CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - offender sentenced in two or more jurisdictions for offences which are related - wounding - possession of a firearm - unauthorised possession of ammunition - failure to store a firearm safely - taking a motor vehicle without authority -

Crimes Act 1900 (ACT) s 21

Firearms Act 1996 (ACT) ss 42; 180(1)(a)(i); 249(1)

Magistrates Court Act 1930 (ACT) s 90A

Mill v The Queen [1988] HCA 70; 166 CLR 59

O'Brien v The Queen [2015] ACTCA 47

1. On 13 April 2017, after a trial by judge alone, I found both offenders guilty of the offence of wounding Adam Cranfield, contrary to the provisions of section 21 of the Crimes Act 1900 (ACT). The maximum penalty for that offence is five years' imprisonment. On the same day, I found the offender Daniel Grech guilty of possession of a firearm for which he had no authority, contrary to section 42 of the Firearms Act 1996 (ACT). The maximum penalty for that offence is 10 years' imprisonment.

2. By reason of a certificate under section 90A of the Magistrates Court Act 1930 (ACT), I am asked to sentence Mr Grech for taking a motor vehicle without authority, in contravention of section 318(1) of the Criminal Code 2002 (ACT). I was told by the Crown this offence could have been dealt with in the Magistrates Court, where the maximum penalty would have been two years imprisonment. In this court, the maximum is five years. Both the Crown and Ms Musgrove for Mr Grech submitted that the fact the offence could have been dealt with in the Magistrates Court does not necessarily ameliorate penalty.

3. Mr Grech pleaded guilty to the theft of the motor vehicle on 7 December 2016. There were no submissions made about the earliness or otherwise of the plea but from the dates on the bench sheet and the fact that he was imprisoned in South Australia until August 2016, I infer the plea of guilty occurred at an early opportunity and I propose to give credit for that.

4. On 31 March 2017, the offender Mr Vimahi pleaded guilty to unauthorised possession or use of a prohibited firearm. That offence carries a maximum of 10 years' imprisonment. By reason of a section 90A Magistrates Court certificate, I have been asked to sentence Mr Vimahi for some additional offences, namely two counts of unauthorised possession of ammunition, in one case 13 rounds of shotgun ammunition, in the other case two rounds. Both offences were contrary to section 249(1) of the Firearms Act. There was an additional offence of failing to take sufficient steps to store the shotgun safely, contrary to section 180(1)(a)(i) of the Firearms Act.

5. For unauthorised possession of the ammunition, the maximum penalty is a fine of $1,500. For the failure to store safely, the maximum is two years' imprisonment.

6. In relation to the offences I tried as judge alone, the facts I found were that in about 2014, Mr Vimahi obtained a sawn-off 12-gauge single shot Winchester shotgun and a number of cartridges which he kept with him in his home and for which he had no authority. On about 12 March 2015, Mr Grech obtained a .45 ACP calibre Norinco brand model 1911 self-loading semi-automatic pistol and a magazine with a number of .45 bullets. He formed the view that Adam Cranfied, a member or former member of a rival motorcycle gang, had done something disrespectful to Mr Vimahi's uncle. So he and Mr Vimahi hatched a plan to do some harm to Mr Cranfield.

7. On the evening of 12 March 2015, they were driven by a colleague to Mr Cranfield's home in Stirling. That home had a battleaxe block with a driveway to the rear. Mr Cranfield was sitting at the rear of the house, smoking. In accordance with their agreement, the two men each discharged their firearms at Mr Cranfield, as a result of which he was wounded. They were originally charged with intentionally inflicting grievous bodily harm but for reasons which I gave on 20 April 2017, I was not satisfied beyond reasonable doubt Mr Cranfield had suffered grievous bodily harm. I was, however, satisfied beyond reasonable doubt that he had been wounded by the shots.

8. The firearms used to wound him were the subject of the firearm charges against the two offenders. For reasons I gave on 20 April 2017, I was satisfied beyond reasonable doubt that at the time of the shooting, Mr Grech possessed the .45 hand gun and bullets and had no authority to use or possess the handgun or ammunition. From Mr Vimahi's plea of guilty it is clear he had no authority to possess the shotgun or ammunition.

9. I will deal first with the wounding charge. I find that the victim of the wounding suffered serious wounds. Although they were serious, as I found, they did not amount to grievous bodily harm.

10. There was no victim impact statement before me from Mr Cranfield but I infer that the incident would have been very frightening and distressing for him and for those close to him.

11. So far as the objective seriousness of this offence is concerned, it is my view that the degree of wounding was high, higher than from wounds normally associated with wounds inflicted by knives, for example. It is to be noted that surgery was needed to remove a bullet, and the victim was hospitalised for three days.

12. Mr Bevan submitted that it was fortuitous that the victim was in the back garden to be shot at and that it ought not be inferred that the planning included one to wound, this being, he submitted, a last minute plan when the two realised that Mr Cranfield was present. I accept that submission and I find that the wounding count was objectively serious but the plan was a relatively last minute plan.

