Michael Noble v Milan Kajevic
[2020] ACTMC 29
•18 December 2020
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Michael Noble v Milan Kajevic |
Citation: | [2020] ACTMC 29 |
Hearing Date(s): | 25 August, 28 August, 24 November 2020 |
DecisionDate: | 18 December 2020 |
Before: | Magistrate Stewart |
Decision: | See [33] – [38] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – unauthorised possession of prohibited firearms – possessing ammunition – possessing an offensive weapon with intent – two pistols – semi-automatic pistol and revolver - high range of objective seriousness |
Legislation Cited: | Firearms Act 1996 (ACT) Crimes Act 1900 (ACT) Crimes (Sentencing) Act2005 (ACT) |
Cases Cited: | Murray v IA [2020] ACTSC 288 R v Inder [2020] ACTSC 111 R v Stephen [2020] ACTSC 283 R v TX [2020] ACTSC 157 R v Stacker [2019] ACTSC 219 R v Peter [2019] ACTSC 22 R v Mitchell [2016] ACTSC 85 R v Mack [2009] NSWCCA 216 |
Parties: | Michael Noble (Informant) Milan Kajevic (Defendant) |
Representation: | Counsel B. Donnelly (Crown) G. Meikle (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) ACT Legal Aid (Defendant) | |
File Number(s): | CC 8302; 8304 of 2019 CC 13742 of 2020 |
MAGISTRATE STEWART:
Background
The defendant is to be sentenced for a number of criminal offences. After hearing I found a charge of possess offensive weapon with intent [1] proved beyond reasonable doubt. He has also pleaded guilty to one count each of unauthorised possession of a prohibited firearm and possessing ammunition. [2]
Against the background of the defendant having lived at the home of the complainant for a number of years, I found the following facts proved on the first charge:
(a)There was a building tension between the two men;
(b)The defendant was chopping wood at the front of the house;
(c)The complainant was present at the front of the house and he wanted the defendant to move out;
(d)An argument developed to the point where the complainant yelled at the defendant with words expressing his desire to evict him;
(e)The defendant walked towards him to remonstrate with the axe pointed down;
(f)The defendant fell over; and
(g)The respondent retreated and complained to the police.
Police attended and searched the defendant’s car. They found two pistols and live ammunition in a briefcase. The tendered report of Thomas Smale details that both the .25 calibre self- loading Colt pistol and the .22 calibre H & R revolver were in working order and both fired live rounds when tested. There were 163 live rounds to suit the Colt pistol and 54 live rounds to suit the H and R revolver.
The defendant agreed that the Colt pistol was semi-automatic and would fire as fast as the trigger was pulled.
Consideration of the charges
The offensive weapon charge is far less objectively serious than the possession of the firearms. The complainant produced an unusually lengthy victim impact statement which was read aloud in court. It is clear that the offending has had a considerable effect on him. I note that he was aware of the possession of the firearms for some three years [3] and acquiesced about that situation.
I accept that his knowledge of the presence of the firearms added weight to the fear that was aroused by the defendant’s behaviour with the axe. On that basis the victim impact statement is properly received.
The gravamen of that offending is advancing towards the complainant with the axe – in circumstances of a heated verbal argument. The prosecution has submitted that the offending does not necessarily call for a sentence of imprisonment. I agree with that and find that the offending is at the lower level of objective seriousness for this type of offence.
A prosecution submission was made to the contrary on the firearms charge, with the prosecution submitting that ‘the section 10 threshold had been crossed’. The defence contended that an appropriate sentence can be effected by way of a community based order.
The offending is objectively very serious:
(a)There were two operable pistols;
(b)There was no satisfactory reason advanced for the possession of the pistols, but I accept that they are not linked to any wider criminal activity;
(c)The pistols were kept in a motor vehicle – a highly insecure storage place that is often stolen and relatively easy to break into;
(d)The pistols, if fully loaded, had between them the capacity to fire fourteen rounds [4] without reloading;
(e)Both pistols are easily concealable and able to be easily transported without drawing attention. The defendant’s claim that the pistols are ‘senoritas’ or purse guns does not reduce the objective seriousness of his being in possession of them – rather, their size and capacity to fire multiple rounds means that possessing them unlawfully increases the objective seriousness;
(f)The pistols were clearly not being kept for a sole purpose such as them being ‘collector’s items’ or ‘antiques’ as the defendant originally submitted through his solicitor. The defendant was not licenced to collect them, they were not stored in a lawful manner that reflected any alleged collectability, they both worked as intended by their respective manufacturers and, most importantly, they were stored quite insecurely in a car with over 200 rounds of ammunition suited to them (although the last fact is not relevant in an aggravating way). Today the submission was supplemented with an admission that was a combined purpose for possession – sentimental value, collector value and protection;
(g)The amended police statement of facts notes that the defendant told police that he kept the firearms ‘for his protection’. No submission was made as to why the defendant required protection or what he was protecting himself from. These comments do not provide a lawful purpose or excuse for the possession, and, in my view, do not reduce the objective seriousness of the offending;
(h)The pistols were not loaded when found and there is no evidence of the defendant firing or otherwise using them; and
(i)The defendant apparently possessed at least one of the pistols for three years as he had shown it to the complainant then.
