STATE OF TASMANIA v JAKE PAUL KILLY-VEAR MOLTONI 16 JUNE 2022
COMMENTS ON PASSING SENTENCE JAGO J
Jake Moltoni, you have pleaded guilty to one count of aggravated assault. Pursuant to s 385A of the Criminal Code I am also dealing with three summary matters relating to the firearm, namely possess a firearm when not the holder of a firearm’s licence of the appropriate category, possess shortened firearm, and possess a firearm with identification marks altered or defaced.
On 14 August 2021 you and two companions, Scott Taylor and Nikiya Coleman, travelled from Queenstown to Burnie. At the time you were in a relationship with Ms Coleman. You checked into a hotel and Ms Coleman went out for the evening. You and Mr Taylor stayed in the hotel. Sometime before 2am you and Mr Taylor began driving around the Burnie CBD looking for Ms Coleman as you believed she may be cheating on you. You came across a motor vehicle parked in the Basalt Columns car park at the eastern end of North Terrace. Inside that motor vehicle was the complainant HL, aged 17 years and her friend, AB, aged 16. HL was in the driver’s seat of the motor vehicle. You pulled up and parked behind HL’s motor vehicle endeavouring to block it in. Mr Taylor walked towards the motor vehicle. HL, understandably scared by this stage, started the engine and tried to leave the area. You reversed your motor vehicle so as to prevent her from doing so. You opened the driver’s side door of your motor vehicle and pointed a firearm directly at HL, who was still seated in her motor vehicle. HL screamed, “they have a gun”, and drove off over a concrete verge in order to escape you. You began to follow HL’s vehicle. HL drove through the Burnie CBD and out onto the Bass Highway, driving through a number of red lights, because she was in fear of you and worried about what might happen if she stopped. You followed for a distance of approximately five kilometres before HL was able to get away from you.
You subsequently returned to the hotel room. Meanwhile HL had reported the situation to police. She was advised to attend the Wynyard Police Station. She did so. Police subsequently obtained a telephone search warrant. They entered your hotel room and found you asleep. Mr Taylor was also in the hotel room. A search of the room located a shortened sawn-off shotgun hidden within the double bed you were sleeping in. The serial number had been obliterated.
You were arrested and interviewed. You told police you were looking for your partner because you believed she was cheating on you. You said you thought it was her sitting in the car with a male. You said you tried to “box them in”. You said you pointed a baton out of your driver’s side window and tapped it on your side mirror. Once they drove off you followed for approximately five minutes, before returning to the hotel. When police confronted you about having found the firearm in the bed in which you were sleeping, you admitted the firearm belonged to you. You admitted you had used it in the incident, but claimed you did not point it directly at the complainant. You said you did not have any ammunition for the shotgun. You said you did not shorten the barrel, nor scrape off the serial number. You told police you felt “disgusted” that it was two strangers in the car. You said that had you known that, you would not have done it.
You are now 21 years of age, your record of offending commences in 2017 when you were in your mid-teens. Your recorded criminal history includes matters of assault, offences against police, matters of dishonesty, bail offences, and driving offences. Most recently, on 4 October 2021, you were sentenced for a large number of matters, including driving offences relating to your driving behaviour when you followed HL after you had pointed the firearm at her. A suspended sentence was also activated as part of that sentencing order. You were sentenced to an aggregate of 10 months and 6 weeks’ imprisonment. You were eligible to apply for parole in April 2022. You did not do so because of this outstanding sentence, and your desire to be assessed for a court mandated drug diversion order. Otherwise your sentence will expire in July 2022. Because the sentence I impose will come on top of other periods of imprisonment, the totality principle has application and requires me to ensure the total effect of the sentence you will face is not disproportionate to the entirety of your criminal conduct.
You have had a difficult upbringing. You never had a relationship with your father. He died when you were 6 years of age. You were raised by your mother and a stepfather. Your stepfather left when you were 10 years of age. There was considerable family violence in the relationship between your mother and stepfather. You witnessed a lot of it, and I am told it has stayed with you and has had a negative effect upon you. Growing up, you were very good at sports. You represented the State in under age teams in AFL. Following the completion of your schooling, you went to Western Australia for a period of time to live with an older brother and obtained worked as a concreter. You were unfortunately introduced to drugs, particularly Ice. You have been a heavy drug user since you were 17 years of age. Ever since, large periods of your life have been characterised by heavy daily use of that drug. You had only been released from custody for approximately 10 weeks before this crime occurred. I am told during those 10 weeks you were living on the North West coast because of a bail condition which prohibited you from being in Hobart. Upon your release from custody, it seems, you quickly returned to past habits and were again heavily using methylamphetamine when this crime occurred.
