Director of Public Prosecutions v Winkelman

[2023] VCC 84

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

CR 22-02217

DIRECTOR OF PUBLIC PROSECUTIONS

v

KOBI WINKELMAN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	3 February 2023
DATE OF SENTENCE:	3 February 2023
CASE MAY BE CITED AS:	DPP v Winkelman
MEDIUM NEUTRAL CITATION:	[2023] VCC 84

REASONS FOR SENTENCE

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Cases Cited:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Miss S. MacDougall	Office of Public Prosecutions
For the Accused	Mr W. Blake	McFarlane Criminal Lawyers

HIS HONOUR: 

1Kobi Winkelman, you have pleaded guilty to one charge of possess imitation firearm contrary to a firearm prohibition order, three charges of possess firearm contrary to a firearm prohibition order, one charge of possess firearm-related item contrary to prohibition order, one charge of drug of dependence and one charge of handle stolen goods.  On the charge of drug of dependence, you are convicted and discharged.  On the charge of handling stolen goods, seven days to be served concurrently.

2You also pleaded guilty to three uplifted summary matters, Charges 5, 10 and 11.  On Charge 5, seven days concurrent; Charges 10 and 11, convicted and discharged.  But also some forfeiture orders in relation to firearms, those orders are made and handed down. 

3The circumstances are outlined in the Crown opening which has been tendered and which is to be annexed to these sentencing remarks.  Essentially, the circumstances are at the time of this offending, you were subject to a firearms prohibition order.  I cannot work any of these dates out.  What occurred was that in February 2022 you were in contact with a Mr Hunt via Facebook about the purchasing path of firearms and trying to find another shotgun.  Mr Hunt sold you a shotgun which was never paid for.  He reported it as being stolen.  These events were for the charge of a false report and perjury.  You, when confronted by police over this, said you just ripped him off, said you were going to get the gun off him and then you never paid for it.  Police subsequently raided your house. 

4During the course of that raid which occurred in March 2022, police found a loaded, black-coloured handgun under the pillow of your bed which I regard as the most serious of these offences.  They also located the section of a barrel from a firearm in a black Lonsdale bag.  There were a number of rounds of ammunition - the charge of possess firearm-related item contrary to firearm prohibition order; a Taser was found - that was a summary offence; a Snaploc bag containing a small quantity of cannabis - I have already dealt with that; and two stolen Victorian registration plates which I have already dealt with. 

5During the course of that search, a mobile phone relating to you was found and the images on that indicated you being in possession of what looked like an imitation 'handgun', also a lever-actioned rifle and a break-open shot gun and that gives rise to other charges of possessing an imitation firearm and charges of being in possession of the other guns.  Two of these charges are rolled up charges.  Of course, I take that into account.  You admitted the guns were yours or that you'd been in possession of them.  You said to police, 'I only had one in my possession, the rest all go to mates' houses and they have guns.  We sit around and fuck around with them all.' 

6Back in August 2022, I sentenced you a total effective sentence of - sorry, it is five years six months with a three years six months, is it not?  I might have that wrong.  If someone could double check that.

7MR BLAKE: Five years six months, three years six months.

8HIS HONOUR:  All right.  Well, I will make that 10 months 12 months then in that scenario for offences involving firearms and dishonesty.

9At that time, we tried to have these matters dealt with but we were unable to achieve that.  It was indicated clearly to counsel.  At that time, you were 22 or just turned 23 and to give you a sentence of that length was of real concern to me as a sentencing judge, bearing in mind your age. 

10But in any event, you are now on some 726 days into that sentence.  Because of the way this all panned out, you have effectively for these offences, lost one year of Renzella time.  You have some six days' PSD for this matter.  I am concerned about the provisions relating to the imposition of a new minimum term. 

11The Crown opening, which will be as I say annexed to the sentencing remarks.  Very helpful and very succinct submissions were made on your behalf by Mr Blake and they are also annexed to these sentencing remarks.  And in furtherance of that, so I do not have to go through your rather unfortunate criminal history and prior history, the sentencing remarks of myself from August of last year will also be annexed to give the reasons as to how I dealt with you at the time which is exactly the same way as I would have dealt with you had these matters been present at that stage.

12The situation is that you are 23 - sorry, I should also point out this offending took place prior to that sentencing obviously.  You are now 23 years of age.  You have an extensive criminal history.  You are undergoing a sentence of five years and six months.  Whilst that does not affect the length of the sentence necessarily that I give, it is clear that in those circumstances, you were in a 23-hour lockdown.  You have undergone that sentence in the times of COVID and I take that into account. 

13I also take into account the fact that you have pleaded guilty.  I would have thought in your situation remorse was highly unlikely but I will give you the benefit of the doubt.  Clearly, you get the utilitarian benefit other than, if I have not already mentioned it, that includes the provisions relating to Worboyes.  You have saved the court and the community a trial.  As indicated previously, you had one year's Renzella time up your sleeve and it is a bizarre way of putting it but that is how it all works out.

14In the end, I was supposed to give you an appropriate sentence for what was serious offending, particularly the loaded handgun.  I am not going through the niceties of the Court of Appeal decisions about the use that is going to be made of weapons or anything along those lines. 

15On the Charges 1 to 5 which involves the possession of firearms and firearm-related material, well, whilst subject to a firearms prohibition order, you are sentenced to be imprisoned to an aggregate term of 12 months' imprisonment.  I direct that that be served concurrently with the sentence currently being undergone.  It is my understanding for the purposes of the record that that does not affect your minimum term.  And on my calculation will expire prior of the expiration of that minimum term. 

16As I have already indicated, that will be a matter for the parole board.  Though, if you are at the present stage in management, I do not like your chances.  Prospects of your rehabilitation are up to you.  Prospects of you reoffending if you get out on any version are high.  I think there is also a very strong risk of you becoming institutionalised if you have not already become institutionalised. 

17Because of your age, I am very cautious about imposing what could be seen as a crushing sentence and I am taking totality very much into play.  You are, on any event, going to be heading towards 30 at the time you are released and it is really going to be a matter for you, Mr Winkelman, whether you turn all this around and come out and stay alive or whether you continue to behave I in the way you have.  But again, as I say - said to you last time, it is - I think that is a matter for you. 

18All right, s6AAA, 18 with a 12.

19Any other orders I need to make?  The forfeitures I have made.  

20MR BLAKE:  Nothing further, Your Honour.

21HIS HONOUR:  No, all right.  Thanks, Miss MacDougall and Mr Blake, for agreeing to deal with it in such a sensible way.

22MISS MacDOUGALL:  If it please the court.

23HIS HONOUR:  I await a Crown opening I can understand.  I am not looking at you, I know - I am only saying it ‑ ‑ ‑ 

24MISS MacDOUGALL:  Your Honour ‑ ‑ ‑ 

25HIS HONOUR:  ‑ ‑ ‑ because I know you haven't drafted them.

26MISS MacDOUGALL:  I think I gave the explanation in my email.

27HIS HONOUR:  I understand that.  But I'll ‑ ‑ ‑ 

28MISS MacDOUGALL:  Yes.

29HIS HONOUR:  No, no.  Yes.  That's all right.  What we're going to do - I'm going to let you go to your client in a moment, Your Honour.

30MR BLAKE:  Thank you, Your Honour. 

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