Director of Public Prosecutions v Xuereb

[2019] VCC 984

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00127

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHAD XUEREB

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JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Melbourne
DATE OF HEARING:	26 June 2019
DATE OF SENTENCE:	27 June 2019
CASE MAY BE CITED AS:	DPP v Xuereb
MEDIUM NEUTRAL CITATION:	[2019] VCC 984

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Sharp	Office of Public Prosecutions
For the Accused	Ms S. Tricarico	Tricarico Lawyers

HIS HONOUR:

1Chad Xuereb, on Indictment G12272092.1, the first indictment, You have pleaded guilty to:

one charge of possession of a trafficable quantity of unregistered firearms;

one charge of non-prohibited person possessing a general category handgun without a licence;

one charge of cultivation of a narcotic plant;

two charges of possession of a drug of dependence;

one charge of possession of substances, material, documents or equipment for trafficking in a drug of dependence;

and one charge of manufacture of firearms.

2And the related summary matters:

Charge 7, non-prohibited person possess General Category A, longarm without licence;

8, non-prohibited person possess General Category B, longarm without licence;

32, possess cartridge, ammunition;

34, possessing prohibited weapons;

43, deal with property suspected of being proceeds of crime.

3On the second indictment, J11622007, you have pleaded guilty to:

one charge of possession of a trafficable quantity of unregistered firearms;

one charge of prohibited person possess firearm;

one charge of prohibited person possess silencer;

one charge of negligently deal with proceeds of crime;

one charge of possession of a drug of dependence;

4And the related summary offences:

Charge 6, possess cartridge, ammunition;

11, commit an indictable offence whilst on bail;

13, store an unauthorised explosive;

17, possess body armour;

18, possess prohibited weapon.

5These offences carry the following maximum penalties:

in respect to the first indictment, Charge 1, possession of a trafficable quantity of unregistered firearms, ten years' imprisonment, 1200 penalty units;

Charge 2, non-prohibited person possessing a general category handgun without licence, four years' imprisonment, 240 penalty units;

Charge 3, cultivation of a narcotic plant, the lower of the two maximums applies.  One year, 20 penalty units;

Charges 4 and 5 of possession of a drug of dependence, the lower of the two maximums applies, that is one year;

Charge 6, possession of substances, material, documents or equipment for trafficking in a drug of dependence, ten years' imprisonment;

Charge 7, manufacture of firearms, ten years' imprisonment;

the related summary offences, Summary Charge 7, and Summary Charge 8, two years' imprisonment, 120 penalty units;

Summary Charge 32, 40 penalty units;

Summary Charge 34, two years' imprisonment, 240 penalty units;

finally, Summary Charge 43, two years' imprisonment.

6Turning to the second indictment:

Charge 1, possession of a trafficable quantity of unregistered firearms, ten years' imprisonment, 1200 penalty units;

Charge 2, prohibited person possess firearms, ten years' imprisonment; 1200 penalty units;

Charge 3, prohibited person possess a silencer, eight years' imprisonment, 480 penalty units;

Charge 4, negligently dealing with proceeds of crime, five years' imprisonment;

Charge 5, possession of a drug of dependence, the lower maximum, one year's imprisonment.

7The related summary offences in relation to the second indictment:

Summary Charge 6, 40 penalty units;

Summary Charge 11, three months' imprisonment, 30 penalty units;

Summary Charge 13, five penalty units;

Summary charges 17 and 19, two years' imprisonment, 240 penalty units.

8It is unnecessary for me to recount the facts of the matter in detail as they are on transcript and contained in Exhibit 1, Summary of Prosecution Opening Upon Plea.  That opening was accepted by you through your counsel.  I proceed to sentence you on the basis of the facts as opened by the prosecutor which I shall now briefly summarise.

9On 17 August 2016 two search warrants were executed by police at your Derrimut factory and Kings Park residence.  The items seized by police have been listed in a table contained in the prosecution opening with related charges.  I will briefly summarise all of the items seized by police.  Firstly, at your residence a sawn-off loaded shotgun, a pump action rifle, a German sport gun, eight small cannabis plants in a hydroponic set-up with paraphernalia, two snap lock bags containing white powder, two boxes of Stanozolol, 12 vials of steroids - I beg your pardon.  The 12 vials of steroids were located at the factory, not at the place of residence.

