DPP v Corken
[2016] VCC 1962
•14 December 2016
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-16-01528
DIRECTOR OF PUBLIC PROSECUTIONS Prosecution
v
SCOTT CORKEN Defendant
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JUDGE: His Honour Judge Murphy
WHERE HELD: Melbourne
DATE OF HEARING: 2 December 2016
DATE OF SENTENCE: 14 December 2016
CASE MAY BE CITED AS: DPP v Corken
MEDIUM NEUTRAL CITATION: [2016] VCC 1962
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Sentence – possessing an unregistered handgun – possessing drug of dependence – manufacturing a firearm – possessing cartridge ammunition – possessing prohibited weapon – storing unauthorised explosive – weapons traded to support drug addiction – prior convictions – whether community corrections order appropriate disposition – whether combination sentence (imprisonment plus community corrections order) more appropriate disposition – Boulton v The Queen [2013] VSCA 342 considered – combination sentence imposed
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited: Boulton v The Queen [2013] VSCA 342
Sentence:3 months’ imprisonment with a 12 month CCO
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APPEARANCES: Counsel Solicitors
For the Crown Ms D Hogan Office of Public Prosecutions
For the Defendant Ms J Smith Stary Norton Halphen
HIS HONOUR:
Scott Corken, you have pleaded guilty to two charges of possessing an unregistered general category handgun,[1] three charges of possessing a drug of dependence[2] and two charges of manufacturing a firearm.[3]
[1] Maximum penalty: 7 years’ imprisonment for a first offence.
[2] Maximum penalty: 1 year imprisonment.
[3] Maximum penalty: 10 years’ imprisonment.
You have also pleaded guilty to the following summary charges:
a)One charge of possessing cartridge ammunition without a licence/permit;[4]
b)Four charges of possessing a prohibited weapon without exemption/approval;[5]
c)One charge of storing an unauthorised explosive without approval;[6] and
d)Two charges of possessing a Schedule 4 poison.[7]
[4] Maximum penalty: 40 penalty units.
[5] Maximum penalty: 2 years’ imprisonment or 240 penalty units.
[6] Maximum penalty: 2 years’ imprisonment or 100 penalty units.
[7] Maximum penalty: 10 penalty units.
Circumstances of the Offending
The circumstances of the offending were set out in the Crown opening, which was read in open court on the plea and which I incorporate by reference.[8] Essentially, you were employed at Yarra Trams at their Malvern maintenance depot as an electrical mechanic.
[8] Exhibit A on the plea.
On 28 October 2015, Victoria Police intercepted a car that you were driving, and during a search of the vehicle, they found in the car two silver coloured .22 calibre home-made firearms inside a beanie.
The firearms were in the form of a manufactured type pistol, using a large general bolt which had been drilled out, containing a spring loaded lever such that it could carry a .22 long rifle calibre cartridge. The length of the first pistol was about 120 millimetres with a barrel length of 62.5 millimetres, and the second being 120 millimetres long with a barrel length of 61.8 millimetres.
Both pistols were fitted with roll spring pins, which acted as cocking pieces. They could be loaded and discharged in the same manner as pen pistols that were found at your home on 13 April 2016.
In your car on the same day, police located a green pill case containing various drugs of dependence, including Valium, Xanax, Lorazepam, Sildenafil and Perizyazine pills. You admitted to the police that they were yours. These pills and drugs form the basis of the charges of possessing a drug of dependence[9] and possessing a Schedule 4 poison.[10]
[9] Charges 3, 4 & 5 on Indictment C1610943.
[10] Summary charges 14 & 15.
You were arrested and taken to the police station. During the interview with police, you stated that you had found the pen pistols on a tram and decided to keep them. You further said that the pills and drugs were your ex-girlfriend’s. You were charged and bailed to appear at the Ringwood Magistrates’ Court on 29 March 2016.
