DPP v Koukas
[2019] VCC 573
•29 April 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00326
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JIM KOUKAS |
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JUDGE: | HIS HONOUR JUDGE COISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 April 2019 | |
DATE OF SENTENCE: | 29 April 2019 | |
CASE MAY BE CITED AS: | DPP v Koukas | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 573 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Sharp | Office of Public Prosecutions |
| For the Defendant | Mr J. Fitzgerald | Victoria Legal Aid |
HIS HONOUR:
1 Jim Koukas, could you stand up please. You have been found guilty by a jury of your peers of one charge of possession of a trafficable quantity of unregistered firearms and one charge of manufacture of firearms. These offences each carry the maximum penalty of ten years' imprisonment or 1200 penalty units.
2 You pleaded not guilty and conducted a trial which is your right. Whilst you are not to be punished in any way for doing so, equally you cannot expect the benefit that would attach to a plea of guilty or any indication of remorse that such a plea may have demonstrated.
3 The general circumstances surrounding these offences are as follows.
Chad Xuereb was the owner and occupier of Factory 7, 207 Derrimut Drive, Derrimut. This was his place of work. On 17 August 2016 police, members of the Victoria Police Echo Taskforce executed a search warrant at these premises. Part of this search was video recorded and played to the jury. Many items falling within the statutory definition of "firearm" in the Firearms Act and materials consistent with firearm manufacture were located within the factory.
4 It was the prosecution case that the items located at the factory, including the items depicted in the photo at p.15 of the jury book - that is, nine barrels, eight receivers and nine hexagonal bolts were all integral parts of a firearm. Whilst not fully assembled the jury found that you were in possession of a trafficable quantity of firearms, namely nine hand held bolt guns, Charge 1.
5 The jury also found that you manufactured firearms. The prosecution led expert evidence at trial as to how the items such as bolts and rods had been drilled and modified for the purpose of producing a firearm. The various parts could be assembled to create a concealed weapon, .22 single shot firearm. The weapon had the appearance of a high tensile bolt but it was in reality a single shot firearm.
6 A significant piece of evidence at trial was from Detective Acting Sergeant Melder, who was one of the police executing the search warrant. He noticed that one of the bolts in the cardboard box (Exhibit 4, photo p.15) could be unscrewed. When he unscrewed the bolt he discovered a .22 calibre cartridge in one section of the bolt.
7 In your record of interview you stated that you had been manufacturing parts on a lathe in the factory for a legitimate industrial purpose, namely to make support bars. It was also submitted on your behalf that none of the pieces seized by police constituted a "firearm" as defined. It is clear from the jury's verdict that this submission and your explanation that you were manufacturing parts for a legitimate industrial purpose were rejected by the jury.
8 I state to you that I have taken into account the following matters in mitigation of sentence. You have no prior convictions. I sentence you as a person of previously good character. I have been told something of your personal circumstances and these matters are set out in detail in the outline of plea submissions filed on your behalf.
9 You are 49 years of age having been born on 8 June 1969 in Greece. You are married. You have an adult daughter from a previous relationship. You had a good education and you have an excellent employment history as an engineer. In December 2006 you started your own engineering and maintenance businesses.
10 Whilst your businesses were initially successful the two companies ran into difficulties and either went into liquidation or ceased to trade in 2014/2015. Following the collapse of these businesses protracted and expensive legal proceedings left you impecunious. You also had a further setback when your home burnt down. You anticipate re-entering the workforce and re-establishing yourself upon the completion of any sentence.
11 I have had regard to the following medical reports tendered on your behalf. Dr Kieran Keane from the Laverton Medical Centre has written a report dated 17 March 2019. He describes your medical history as including morbid obesity and severe obstructive sleep apnoea for which you require, when sleeping, a CPAP machine.
12 He also noted that you were glucose intolerant and exhibited evidence of fatty liver disease. It was his opinion that these conditions are likely to worsen with time, and you are at very high risk of developing diabetes and other complications of your morbid obesity. Dr Keane expressed the opinion that imprisonment was likely to exacerbate your physical condition.
13 There is a brief letter from Dr Neil Smith, respiratory and sleep disorders physician, addressed to Dr Olga Simeonidis dated 15 May 2013, which describes your obstructive sleep apnoea. Dr Phillip Ead from the Hoppers Lane General Practice has written a note dated 18 March 2019, in which he describes you as suffering from severe sleep apnoea, an umbilical hernia, and obesity.
