R v Dimitri TIMON

Supreme Court of NSW|2010-03-18|Before: Hidden J, Norrish AJ

Background 2 On 18 June 2006 a man was shot dead at the home unit at Bondi Junction where the offender lived. The weapon which killed him, a Beretta .32 calibre self-loading pistol, was found in the grounds of the unit block. Ammunition suitable for use in the weapon was found during a search of the unit. The offender was arrested that same day and charged with the murder of the man, and he has remained in custody since. 3 In July 2008 he was put on trial before Norrish AJ for murder and for unauthorised possession of the pistol. The jury was unable to agree on a verdict on either charge. In February 2009 he was put on trial again before me for the same two charges, and again the jury was unable to agree on a verdict on either of them. In July 2009 he was tried yet again before me, this time for the manslaughter of the man and the same charge of unauthorised possession of the pistol. That jury also could not agree on a verdict on the manslaughter count, but he was found guilty of the count of possessing the pistol. 4 He is now to be sentenced for that charge, that is, his possession of the pistol, without authorisation by licence or permit, at Bondi Junction on 18 June 2006. This is an offence under s 7(1) of the Firearms Act 1996, carrying a maximum sentence of imprisonment for 14 years and a standard non-parole period of 3 years. As to the ammunition, he asks that I take into account on a Form 1 an offence of possessing ammunition without holding a licence or permit for a firearm which takes it. This is an offence under s 65(3) of the Firearms Act, which carries a fine only. 5 In the course of the search of the offender's unit, police also found a quantity of amphetamine and cocaine. In addition, he was subsequently charged with ongoing supply of methylamphetamine arising from his selling that drug on three occasions in the week or so before 18 June 2006. 6 This led to his pleading guilty before me to a charge of ongoing supply of a prohibited drug, namely methylamphetamine, over a period of 30 consecutive days between 18 May and 18 June 2006, for financial reward. This is an offence under s 25A of the Drug Misuse and Trafficking Act 1985, carrying a maximum penalty of imprisonment for 20 years. In relation to the drugs found at his unit, he asks that I take into account on a second Form 1 a charge that on 8 June 2006 at Bondi he had a quantity of methylamphetamine in his possession for supply, and a charge in similar terms in relation to a quantity of cocaine. Each of those is an offence of supplying a prohibited drug under s 25(1) of the Drug Misuse and Trafficking Act, arising from the deeming provision to be found in s 29, and carries a maximum sentence of 15 years imprisonment. 7 The circumstances giving rise to the drug charges had earlier been the subject of counts in an indictment laid in the District Court, and there was to be a trial. However, early this year, after the offender indicated his willingness to plead guilty to the ongoing supply charge and to have the other offences dealt with on the Form 1, procedures were put in place to have those proceedings transferred to this Court, so that all outstanding charges could be dealt with together.

Possession of pistol/ammunition 8 For the purpose of sentence, the facts of the offence of unauthorised possession of the Beretta pistol are spare indeed. At the offender's trials in this Court there was clear evidence that that pistol had been used to shoot the homicide victim. As will be seen, the fact that the weapon was fired on the day of the offence is relevant to the Form 1 matter. However, the fact that it was used to kill a man has no bearing whatsoever on the offence with which I am dealing, and I have no regard to it. The offender stands for sentence on the basis that he was in possession of the pistol for an unspecified period of time on 18 June 2006. That possession is unexplained. Obviously, the pistol was in working order. It had no serial number and was unregistered, and he had no licence or permit to possess it. 9 The offence of possession of ammunition on the Form 1 relates to a number of .32 calibre cartridges, 38 in all. Evidence at the trials established that 10 rounds had been discharged from the weapon. When it was found in the grounds of the unit block, its magazine contained 8 rounds. In the offender's unit police found a further 18 rounds in a sunglasses case in his bedroom. Finally, 2 rounds were found in the pocket of his jeans when his clothing was examined after his arrest. Expert evidence established that all of the ammunition was suitable for discharge by the Beretta pistol.