On 13 April 2016, the police executed a search warrant at your home in Ferntree Gully. You were home during the execution of the warrant where, in your bedroom, police found a black plastic shrink wrapped item which contained six metal firearm parts manufactured using metal bolts. These items were capable of manufacturing two handguns capable of firing a .22 calibre bullet. Further, two .22 calibre rounds of ammunition were removed from each of the two firearms' barrels. The finding of the .22 calibre rounds constitutes the charge of possessing cartridge ammunition.[11]
[11] Summary charge 4.
10.The firearm items were analysed by the police and found to have constituted parts of two pen pistols that were capable of firing .22 calibre long rifle bullets. These were, again, homemade pen pistols. The overall length the first pistol was 154 millimetres with a barrel length of 70.8 millimetres, and it was of similar construction to the two earlier ones. The barrel length on the second pistol was 66.5 millimetres.
11.So there were two items that could be assembled into a pistol, similar to the fully assembled pistols that you had been found with six months earlier. These items constitute the two charges of manufacturing a firearm.[12]
[12] Charges 6 & 7 on the indictment.
12.In your bedroom, police found inside a Xanax bottle six rounds of .22 ammunition and two 9 calibre rounds of ammunition.[13] They also found two knuckle-dusters,[14] seven metal-throwing stars,[15] one sling-shot,[16] one double-edged knife[17] and an assortment of small firecrackers.[18]
[13] This constitutes summary charge 4.
[14] Summary charge 5, being a prohibited weapon.
[15] Summary charge 6, being a prohibited weapon.
[16] Summary charge 7, being a prohibited weapon.
[17] Summary charge 8, being a prohibited weapon.
[18] Summary charge 9.
13.The police concluded that four out of the six .22 calibre cartridges were suitable for being used in all four of the pen pistols. There was also a black Tupperware container found in your bedroom containing a number of bolts, springs and medal hardware parts, some of which included bolts that had been manually drilled. There was also a Perspex template for a knuckle-duster and a bat-like throwing object. Further, in the garden shed, police located a clear coin bag containing an assortment of bolts, springs and metal hardware parts, some of which had been hollowed out.
14.You were interviewed, which was your second interview with police, where you stated that there was a piece of a BB gun that your sister had brought back from Thailand, the ammunition had been in your drawer for years, you had made knuckle dusters at work and home, the firecrackers were ten years old and you had made the throwing stars with an angle grinder. You conceded they were a weapon, but they were made for decoration. You further said that you had been given a double edged knife a couple of years ago, and you found the pen guns located in your car on a tram and that you had knocked the ends out of some bullets to test whether the firing pin worked. You said that you had no intention in doing this and that you should have disposed of them and said it was stupid.
15.Police attended at your depot in Malvern on 28 April 2016 where they located bolts in a similar appearance to the ones that had been used for the firearms located in your possession on 28 October 2015 and again on 13 April 2016. Police then seized your phone and found a number of messages on that phone, over a period of approximately 15 months, that referred to the exchange of weapons or that referred to pen guns and cannons. Some of the messages sent by you stated:
"Also, do you want any more No.1?" – 10 May 2014
"Work not busy but been craftin up the blades again lol." – 14 May 2014
"Work not bad tho, making blades hahaha" – 11 June 2014
"Had fuck all to do at work, so I made a gun hahaha. Got to try to make up 8 hrs work..." – 31 August 2014
“Hey, wanna ask Johan if he want to trade knuckle dusters for Lucy?” – 16 October 2014
“Was makin up some more dusters and about to go have a shower” – 26 January 2015
“They weren’t loaded & no bullets (I “found” them at work lol) and ‘2 empty pens (that I ‘found’ at work in a tram lol) & a few different sleepers” – 29 October 2015
“Can prob have 2 more ready for ya by the end of the day as soon as I get heat shrink as well” – 31 October 2015
16.There was also a short text message exchange between you and an unidentified recipient on 21 April 2015 where you received the following message:
“Send me a picture of them knuckled dusters with blade”.
17.You also received another message on 10 October 2015 stating:
“How much for pen gun and knife dusters? And when can they b ready by”
18.Police also located photos of knuckle-dusters and throwing stars on your phone.
