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Summary of Judgment
Director of Public Prosecutions v Basic
[2017] VSCA 376
14 December 2017
The Court of Appeal (Justice Weinberg, Justice Osborn and Justice Priest) today allowed an appeal by the Director of Prosecutions in respect of sentences imposed upon the respondent, Dennis Basic, by the County Court in 2017.
On 14 December 2015, the respondent pleaded guilty in the County Court to thirteencharges including making an explosive substance with intent to enable another person to endanger life or to cause serious injury, knowingly possess explosive substances for unlawful object, and possessing a drug of dependence. The remaining ten charges related to firearms offences and comprisedeight charges of possession of a firearm whilst a prohibited person, possession of a silencer, and possession of ammunition without licence and store insecurely (‘the 2013 firearms offending’).
The offending related to an attack on a gym in Hallam owned by the Victorian president of the Comanchero motorcycle gang in 2013 during which shotguns were fired through the windows and two improvised explosive devices (‘IEDs’) were placed on the floor of the gym through the holes created, a safety fuse lit but neither device detonated.The respondent who had prior convictions including for violent offending and one of armed robbery, was at the relevant time, a prospective member of the Hells Angels motorcycle gang, and had supplied petrol for use in the construction of the IEDs. The other charges related to firearms located at premises occupied by the respondent and in his car.A number of the firearms were loaded.
The respondent was sentenced a total effective sentence of 23 months’ imprisonment followed by a 12 month community corrections order (‘CCO’). In respect of the 2013 firearms offending, he was sentenced to an aggregate sentence of 18 months’ imprisonment to be followed by a 12 month CCO with a requirement for 100 hours of community work.Once pre-sentence detention was taken into account, the net effect of the sentence imposed was that the respondent was released from prison on 14 December 2015, upon which date the CCO commenced.
On 10 May 2016, following an appeal by the Director of Public Prosecutions, the Court of Appeal concluded that the sentences imposed in respect of the firearms offending were manifestly inadequate, and resentenced the respondent to increase the CCO to 4 years duration with a requirement of 400 hours of community service.
On 1 June 2016, less than one month after resentence by the Court of Appeal, the police executed a search warrant at the respondent’s then place of residence and located three semi-automatic handguns, a pump action shotgun, a large quantity of ammunition, a body armour vest and a small quantity of illicit drugs (‘the 2016 offending’). Again, a number of the firearms were found in loaded condition.
As a result of the 2016 offending, the respondent pleaded guilty on 12 May 2017 in the County Court to four charges of possessing a firearm whilst a prohibited person, one charge of possessing a drug of dependence and two related summary offences. He also pleaded guilty to breach of the 4 year CCO imposed by the Court of Appeal by reason of the 2016 offending.
On 11 July 2017, the respondent was convicted and sentenced to 2 years’ imprisonment in respect of the 2016 offending, and further re-sentenced in respect of the 2013 firearms offending to an aggregate sentence of 9months’ imprisonment in addition to time served of 18months and partial completion of the CCO ordered under the original sentence. Four months of this sentence was cumulated on the sentence for the 2016 offending.The total effective sentence in respect of the 2016 offending and the 2013 firearms offending was thus 2years and 4 months’ imprisonment with a non-parole period of 1year and 6months.
The Director then appealed against the sentences imposed on11 July 2017 on the grounds of manifest inadequacy. It is the sentences imposed on this date which form the basis of the present appeal.
The Court of Appeal found that despite the respondent’s pleas of guilty, his cooperation with police, his demonstration of remorse and his continuing underlying prospects of rehabilitation, the sentences imposed by the sentencing judge were manifestly inadequate and that the sentences imposed on both the 2013 firearms offending and the2016 offending which occurred in breach of a CCO, did not adequately reflect the gravity of the offending, or the need for specific and general deterrence, denunciation, punishment and protection of the community.
The respondent was resentenced to an overall total effective sentence of 5years and 6 months’ imprisonment with a non-parole period of 3years and 8months.
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NOTE: This summary is necessarily incomplete. It is not intended as a substitute for the Court’s reasons or to be used in any later consideration of the Court’s reasons. The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.