruptive to all aspects of your life and the life of your family.
53 At the time you were assessed by Dr Vowels, it was reported that your memory was moderately to severely impaired and consisted of a marked amnestic syndrome. Your mood at that time was “moderately to severely depressed” and you demonstrated moderate anxiety and major frustration at your situation.
54 Ms Carey assessed you on 17 December 2018. She had regard to earlier neuropsychological findings, obtained a collateral history from Ms Meilak and administered a number of neuropsychological tests. I have carefully considered her reports and set out in brief some of her more relevant findings:
(a) You have a full scale IQ of 53 which places you in the extremely low range;
(b) Your verbal comprehension abilities, perceptual reasoning abilities and attention and processing speeds fell overall in the extremely low range. Your executive function is severely impaired.
(c) Your current cognitive functioning is characterised by global severe impairments in cognition encompassing all cognitive domains that is, attention, working memory, processing speed, intellectual function, new learning and memory and executive function;
(d) You also demonstrated severe impairments in behavioural and social functioning, including poor impulse control and impaired ability to recognise emotions in others. You also reported symptoms of mood disorder, i.e., depression and anxiety.
(e) It was apparent to Ms Carey that you suffered a severe traumatic brain injury from the motor car accident;
(f) You suffer from a severe acquired brain injury (ABI) arising from your severe traumatic brain injury, with substantial difficulty in cognitive, psychological and social functioning.
55 Ms Carey stated, at paragraph 48 of her report dated 14 January 2019, that at formal screening measure of mood, you endorsed experiencing extremely severe levels of anxiety and severe levels of depressive and stress symptoms.
56 You reported to Ms Carey that you began smoking ice several years after the motor car accident to assist with pain relief. Your use increased to 0.5 gram per day. On 11 March 2017 you were admitted to the Royal Melbourne Hospital with a suspected GHB or poly‑substance overdose and you were administered Naloxone to reverse the effects of the overdose.
57 Ms Carey does not consider you have the cognitive capacity to live independently. Ms Meilak was your financial administrator following the motor car accident but that is now undertaken by the State Trustees. Ms Meilak described you to Ms Carey as having major anger issues, behavioural issues and low mood, whereas before the accident you were a “very calm sort of person”. Ms Meilak also told Ms Carey that you experienced depression and lack of emotional or behavioural control, with a low tolerance for social situations and a poor tolerance of noise. Ms Meilak also described you as being “gullible” and that you had lost most of your pre-injury friends and had engaged with criminogenic peers since the motor car accident.
58 Ms Carey considers that whilst your ABI renders you very impaired in daily life, your use of methamphetamine further impairs your functioning. She considers that you may functionally improve in daily life with the return of the supports you previously utilised and that you would also improve somewhat with cessation of illicit substance use.
59 In her re-issued report, dated 1 July 2019, Ms Carey stated that due to your ABI, you have a reduced ability to cope with imprisonment. Whilst that condition will not deteriorate as a result of your imprisonment, your mental health is more likely than most to deteriorate in custody.
60 In relation to the charges before the Court, you told Ms Carey that they were “something about selling guns by message. I don’t know if it was even me. I can’t remember. I never had guns. I don’t know”. You alluded to others being in your home at the time and said “I get pressurised [sic]. I don’t want to be rude”. Ms Carey reported she was unable to gain a clear understanding of your reasoning processes and decision-making processes for these alleged offences.
61 I should note that the plea hearing was adjourned for the purpose of further evidence concerning the issue of whether your ABI reduced your moral culpability in this offending. This was a matter originally pressed by your counsel and opposed by the prosecutor. On the resumed plea hearing I was informed that Ms Carey was not prepared to make the necessary link.
62 Ms Di Paolo nevertheless relied upon your ABI as a matter I can take into account when considering issues of general deterrence, specific deterrence, and the impact of your condition on how you serve any period of imprisonment. It was also submitted, in a written submission to the Court on 7 August 2019, that insofar as your mental health is concerned, having regard to paragraph 66 of Ms Carey’s report 14 January 19, Verdins’ limb number 6 has some relevance. I will return to those submissions.
