Director of Public Prosecutions v Arsov
[2023] VCC 46
•25 January 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL jurisdiction
CR-21-02174
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LAME ARSOV |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 August, 6 September & 13 December 2022 | |
DATE OF SENTENCE: | 25 January 2023 | |
CASE MAY BE CITED AS: | DPP v Arsov | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 46 | |
REASONS FOR SENTENCE
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Subject:Criminal law - Sentence
Catchwords: Possess a trafficable quantity of firearms - cultivate a narcotic plant, namely Cannabis L - cultivation of cannabis for personal use – summary offences of non-prohibited person possess imitation handguns, silencer, possession of cartridge ammunition and prohibited weapons - early plea of guilty – remorse – adult son suffers epilepsy – whether amounts to family hardship that is exceptional – general deterrence, denunciation and community protection paramount sentencing considerations – good prospects of rehabilitation – combination sentence of imprisonment and community correction order
Legislation Cited: Firearms Act 1996; Drugs, Poisons and Controlled Substances Act 1981; Control of Weapons Act 1990;
Cases Cited:DPP v El Hage Hassan [2018] VCC 771; Hiu Mei Lam v The Queen [2021] VSCA 241; Berichon v The Queen (2013) 40 VR 490, 496; Worboyes v The Queen [2021] VSCA 169; Markovic v The Queen [2010] VSCA 105; R v Edwards (1996) 90 A Crim R 510, 515; Borg v The Queen [2020] VSCA 191; Hiu Mei Lam v The Queen [2021] VSCA 241; DPP v El Hage Hassan [2018] VCC 771
Sentence: 10 months' imprisonment and a 16-month community correction order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J.W. O'Toole | Office of Public Prosecutions Victoria |
| For the Accused | Ms K.M. McKay | Galbally Parker Criminal Lawyers |
HER HONOUR:
1Lame Arsov, you have pleaded guilty to one charge of possessing a trafficable quantity of firearms contrary to s 7C(1) of the Firearms Act 1996, the maximum penalty for which is 10 years' imprisonment, and one charge of cultivating a narcotic plant, namely cannabis, contrary to s 72B of the Drugs, Poisons and Controlled Substances Act 1981, the maximum penalty for which, in this case, is one year's imprisonment or 20 penalty units or both.
2In addition, you have pleaded guilty to four related summary offences comprising:
·one charge of being a non-prohibited person in possession of a silencer without a permit contrary to s 57(1) of the Firearms Act, the maximum penalty for which is two years' imprisonment (Summary Charge 11);
·one charge of being a non-prohibited person in possession of an imitation firearm without exemption or approval contrary to s 5AB of the Control of Weapons Act 1990, the maximum penalty for which is two years' imprisonment or 240 penalty units (Summary Charge 16);
·one charge of possessing cartridge ammunition contrary to s 124(1) of the Firearms Act, the maximum penalty for which is 40 penalty units (Summary Charge 18); and
·one charge of possessing prohibited weapons without exemption or approval contrary to s 5AA of the Control of Weapons Act 1990, the maximum penalty for which is two years' imprisonment or 240 penalty units (Summary Charge 19).
3You were charged with this offending following the execution of a search warrant at your residential property in Whittlesea on 17 February 2021. You were 48 years old and lived at the property with your wife and two adult children. You have no prior or subsequent criminal history.
Circumstances of offending
4The circumstances of your offending are detailed in the summary of prosecution opening for plea dated 18 March 2022, which is the agreed basis upon which you are to be sentenced.
5In September 2020, police commenced an investigation into the activities of a male, Mr Saso Angelovski, who was suspected of trafficking in illicit drugs. As part of this investigation, a police covert operative engaged in five evidentiary drug purchases and two evidentiary purchases of firearm-related items from Mr Angelovski between 18 November 2020 and 15 December 2020.