Drug offences 10 The charge of ongoing supply of methylamphetamine ("ice") arose from the applicant's sale of small quantities of the drug to a man on three occasions, separated only by a day or two, in about the middle of June 2006. On each occasion the buyer called the offender's mobile phone to arrange a meeting for the transaction. On the first occasion, they met near the buyer's home at Surry Hills and the offender sold him 1 gram of the drug for about $300. On the second and third occasions they met near Bondi Junction railway station. The second transaction was the sale of one-fifth of a gram for about $80 and the third transaction involved three-tenths of a gram for about $100. 11 As to the Form 1 matters, during the search of the offender's unit 22.7 grams of a substance containing methylamphetamine was found in a box in a wardrobe in the bedroom, and 22.1 grams of a substance containing cocaine was found in a plastic bottle in the freezer in the kitchen.

Subjective case 12 The offender was born on 17 June 1981. Thus, the ongoing supply offence was committed shortly before his 25th birthday, and the other offences just after it. He is now 28. He has no previous convictions. 13 He was born in Russia, and later lived with his mother in Israel for some time before they immigrated to this country between late 1997 and early 1998. Initially, they had lived together at the Bondi Junction unit, where she also carried on business as a beauty therapist. At the time of the offence she was living at Maroubra with her then husband, but she still used the unit for her business. 14 He obtained his Higher School Certificate and undertook tertiary education in information technology. At the time of the offences he was attending Macquarie University, while supporting himself by working in the security industry. He is a single man with no children. He had been in a relationship with a woman for over a year, but they had broken up a few months before his arrest. 15 No evidence was led in the sentence proceedings about his drug use, but I infer from evidence at the trials that he had taken to the abuse of illicit drugs, most likely through his working environment. At the time of his arrest in the evening of 18 June 2006 he was clearly affected by a drug of some kind. I reject his claim, during a recorded interview with police, that he had in some way been made to consume a drug or drugs involuntarily. There were signs at his unit that ice had been used that day, and I conclude that he had done so. From his answers to police in the interview it appears that he also used ecstasy and had tried cocaine, although he did not like the effect of that drug and had not used it for some time before his arrest. How long before is not clear from his answers. 16 Since being in custody he has undertaken drug and alcohol counselling. He has been employed and has pursued further study, earning complimentary reports from prison staff. In September 2007 he was involved in a fight with another inmate, for reasons which have not been disclosed, and suffered facial injuries. In February 2009, during his second trial, he was assaulted and suffered a broken nose. Again, there is no evidence of what led to the assault.

