R v Mikac
[2018] ACTSC 269
•24 September 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Mikac |
Citation: | [2018] ACTSC 269 |
Hearing Dates: | 30 July 2018, 3 August 2018, 24 September 2018 |
DecisionDate: | 24 September 2018 |
Before: | Murrell CJ |
Decision: | The offender is sentenced as follows: Count 1: 22 months’ imprisonment; The sentences are to be served by way of intensive correction in the community |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – firearms offences – unauthorised possession of prohibited firearms – unauthorised possession of firearms – unauthorised possession of ammunition – failure to properly store a prohibited firearm – failure to properly store a firearm – early pleas of guilty – no criminal history – good prospects of rehabilitation – impact of incarceration on offender’s family – intensive correction order |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 35, 36 Firearms Act 1996 (ACT) ss 42(a)(ii), 43(1)(a)(iii), 249(1), 180(1)(a)(i), 180(1)(a)(ii) |
Cases Cited: | R v Pattman [2017] ACTSC 331 R v Mitchell [2016] ACTSC 85 |
Parties: | The Queen (Crown) Nikolas Mikac (Offender) |
Representation: | Counsel Mr J Hiscox (Crown) Mr K Ginges (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aulich (Offender) | |
File Number: | SCC 80 of 2018 |
Murrell CJ:
The offender pleaded guilty at the earliest reasonable opportunity to the following offences against the Firearms Act 1996 (ACT) committed on 19 March 2018:
(a)Count 1: Unauthorised possession of six firearms (modified semi-automatic rifle, sawn-off double barrel shotgun, .45 calibre semi-automatic pistol, STAR 9 mm handgun, .22 calibre revolver, revolver of unknown make and model)—maximum penalty 14 years’ imprisonment: s 42(a)(ii);
(b)Count 2: Unauthorised possession of two firearms (.22 calibre self-loading, .357 Magnum revolver)—maximum penalty five years’ imprisonment: s 43(1)(a)(iii);
(c)Count 3: Unauthorised possession of ammunition (119 rounds of assorted ammunition)—maximum penalty $1500.00: s 249(1);
(d)Count 4: Failure to properly store a prohibited firearm (the six firearms forming the subject of Count 1)—maximum penalty two years’ imprisonment: s 180(1)(a)(i);
(e)Count 5: Failure to properly store a firearm (the two firearms forming the subject of Count 2)—maximum penalty one year’s imprisonment: s 180(1)(a)(ii).
Facts
On 19 March 2018, the police executed search warrants at the offender’s address.
The offender’s Mitsubishi truck (his work vehicle) was parked in the driveway. The police located a black duffel bag on the front passenger seat. The bag contained four prohibited firearms, two other firearms and rounds of assorted ammunition (some loose and some housed in magazines).
In a vehicle located in a shed, the police located a blue cooler bag containing two further prohibited firearms and a large amount of assorted ammunition.
There was no evidence before the Court regarding the relative dangerousness of the various firearms, whether they were in working order or whether the ammunition found in the offender’s possession fitted the firearms that were found.
The prosecutor accepted that the offender was polite and cooperative during the search and in subsequent dealings with police. He cooperated by the providing a sample of his DNA and fingerprints.
The offender's extraordinary account of how he became embroiled in these firearms offences was as follows.
The offender had been a cocaine user for some years, consuming up to four grams per week. He accumulated a drug debt which—together with interest—was about $25,000.00; he was unable to pay. His drug dealer told him that if he purchased a vehicle and gave it to the drug dealer, the debt would be neutralised.
The offender obtained a personal loan for $50,000.00. He purchased a vehicle (presumably worth that amount of money) in the name of the drug dealer.
The offender paid out the drug debt, but the vehicle was not returned.
The offender discovered that the vehicle had been sold by the drug dealer to a former member of the Comanchero Motorcycle Club.
The offender wanted to recover the vehicle in order to sell it and reduce or neutralise the personal loan. He obtained legal advice about recovering the vehicle, but considered the advice to be unhelpful.
The offender decided to take matters into his own hands. He approached friends who were members of the Comanchero Motorcycle Club. He sought their assistance to recover the vehicle. They told him that, if he agreed to mind a bag of firearms for them for about a week, they would “assist” him to recover the vehicle.