10. There is no element of intention relating to use for this offence – mere or simple unauthorised possession of a prohibited firearm is all that is required. The intent of the legislature is obvious – to outlaw certain types of firearm (except in special circumstances) [5] and reduce the risk to the community by keeping prohibited firearms out of the hands of those who might easily use them to commit serious crimes.
11. Semi-automatic firearms are notorious for the historically horrific crimes they continue to be used in. Concealable semi-automatic firearms pose another level of threat.
12. The offending gives rise to a need for general and specific deterrence. I agree that no sentence outcome other than imprisonment is appropriate.
13. The possess ammunition charge is a fine only offence. The sheer amount of live ammunition means that this offending is above the median range of objective seriousness.
14. It should be obvious from my comments above that I have refrained from allowing the dual presence of the firearms and ammunition to aggravate each other. In the future it may be wiser not to lay a possess ammunition charge in similar circumstances as its aggravating effect on the possession of the firearms is far greater than its fine only penalty as a stand-alone charge. I think that if the ammunition charge had not been laid the presence of the ammunition would have aggravated the firearm offending in a significant manner and increased the sentencing start point in a marked way.
Sentencing considerations
15. I note the victim impact statements read and tendered to the Court and acknowledge the harm that the offending has caused.
16. The defendant spent two days in custody prior to being granted bail.
17. The defendant is aged 66 years. He has a criminal history that has seen him appear before the courts of the ACT, New South Wales, Western Australia, Victoria and Queensland. He served several sentences of imprisonment as a younger man, including two months imprisonment for possessing a firearm within 5 years of parole in Victoria in 1972 and six separate sentences of imprisonment in the court in the early 1990s for driving, dishonesty and beach of domestic violence order offences.
18. It is important to note that the defendant has not been before a court in Australia since 1991.
19. The defendant is single and has no dependants. He has two siblings whom he has regular telephone contact with. He has worked for a lot of his adult life with some spells away from work due to a back injury.
20. He has not enjoyed being in custody since 24 November. He has suffered high blood pressure and has been moved into a crisis support unit. Continued time in custody will likely have a greater impact on him than a younger healthier man and serve as significant deterrent effect.
21. There is nothing to suggest that alcohol or illicit drugs were a factor in his offending.
22. The pre-sentence report shows that the defendant has little or no insight into his offending with him claiming to be ‘victimised by the police, courts and the victim’. [6] The pleas of guilty to two out of the three charges are noted and his lack of insight should be viewed in light of his early pleas and contrition on those charges.
23. The defendant is unsuitable for an intensive-corrections order due to him not having a fixed abode since his offending.
24. The defendant was assessed as being medium risk of general reoffending and, as such, the Court should be cautious about his prospects of rehabilitation.
Comparative sentences
25. I have considered R v Stephen [2020] ACTSC 283, R v TX [2020] ACTSC 157, R v Inder [2020] ACTSC 111 and R v Stacker [2019] ACTSC 219 – all being other recent examples where the sentencing court has decided that imprisonment of some type is the only appropriate sentence for a charge under s42(1)(a)(iii) of the Firearms Act. They were also useful to see if there is a ‘current sentencing practice’ pursuant to s33(1)(za) of the Crimes (Sentencing) Act. Ultimately, I do not think that there is a current sentencing practice for this offence as the prevalence of multiple and semi-automatic pistols in this Territory appears to be quite low.
26. I have also reminded myself of Mossop J’s decision in Murray v IA [2020] ACTSC 288 reinforcing the settled view that sentences themselves do not give rise to binding precedents. Sentencing is not a mathematical process and I am mindful that in other cases some of the aggravating features of possession are consumed by other charges such as robbery. That is not the case here.
27. In Stephen the offender was also sentenced for an offence against s 42(1)(a)(iii). The single firearm there was a replica of an automatic pistol. It was an airgun but was inoperable due to some missing parts. It was found in a backpack outside premises where more serious offences were committed by the offender – but not with the firearm. Mossop J found that the offending was at the lower end of the range of objective seriousness and started at a sentence of 12 months reduced to 10 on account of the plea.
28. In Inder, Walker AJ sentenced the offender for possessing a sawn-off shotgun found on top of a pergola with three cartridges inside the house. The offending was unrelated to other matters her Honour sentenced for and she found the offending to be serious but not an extreme example of the offence and imposed 7 months imprisonment. I note that this sentence was the result of the breach of a seven-month suspended sentence imposed in this Court and it should be viewed through the prism of a breach sentence.