63 At paragraph 66 of her report, Ms Carey stated:
Mr Stibilj’s ABI will not deteriorate as a result of him being imprisoned. However, due to the effects of his ABI, Mr Stibilj’s mental health is more likely than most to deteriorate in custody; indeed, Mr Stibilj reports experiencing very elevated levels of depression and anxiety during his current period of incarceration.
Custody
64 You have now been in custody since 28 November 2018. This is a period of 258 days not including today. During your time in custody you have managed to complete courses through the Kangan Institute, those being Certificate 1 in construction, Certificate 1 in Information, Digital Media and Technology, Certificate II in Cleaning, Certificate I in Access to Vocational Pathways and a certificate II in Kitchen Operations. These certificates were tendered and marked exhibit 3. I was also provided with three assay results of urine samples, each of which were negative (Exhibit 5). These are all matters to your credit. Your counsel also tendered your Justice Health file and your remand summary (Exhibits 7 and 4).
65 I am told by your counsel that you have daily telephone contact with your children but that the physical separation causes you distress. You were seeing them on an almost daily basis before your arrest. You were enjoying contact visits with Ms Meilak and your sister up until the time you were moved to Fulham prison in May of this year.
Sentencing Considerations
Offence Gravity
66 In my opinion the objective circumstances of the offending in Charges 1 and 8 are serious matters. It is a matter of concern that you were acting as the facilitator of illegal gun sales, and that you were able to access two guns and sell them to Mr Latina. I am not able to make any finding as to how the gun sales were instigated or whether you knew the ultimate use to which the guns would be put.
67 It is also of concern that there were discussions about the sale of handguns. What those discussions do show is your preparedness to be involved in the illegal sale of firearms, including handguns. Given the manner in which the conversations occurred, with no direct reference to guns, it appears that you knew that your conduct was wrong.
68 The dissemination of illegal weapons into the community is an extremely serious matter. The increasing prevalence of the illegal use of firearms is of real community concern. You facilitated the dissemination of two illegal firearms into the community and discussed the sale of two more to a person you say was your drug dealer. This occurred at a time when you were on three sets of bail for other offending.
69 However, I must keep in mind that the offences against s.59(1) and (2) of the Firearms Act 1996 carry maximum penalties of 2 years and 4 years respectively.
70 You have also pleaded guilty to handling stolen goods and I note that you fraudulently altered Ms Cosentino’s stolen licence by placing your picture on that licence. I do not consider these offences to be at the upper level on the spectrum of severity. I have not been told anything as to the sophistication or otherwise of summary Charge 7.
Pleas of Guilty / Remorse
71 It is accepted by the prosecutor that your plea of guilty was entered at the earliest opportunity. Accordingly, you are entitled to a reduction in penalty by reason of the utilitarian benefits that arise from that plea. I also accept that your plea of guilty is indicative of your remorse and an acceptance by you of your responsibility for your offending.
72 The references from your sister Andrejka Stibilj and from Loretta Meilak speak of your remorse.
73 Your sister speaks of your very close relationship and I note that she was present at court during your plea hearing to support you. She confirms the impact on you of your brain injury. She provided you with support before you were gaoled and will continue to do so upon your release. She states that you are sorry for what has happened and are very remorseful. You told her you are sorry for everything and all the disappointments you have caused your family. Ms Meilak talks of the love you have for your children and that you are desperate for a fresh start upon your release. She will continue to provide support for you on your release and will arrange for the Transport Accident Commission support services to recommence. She will also assist you to steer clear of drug use and to engage with appropriate counsellors. She stated in her reference that you have discussed your offending with her and that you have expressed deep regret for your actions.