10Just dealing with the place of residence, a 12 gauge shotgun, a centre action rifle, assorted ammunition and loaded gun magazines, two Tasers, three hunting knives, knuckle dusters, pepper spray and a credit card, credit/debit card in the name of Edward Rojaz.

11Turning now to the items located and seized from your factory, a cardboard box containing nine pen pistol home-made .22 calibre bolt action handgun, one of which contained a live round.  The 12 vials of steroids that I have already referred to, they were located at the factory.  Various items, a glass condenser, water pump, Pyrex cup, plastic syringes, décor containers, measuring jugs, glass jars with traces of solids, containers, funnels, quick fit stoppers, elbow joint and receiving adaptor, sulphuric acid, bleach, filter papers, bag labelled, 'rock salt', containing a solid, aluminium foil, round bottom flasks, sealed needles, rubber tubing, glassware, metal clamps, water adaptors, neck clamps, and tubs.

12Also located at the factory in relation to the manufacturing of firearms, the cardboard box containing the nine pen pistols, which I have already described, a black magazine, three boxes of silver cannisters and pallets, a black handgun frame and mechanism, two boxes containing five magazines, two handgun slides, one plastic container containing assorted springs and bolts, nine snap lock bags containing various firearm components, one round of ammunition, a box of large pistol primers, a piece of lined paper, handwritten notes, two metal rods, six metal rods in vacuum seal bags, and a metal Optimum lathe.

13The drugs were analysed and the results of analysis are detailed in the prosecution opening.  In respect of the substances, material and equipment for trafficking in a drug of dependence, the items located were consistent with that used in a clandestine drug laboratory.  They contained traces of methylamphetamine and other precursor chemicals.  Your fingerprints and DNA were not located on these items.

14There was an analysis of the firearm parts and items undertaken by an experienced toolmaker and a firearms and ballistics expert employed by Victoria Police, and the details of their investigations are contained in the prosecution opening.

15In relation to the charge of manufacture of firearms, the prosecution case against you on this charge is that you were complicit in the actions of Mr Koukas, but that Mr Koukas was the one who physically manufactured the nine bolt guns.  You assisted and encouraged Mr Koukas by giving Mr Koukas access to his factory and to his lathe to enable him the ability to manufacture these firearms with knowledge that Mr Koukas was manufacturing firearms.

16You were arrested and interviewed by police on 27 August 2016.  In that record of interview you stated that you had possessed and concealed the firearms, ammunition and the silencer in your home.  The weapons were all operational and loaded with ammunition or had ammunition close by but no firearm had a cartridge in the breach or chamber.  The only firearm which was not operational was the pump action shotgun which was jammed.  You accepted that you were responsible for all the firearms, weapons and ammunition.  You told police the handgun was for your own protection.  You told police the various drugs were yours.  You said you were responsible for the setting up and use of the hydroponic set-up for the growing of cannabis and you were experimenting with growing cannabis, and you admitted the other items and other controlled items and weapons were yours.  You said some of the items seized were for the conversion of cocaine into crack cocaine and you had been experimenting with this.

17In terms of the items seized from your factory you told police you were trying to make a handgun to use for your own protection as you had to return the handgun you had borrowed.  You said the parts for various commercial firearms and BB guns were your items.  You said you had downloaded a firearms manual and silencer cookbook.  You were generally cooperative with police during the search of your residence and factory.

18You were charged with offence and remanded in custody on 17 August 2016.  You were granted bail on 18 August 2016.  You were therefore on bail at the time of the commission of the second set of offences.  This is an aggravating factor.  On 7 June 2018 at the Sunshine Magistrates' Court a final personal safety intervention order was granted whereby you were the respondent to that order.  This was in relation to an unrelated matter.  The effect of that order was such that pursuant to the provisions of the Firearms Act the prohibited person provisions of that Act were automatically enlivened, making you a prohibited person.

19On 18 June 2018 you were arrested at the Keilor Downs Police Station when you were reporting on bail.  A search warrant was executed at your residence and the following items were located and seized by police.  I will summarise these items.  They are set out in detail in a table appended to paragraph 32 of the opening.  A bolt action rifle, a semi-automatic pistol, two other bolt action rifles, a silencer, a Victoria Police shirt, tactical belt, and a Velcro tag, a tandem trailer, three Victorian registration plates, hydraulic power tools, a zip lock bag containing white powder, various items of cartridge ammunition, a power gel explosive stick with red detonation cord, a Kevlar camouflage ballistic vest and four Ninja stars.