On 18 March 2018, they gave him the black duffle bag. The offender understood that it contained at least two firearms. He had the bag for only one day before the search warrant was executed.
A few months earlier, his friends had given him the blue cooler bag. He had put the bag in the car in the shed and had not thought about it any further. He was not aware that there were two firearms in the cooler bag. He knew that the bag contained ammunition.
It is difficult to accept that the offender had—as he asserted—forgotten about the blue cooler bag and its contents. Nevertheless, assuming that what the offender told the Court in that and other respects was true, I am not convinced that it greatly mitigates his culpability for the offences. In some respects it may exacerbate his culpability.
Pleas of guilty
The offender entered pleas of guilty at the earliest reasonable opportunity. The pleas had a strong utilitarian value. The prosecution case was strong, but that was partly because of the admissions made by the offender to police. Taking into account ss 35 and 36 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), I consider that a discount of 25 per cent is warranted on the sentences that I would otherwise have imposed.
Objective seriousness
If the offender is to be believed (and for these purposes I accept what he said) the firearms belonged to members of a motorcycle gang who needed them "minded". The offender was prepared to "mind" the duffle bag as pre-payment for services to be provided by motorcycle gang members. The services involved the offender taking the law into his own hands to recover the motor vehicle.
The offender was aware that the duffle bag contained firearms. There is no evidence that he checked the bag to ascertain the number or nature of the firearms. However, that is hardly a mitigating circumstance. The offender was told that the bag contained guns. He admitted that he could feel the shape and weight of the guns in the bag.
Even if the offender had not checked the contents of the blue cooler bag, he received it from members of a motorcycle gang. At the very least, the offender must have suspected that the contents of both bags were illegal, and were to be (or had been) used in connection with crimes which were to be (or had been) committed by a motorcycle gang.
One of the principal concerns in relation to the possession of any unauthorised firearm is that it may fall into the hands of the criminally inclined who may use the firearm to seriously threaten public safety. In the present case, the firearms had already fallen into the hands of members of a motorcycle gang. By possessing the weapons, the offender was assisting the gang members by hiding them. The public would be justified in being extremely concerned about this scenario.
The penalty for possessing firearms (prohibited or otherwise) increases with the quantity of firearms. This reinforces that quantity is an important consideration when assessing objective seriousness. Six prohibited firearms is a mid-range offence in terms of the quantity of between three and ten prohibited firearms. In relation to the other firearms offence, there were two firearms and the penalty in question relates to either one or two firearms.
As to the firearms found in the duffle bag, I proceed on the basis that the offender was in possession of them for only one day. He had anticipated keeping them for about a week, which is a reasonably short period.
The manner in which the firearms and prohibited firearms were stored was most unsatisfactory. The six firearms that were in the duffle bag on the passenger seat of a vehicle that was in a driveway were in an extremely insecure situation.
Subjective circumstances
The offender is 35 years old. He has no prior criminal history. For almost three years he has lived in a stable de facto relationship.
The offender completed Year 12. He is a qualified carpenter. For many years, he has worked in the family construction business. He is able to meet his financial commitments. He states that a sum of $45,000.00 is still owed in relation to the car.
Despite the absence of any prior criminal history, the offender admitted previous association with drug users and persons with criminal histories. He stated that he maintains "sporadic contact" with these associates for the purpose of purchasing illicit substances for occasional use. He maintains that he has reduced his drug use and is attempting to distance himself from negative associates.
In the past, the offender has undertaken some drug treatment. He did not engage in drug treatment during the eight month period prior to the preparation of the pre-sentence report, but he says that he wants to pursue drug treatment.
The offender has a history of depression and anxiety. Currently, he is medicated for those conditions.
The author of the pre-sentence report assessed the offender as having a low to medium risk of re-offending. The risk is associated with continuing drug use and mental health issues. No doubt, the risk is not reduced by the offender’s ongoing connections with criminals and those moving in a quasi-criminal milieu.
The offender has a medical problem which has not yet been diagnosed. It requires urgent investigation. The offender has been somewhat tardy in pursuing a diagnosis and treatment in the community. However, that is not to detract from the proposition that the condition does require urgent attention. This problem could be investigated within the prison environment. I will draw that matter to the attention of Corrective Services.