13. So far as the firearms offences are concerned, the maximum penalty shows that these are serious. I find each of the firearm offences objectively significant examples. Each of the offenders had their firearms for purposes to do with the company they kept, namely a motorcycle gang with dangerous rivals. In the case of Mr Vimahi, he had possession of the 12-gauge for some months before these incidents, there being evidence at trial that he was seen with his sawn-off shotgun in 2014. In the case of Mr Grech, he had had the .45 only for a day or so before his offending. All of the offences were, as the DPP submitted, committed in a wrongful attempt at vigilantism.

14. I will deal now with subjective matters. Mr Vimahi was born on 10 April 1993, so he is 24. He was born in New Zealand but lived with grandparents in Tonga for five years before his parents took him to New Zealand to be with his siblings. From then on he lived from time to time in New Zealand and from time to time in Tonga. He went to school as far as year 12 but he was expelled in his final year for misconduct.

15. He started drinking alcohol at 12. He later moved to cocaine, ecstasy and cannabis, his main drug being cocaine.

16. He undertook a course in tourism and travel and then came to Australia. He has a relative here. In Australia he worked in the building industry. He has been working as a cleaner in the prison system.

17. According to the pre-sentence report, he was depressed on admission to prison and was prescribed antidepressant medication.

18. In the prison system he made several attempts to participate in what is known as the SMART Recovery program and he finished that, albeit after a patchy start due to misconduct.

19. He has not behaved well in prison, there being continuing animosity shown by him towards some others in the system.

20. According to the pre-sentence report, he does not accept responsibility for the offences, and lacks empathy for the victim.

21. He claimed to have had the 12gauge shotgun for protection and not to have known of the law's requirements for safe storage of firearms and firearm paraphernalia.

22. He is seen by the pre-sentence report authors as of medium risk of reoffending. The pre-sentence report recommends intensive treatment options for substance abuse and violent conduct.

23. At the time of his offending he had no criminal record. I take his good record into account. I consider it entitles him to some leniency. I also take into account his relative youth. In sentencing him, (as I do for Mr Grech) I also take into account the need for personal and general deterrence.

24. His attitude to his victim, and his failure to take responsibility, suggests, and I find, that his prospects of rehabilitation are somewhat limited.

25. For the purpose of his sentencing, I ignore the fact that he may be deported on his release.

26. I am satisfied, having considered the alternatives, that no penalty other than one of full-time imprisonment, is appropriate.

27. He pleaded guilty to the firearms charge. It was a late plea but I propose deducting 10 per cent from what I would otherwise have imposed for that offence.

28. Daniel Grech was born on 9 September 1989 and is aged 27. He is the eldest of three. He had a stable home when he was young. He remains close to his parents and his siblings. On release from prison he may live with his parents, according to the pre-sentence report.

29. He attended school as far as year 10 but he was a poorly behaved student. He left school and worked for 10 years for a family company.

30. I find that he will have work available to him with family on his release.

31. Before he was incarcerated he used cocaine, methylamphetamine and cannabis.

32. Although he also was admitted to the SMART recovery program in the prison system, he was excluded for non-attendance. He also had treatment for depression shortly after his admission to the AMC.

33. According to the pre-sentence report Mr Grech:

verbalised his regret for the offences and acknowledges the physical harm caused to the victim. However, he did not demonstrate victim empathy and attempted to justify his actions.

34. He has had disciplinary action against him in prison.

35. His counsel tendered a bundle of records, including letters from family members and documents from the AMC showing his success in various courses.

36. His counsel called his younger brother, Matthew Grech, who spoke well of him. He apparently has been a fairly constant visitor to his brother and says he has noticed a positive change in him.

37. As is Mr Vimahi, Mr Grech is employed in the prison and participates in educational and mental health programs.

38. The pre-sentence report says of him that he has limited insight and he has been assessed as of medium risk of reoffending.

39. The evidence of his brother, which I accept was honestly given, suggests however that there is some room for optimism.

40. Given his relative youth and the fact that he had a good work history before his involvement in this offending, I do consider there are some prospects of rehabilitation. At the same time, in view of his lack of empathy for the victim and attempts to justify his conduct, those prospects must be treated cautiously.

41. He had a limited criminal history before these offences and I take that into account, as I do his relative youth.

42. I also take into account a physical problem he has with a nerve in a leg, the outcome of having been bitten by a police dog when he was arrested for related offences in South Australia.

43. On the wounding charge I see his part as roughly equal to that of Mr Vimahi. I see his subjective circumstances as roughly similar to Mr Vimahi's as well. Accordingly, I propose to impose the same sentence on him as I do on Mr Vimahi.

44. As with Mr Vimahi, I am satisfied, having considered alternatives, that no penalty other than fulltime imprisonment is appropriate.

45. Before deciding on the appropriate sentence I must consider some related offences for which he was dealt with in South Australia immediately after he committed these offences. When I gave my reasons for my verdicts I referred to the fact that after he committed these offences Mr Grech departed Canberra in a stolen car and travelled to South Australia, where he was arrested by South Australian police. In South Australia he was charged with offences very similar to those for which I am to sentence him. He was also charged with some misconduct offences relating to police, which I take it occurred when they were in the course of arresting him.