20Police conducted a record of interview with you.  You made no comment.

21I state to you that I have taken into account the following matters in mitigation of sentence.  You have pleaded guilty.  You are entitled to have that fact taken into account in your favour and I do so.  The community has, by your plea, been spared the time and cost of a trial.  Witnesses have been spared the ordeal of giving evidence upon your trial.

22You pleaded guilty at a relevantly early stage after testing pre-trial rulings and following discussions with the prosecution.  You cooperated with authorities in respect of the first execution of search warrant and made numerous admissions to police in the first record of interview.  I accept on all the material before me that you are genuinely remorseful.  You have no prior convictions.  I sentence you as a person of previously good character.

23I have been told something of your personal and these matters are set out in the detailed report of Dr Sullivan, psychiatrist, dated 23 June 2019.  You are 34 years of age, having been born on 29 October 1984.  You are a qualified electrician.  You conducted your own business, Immediate Electrical Solutions, which employed about five employees in 2016.  You owned and occupied your residence at Kings Park and the Derrimut factory.  Your parents separated when you were seven and divorced when you were 11.  Your parents and family continue to support you.  They, together with close friends, attended the plea hearing.  You completed Year 11 at secondary school and then completed your apprenticeship as an electrician.  You have an excellent work record, having started part time work as a teenager.  You are a qualified A grade electrician.

24You were only 21 when you started your own business, Xuereb Electrical.  When you were 24 you started a new business, Immediate Electrical Solutions.  In 2011 you purchased the factory in Derrimut and in 2012 you purchased a second factory in Derrimut.  From 2010 to 2016 your business expanded and was very successful.

25You did not cope with the pressures involved in running a successful business and you commenced to use illicit substances and abuse alcohol.  From about 2015 you were using cocaine.  You progressed to using ice.  In January 2015 your parents were concerned about your mental state and, accordingly, organised an appointment with the psychiatrist, Dr Fiona Wood.  You did not reveal your illicit drug use to her.

26In January 2016 you had a dispute over a job and this resulted in a threat being made upon you.  You were already paranoid and you believed this threat to be real.  You were hospitalised in March 2016 with a burst appendix and you suffered a back injury in a serious motor vehicle accident in April 2016.

27This offending in 2016 therefore occurred in the context of you losing control of your business due to your increased consumption of drugs and alcohol, resulting in drug induced psychosis, including paranoia.  You were mixing with drug using peers and allowing these persons access to your factory, and they were therefore able to store items at your factory and home.  You stored other persons firearms at your home.  This suited your paranoia and belief that you required some form of protection. You knew Koukas, the co-accused, through previous business dealings, and you allowed him access to, and use of, equipment in your factory for legal and illegal activities.

28At the time the search warrant was executed on 17 August 2016 you perceived that you were under a real threat.  This was against a background of drug induced paranoia.  After your arrest in 2016 your business continued to deteriorate.  You recommenced associating with a peer group of drug users and you recommenced using ice.  This pattern of ice use and the abuse of alcohol continued until your arrest in June 2018.  During the time between August 2016 and June 2018 you had numerous drug related mental health issues and relapses with paranoia.  This was reflected in the extreme measures you took to protect yourself by placing a shipping container in front of your home, installing floodlights and security cameras.  Once again, you stored firearms at your home.  Your parents were so concerned about your wellbeing they called a CAT team to your home in May 2018.

29Whilst this offending in 2016 and 2018 occurred in the context of your illicit drug use, this is not a factor in mitigation.  A large number of references and testimonials have been tendered on your behalf.  They describe your excellent past character and hardworking nature.  You were generous, kind and loyal.  Family and friends saw your mental health deteriorate in recent years.  Unbeknownst to many, you had spiralled out of control as a result of your illicit drug use.  It is to your credit that so many persons have written references and testimonials on your behalf.  They describe the depths to which you had sunk by the time of your arrest in August 2018,  You are fortunate to have such strong support from family and friends.  You do appear to have significantly improved since you have been on remand.  I accept that you have been using your time in custody in a constructive manner, having completed many courses.

30Dr Danny Sullivan, psychiatrist, has provided a detailed report dated 23 June 2019.  He has provided a diagnosis.  In his opinion you have a clear history of poly-substance abuse or dependence.  This has involved anabolic steroids in the past and, more recently, stimulants including cocaine and ice used in conjunction with alcohol.  It has been reported and observed that you have exhibited psychotic and manic symptoms.