As noted, your counsel submitted on your behalf I should contemplate sentencing you to a drug treatment order. You have been assessed as unsuitable for such an order. I accept that assessment has been appropriately and legitimately made. There is no need to canvass the entirety of the reasons for that assessment in these sentencing comments, but it predominantly relates to your demonstrated unwillingness in the past to be compliant with community based orders and to be compliant with persons in authority. I accept however here is no doubt that your addiction to methylamphetamine has characterised your life and has had a significant negative impact upon it. Your use of it the substance has changed you from a happy, sports-orientated individual to a person that you, yourself, describe as completely different, and at times unpredictable. You commit crime to support your habit, and as a consequence of your addiction. I should note that regardless of the outcome of the court mandated drug diversion assessment, upon reflection, I have determined that a drug treatment order is would not have been an appropriate sentencing outcome in the circumstances of this case. The objective seriousness of the crime is such that I am of the view that only an immediate period of imprisonment will properly respond to the various aims of sentencing which I must take into account in this case. Your crime has had a significant, likely long-term adverse impact upon HL. She has been greatly traumatised by the incident. She sought psychological counselling following the incident. Her mental health has declined considerably. She is now prone to panic attacks, is hyper-vigilant, has difficulty sleeping, and experiences nightmares. She has become socially withdrawn. She was in year 12 at school when this incident occurred. She was unable to complete that year of schooling and is now in a position whereby she is likely to have to undertake a bridging course in order to pursue university studies. Her life has been terribly affected by your crime.
AB, the passenger, has also experienced significant trauma as a consequence of the incident. She, too, has become paranoid and anxious, and is constantly worried she will be harmed. Her schooling has also been badly affected. She was unable to resume normal schooling for several weeks after the incident. That affected her marks at the end of year 11 which, in turn, may affect her plans for future studies. These two young women were completely innocent bystanders whose lives have been, perhaps, irreparably affected by your crimes.
I take into account your plea of guilty. It has mitigatory value. You have saved the complainant and the witness the ordeal of giving evidence, and, given the impact your crime has had upon them, I have no doubt that if they were required to do that, it would have been most difficult and added to their trauma. I also accept that you did not intend to threaten strangers but, nevertheless, you armed yourself with a shotgun intending, it seems, to use it to threaten your partner if you found her. The unauthorised and lawless use of firearms to threaten others must be condemned by the courts. What happened here is an example of why the unlawful possession and use of firearms is of such concern to the courts and to the broader community.
I accept the firearm was not loaded, which minimised the risk of physical injury, but of course the complainant was not to know that. It being unloaded was of no comfort to her. I take into account your age. You are still a relatively young man, but the seriousness of this crime mandates, in my view, that principles of deterrence and denunciation, and the protection of the community, be given priority over rehabilitation. I also note that you have been given the benefit of sentences in the past that were obviously directed towards your rehabilitation and you have failed to avail yourself of those opportunities. In particular, I note, you have failed to comply with community correction orders and you have breached the terms of previously imposed periods of suspended imprisonment. I take into account what you said to me during the course of the sentencing hearing. You say you have a desire to make changes and become drug free, but similar sentiments have been expressed by you to sentencing courts in the past to no avail. In the hope however that as you mature, and perhaps gain a clearer understanding of the destructive effects your use of drugs has had upon your life, you may with the support of your family, find a genuine commitment to make changes, I will make allowance for parole.
Mr Moltoni, you are convicted of all matters to which you have pleaded guilty. I will impose one sentence. You are sentenced to a term of imprisonment of 16 months. That sentence will be cumulative to any period of imprisonment you are currently serving. I order that you not be eligible for parole until you have served one half of that sentence.
I make an order that the firearm seized by Tasmania Police be forfeited to the State.
ADDENDUM:
At the time of sentencing, Mr Moltoni, I omitted to deal with an application that was also before me to breach a previously imposed period of suspended imprisonment. I will now deal with that application. My comments as to the application should be read in conjunction with the sentencing comments I made earlier today.
Mr Moltoni, on 30 January 2020, you were sentenced in the Hobart Supreme Court by his Honour Chief Justice Blow for two charges of dangerous driving. You were sentenced to a period of 15 months’ imprisonment, 7 months of that period of imprisonment was suspended on two conditions. Firstly, that you commit no offence punishable by imprisonment for a period of two years and secondly, that you comply with the terms of a community correction order and perform some community service hours. You breached the terms of the suspended sentence by firstly committing further offences, and secondly failing to comply with the terms of the community correction order and failing to complete the community service hours. It is not really clear why the application for breach of this suspended period of imprisonment was not pursued when you were before the Magistrates Court and sentenced for all of the matters I previously mentioned including a number of driving charges in October 2021, but it was not. A different period of suspended imprisonment, a four month period, was at that time activated.
The law as to suspended sentences and their activation upon breach is clear: a court must activate a previously imposed period of suspended sentence upon breach unless it is unjust to do so. Appropriately, in my view, your counsel did not seek to argue that there was a proper basis upon which I could determine it would be unjust to activate this period of suspended imprisonment. I am satisfied it would not be unjust to activate and accordingly I activate the 7 month period of suspended imprisonment imposed on 30 January 2020 and order that you now serve it. To make allowance for totality, given the 16 month period of imprisonment I imposed upon you for the aggravated assault and firearm offences, and the fact that that period of imprisonment was cumulative to a period of imprisonment you are currently serving, I order that 4 months of the activated period of imprisonment be served cumulatively and 3 months be served concurrently with the 16 month period of imprisonment today imposed. I order that you not be eligible for parole until you have served one half of the activated period of imprisonment. For the purposes of s 92A of the Sentencing Act, I note the total term of imprisonment you are liable to serve is 20 months. The total period of imprisonment you must serve before becoming eligible for parole is 10 months.