6Police investigators also obtained electronic communications stored on Mr Angelovski's mobile phone for the period between 29 November 2020 and 22 January 2021 and intercepted his calls between 22 January 2021 and 17 February 2021.
7The police found a series of text messages between you and Mr Angelovski on his mobile phone. On 8 December 2020, between 12.01 am and 12.30 am, Mr Angelovski messaged you about obtaining some ammunition. The two of you exchanged the following text messages:
Arsov: Only 2 box left and some loose
2 different types of loose/Both different to the boxes/n50[1]
Angelovksi: [translated to English]: I told him its 200 per box
[1]The 'n' appears twice in the text of the message
8Later that day, between 8.33 am and 8.46 am, you and Mr Angelovski exchanged further text messages regarding the supply of a silencer:
Angelovski: Did u read my msg about exhaust [i.e. a silencer]?
Arsov: Yeah
Angelovski: Ok I'll need one that's leas ur favorite
Paint it black
One of ur old ones
N the two boxes
Arsov: I don't think so
Angelovski: But 30 in each maybe the tray needs to b cut
We get 500 each just 4 the exhaust
Arsov: See you when you get here
9On 8 December 2020, the police covert operative met with Mr Angelovski at an address in Lalor where the police operative purchased 7 grams of methylamphetamine from Mr Angelovski.[2] Mr Angelovski then travelled with the covert operative to Whittlesea, directing him to your address.
[2]The covert operative was supplied with approximately $6,000 by Victoria Police to facilitate the purchase of methylamphetamine, firearm ammunition and a silencer from Angelovski.
10Upon arrival, Mr Angelovski went inside your house while the covert operative remained in the car. Approximately 30 minutes later, Mr Angelovski returned to the car, and told the covert operative, 'He has got the ammunition rounds, however, he does not have the silencer'. Mr Angelovski explained that 'He and his friend have three different silencers at this address; however, they are specific to different kinds of 9 millimetre handguns and, unless he knows which type it is, he won't be able to sell a silencer' to the covert operative.
11In relation to the ammunition rounds, Mr Angelovski told the covert operative that you had provided him with two different kinds of 9 millimetre ammunition.
12At a later stage, Mr Angelovski told the covert operative that 'he keeps his stuff' at your house and that he supplies you with methylamphetamine free of charge in exchange.
13Once they had returned to the Lalor address, Mr Angelovski handed the covert police operative a small Ziploc bag containing two ammunition rounds and a foam box containing 50 rounds of 9 millimetre Luger Winchester ammunition. In return, the covert operative paid Mr Angelovski $200 for the ammunition.
14Approximately two months later, on 17 February 2021, the police executed three search warrants at your Whittlesea address. After meeting with you and explaining the purpose of the search warrants, you immediately informed police that there were several firearms at your address. You were then placed under arrest.
Search of wardrobe in master bedroom
15During the search of your address, the police located the following items in the wardrobe in your bedroom:
· a Gamo air rifle (.177 calibre);
· a Winchester 320 rifle (.22 calibre) with a home-made silencer;
· a Zastava-Serbia rifle (.233 calibre);
· a Ruger Newport SR-22 rifle (.22 calibre) with a silencer; and
· a 12-gauge shotgun with a black case;
· a Gamo 600CL air rifle (.22 calibre).
The firearms had distinct serial numbers. The six firearms comprise Charge 1, possessing a trafficable quantity of firearms.
16In addition, the police located and seized the following items from the wardrobe in your bedroom:
· a quantity of assorted cartridge ammunition (which is Summary Charge 18);
· a green ammunition case containing a quantity of assorted ammunition (Summary Charge 18);
· 78 rounds of .223 ammunition and two snap caps (Summary Charge 18);
· a black .22 calibre loaded magazine and gel blaster magazine (Summary Charge 18);
· a samurai sword with black Saya (scabbard) (Summary Charge 19, which is the charge of possessing a prohibited weapon without approval); and
· a black firearm scope and a gel blaster magazine.