Seriousness of the Offending
19.You have pleaded guilty to four charges involving firearms (two involving manufacturing and two possession offences). All offences involving firearms are inherently serious as they usually involve drug activity or are inevitably associated with other criminal activity.
20.In this case, your explanation for the offending was that you were exchanging home-made prohibited weapons for small quantities of drugs. You have not been charged with any trafficking offences in relation to either weapons or drugs. Your culpability for the firearms offences is relatively high, because of the content of your phone records, which indicates that in the previous year you had been discussing the issue of pen guns, and other prohibited weapons, with people.
21.Further, notwithstanding that you had been arrested in possession of two pen guns in October 2015, when the police searched your house in April 2016, you had in your possession the items that constitute the charges of manufacturing a prohibited weapon, as well as the other weapons possession charges. Thus, over a six month period on two occasions you have been found in possession of a prohibited weapon. This is serious offending. You cannot claim youth or immaturity, as you are now aged 37. In addition to the charges involving the home made firearms, there are summary charges involving various other prohibited objects and weapons. You pleaded guilty also to possession of a small quantity of prohibited drugs.
Prior Convictions
22.You are now aged 37 and admitted a prior appearance in 1997 on charges of theft of a motor vehicle and theft from a motor vehicle, for which you were placed on a community-based order without conviction. Given that you were only 17 or 18 at the time, I give the matter minimal weight.
Matters in Mitigation
23.In a comprehensive plea, your counsel put a number of matters seeking to mitigate the penalty. As I indicated, you are now aged 37. You have a younger sister and a younger brother. Sadly, your younger brother passed away when he was aged 25, and this impacted on you. You left school at year ten and worked in cleaning and in a tram depot. You were then able to obtain a position as an electrical fitting apprentice with the Tramways Board and you successfully completed that apprenticeship and held a position for some 16 years. Your father also worked for the Tramways, but was not your supervisor at the relevant depot.
24.In evidence was a letter from your long-term partner, who indicates that you now have a 20 month old son, and being forced to resign from your job has had a major impact on you. There was also in evidence a reference from a close friend. She indicates that you are remorseful for your conduct and are now aware of the seriousness of your involvement in occasional drug use. She was shocked and disappointed when she heard about your offending.
25.Your sister also provided a reference, where she indicated that you are remorseful for your conduct and you have been a caring and compassionate older brother. Your father gave evidence on the plea, which indicates that he has a zero tolerance for drugs. He indicated that the family will continue to support you.
26.In other matters in mitigation, you pleaded guilty at the second committal mention. The prosecution did not dispute that this was generally an early plea.
27.Secondly, your counsel relied on evidence from family members and a friend as to your character, in order to sustain a conclusion that this offending was out of character.
Sentencing Submissions
28.The central argument on the plea was whether the ultimate disposition of the court should be a combination sentence of a term of imprisonment followed by a community corrections order, or a community corrections order alone. Your counsel submitted that all sentencing objectives could be served by a community corrections order alone. She relied on a number of considerations that pointed to a rehabilitative disposition.
29.First, you have successfully completed the CISP program in the Magistrates' Court. The final report indicates that you have commenced to undertake individual drug and alcohol counselling, and you have engaged with counselling and exhibited positive motivation.
30.Secondly, your counsel also relied on protective factors associated with your home environment. Your father gave evidence that indicated that he has a zero tolerance for drugs. Further, you have now admitted your drug problems and have the support of your family.
31.Thirdly, it was submitted that you have suffered some punishment by the fact that you have been forced to resign from your employment at the Tramways depot. On this point I accept that there is hardship and give it some weight, but not decisive weight.
32.Your counsel also relied on family hardship. I do not accept that this is a matter to be given any significant weight, as it does not rise to the exceptional test.
33.Ultimately your counsel submitted that following the decision of Bolton,[19] imprisonment should be a sanction of last resort, and the Court of Appeal has recognised that the sentencing objectives can be achieved by community corrections orders, with appropriate conditions, in cases that, hither to, may have called for a sentence to be served.
