Director of Public Prosecutions v Swain
[2017] VCC 1005
•27 July 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL JURISDICTIONCR-17-00978
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARRYL SWAIN |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Latrobe Valley |
| DATE OF HEARING: | 26 July 2017 |
| DATE OF SENTENCE: | 27 July 2017 |
| CASE MAY BE CITED AS: | DPP v Swain |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 1005 |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Prohibited person possess firearm – attempt to pervert the course of justice - possessing cartridge ammunition without a licence
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence: 18-month Community Correction Order and $1000 fine
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr K. Doyle | Office of Public Prosecutions |
| For the Accused | Mr A. Trood | J. E. Hazlett |
HIS HONOUR:
1Darryl Swain, you have pleaded guilty to one charge of being a prohibited person possessing a firearm, one charge of attempting to pervert the course of justice and one transferred summary charge of possessing cartridge ammunition without a licence.
- Prohibited person possess firearm carries a maximum penalty of 10 years’ imprisonment or 1200 penalty units.
- Attempt to pervert the course of justice carries a maximum penalty of 25 years’ imprisonment.
- Possess cartridge ammunition without a licence carries a maximum penalty of 40 penalty units.
2You are aged 58, having been born on 5 January 1959. At the time of the offending late last year you were aged 57.
3You do have a criminal record, about which I will go into more detail shortly.
4The background to your offending is as follows.
5You had been in an “on-again, off-again” relationship with Mrs Anni-Jo Swain for something like six years.
6There is a history of intervention orders where the Affected Family Member is Mrs Anni-Jo Swain and the Respondent is you, Mr Swain. As a result of the imposition of a Final Intervention Order on 16 February 2016, which was then varied on 1 July 2016, you became a prohibited person for the purposes of the Firearms Act 1996.
7The circumstances of your offending are as follows.
8As to Charge 1 and the related summary offence of being a prohibited person possessing a firearm and possess cartridge ammunition without licence, on or about 20 October 2016 you acquired a double-barrelled shotgun which you kept at your property at Great Alpine Road, Cobungra. This gun was unregistered and, as I have already said, you were a prohibited person pursuant to the Firearms Act.
9In mid-November 2016, you were having a conversation with your friend Matthew Elford, who was having eggs stolen from his property by a fox. You retrieved the firearm and cartridges from the wall cavity behind the shower and showed it to Mr Elford, advising him that "you know where it is if you need it".
10In late November 2016, Matthew Elford and his girlfriend were at the Cobungra property with Anni-Jo Swain. Mrs Swain was crying and upset and advised Mr Elford and his girlfriend that she had left you and that she felt threatened. Mrs Swain advised Mr Elford that there was a firearm on the property and asked him to hide it. She showed Mr Elford where the firearm was kept in the wall cavity behind the shower.
11Mr Elford took the firearm out of its leather pouch, wrapped it in an oily rag and put it inside plastic bags. He then hid it at the end of a firewood stack at the front of the cabin on the Cobungra property. I understand that is what is known as a windrow. He put it inside some logs and covered the logs with bark and rocks. Mr Elford also disposed of some knives that were displayed on the walls of the Cobungra property.
12As to Charge 2, the attempt to pervert the course of justice, on 28 November 2016 you listed an application to be deemed a non-prohibited person for the purposes of the Firearms Act 1996 at the Latrobe Valley Magistrates' Court.
13Anni-Jo Swain was to give evidence in support of this application. Before she was called as a witness, the magistrate stood the matter down for her to obtain independent legal advice.
14While the matter was stood down, Mrs Swain told police prosecutor Senior Constable Marie Fidone, "I don't want to give evidence in this case. I can't lie for him and I won't, especially now as he has another unregistered firearm and some knives. He is not allowed to have guns but he has another one. I want to leave him but I need to get my dog, horse, and property. Please help me".
15Senior Constable Fidone referred Mrs Swain to an independent legal practitioner for advice.
16Mrs Swain also advised Senior Constable Fidone that she wished to leave you and make a statement about the firearm you had in your possession and continuing abuse by you. Senior Constable Fidone arranged for members of the Latrobe Family Violence Unit to attend court to take a statement from her.
17At approximately 11.40 am, Leading Senior Constable Stewart and Leading Senior Constable Cormio attended court and met with Mrs Swain in an interview room at court.