31You provided Dr Sullivan with two narratives in respect of the possession of firearms.  The first was that you had pursued the ownership of firearms due to a passion which had arisen in adult years.  The second narrative was that the firearms had been place in your property by drug using peers.  In relation to your possession of drugs and paraphernalia Dr Sullivan was of the opinion that this appeared to be associated with your own substance use disorder, affiliation with drug using peers and your immersion into a lifestyle increasingly preoccupied by substance abuse.

32I accept Dr Sullivan's opinion that you now show good insight into the deleterious effect of substance use on your mental health.  You would benefit from enhanced understanding and the development of what he describes as mitigating strategies to assist you to abstain from illicit drug use in the future.  It was Dr Sullivan's opinion that given your maturity and past employment experience, you will have good prospects of rehabilitation if you can remain abstinent from substance abuse.  I agree with this opinion.  I assess your prospects of rehabilitation as good if you can remain abstinent from substance abuse.

33Against these matters in mitigation, however, your actions were very serious indeed.  You have committed a large number of offences. Many of these offences involve firearms and other weapons.  The most serious offence is Charge 1 on the first indictment.  This involved possession of a sawn-off shotgun, rimfire rifle, and nine hand held bolt guns.  These nine hand held bolt guns are weapons with no legitimate purpose.  They are particularly dangerous.  Your possession of firearms was very disturbing in view of your paranoia, your desire for weapons for protection and your disproportionate response to a perceived threat.

34The next most serious charge is Charge 1 on the second indictment.  This offence and the other offences committed in August 2018 occurred whilst you were on bail.  You have effectively restocked your home with firearms whilst on bail.  I accept that in respect of the manufacture of firearms, Charge 7 on the first indictment, you had a lesser role than Koukas, and I have differentiated the sentence imposed upon you for this offence.  You have also pleaded guilty to this charge.  In all the circumstances it is appropriate that the sentence on Charge 7 of the first indictment be wholly concurrent with the sentence on Charge 1 of the first indictment.

35Your possession of a handgun, this is Charge 2 on the first indictment, is serious.  There were 26 items listed in Schedule A to the first indictment.  So you therefore had a large number of items in your possession in respect of Charge 6 on the first indictment, that is possession of substances, material, documents or equipment for trafficking in a drug of dependence.  I accept that the offences in respect of the possession of drugs are relevantly minor.

36I have had regard to the principle of parity in respect of the manufacture of firearms and possession of firearms.  I have taken into account, as I have already stated, the respective roles of you and the co-accused, antecedents and prospects of rehabilitation.  I have had regard to the principle of totality.  As there are so many offences I have imposed what I consider to be moderate sentences in all the circumstances with an appropriate degree of cumulation in all the circumstances.

37I have had regard to s.16(3C) of the Sentencing Act concerning sentences of imprisonment for offences committed whilst on bail.  I intend to make appropriate orders for partial cumulation in respect of some of the sentences on the second indictment.

38As well as the matters to which I have referred I must also take into account the need for general and specific deterrence.  Specific deterrence is relevant in view of the number and nature of offences you have committed.  General deterrence is also of considerable importance in a case such as this.  These firearm and drug offences must be discouraged.  I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.

39It is not in issue that an immediate custodial sentence is required.  Your counsel submitted that I ought impose a sentence of imprisonment with a longer than usual gap between the total effective sentence and non-parole period.  In arriving at an appropriate non-parole period I have taken into account all the matters put on your behalf, particularly your past good character and strong support from family and friends.  There will be a significant gap between the total effective sentence and non-parole period, having regard to all of these matters.

40Having regard to all relevant facts and appropriate sentencing principles, I sentence you as follows.  Mr Sharp, Ms Saldana, because there are so many charges and they are spread over two indictments, my associate has got a draft of the court order, which I will just provide to you as I read through all these charges so you can follow all the charges and the orders in relation to cumulation.

41MS SALDANA:  Thank you, Your Honour.

42HIS HONOUR:  Thanks, Danny.  So if we just work our way - first of all, we have got the first indictment:  we have got Charge 1, convicted and sentenced to two years' imprisonment; Charge 2, convicted and sentenced to nine months' imprisonment; Charge 3, convicted and sentenced to two months' imprisonments; Charge 4, convicted and sentenced to one month's imprisonment; charge 5, convicted and sentenced to one month's imprisonment; Charge 5, convicted and sentenced to 12 months' imprisonment; Charge 7, convicted and sentenced to 20 months' imprisonment.