29. In TX the offender was sentenced for possessing a firearm in circumstances of an attempted robbery. It was loaded and pointed towards a victim. Loukas-Karlsson J commenced at a start point of 16 months reduced to 12 months on account of the guilty plea. The obvious aggravating features were the subject of a separate charge.
30. In Stacker the offender was sentenced to 12 months imprisonment by Elkaim J in relation to a replica revolver that was found in his pocket whilst he was unconscious on the median strip of a road. He was also sentenced for other serious but unrelated offending.
31. Her Honour Loukas-Karlsson J reviewed the approach to sentencing for firearms offences in R v Peter [2019] ACTSC 22. Her Honour referred to a decision of Refshauge J in R v Mitchell [2016] ACTSC 85 where the offender was sentenced for the possession of 11 firearms including pistols. The Verdins [7] principles were enlivened in the sentence of the 71 year-old and his Honour started at five years and three months and reduced it to three years and six months on account of the plea. The sentence was suspended in that case. His Honour pointed out (at paragraph 3) that despite the origins of modern-day firearms legislation being the Port Arthur massacre, sentencing in firearms matters “should be conducted with regard to standard sentencing principles”.I have taken care to do so here.
32. His Honour referred very helpfully to the NSW case of R v Mack at paragraph 85:
R v Mack [2009] NSWCCA 216, listed the following matters by which to assess the objective seriousness of the offence of possessing unlicensed firearms. They were:
(a) the number of firearms;
(b) the number of firearms that were prohibited or were pistols;
(c) the nature and type of the firearms;
(d) the purpose of the possession of the firearms;
(e) the location of the property and the security under which the firearms were kept;
(f) the length of time during which the firearms were in the applicant's possession; and
(g) the circumstances in which they came into his possession.
33. All those 7 features bar the last (because there wasn’t a positive submission on the topic) [8] are relevant to this sentence and demonstrate the very high objective seriousness of the offending.
Sentence
34. Taking all the above factors into consideration and using instinctive synthesis, I think that the appropriate start point for the unauthorised possession of prohibited firearm charge is a conviction and 40 months imprisonment. I will reduce that to 30 months on account of the plea and backdate it to commence two days prior to 24 November when I remanded the defendant in custody. That will allow full credit for the days previously spent in custody.
35. The defendant is not suitable for an intensive corrections order and the offending here is objectively of very high seriousness. There has been a considerable gap in his criminal offending and he is now in his 60s and not enjoying custodial life. He has known for nearly 50 years that unlawful possession of firearms can lead to jail sentences and yet he has offended in this way. Despite that, I think that he does have prospects of rehabilitation and that at least some of the sentence should be served on a community basis so that he can demonstrate his commitment to rehabilitation.
36. I find that it is appropriate to suspend the sentence after 12 months. The defendant will then be released on a suspended sentence of 18 months imprisonment with a two year good behaviour order. There will be core conditions as well as supervision for the first 12 months of the two year order. I will not prescribe the courses or programs that his supervisor officer may direct the defendant to attend – I will leave that to his supervisor.
37. I impose a conviction and sentence the offender to $900 (reduced from $1200) for the possess ammunition charge. That should be imposed with no time to pay.
38. On the charge of possessing offensive weapon with intent I impose a good behaviour order with core conditions for 12 months to commence on the day he is released from custody.
| I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Stewart Associate: Date: 18 December 2020 |
[1] Contrary to s 381(1) ACT Crimes Act 1900 – maximum penalty fine of $2000, or imprisonment for 1 year or both.
[2] Contrary to ss 42(1)(a)(iii) and 249(1) of the Firearms Act1996 respectively with maximum penalties of 5 years imprisonment (as the defendant elected for summary disposal vide s 375 of the Crimes Act1900) and for s 249 (1) a fine of $1600.
[3] See the amended Police statement of facts tendered by consent.
[4] See addendum e-mail statement of Mr Smale dated 15 December 2020 where these answers to my specific questions were given:
1.How many rounds can the H and R revolver be loaded with and fire before re-loading?
Seven.
2.Can the Colt semi-automatic pistol be loaded with one round in the chamber and six in the magazine and discharge all seven without reloading?
Yes it can, if one round is manually chambered and then the loaded magazine is fitted, the firearm can cycle through all seven rounds before it will need reloading.
[5] See s 5 Firearms Act 1996.
[6] P2 Pre-Sentence Report date 23 November 2020.
[7] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.
[8] I think it would be unfair to the defendant to allow the unguarded submission on 26 November 2020 at P 23 L 13-15 to amount to a circumstance of aggravation in this regard or to stand as a positive submission as to the length of ownership.
1
10
3