DARLING J

STATE OF TASMANIA v JOSHUA DARLING 16 NOVEMBER 2021

COMMENTS ON PASSING SENTENCE BRETT J

Mr Darling, you have pleaded guilty to one count of unlawful trafficking in firearms and one count of stealing firearms. You have also pleaded guilty to aggravated burglary and stealing, which are to be dealt with by me on the basis that they are summary offences.

You committed these crimes on 26 January 2021. In company with another person, you broke into someone’s home and stole property which included three firearms and some ammunition. Fortunately, the occupiers of the home they were not present at the time. It is not clear that you knew the firearms were there when you decided to break into the home, but you were able to take them from a gun safe because you located the key to the safe during your search of the premises. You told police that you sold the guns for cash and drugs, but you did not know the identity of the purchaser. You have maintained this version in your instructions to your counsel. I simply do not believe this. Because you would not disclose the identity of the person to whom you sold the firearms, they have not been located by police. There is a strong probability that they are now in the community in the hands of criminals. Because of this, your crime is extremely serious and general deterrence and community protection are very important sentencing considerations. Your failure to disclose the identity of the person to whom you sold the firearms might, I suppose, be maintained by you out of some misplaced sense of loyalty, or compliance with some code you have heard about, but it also reduces the significance of any claim by you to be sorry for committing these crimes. In fact, I do not accept that you are sorry at all. This was a planned crime and you have exhibited limited co-operation, in my view. True remorse would necessarily involve you doing all you could to put right the wrong which you have done. You have not done this. Your pleas of guilty have some practical value, but this is their only mitigatory value.

You are 21 years of age. You are described in the material provided to me as a vulnerable young man, with complex trauma history and a number of mental health conditions. Much of this trauma comes from your childhood, during which you were subjected to significant abuse and neglect. You have had a serious drug problem for some years, and this is reflected in your criminal history. You have a lengthy history of offending as a youth and this has continued into adult life. The offending is of a variety of types, but certainly consistently includes offences of dishonesty. You have been offered other sentencing options in the past designed to support rehabilitation, but your history suggests that you have shown poor compliance with respect to community-based sentencing orders. This includes a drug treatment order that was made on 30 July 2019 but which was later cancelled because of your lack of compliance. On 22 December 2020, one month before you committed these crimes, you were sentenced for offences which included dishonesty and breach of bail. You were also resentenced for earlier offences because the commission of these offences breached a suspended sentence. You served some time in prison but, in effect, suspended sentences were imposed in aggregate of three months and 41 days. An application has been made for you to be dealt with in respect of the breach of those sentences constituted by the commission of the crimes with which I am dealing. I am required to activate the sentences unless I am of the opinion that it would be unjust to do so. Having regard to the deliberate nature of the commission of these crimes and their proximity to the imposition of the suspended sentences, I am not of that opinion and the sentences will be activated.

In addition to the sentencing factors I have already mentioned, your relatively young age necessitates consideration of and emphasis on your rehabilitation. Your past response to rehabilitative sentencing options suggests that you may not yet have made a true commitment to rehabilitation. However, you have now been imprisoned for some time. Your comments to the psychologist who prepared the report that has been handed to me suggests that time in prison has been good for you in that it has given you an opportunity to break with your drug habit, and it would also seem that you have been reflecting upon your future and the need to live a law-abiding life and stay away from drugs. I hope and, in fact, I think you are genuine about this, but I also think that it will be very difficult for you to achieve this in the community without appropriate support. That is certainly the view taken by the psychologist. I understanding that there is some support that is available to you when you are released, and accordingly I intend to build into my order the ability for you to apply for release on parole relatively soon. I have also decided to make a community correction order that will take effect upon your release.

The orders I make are these:

1 You are convicted of the crimes and offences to which you have pleaded guilty;

2 The suspended sentence of three months and 41 days which was imposed by the Magistrates Court on 22 December 2020 is activated. It will be backdated and served from 3 February 2021. You will not be eligible for parole until you have served two months of that sentence.

3 For the crimes and offences to which you have pleaded guilty, I impose a global sentence of 15 months’ imprisonment, which will be served cumulatively upon the activated suspended sentence. You will not be eligible for parole until you have served eight months of that sentence.

4 I make a community correction order. You must comply with the order for a period of 12 months, and that period shall commence on the day that you lawfully cease to be imprisoned under these sentences, that is, the day of your release. The core conditions of the order require you to report to a probation officer and you shall do so at the office of community corrections in Hobart within three clear days of the day that you lawfully cease to be imprisoned under the sentences. In addition to the core conditions, the order shall also include the following special conditions:

(a) you must, during the operational period of the order,

i attend educational and other programs as directed by the Court or a probation officer;

ii submit to the supervision of a probation officer as required by the probation officer;

iii undergo assessment and treatment for drug dependency as directed by a probation officer;

iv submit to testing for drug use as directed by a probation officer;

v submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer;

vi attend, participate in and complete the EQUIPS addiction program as directed.

b For the purposes of s 92A(3) of the Sentencing Act, I specify that:

i The total term of imprisonment which you are liable to serve in respect of all of the above sentences is eighteen months and 41 days commencing on 3 February 2021.

ii However, the total period that you must serve before you become eligible for parole is the aggregate of the non-parole periods relating to the said sentences, which is a total period of 10 months commencing on 3 February 2021, and on my calculation, that should make you eligible for parole on 3 December 2021.

5 I make the following compensation orders:

(a) an order in favour of [complainant 1] in the sum of $195

(b) an order in favour of [complainant 2] in the sum of $250