Rehabilitation
74 I turn to your prospects for rehabilitation. Your ABI is permanent. Ms Carey does not consider you a good candidate for traditional cognitive therapies because of your severe cognitive deficits. However, she does consider that you will benefit from therapy with a psychologist with expertise in mood management in ABI patients. She considers that prior to your release from custody, a neuropsychologist should be engaged to implement a behavioural plan and to monitor your coping ability. She states that a neuropsychologist with expertise in ABI’s, preferably one dually endorsed in forensic psychology and clinical neuropsychology, should be engaged to assist with release planning and to help minimise the risk of drug use relapse and reoffending.
75 I have not been told if any such services will be available to you upon your release. Clearly, your needs will be high. It is hoped that the offer of assistance by both your sister and your former partner, as well as whatever assistance is available through TAC, will be of benefit to your needs upon release. Unless those supports can be put in place and are accepted by you then, it would seem, your prospects for rehabilitation will be poor.
R v Verdins; R v Buckley; R v Vo (2007) 16 VR 102 Considerations
76 It is submitted by your counsel that because of your ABI and depression and anxiety, Verdins’ principles 3, 4, 5 and 6 are enlivened.
77 As stated you have a serious ABI which is permanent. Its impact upon you is well set out in the reports of Ms Carey which I have briefly summarised above. You reported to Ms Carey that you have been diagnosed with depression and anxiety by neuropsychologist Dr Judith Adrian. Dr Vowels also was of the opinion when she examined you that you were moderately to severely depressed. On mood order screening administered by Ms Carey you endorsed experiencing extremely severe levels of anxiety, and severe levels of depressive and stress symptoms.
78 In my opinion, both general and specific deterrence would ordinarily be significant factors in determining an appropriate sentence for offences such as these. Whilst not eliminated, they need to be moderated in view of the nature and severity of your symptoms arising from your acquired brain injury. At paragraph 32 of Verdins, the Court of Appeal, in restating the R v Tsiaras principles stated the following in relation to deterrence:
"Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both."
79 I am mindful of the submission made by your counsel that specific deterrence will be difficult in your case because of your ABI. That may be so but I do not consider it a futile exercise at this time.
80 Similarly, I consider that by reason of your condition, gaol has meant, and will continue to mean that a given sentence will weigh more heavily on you than it would on a person in normal health. I refer in particular to paragraphs 63 and 64 of Ms Carey’s reissued report dated 1 July 2019.
81 I have given careful consideration as to the applicability of Verdins’ principle 6. I note that Ms Carey is of the opinion that your mental health is more likely than most to deteriorate in custody. She is there referring to your depression and anxiety. I infer from the language she has used that she accepts you suffer from depression and anxiety and that there is a serious risk of imprisonment having an adverse effect on your mental health. Whether that is a ‘significant’ adverse effect, as required by Verdins, it is not possible to say. I note that you have now been in prison for 258 days and there is no evidence that your condition has further deteriorated since you were assessed by Ms Carey in December 2018 where you reported experiencing very elevated levels of depression and anxiety. This may not be a matter of much note, in any event, given the sentence I propose to make.
82 As stated above, no submission is made that your moral culpability has been reduced by reason of your various conditions. Denunciation and just punishment remain important sentencing considerations. Your facilitation of guns illegally entering the community, in particular, must be denounced and punished.
Sentence
83 At the conclusion of the first plea hearing I had you assessed for a Community Corrections Order. I did this at the request of your counsel and agreed to do so without determining, at that stage, whether it was an appropriate penalty. The learned prosecutor submitted that a combined custody and corrections order would not be within the range of appropriate penalties for your offending.
84 I have come to the view that having regard to all of the circumstances, it is appropriate for me to make an imprisonment and Community Corrections Order pursuant to s 44(1) Sentencing Act 1991. I have particular regard to the fact that the most serious of your offending, namely Charge 1, carries only a maximum penalty of 4 years' imprisonment.
85 The Corrections assessing officer has found you suitable for a Community Corrections Order. You have had no previous contact with Community Correctional Services, nor have you been sentenced to a term of imprisonment. It is hoped that with the additional supervision and treatment that can be directed by Community Corrections you will be assisted in your rehabilitation and thus the risk of your re-offending be reduced.