43We now move to the summary charges:  Summary Charge 7, convicted and sentenced to three months' imprisonment; Summary Charge 8, convicted and sentenced to three months' imprisonment; Summary Charge 32, that is on the next page, convicted and fined $300; back to the first page, Summary Charge 34, convicted and sentenced to three months' imprisonment; and Summary Charge 43, convicted and sentenced to two months' imprisonment.

44Now if we go to the next indictment, the second indictment:  the Charge 1 on the second indictment, convicted and sentenced to 18 months' imprisonment; Charge 2 on the second indictment, convicted and sentenced to 15 months' imprisonment; Charge 3, convicted and sentenced to nine months' imprisonment; Charge 4, convicted and sentenced to 10 months' imprisonment; Charge 5, convicted and sentenced to one months' imprisonment.

45Summary charges, this is in respect to the second indictment:  Summary Charge 6 is a monetary penalty.  That is on the next page, convicted and fined $400; back to Summary Charge 11, convicted and sentenced to one month's imprisonment; Summary Charge 13 is a monetary penalty on the next page, convicted and fined $250; now, Summary Charge 17 convicted and sentenced to one month's imprisonment; and Summary Charge 18.  We have got a conviction and sentence to one month's imprisonment.

46The base sentence is the sentence of two years' imprisonment on Charge 1 of the first indictment.  I direct, in terms of partial cumulation, I direct that three months and if I can just help you with this.  If you to go to the second page, if you look, it is the second paragraph at the top of the second page.  So I am directing three months of the sentence imposed on Charge 2 of the first indictment, four months of the sentence imposed on Charge 6 of the first indictment, one month of Summary Charge 7, first indictment; one month, Summary Charge 8, first indictment, one month Summary Charge 34, first indictment, one month Summary Charge 43, first indictment, and then six months, Summary Charge - sorry, six months, Charge 1, second indictment.

47So you will have to look at the second indictment, p.2 up the top, to follow this.  Then it is - so we are on to the second indictment.  I have just directed six months, Charge 1, this is the second indictment, four months, Charge 2, this is the second indictment, three months, Charge 3, this is the second indictment, and three months, Charge 4, this is the second indictment, be served cumulatively on the sentence imposed on Charge 1 on the first indictment and upon each other, otherwise the sentences are to be served concurrently.  So the total effective sentence is four years and three months.  The non-parole period is the minimum term that justice requires you to serve having regard to all the relevant circumstances that exist.

48For that reason it cannot be fixed automatically.  All relevant factors and sentencing principles are to be taken into account.  I have to consider when you should be eligible for mitigation of confinement and in turn rehabilitation under conditional supervision.  In all the circumstances I direct you serve a minimum term of two years and six months before becoming eligible for parole.

49As prescribed thank you s.18(4) of the Sentencing Act I declare the period of time you have spent in custody is 375 days, which is to be reckoned as time already served under the sentence, and I direct that such be noted in the records of the court.

50Pursuant to s.6AAA I state the sentence of non-parole period I would have imposed but for the plea of guilty is six years with a non-parole period of four years, and I make the forfeiture and disposal orders that are sought by the prosecution.

51MS SALDANA:  Your Honour, in relation to the forfeiture and disposal orders, we have received instructions from my client that some of the items are in dispute.

52HIS HONOUR:  All right.

53MS SALDANA:  We would require finalisation of those instructions and we would be seeking for this matter not be finalised today and adjourned for a short period to allow those matters to settle.

54HIS HONOUR:  Yes, I will not make the forfeiture orders, disposal orders sought by the prosecution in these circumstances, Mr Sharp.

55MS SALDANA:  As Your Honour pleases.

56MR SHARP:  Yes, Your Honour.

57HIS HONOUR:  I will let the parties discuss that and then liaise with me at a later time.

58MR SHARP:  Yes, Your Honour, that is acceptable.  Thank you, Your Honour.

59HIS HONOUR:  All right.  Anyone want to say anything about the technicalities?

60COUNSEL:  No, Your Honour.

61HIS HONOUR:  Yes, all right.  Thanks a lot for your help.

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