Sentencing 17 The objective gravity of the charge of possessing the pistol is not easy to determine. I have no evidence whatsoever of how it came into the offender's possession or for what reason. The fact that it was unregistered and bore no serial number naturally excites suspicion, but I cannot find that he had it for an unlawful purpose. That said, one of the inherent dangers of the unauthorised possession of a pistol is its dissemination in the criminal milieu and, no doubt, this weapon's lack of registration and serial number would have made its provenance difficult to trace. 18 While I do not have regard to the fact that the pistol was used to kill, it is obvious that its lethal potential is not to be ignored. Particularly is this so when the offender also had in his possession the ammunition the subject of the first Form 1 offence. In R v Najem [2008] NSWCCA 32, Hulme J (with whom Beazley JA and Latham J agreed) considered the rationale of the pistol offence, and said at [40]: "That rationale includes at least a recognition that firearms and pistols, if possessed, are liable to be used, and if used, are liable to be a source of great danger or damage. It includes also a recognition that not all persons can be relied on to avoid or minimise such danger and not misuse the weapons and that misuse, even without discharge, is liable to amount to a great infringement of others rights." 19 The Crown prosecutor submitted that the offence falls into the mid-range of objective gravity, and Mr Chapple SC, for the offender, put no argument to the contrary. I find that it does sit at the mid-range or close to it. However, as will be seen, I also find that there are reasons to depart from the standard non-parole period of 3 years. 20 The seriousness of any offence of ongoing supply of a prohibited drug is apparent from the maximum sentence prescribed by the legislature. That said, the present offence involved the supply of quite small amounts of methylamphetamine for modest financial returns. The deemed supply offences on the second Form 1 are themselves serious, involving the offender's possession of significant quantities of methylamphetamine and cocaine. 21 In the circumstances, I accept Mr Chapple's submission that the offender should be viewed as a user/supplier, not as a successful dealer for profit. In saying that, I am mindful of his own account to police that cocaine was not his drug of choice. I accept that, nevertheless, he had used it from time to time and I think it likely that he was a regular user of methylamphetamine. 22 The applicant's plea of guilty to the ongoing supply charge was late, but he is entitled to a modest degree of leniency because of the utilitarian value of that plea and his preparedness to admit the offences on the second Form 1. Mr Chapple informed me that the District Court trial would have been lengthy and have required the calling of a considerable number of witnesses. However, because of the way in which I propose to structure the sentences I must pass, no purpose would be served by quantifying the reduction of sentence which that course has earned him. 23 The offender has the benefit of his prior good character. He has now spent a lengthy period in custody, having never previously been in conflict with the law, and during that period he has experienced two episodes of violence. On the other hand, he has taken the opportunity while incarcerated to further his education and seek counselling for his drug abuse. 24 I think that he has good prospects of rehabilitation. However, having now been in custody for the best part of 4 years, he will need assistance on his release to adjust to life in the community. For that reason, and against the background of his drug abuse, it is desirable that he have the opportunity of an appropriate period of conditional liberty subject to supervision and the sanction of parole. In the light of that factor, and because the sentences I pass will be cumulative, I find special circumstances. That finding will be reflected in the non-parole period for the offence of possessing of the pistol. It is for that reason, and in recognition of his clear criminal history, that I propose to depart from the standard non-parole period. 25 The whole of the offender's period of custody is to be taken into account on sentence. The Director of Public Prosecutions has determined that no further proceedings should be taken against him in respect of the homicide. 26 The offence of possessing the pistol is unrelated to the ongoing supply offence, and I propose to pass wholly cumulative sentences. It is usually convenient in that situation to pass a fixed term for one offence and a cumulative sentence with a non-parole period for the other. In this case I shall pass a fixed term for the drug offence because that course is not possible for the pistol offence, it being an offence set out in the Table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999: s 45(1). 27 If the offence of ongoing supply of methylamphetamine stood alone, I would pass a sentence with a non-parole period, specifying a discount of sentence for the plea of guilty. In the circumstances of this case, there is no point in doing so. Any discounted sentence I passed would be subsumed within the period the offender has already spent in custody. The fixed term I shall pass is roughly equivalent to the non-parole period which would have been appropriate for the offence, taking into account the offences on the second Form 1, together with a modest allowance for the plea of guilty. 28 Of course, the length and structure of the sentences must give effect to the principle of totality. The sentence for the drug offence will be a fixed term of 2 ½ years, commencing on the day the offender went into custody. Accumulated upon that sentence will be the sentence for the pistol offence, 3 years with a non-parole period of 18 months. In the result, the offender will be released on parole in 3 months from now, having served exactly 4 years in custody. He will then be at conditional liberty for 18 months.

Sentences and Orders 29 Dimitri Timon, for the offence of ongoing supply of methylamphetamine, taking into account the matters on the second Form 1, you are sentenced to imprisonment for 2 years and 6 months, commencing on 18 June 2006 and expiring on 17 December 2008. I decline to specify a non-parole period in respect of that sentence because of the sentence I am about to pass. 30 For the offence of unauthorised possession of a pistol, taking into account the matter on the first Form 1, you are sentenced to imprisonment for a non-parole period of 1 year and 6 months, commencing on 18 December 2008 and expiring on 17 June 2010, and a balance of term of 1 year and 6 months, commencing on 18 June 2010 and expiring on 17 December 2011. I direct that you be released on parole on 17 June 2010. 31 Pursuant to s 39P of the Drug Misuse and Trafficking Act, I order that the prohibited drugs the subject of the offences on the second Form 1 be destroyed. 32 On 18 June 2006, the offender was found by police to be in possession of $1765 in cash. The Crown prosecutor sought an order, pursuant to s 13(2)(a) of the Confiscation of Proceeds of Crime Act 1989, that that money be forfeited to the State. Mr Chapple did not oppose it, and I make that order.

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CITATION : R v Dimitri TIMON [2010] NSWSC 189

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