18During Mrs Swain's meeting with the police members she left the room to contact Matthew Elford about the location of the firearm. Mrs Swain left court with Leading Senior Constable Stewart and an application was prepared on her behalf to vary the existing intervention order to a full order.
19At approximately 2 pm, Senior Constable Fidone advised your legal representative that Mrs Swain had withdrawn her support for you and that there was an application to vary the existing intervention order.
20At approximately 2 pm, you telephoned your friend Michael Russell and advised him that there was a shotgun and ammunition at your hut and asked him to get rid of it for you. You advised Mr Russell that he could locate the firearm behind the shower.
21Mr Russell states, "Darryl throughout this call sounded like he was stressed. He never sounded angry but I could tell something wasn't right. I also felt this way due to what he was asking me to do. Although I don't remember much of the words we both spoke, I do remember Darryl mentioning that he could get into trouble if I didn't help him. Before this call ended, Darryl also told me that he'd been in court on this day and Anni-Jo had flipped out. He then told me that Anni-Jo was on her way to the Cobungra property".
22You told Mr Russell where a key was hidden at the property. When Mr Russell attended at the property he was unable to locate the key and climbed in through an open window.
23He found an ammunition belt containing 15 to 20 cartridges located on top of a cabinet in the bathroom and an empty gun case behind the shower cubicle. He was unable to locate the shotgun.
24Mr Russell telephoned you and told you that he had found the gun case and ammunition belt with the cartridges, but the shotgun was not behind the shower where you said it would be. You said you would try to find out where it was. Mr Russell received a large number of texts from you regarding the shotgun and also had a number of phone conversations with you about it.
25You then contacted Matthew Elford. You told Mr Elford that you were worried that Anni-Jo would tell the police about the firearm and that you did not want any more trouble with the police. Mr Elford told you, "It's too late for that. AJ [referring to Anni-Jo] had already reported it and she had asked me to hide the firearm. I hid it away as AJ was worried about her own safety". You then asked Mr Elford where he had hidden the firearm and he advised you where it was located. You advised him that you were going to get someone to go to your property and retrieve the firearm.
26You then sent a text message to Michael Russell, advising that the shotgun had been hidden in a windrow near the cabin. Mr Russell returned to the property, located the firearm in the windrow, and drove to another location at the property where he dug a hole in the ground using a shovel and buried the shotgun.
27At approximately 3 pm, an application to vary the intervention order was served on you.
28On 29 November 2016, the firearm was located by police at the Cobungra property following a conversation with Mr Russell.
29The acts alleged to constitute the attempt to pervert the course of justice are the telephone calls made and text messages you sent to Michael Russell and Matthew Elford in an attempt by you to hide the firearm from police. The course of justice alleged was the impending investigation into you being a prohibited person in possession of a firearm.
30You were arrested at the Latrobe Valley Magistrates' Court on 10 January 2017 and conveyed to the Morwell Police Station for interview. You made a “partial comment” interview; however, much of the interview was in relation to charges that were subsequently withdrawn.
31You were remanded into custody, then granted bail by the Supreme Court of Victoria on 17 February 2017. You have thus spent 39 days by way of pre-sentence detention pursuant to s.18 of the Sentencing Act 1991.
32You indicated your intention to plead guilty to the current charges on the indictment at the further committal mention on 18 May 2017 and I accept that the pleas of guilty occurred at the earliest practical opportunity.
33I now turn to your personal circumstances.
34As I noted earlier, you were 57 years old at the time of the offences and you are currently 58. You have worked hard all your life, built a successful business, were married for 29 years and raised a family. Your two children, now adults, and other family members were present at court supporting you.
35You separated from your first wife in around 2003 and you remarried in 2013. Unfortunately, that second marriage has soured and you are again separated and in the process of dividing financial resources.
36Again, as I noted earlier, you do have a criminal record. You appeared at the Moe Magistrates' Court on two occasions for breaching an intervention order - in 2003 and less than a year later in 2004. On the first occasion you were put on a three-month community-based order and on the second you were fined $600 with conviction.
37In August last year in the Latrobe Valley Magistrates' Court you were again fined, this time $750 without conviction, for both unlawful assault and quite a list of weapons offences.
38It is concerning that the matters that have brought you before this court in the past have all involved domestic infractions and twice recently now in the context of unlawful firearm possession.