[19] Boulton v The Queen [2013] VSCA 342.
34.Here, the consideration is that your road to rehabilitation would be disrupted by a sentence of imprisonment. That is a factor I take into account. Further, you are entitled to rely on your lack of relevant prior convictions for a conclusion that this offending is out of character. That is significant, given that you are now aged 37 and have been in the workforce and led a productive life.
35.You have admitted to the Office of Corrections that you had been using recreational drugs for some time. Being apprehended for this offending has allowed your drug problem to be brought into the open and commensurably addressed. It is obviously in the community interest that this continue, and that you resume being a breadwinner in the family.
36.You have a good employment record to date, but you have lost your position as a result of this offending, but you have a trade qualification, and thus, would have reasonable prospects of obtaining further employment. I give the loss of job some mitigating weight.
37.The Office of Corrections assesses you as being at low-risk of re-offending. The assessment indicates that, in the opinion of the assessor, you do not require supervision, and you do not seem to require any mental health referral. The assessor did recommend a drug treatment condition.
38.The learned prosecutor, in her submission, put that this was serious offending which involved multiple types of weapons, and that after being arrested in October 2015, this did not deter your conduct. Further; you had not been honest with the police in the record of interview when you claimed that you had found these weapons on the tram. She submitted that the argument that there would be family hardship should carry little weight, but that general deterrence was an important consideration. Further; specific deterrence was also a sentencing consideration.
Purposes of Sentencing
39.The basic purposes for which a court may impose a sentence are punishment, deterrence - both specific and general - rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victims, if any. 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.
40.Having weighed the competing considerations and seeking to apply Bolton, I have decided that on a fine balance principles of general deterrence and denunciation call for a term of imprisonment combined with a community corrections order. While such a disposition would retard your path to rehabilitation, which I regard as good, a signal has to be sent to the community that it is completely unacceptable to be in possession of prohibited weapons, and/or to manufacture those weapons. You put your tradesman’s skills to this illegal use. Both you, and others, must be deterred from such activity; particularly where illegal firearms are invariably associated with other illegal activity, such as the drug industry. The courts must seek to do everything they can to stamp out the pervasive use of illegal drugs, and illegal weapons are part and parcel of the trade. Pen guns are dangerous and concealable and it is notorious that they are used in the drug trade, and those minded to be in possession of them, or to turn their hands to their manufacture, must realise that significant punishment will follow.
41.Balanced against the need for punishment and denunciation, it is in the community interest that your underlying problems with recreational drugs be addressed. This can be addressed by a short term of imprisonment followed by a community corrections order that contains a drug counselling and testing condition. I am satisfied that it was the underlying use of drugs that led to this offending, where you were utilising your skills as a tradesman to make homemade weapons to exchange for recreational drugs. But for your lack of prior convictions and otherwise good character, a longer term of imprisonment to be served would have been imposed.
42.On charges 1, 2, 6 & 7, being the charges of possessing an unregistered general category handgun and manufacturing a firearm, you are sentenced to three months' imprisonment, followed by a 12 month community corrections order.
43.On the remaining charges, being three charges of possessing a drug of dependence, and on the summary charges of possessing cartridge ammunition, four charges of possessing a prohibited weapon, one charge of storing an unauthorised explosive and two charges of possessing a Schedule 4 poison, you are sentenced to an aggregate fine of $1000, and I give you a six month stay on the payment of the fine.
44.The total effective sentence is, therefore, three months’ imprisonment, a 12 month community corrections order and a $1000 fine..
45.I declare that you have served 2 days of pre-sentence detention.
46.Pursuant to section 6AAA of the Sentencing Act 1991 (Vic), but for your plea of guilty I would have otherwise imposed a sentence of five months’ imprisonment with a 12 month community corrections order.
47.I make the forfeiture and disposal orders sought by the prosecution.
48.I further make the forensic sample order sought by the prosecution. This is appropriate giving regard to the seriousness of the offending. The authorities may use reasonable force to obtain such a sample.
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