86 You have told the Corrections assessing officer that you will consent to a Community Corrections Order, but I need to advise you of certain matters before asking you whether you will consent to entering into such an order.
87 Mr Stibilj, I want you to listen carefully to what I am about to say.
88 The sentence I propose is that you be sentenced to an aggregate term of imprisonment of 10 months in relation to all the charges before the Court. Pursuant to s 18 Sentencing Act I reckon the period of 258 days as being a period of imprisonment already served under the sentence.
89 I also will make, subject to your consent, a Community Corrections Order for a period of 18 months commencing upon your release, which will have the following conditions:–
Upon the completion of your imprisonment you must attend at the Reservoir Community Correctional Services within two clear working days after the commencement of this order.
You must not commit another offence for which you could be imprisoned during the time the order is in force.
You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011. That means in effect that you must not attend at the Community Corrections Office drug or alcohol affected.
You must report to and receive visits from the Secretary or his or her delegate.
You must report to the Community Corrections Centre within two clear working days of the order starting.
You must let a Community Corrections officer know within two clear working days of you changing your address or job.
You must not leave Victoria without first getting permission to do so from the Secretary or his or her delegate.
You must obey all lawful instructions from and directions of the Secretary or his or her delegate.
You must be under the supervision of a Community Corrections Officer for a period of 18 months.
You must undergo assessment and treatment including testing for drug use or dependency as directed by the regional manager.
You must undergo any medical assessment and treatment that may include general or specialist medical treatment or treatment in a hospital or residential facility as directed by the manager.
You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager.
90 I do not propose to make an order requiring you to perform unpaid community work in view of your acquired brain injury and the fact that you will have served 10 months by the time of your release.
91 I will stand this matter down shortly to allow your counsel time to explain the orders to you. I will also ask that she remind you that if you breach the Corrections order you may be re-sentenced on the original offences.
92 If you do not agree to enter into the order then I will need to consider a different penalty.
93 The sentence of 10 months means that you will have approximately another 6 weeks before you are released onto the Community Corrections Order. I hope that by that time sufficient supports, such as those contemplated by Ms Carey, will be put in place before your release.
(Short adjournment.)
94 HIS HONOUR: Ms Di Paolo.
95 MS DI PAOLO: Yes Your Honour, I have explained the conditions of the order to Mr Stibilj. I am satisfied that he understands and he does consent to the order.
96 HIS HONOUR: All right thank you very much for that. Mr Stibilj, would you please stand.
97 On each of the charges that are before the court you are convicted and sentenced to an aggregate term of imprisonment of 10 months. Pursuant to s.18 of the Sentencing Act, I reckon the period of 258 days as a period of imprisonment already served under the sentence.
98 I also make a Community Corrections Order for a period of 18 months in the same terms and subject to the same conditions which I read out just before the short adjournment.
99 Madam Prosecutor, is there any need for me to read each of those out again?
100 MS TANG: No Your Honour.
101 HIS HONOUR: Thank you. I note that you have agreed or consented to entering into a Community Corrections Order. I also will remind you that if you breach the order you will be brought back before the court and may be re-sentenced on each of those charges.
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102 You pleaded guilty to each of the charges. But for those please of guilty the sentence I would otherwise have imposed would have been a total effective sentence of 24 months with a non-parole period of 18 months.
Ancillary Orders
103 I will also make the orders sought pursuant to s 464ZF(2) Crimes Act as the order is not opposed and in view of the seriousness of the charges. That order Mr Stibilj is for a sample, a scraping from your mouth to be taken by the police or some qualified person. If you do not consent to the taking of a 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.
104 I also make the Disposal Order in the terms sought by the learned prosecutor.
HIS HONOUR: I'm grateful to both counsel as well as Mr Manning. You may take Mr Stibilj now thank you. We will adjourn the court.
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