King D J C

STATE OF TASMANIA v DAVID JOHN CHARLES KING                                 BRETT J

COMMENTS ON PASSING SENTENCE                                                          17 MAY 2019

 

Mr King, you have pleaded guilty to one count of possession of stolen firearms, contrary to s  107A(1) of the Firearms Act 1996. You have also pleaded guilty to a number of summary offences under that Act relating to the firearms, and some ammunition which was located with them, as well as one count of unlawful possession of property, and one count of possession of a smoking device. Finally, the commission by you of these offences places you in breach of a suspended sentence of imprisonment that was imposed by this Court on 5 April 2017, for various crimes, including a number of counts of burglary, stealing, receiving stolen property and unlawful damage to property. You have not shown cause in respect of the asserted breach.

The police found the firearms during a search of your home conducted on 2 February 2018. The firearms had been placed inside a large plastic drum which was buried in the front yard of your residence. Pine bark had been scattered around the ground where the firearms were buried in an effort to conceal the presence of the drum. The drum was sealed with a lid which was smeared with grease. Each of the firearms had its serial number completely ground out beyond recognition, except for one of which the serial number could still be established. Care had been taken in relation to the storage of the firearms. They had each been oiled, wiped down, wrapped in brown paper and taped with electrical tape. Each have been labelled with particulars of identification.

In total, there were seven firearms found in the drum. They comprised shot guns and bolt action rifles. There was also a significant amount of ammunition compatible with at least some of the firearms. The firearms had an aggregate value of almost $3500. They had been stolen from secure storage at a property in southern Tasmania approximately 6 weeks before being located at your house. The circumstances of the theft suggested a degree of sophistication, but of course you are not directly liable for these crimes. However, the commission by you of this crime facilitates and therefore has the effect of encouraging and supporting the theft of the firearms. Further, your possession of the weapons is in my view aggravated by the sophisticated nature of their storage and concealment.

You are 34 years of age. You have a partner and three children. I am told that you are the sole breadwinner for the family and have, since leaving prison in April 2017, resumed the operation of a small business. The crimes for which the suspended sentence was imposed were extremely serious. They involved 30 counts of crimes of dishonesty committed in the period between March 2015 and June 2016. The sentencing judge described your conduct as a “criminal spree”. The total value of the property involved in these crimes was in the vicinity of $100,000 to $120,000. As at the time of the sentencing, the majority of that property had not been recovered. Your prior criminal record included convictions for similar offending. You had served a previous period of imprisonment and you were subject to a suspended sentence at the time that you committed the crimes in question. The sentencing judge noted that you had a previous history of drug addiction but had overcome that problem. His Honour accepted your assurance that you were committed to leading a law abiding life. He was clearly prepared to frame the sentence to provide you with the opportunity to make good on that commitment, and hence avoid serving a considerable part of the sentence. It was made very clear to you by the judge that if you repudiated the opportunity that was being offered to you, then it would be likely that you would be required to serve the part of the sentence which was to be suspended. You were sentenced to 18 months’ imprisonment backdated, with the balance from the date of sentence suspended for a period of two years from the date of sentencing. I am told that the precise portion of the sentence which was suspended was one year and seven days.

Because of your commission of the imprisonable offences to which your pleas relate, I am required to activate that sentence unless I am of the opinion that it would be unjust to do so. Your counsel submits that I should form that opinion because this offending involved an aberration of conduct of a different nature to that for which the Court imposed the suspended sentence and that your rehabilitation is still on track. I do not accept that submission. You committed a number of serious imprisonable offences. You knew that the firearms had been stolen, and you agreed to store and conceal the firearms on your property. That was criminal conduct of a similar nature to that for which the suspended sentence had been imposed. However, it also included an aspect that aggravated the seriousness of the conduct. The theft and distribution of firearms is a matter of understandable concern to law abiding members of the community. Such crimes facilitate the illegal use of firearms either in Tasmania or elsewhere. Crimes which have that effect are therefore abhorrent to a safe and peaceful community. The introduction of this crime into the Firearms Act and the prescription of heavy penalties for it, has been recognised judicially as a legislative response to the obvious link between the use of firearms to carry out serious crime, and their theft.  I regard the commission of a crime such as this, therefore, as a matter of considerable seriousness. Your deliberate commission of this crime and the related offences, which occurred only 10 months after the suspended sentence have been imposed on you, was a direct repudiation of the opportunity that had been offered to you by the sentencing judge. It is clearly not unjust to activate the sentence and it will be activated.

In assessing the appropriate sentence for the commission of the crime and offences to which you have pleaded guilty, I will take into account in your favour your plea of guilty. I also take into account the principle of totality, given that you will also be serving the suspended sentence. I think I should impose the minimum non-parole period in order to recognise your residual potential for rehabilitation.  I will take into account as well, the matter that has been put to me this morning, that it appears that it would seem as a matter of the management of your protection, that you will be serving this sentence at the remand centre and I am told that that will mean that your service of the sentence will be harder than might otherwise be the case

The orders I make are as follows:

  • You are convicted of the crime and the offences to which you have pleaded guilty;
  • The suspended sentence of 1year and seven days imposed on the 5 April 2017 is activated. It will be backdated to 25 December 2018, to take account of time which you have already served in custody. You will be eligible for parole in respect of that sentence after you have served one half of the sentence.
  • For the crime and other offences to which you have pleaded guilty, with the exception of count 8 on complaint 1026/2018, which is not an imprisonable offence, you are sentenced to a global term of imprisonment of 16 months, which will be served cumulatively upon the activated suspended sentence. You will be eligible for parole in respect of this sentence after you have served one half of the sentence.
  • In respect of count 8 on complaint 1026/2018, I impose no further penalty.

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

  • the total term of imprisonment which you are liable to serve in respect of all of the above sentences is 28 months and seven days, commencing on 25 December 2018
  • 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 14 months and four days.