46. He was dealt with by courts in South Australia for those offences. In particular, he was dealt with in the District Court of South Australia for offences relating to firearms. Unfortunately, the sentencing remarks of the judge were not provided to me. It was not submitted that I should defer sentencing until the remarks were made available. According to his South Australian criminal record, he was found guilty in the District Court of one count of an aggravated version of possession of a firearm without a licence and another of possessing a firearm with a defaced, altered or removed characteristic.

47. The sentencing judge imposed an aggregate sentence for both offences, of two years and four months' imprisonment, with a non-parole period of one year, starting on 30 August 2015. He was also fined $520. The maximum for the weapons offence in South Australia was 10 years imprisonment and a fine of up to $50,000. For the other offence the maximum was seven years' imprisonment with a fine of up to $35,000.

48. The hearing in the District Court of South Australia occurred on 11 December 2015. Because I do not have the reasons of the judge I do not know what discount, if any, he received, for pleading guilty and what, if any, other consideration was given for the outstanding ACT matters.

49. Both of those offences were said to have occurred in Adelaide on 14 March 2015 which was just a day or so after these offences. He was extradited to the ACT on 30 August 2016 when his 12 months' non-parole period had expired in South Australia. Since then he has been in fulltime custody in the ACT for these offences, having served nine months and eight days.

50. His counsel, Ms Musgrove, relied on Mill v The Queen [1988] HCA 70; (1998) 166 CLR 59 and its applicability where an offender is sentenced in two or more jurisdictions for offences which are related in time and other ways. As the court said there at 66:

The intervention of a State boundary denies to an offender the opportunity of having the series of offences dealt with together by a sentencing court which can avail itself of the flexibility in sentencing provided by concurrent sentences.

51. Ms Musgrove submitted that any sentence imposed for the firearm offence here should be modest, the wounding charge being the principal one. She also submitted I ought to consider directing any sentence be served by intensive corrections order. She submitted he poses no risk to the public, there was no clear evidence of motive for his offending, and an ICO would assist him and the community with his rehabilitation.

52. I have considered her submission about an ICO but do not accept it. The seriousness of the offending and my caution about his readiness to leave custody bring me to that view.

53. The wounding offence was, of course, quite distinct from the weapons offences. But the South Australian weapons offences, especially the possession offence, are closely similar to the ACT offence.

54. I consider that without the intervention of state or territory boundaries, all of these offences would have been dealt with by the one judge and with due regard for issues of concurrency and accumulation.

55. The Crown submitted that the offending in South Australia was different, making Mill less relevant.

56. I was not given any helpful statistics about these offences. That is not a criticism of anybody involved. It is explicable because these are unusual matters.

57. Mr Bevan submitted that I ought impose between 50 to 70 per cent of the head sentences as a non-parole period and I propose to accept that submission.

58. I received helpful submissions from all counsel on matters of accumulation and concurrency. I was referred in particular to O'Brien v The Queen [2015] ACTCA 47 to [26] where the Court of Appeal said:

Where ... the offences are not separate and distinct but a part of a single episode of criminality with common features it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent or at least partly concurrent.

59. As I have observed, I propose to sentence both offenders as though they were equally responsible for the wounding offence.

60. As will be apparent from my backdating of Mr Grech's sentences, I am applying total concurrency to take account of the territorial position, and the time he spent in prison in South Australia. I have done that by starting his ACT sentences on the day he went into custody in SA.

61. So far as Mr Vimahi is concerned, for the offence of wounding contrary to section 21 of the Crimes Act, I impose a sentence of imprisonment of three years to date from 1 August 2015 to 31 July 2018. On the weapons charge I impose a sentence of imprisonment of four years to date from 1 August 2017 to 31 July 2021. On each of the section 249(1) offences I impose a fine of $500 and allow no time to pay. On the section 181(a)(i) offence, that is the failure to keep the gun safely, I impose a term of imprisonment of three months to date from 1 July 2021 to 30 September 2021. But for the plea of guilty to the weapons charge I would have imposed a sentence of four years and five months.

62. The overall head sentence is six years and two months and I direct that he be eligible for parole after serving three years and one month imprisonment, that is on 1 September 2018.

63. So far as Mr Grech is concerned, for the offence of wounding contrary to section 21 of the Crimes Act, I impose a sentence of imprisonment of three years to date from 14 March 2015 to 13 March 2018.

64. On the section 42 weapons charge I impose a sentence of four years and five months' imprisonment to date from 14 March 2017 to 13 August 2021.

65. On the charge of take motor vehicle without authority I sentence him to three months' imprisonment to date from 14 June 2021 to 13 September 2021.

66. The overall head sentence is six years and six months and he will be eligible for parole after serving three years and three months, that is on 13 June 2018.

I certify that the preceding sixty-six [66] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Walmsley.