17The six firearms located in the wardrobe were analysed by a ballistics expert, who found:
· the Gamo air rifle was a single-shot air rifle and was able to be discharged;
· the 12-gauge shotgun was a semi-automatic shotgun with capacity for five cartridges and was able to be discharged;
· the Zastava-Serbia rifle was a bolt-action repeating rifle, with capacity for six cartridges, and was able to be discharged;
· the Ruger Newport SR-22 rifle was a semi-automatic rifle and is normally capable of fitting a 10-cartridge magazine (although it was not fitted with a magazine) and was able to be discharged. The home-made silencer attached to the rifle was also operable to reduce the audibility of the rifle when discharged;
· the Winchester 320 rifle was a bolt-action repeating rifle and is normally capable of fitting a five-cartridge magazine (although it was not fitted with a magazine) and was able to be discharged. The home-made silencer could not be tested as the threading was unsuitable, but it still met the definition of a silencer; and
· the Gamo 600CL air rifle was a single-shot rifle and was able to be discharged.
Search of the laundry
18In addition to the items located in the wardrobe, the police also located and seized the following items from the laundry:
·two Glock gel blasters (which are imitation firearms), one black and one silver (giving rise to Summary Offence 16);
·a container containing metal pipes, including a home-made silencer (Summary Offence 11);
·a Ziploc bag containing green vegetable matter (which is Charge 2);
·a small tin containing a quantity of air rifle pellets and a Ziploc bag containing a quantity of assorted cartridge ammunition (Summary Offence 18); and
·a camouflage bag containing a quantity of shotgun shells and a box of mechanical parts.
19When police searched the garage, they also located two double-edged blade swords/flick knives, five samurai swords/throwing swords with sheathes and 10 flick or throwing folding knives, which are also the subject of Summary Offence 19, the charge of possessing prohibited weapons without approval. One .223 calibre cartridge ammunition was also located in the garage, which forms part of Summary Offence 18.
20In a pocket behind the passenger seat of your car, the police located a taped box containing a quantity of shotgun shells.
21In relation to Charge 2, cultivate a narcotic plant, the police also located and seized six cannabis plants inside a shaded greenhouse in your backyard. In total, the amount of cannabis cultivated by you weighed 13.5 kilograms.
22You were arrested and interviewed at Mill Park police station where you exercised your right not to comment on the allegations.
23Your mobile phone was subsequently analysed by police. They located communications between you and Mr Angelovski, a photograph of a male, suspected to be Mr Angelovski, holding the Ruger Newport SR-22 rifle with a silencer attached and two photographs of you holding one of the firearms.
Procedural history
24Following your arrest you were remanded in custody on 17 February 2021. You were granted bail the following day. The matter resolved at an early committal mention without the need for a contested committal hearing. An application for summary jurisdiction was refused on 11 October 2021 and the matter listed for plea in the County Court on 24 August 2022. The plea hearing was adjourned to 13 December 2022 to allow your counsel to obtain further medical material upon which they sought to rely.
Objective gravity and moral culpability
25I turn now to discuss the objective gravity of your offending.
26By their nature, firearms offences are inherently serious. The offence of possessing a trafficable quantity of firearms is aggravated by the fact the charge encompasses a total of six firearms, each of which was capable of being fired. The firearms were not stored in a secure location in your family home. Two of the firearms had a silencer attached. Not only were the firearms located in the wardrobe of your bedroom but a substantial amount of ammunition was stored proximate to those firearms, although I accept you are not to be punished twice for separate offences and that none of the firearms were found loaded.
27On your behalf, it is submitted that your culpability for the offending is lessened by the fact that the guns, weapons and associated paraphernalia belonged to Mr Angelovski and were being held by you on his behalf and no more. I accept that the firearms, weapons and ammunition did not belong to you but were being stored on your premises at the behest of Mr Angelovski. This is consistent with the statement Mr Angelovski volunteered to the undercover police operative that 'he keeps his stuff' at your house in exchange for drugs.