14 I accept paragraph 61 of the defence submissions filed on your behalf, namely that whilst you have been in custody, you have, on three occasions, been admitted to hospital with respect to medical conditions concerning your heart. Since you have been in hospital you have been prescribed aspirin as well as a nitrolingual spray to treat angina. I also accept the submission made on your behalf that your medical conditions will make imprisonment more onerous than if you did not suffer from them. I have taken this into account as a factor in mitigation.
15 Very detailed references and testimonials were provided on your behalf from Stephen Anagnostopoulos, Anna Kipridis, together with briefer references from Renee Fardan and Anne Desmond. These references describe your many good qualities including generosity, a willingness to help others, a hardworking disposition, and a supportive nature. These references also address the difficulties you have encountered as a result of the actions of others contributing to the failure of your businesses.
16 Your father-in-law and many family members attended court to support you at the plea hearing. I accept the submission of the good character evidence your father-in-law was able to give which was consistent with the information in the references and testimonials I have already described. You have no history of drug use or dependence upon alcohol. I assess your prospects of rehabilitation as being good.
17 Neither counsel was able to refer me to any superior court authorities in respect of this offending, nor were either counsel able to direct me to current sentencing practices. I was provided with a number of sentences of judges of this court. I found these sentences to be relatively unhelpful.
18 Against these matters in mitigation, however, your actions were very serious indeed. You did not manufacture a complete or operable firearm. The firearm parts, however, were integral to the operation of a single shot weapon. These parts were incomplete and therefore required additional components and/or modification to form a completed operable firearm. You were the manufacturer of parts, therefore you did apply your skill and expertise and used Xuereb's lathe and raw materials located in Xuereb's factory.
19 On the limited evidence available I am not able to make any findings on your motivation for this offending, nor can I make any specific findings on the nature, if any, of your relationship with Xuereb in respect of your offending. As a manufacturer of parts which fall within the definition of firearm I do regard your moral culpability as being high, although I have, in assessing the objective gravity of the offending, taken into account the nature of the parts and the extent to which they could be used in conjunction with other parts to form a complete operable firearm.
20 It is relevant that the parts were to form a concealed single shot weapon. Such a weapon has no legitimate purpose and it poses serious risks to both the shooter and, of course, any potential victim.
21 I have calculated the pre-sentence detention at 77 days. That can be corrected if required. As 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 less relevant as you have no prior convictions and you have good prospects of rehabilitation.
22 General deterrence is of considerable importance in a case such as this. This type of offending 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.
23 Your counsel submitted that I ought to impose a Community Corrections Order or combined sentence of a Community Corrections Order and imprisonment. It was submitted on behalf of the prosecution that the only appropriate sentence is an immediate term of imprisonment with a non-parole period.
24 I have considered the imposition of a Community Corrections Order but I consider that the sentencing purposes of just punishment, denunciation and general deterrence, having regard to the nature of this offending and all the circumstances of this case, cannot be achieved by the imposition of a Community Corrections Order, either alone or in combination with a sentence of imprisonment.
25 In my opinion the appropriate sentence is an immediate term of imprisonment with a non-parole period. The most serious offence is Charge 2, manufacture of firearms. In the circumstances of this case, the possession charge,
Charge 1, is largely subsumed by Charge 2 and, accordingly, I have made the sentences wholly concurrent.
26 Having regard to all relevant facts and appropriate sentencing principles, I sentence you as follows. Charge 1, convicted and sentenced to two years' imprisonment. Charge 2, convicted and sentenced to three years' imprisonment. The total effective sentence is three years' imprisonment. The non-parole period is the minimum term that justice requires you to serve, having regard to all the relevant circumstances that exist.
27 For 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.
28 In all the circumstances, I direct that you serve a minimum term of two years' imprisonment before becoming eligible for parole. As prescribed by s.18(4) of the Sentencing Act I declare that the period of time you have spent in custody is 77 days which is to be reckoned as time already served under the sentence. I direct that such be noted in the records of the court. Is the pre-sentence calculation correct?
29 MR SHARP: It's correct, Your Honour.
30 HIS HONOUR: There's no other matters?
31 MR SHARP: No, Your Honour.
32 HIS HONOUR: Thanks. I'll stand down temporarily. The prisoner can be removed.
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