39This offending is serious for several particular reasons. First, because you have a history of breaching intervention orders in circumstances of domestic disharmony, including an assault. Next, you have shown a disregard for a lawfully-imposed order because of your history prohibiting you from possessing a particular weapon, and finally you have shown an arrogant and insolent disregard for the process of law by seeking to subvert its proper operation by seeking to exclude evidence. You are fundamentally here today not just because you have broken the law, but because your actions in one part were intended to pervert the proper operation of the law.
40It is because of the rule of law that we all live in a civilised and mostly peaceful society. It is worth seriously reflecting on what your life would be like if people did not respect that principle. The alternative is chaos and mob rule, resulting in enormous injustice and misery.
41The penalty for the crime of an attempt to pervert the course of justice imposed by Parliament is high, expressed as 25 years’ maximum, which is clearly for the worst example of such crime. This penalty is higher than the penalty for manslaughter and equates with crimes such as serious drug trafficking and armed robbery.
42Having said that, it must also be steadily borne in mind that the circumstances in which this particular offence may be committed can vary considerably and care must be taken in sentencing to properly reflect the particular factual and personal factors of the case.
43The possession of a prohibited weapon had the effect also, in the present circumstances of the history of domestic disharmony, and indeed some violence, of causing fear and anxiety and distress to your previous partner. That domestic history was the context of your prohibition from having such a weapon, so principles of general and specific deterrence must assume high significance.
44In mitigation, I take into account the matters urged upon me by your counsel and in particular:
· your pleas of guilty and the early time at which they were made;
· the fact that your attempt to frustrate the police investigation occurred spontaneously and at a time when you were quite stressed;
· your community service in assisting local schools on several occasions;
· your good reputation for responsible and competent work in your business;
· your long history of consistent hard work, including the building of a successful business and providing in the process the opportunity of employment for others;
· your serious medical condition which will likely make unpaid work commitments more onerous for you than for a person in normal health; and
· the time you have already spent in custody, including approximately seven nights in various police cells.
45The basic purpose or purposes for which a court may impose a sentence are punishment, deterrence (both specific to deter you from offending in the future and general to deter other persons who might be like-minded to commit similar offences), your rehabilitation, denunciation by the courts and the protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, its context, your personal circumstances and those of the victims. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
46On balance, in the particular circumstances of this case, the purpose or purposes for which the sentence is imposed can be achieved in my view by a sentence that does not involve your immediate confinement in prison. Were it not for the fact that you have already spent 39 days in custody, including seven days in police cells, you most certainly would have received immediate imprisonment.
47I intend to impose conditions, fines, and a community correction order. The correction order should not be considered light punishment and will still be onerous because of community work requirements, particularly in your case being a person with business commitments as well. I am satisfied that appropriate arrangements can be made by the service to accommodate your physical issues by light work structures.
48Today, following the interval between the taking of the plea and this sentence, a further document has been tendered, being the medical specialist's report of Dr Jonathon Habersberger, an eminent cardiologist. I just want to make a point about that letter. I have given full consideration to it in the process of deciding this sentence. I have taken it into account in terms of the orders that I have made in relation to your community correction order and the fact that I have determined that community work is in fact required, but the evidence of that report, either alone or in combination with any of the other evidence in this case, has not affected my decision as to your suitability for imprisonment.
49The custodial process is well equipped to deal with such medical issues of prisoners, including very specialised medical care, so I have taken into account that evidence fully in consideration of all the circumstances, but that has not been a fundamental factor at all in any consideration of not having a sentence of imprisonment. Do you understand that?
50Mr Swain, could you please now stand.
51On Charge 1 of being a prohibited person possessing a firearm and Charge 2 of attempt to pervert the course of justice you are convicted and ordered to serve a community correction order for a period of 18 months.
52The community correction order commences today and ends on 26 January 2019. The Corrections centre you will attend is the Morwell Community Correctional Service at 25 Ann Street, Morwell, and you must attend there within two clear working days after the commencement of the order, that is by 4 pm next Monday 31 July.
53All the mandatory terms of a community correction order apply and the additional conditions I impose are that:
· you be under the supervision of a community correction officer;
· you perform 150 hours of unpaid community work as directed by the regional manager; and
· you undergo mental health assessment and treatment as directed by the regional manager - I have imposed this condition because I think it is something that is necessary in your circumstances.