28However, in agreeing to fulfil this role you facilitated Mr Angelovski's criminal activity. The sheer quantity of firearms, weapons and ammunition stored by you means you must have been aware that doing so was seriously wrong. Moreover, the recovered text messages reveal that you did more than store these items, that you kept 'stock' or track of the items in your possession, and were in a position to discuss the availability of those items, including the provision of a silencer, with Mr Angelovski.
29In Berichon v R,[3] the Court of Appeal outlined two broad categories when considering the firearms offences:
'The first category of cases are those where the conclusion is not open that the possession of the firearm is associated with some ongoing criminal activity. The second category of cases are those where the evidence enables the conclusion that the possession is for the specific purpose of criminal activity, or a specific criminal purpose, more severe sentences are then usually in order… The prior convictions of the offender in conjunction with the circumstantial evidence may also enable the conclusion to be drawn that the possession is for some unlawful activity.'
[3]Berichon v The Queen (2013) 40 VR 490, at [496] ('Berichon')
30In your case, the prosecution submits your offending does not fall squarely into either category. I accept that it was Mr Angelovksi, and not you, who was involved in ongoing criminal activity as evidenced by his interactions with the undercover police operative. However, as stated, you facilitated that offending by storing the firearms, weapons and ammunition on 17 February 2021. Moreover, you were aware, at least to some extent, that the firearms were connected to criminal activity on the part of Mr Angelovski, for instance, by way of sale to others. This much is apparent from the text messages. Accordingly, this is a relatively serious example of the offence of possessing a trafficable quantity of firearms. It could not be characterised as a low-level example of this offence.
31On your behalf it was submitted that when you first met Mr Angelovski you were not aware that he was a man with an extensive criminal history. However, this much became apparent when you were contacted by his partner to care for his dogs while he was in custody. Following his release, a friendship developed and he would attend your property where you would smoke cannabis together and Mr Angelovski would supply you with methamphetamine to share from time to time.
32Ms McKay, who appeared on your behalf, stated that Mr Angelovski contacted you at a point in time to advise that he had stored some weapons in your unlocked shed and that despite repeatedly asking him to remove them Mr Angelovski did not do so. Instead, he added to those items. Ms McKay submitted that fearing the weapons may be stolen, and that Mr Angelovski would blame you for their loss, you moved the firearms inside to hide them in your wardrobe, where they remained until the police executed the search warrant on 17 February 2021.
33I accept that yours was not sophisticated offending. I also accept that Mr Angelovski was the driving force behind the decision to store the items at your property. However, at no stage did you report the matter to police. Rather, the text messages reveal a preparedness on your part to keep track of the items held by at your property and to share that information with Mr Angelovski. Your motivation for doing so is discussed in the psychological material filed on your behalf to which I shall return. It appears you did so out of a misguided sense of loyalty to Mr Angelovski,[4] combined with a belief, on your part, that you had 'no way out of the situation'.[5]
[4]Exhibit 3 – Addendum report of Mr Jeffrey Cummins dated 31 March 2022, p7, at [53]
[5]Exhibit 3 – p5, at [33]
34As to the charge arising from the cultivation of cannabis, there is no evidence the plants were grown for anything other than your personal use. This is accepted by the prosecution. The firearm offence is clearly the most serious offence for which you are to be sentenced.
Personal circumstances
35Turning now to your personal circumstances.
36You were born in December 1971 and are now 51 years old. You were born in Macedonia and came to Australia with your parents and your older sister when you were four years old. You enjoyed a happy, uneventful childhood and remain close to your parents who, despite being aware of the charges, remain supportive of you.
37You attended three primary schools before completing Year 12 at Thomastown High School. After graduating, at the age of 18, you found work in the Kodak factory, where you stayed for a year before working with your mother in a curtain production company in Yarraville. You then undertook work as a truck driver for that company. Between 1995 and 2008 you worked full time for your mother in the family curtain business she established.