The offender provided references which attest to him being a kind and compassionate person. Referees stated that his conduct was totally out of character. The statements made by the offender himself suggest that, while criminal conduct was out of character, a connection with the criminal element was not.
The offender's partner suffers from a severe repetitive strain injury and carpal tunnel syndrome. She depends upon the offender to assist her with daily chores. Her father died very recently. The offender has been assisting his partner and her mother to maintain the family takeaway business. The offender undertakes some of the heavy duties associated with the business. In addition, the offender's own grandfather died very recently.
If the offender is incarcerated, there will be an impact on his family. However, his situation does not differ greatly from that of many people. Unfortunately, the errors of an offender often have negative consequences for family members. Not infrequently, those consequences are moderately severe.
Sentencing considerations
The maximum available penalties are critical sentencing parameters. The maximum penalty for the first offence, 14 years' imprisonment, is a significant maximum penalty.
The Court must have regard to the relevant sentencing purposes in s 7 of the Sentencing Act. In relation to the firearms offences, the most prominent sentencing considerations are general deterrence and other considerations that relate to ensuring public safety, such as accountability, denunciation and protection of the community from harm.
As the offender is a 35 year old man with no prior criminal history, considerations of rehabilitation are important. The offender was cooperative with police and took responsibility for his conduct, entering early pleas and making appropriate admissions. His contrition and remorse suggest that he is open to rehabilitation. On the other hand, he is not a person of entirely unblemished character. He admits to past and continuing association with members of a motorcycle gang and drug dealers.
I have been referred to several cases which are somewhat comparable. None are entirely comparable. The cases include R v Pattman [2017] ACTSC 331 (Pattman) and R v Mitchell [2016] ACTSC 85. In Pattman, Penfold J summarised the outcomes in other similar cases: at [77]. There is no clear pattern of sentencing for firearms matters.
The matters before the Court, particularly Count 1, are matters of significant objective criminality. A clear message must be sent to the community in relation to the possession of firearms.
Sentences
The parties agreed that the only appropriate sentences are sentences of imprisonment. The question is how they should be served? Prima facie, I consider that a sentence of full-time imprisonment is appropriate for matters of this seriousness, particularly for Count 1. When one has regard to the sentencing purposes of general deterrence, accountability and denunciation, one could not justify releasing the offender into the community if he had not spent at least a brief period in custody.
However, given the offender’s potential for rehabilitation and the fact that he has been very forthright in relation to the commission of the offences (albeit that his explanation seems bizarre) the offender may be assisted by an intensive correction order (ICO). An ICO would also provide some security for the community.
30 July 2018
I adjourned the matter for two months to allow for an ICO assessment.
I proposed to refuse bail. I stated that, when the matter next came before me, I would take the period spent in custody into account in relation to the overall length of the sentences.
Counsel for the offender asked that bail be granted until Friday to allow the offender to attend his grandfather’s funeral.
Reluctantly, I granted bail until 3.30 PM on Friday, 3 August 2018, on condition that the offender reside at a specified address and report daily to Belconnen Police Station.
3 August 2018
The offender answered his bail and was remanded in custody.
24 September 2018
I imposed the following sentences:
(a)For Count 1: 22 months’ imprisonment (reduced by 25 per cent from 30 months’ imprisonment) from 3 October 2018 until 2 August 2020.
(b)For Count 2: eight months’ imprisonment (reduced by 25 per cent from 11 months’ imprisonment) from 24 September 2018 to 2 April 2019.
(c)For Count 3: a fine of $750.00. The offender was given two months to pay commencing 24 September 2018.
(d)For Count 4: four months’ imprisonment (reduced by about 25 per cent from six months’ imprisonment) from 3 October 2018 to 2 February 2019.
(e)For Count 5: two months’ imprisonment (reduced by about 25 per cent from three months’ imprisonment) from 24 September 2018 to 2 October 2018.
I ordered that the sentences be served by way of intensive correction in the community. I imposed the following additional conditions:
(a)That the offender is to engage with any referral made for a suitable intervention in relation to the offending behaviour;
(b)That the offender is to engage in an appropriate drug intervention program and undergo regular drug screening tests at the direction of Community Corrections; and
(c)That the offender is not to associate with any known outlaw motorcycle gang members or affiliates.
| I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 24 September 2018 |