54I have noted that independently you have sought counselling from a particular counsellor for some time now. Discuss that with the regional manager. It may well be that it is just a referral that you continue to attend that person or they may have some other person that might be able to assist you, but the repetition over time of these domestic issues and your reactive process to what happened about the firearms suggest to me that at this stage of your life there are some perhaps underlying aspects that you want to consider seriously.
55A further condition is that you undergo programs or courses aimed at addressing factors relating to your offending as directed by the regional manager. That may involve anger management issues or other issues that will be decided by the regional manager. You will discuss that with them and you have to comply with any directions that they give you about that.
56I have not made any condition that you undergo physical assessment and treatment as you are well aware of your medical issues. You are currently receiving very good specialist treatment and aspects of that part of your health, the physical side, played no part in the cause of the offences for which you appear before me today.
57I believe that you have already had the mandatory terms of the community correction order explained to you. I will just go over them again now. The mandatory terms are that:
· you must not commit another offence for which you could be imprisoned during the time the order is in force;
· you must comply with the requirements of Regulation 17 of the Sentencing Regulations 2011 - which just essentially set out your obligations as to your attendance at the community corrections centre, such things as not turning up drug- or alcohol-affected;
· you must report to and receive visits from a community corrections officer;
· you must report to the community corrections centre, that is the Morwell centre, within two clear working days of the order starting, and as I have already indicated, that is by 4 pm next Monday;
· you must notify a community corrections officer of any change of address or employment within two clear working days after the change;
· you must not leave Victoria without first getting permission to do so from a community corrections officer; and
· you must obey all lawful instructions from and directions of community corrections officers - such directions may be given either orally or in writing.
58Do you understand and agree to those conditions, Mr Swain?
59OFFENDER: Yes, Your Honour.
60HIS HONOUR: If you get sick or if there are exceptional circumstances, the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order. In either case, you must notify the Morwell Community Corrections Centre and I recommend that you obtain legal advice if any of these things happen.
61The important thing is if something comes up that is causing you difficulty in complying with any aspect of this order, you just communicate to people. If you explain what the circumstances are, you will find that you will be listened to and arrangements can be made, but do not just ignore them because then you would be likely to place yourself in a situation where you breach the condition and that will bring you back before me.
62I must warn you that if you do breach any condition of this order you will be brought back to court and that will be before me. One of the options open to me is to cancel the community correction order and to resentence you on the original charges. I may also deal with you for the breach by sending you to prison for up to three months, because the breach itself is an offence.
63Do you understand the consequences of breaching your community correction order?
64OFFENDER: Yes, Your Honour.
65HIS HONOUR: Thank you. I will ask you to sign that order shortly and it will be brought to you by your instructing solicitor. On the transferred summary charge 4 of possessing cartridge ammunition you are convicted and fined $1000. Do you seek a stay of that?
66MR TROOD: Yes, I seek a stay of two months.
67HIS HONOUR: Yes. I order that there be a stay of two months on that payment. Also, at the plea hearing the Crown sought an order, to which you consented, for the taking of a forensic sample. I have made that order today for the reasons noted on the order, namely the seriousness of the offending warrants the making of the order; your prior convictions warrant the making of the order; the order is by consent, and the granting of the order is in the public interest.
68I must inform you, Mr Swain, that if at the time of the request for the sample 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. Do you understand that?
69OFFENDER: Yes, Your Honour.
70HIS HONOUR: At the plea hearing the Crown also sought orders for forfeiture and disposal, to which you consented, and I have also made those orders today.
71Are there any other matters from either counsel? All right, if the order could be passed to Mr Swain and if he understands and agrees to it he can sign it.
72MR DOYLE: Sorry, Your Honour. Did you do a 6AAA?
73HIS HONOUR: I am not sending him to prison.
74MR DOYLE: Yes, Your Honour.
75(Community correction order signed and acknowledged.)
76HIS HONOUR: Just one last matter, Mr Swain. I have signed that order and I want to say this. I have observed you during the course of the hearing of the plea, and based on that and on the material that I have, I really do have some confidence that this whole episode has been a big wake-up call for you. You have learned a lot from it and you have got a bit more insight into yourself, and the further conditions now that you are going to go through will just reinforce that. I do not think you will be back before me. I certainly hope you are not, but I really do not think you will be, so good luck.
77OFFENDER: Thank you.
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