R v Klobucar (No 5)
[2016] ACTSC 383
•13 December 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Klobucar (No 5) |
Citation: | [2016] ACTSC 383 |
Hearing Date: | 13 December 2016 |
DecisionDate: | 13 December 2016 |
Before: | Penfold J |
Decision: | Mr Klobucar is convicted of one offence of possessing a prohibited weapon and sentenced to five months imprisonment from 1 January 2014 until 31 May 2014. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – plea of guilty to one offence of possessing a prohibited weapon (nunchakus) – offender affected by mental impairment when offence detected – limited criminal history – sentence of imprisonment backdated to account for time spent in custody. |
Legislation Cited: | Prohibited Weapons Act 1996 (ACT), s 5 |
Cases Cited: | R v Klobucar (No 2) [2016] ACTSC 53 R v Klobucar(No 4) [2016] ACTSC 348 |
Parties: | The Queen (Crown) Danny Klobucar (Offender) |
Representation: | Counsel Mr M Fernandez with Ms A Jamieson-Williams (Crown) Mr J Purnell SC (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson Lawyers (Offender) | |
File Number: | SCC 215 of 2014 |
The offence
Danny Klobucar has pleaded guilty to one offence of possessing a prohibited weapon contrary to s 5 of the Prohibited Weapons Act 1996 (ACT), which carries a maximum penalty including five years imprisonment. The Crown accepted that plea of guilty in full satisfaction of the two remaining charges, both of possession of a prohibited weapon, on an indictment dated 30 May 2016.
At Mr Klobucar’s trial for the murder of Miodrag Gajic on 1 January 2014, evidence was given of a search of Mr Klobucar’s car after he was arrested on the night of Mr Gajic’s death. A pair of nunchakus was found in the car. It is accepted that the nunchakus are a prohibited weapon, and there is evidence before me that Mr Klobucar was not authorised to possess them. He was charged with that possession, and a number of other offences, on 2 January 2014, and remanded in custody.
Mr Klobucar spent over two years in custody in relation to the murder charge before his trial on that charge finished with a verdict of not guilty by reason of mental impairment, and I ordered him to be detained in custody for immediate review by the ACT Civil and Administrative Tribunal (ACAT). Since that review, he has been under the jurisdiction of ACAT.
Evidence
Earlier this year, Mr Klobucar sought that proceedings for this charge and the other prohibited weapons charge be permanently stayed. I refused that application on 25 November 2016 (R v Klobucar(No 4) [2016] ACTSC 348). In the course of that decision, I noted that there was evidence on which to base a finding that the state of affairs aspect of the weapons offences was satisfied, specifically that the two weapons were in Mr Klobucar’s possession without authorisation. In that decision, I also concluded that there was no scope for mental impairment verdicts in relation to the two weapons charges, nor any suggestion that Mr Klobucar is currently unfit to plead.
I concluded that there was nothing in the evidence available to me, at that stage, to suggest that if Mr Klobucar pleaded guilty to the weapons charges, the court would be obliged for any reason to reject those pleas, and nothing has changed that position as of today.
In that decision, I also noted the Crown’s indication at that point, that if such pleas were entered, the Crown would not press for any sentence that could not be addressed by reference to the time Mr Klobucar spent in pre-trial custody in relation to the murder charge.
No other evidence was put before me in the sentencing.
In the absence of evidence about the circumstances in which Mr Klobucar came into possession of the weapon, and the purposes for which he might have had such possession, or of whether his original acquisition of the weapons might have been affected by the mental impairment he suffered for at least a month (and possibly several more months than that) before his possession came to light, I shall treat the offence as a relatively less serious example of the offending.
Subjective circumstances
I have also had regard in the sentencing to Mr Klobucar’s subjective circumstances. These were summarised in my reasons for setting an indicative sentence in respect of the finding in the murder trial (R v Klobucar (No 2) [2016] ACTSC 53), as follows:
21.Mr Klobucar is now 27 and was 25 at the time of the killing. His parents separated when he was young, and he then lived with his mother until running away from home after which he lived with his grandmother for some time. His father remarried when Mr Klobucar was 14 and his mother also re-partnered at some point. Mr Klobucar told Dr Allnutt that his relationships with his parents were now okay, and certainly I note that both parents attended court on most days of the trial.
22.Mr Klobucar completed Year 10 without any particular difficulties although he was apparently bullied when he was five or six. He has had some engagements with school counsellors and, as an adult, with mental health services, including spending two nights in hospital, on separate occasions a couple of years apart, and having been prescribed medication, possibly antidepressants, on one or more occasions. ...
23.Mr Klobucar had used cannabis regularly for a few years before Mr Gajic’s death, and had experimented with methamphetamines three or four times in the months before that death. He had also used various other drugs from time to time, but rarely drank alcohol.
...
25.Mr Klobucar’s criminal history before this matter consists mainly of traffic offences, some of which were in fact dismissed on mental health grounds. A common assault charge in 2009 was dismissed on the same grounds.
Other sentencing considerations
General deterrence seems to me to be relevant to offences of this kind, but the mental impairment undoubtedly affecting Mr Klobucar at the time this offence came to light suggests not only that personal deterrence may not be of great significance but also in fact that Mr Klobucar may not be a suitable vehicle for general deterrence.
Plea of guilty
Mr Klobucar has pleaded guilty to this charge after considerable delays, some of which have already been mentioned, and after negotiations with the Office of the Director of Public Prosecutions which, as noted, saw a second prohibited weapons charge dropped when this plea of guilty was entered. This is not a plea of guilty that could attract a particularly generous discount, but it will nevertheless be recognised in my sentencing.
Sentence
Mr Klobucar, please stand. I record a conviction on one charge of possession of a prohibited weapon (CC446/14) Count 3 on the indictment of 30 May this year.
I now sentence you to imprisonment for five months, reduced from six months for your plea of guilty. The sentence is backdated to 1 January 2014 when you were first taken into custody in relation to the chain of events that, among other things, led to the discovery of the nunchakus in your possession, and so it was completed on 31 May 2014.
You may sit down, Mr Klobucar.
| I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: David Hoitink Date: 23 December 2016 |
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