38You have been married to Sally Arsov for 28 years and live with your two adult sons, Leon, now 22, and Peter, aged 19 on a semi-rural property in Whittlesea. Your wife works full-time in a senior role for Centrelink at Services Victoria, where she has been employed for close to 30 years. In 2008, you assumed the full-time care of your children for 12 months. You then commenced employment with Arnold Webbing, a manufacturer, for four years. You resigned from that role when your eldest son, Leon, developed epilepsy and you have not returned to the workforce since.
39You were diagnosed with curvature of the spine and arthritis when you were 25 years old but you do not require medical intervention for these conditions.
40You were assessed for the purposes of your plea by Mr Jeffrey Cummins, a clinical and forensic psychologist, on 28 May 2021 and again on 21 March 2022. In his first report dated 9 June 2021, Mr Cummins outlines his discussions with you regarding the offending, where you reported on your interactions with the co-accused stating that 'At times I thought about contacting the police about the firearms [but ended up] thinking there was no way out of this situation for me'.[6]
[6]Exhibit 3 – p5, at [33]
41You informed Mr Cummins that you became dependant on cannabis from the age of 22 and at the time of your first psychological assessment were smoking 2 grams per day on average. You denied any addiction to other drugs but agreed you used methamphetamine at times.
42As to your mental health, Mr Cummins reports that you were prescribed antidepressants by your GP following your arrest but otherwise concludes you have no mental health disorders beyond a cannabis use disorder, for which he recommends treatment.
43Subsequent to Mr Cummins first assessment, you self-referred to Caraniche for four sessions of drug counselling to assist with your cannabis abuse. You engaged well in these sessions, according to the report of the clinician Ms Jamieson, dated 17 March 2022.[7] You engaged in a further 12 sessions of counselling with Uniting Alcohol and Drug Treatment and the report of the clinician dated 18 August 2022 states you have reduced your use significantly.
[7]Exhibit 5
44Mr Cummins' subsequent report dated 31 March 2022 details the account you gave of your involvement in this offending, stating:
'He now regards his offending as being reflective of stupidity and acting as an "idiot". At interview, he stated he does not regard himself as an assertive person and that he essentially acquiesced to Mr Angelovski's requests because of his own relative lack of assertiveness.
'On his account, his level of concern about the presence of firearms and ammunition at his home address was sufficient to diagnose him as suffering from an adjustment disorder with mixed anxiety and depressed mood at the time of his arrest'.
45Mr Cummins states that the symptoms of the adjustment disorder have now resolved but expresses the opinion that you now suffer from 'symptoms of reactive anxiety and depression reflective of [your] concern that [you] will be incarcerated' in relation to these matters.
Matters in mitigation of sentence
46On your behalf, Ms McKay provided detailed and helpful written submissions outlining the matters relied upon in mitigation of your sentence, which she expanded upon at the hearing of your plea.
47First and foremost, you entered an early plea to the charges. Your plea has significant utilitarian benefit. In pleading guilty at this stage, you save the community the time and expense of running a trial. There is heightened utility in your plea when viewed against the background of the pandemic. You are entitled to a greater sentencing discount for your early plea than a similar plea entered in other times given the backlog of criminal trials in the wake of the pandemic.[8]
[8]Worboyes v The Queen [2021] VSCA 169, [35] – [39]
48By your plea, you also accept responsibility for your offending. You have also shown considerable remorse for the offending. Mr Cummins reports you expressed 'embarrassment, guilt and remorse' in his assessment with you on 21 March 2022. Your remorse is also reflected in the references provided to the court, including those of community engagement officer Mr Tom Danskin, as well as Mr George Semertzidis, the managing director of Arnold Webbing, and in the reference provided by your wife, Sally. You are entitled to, and will receive, a significant sentencing discount in light of your early guilty plea.
49Secondly, I accept that you are otherwise a person of good character. You have no prior criminal history and have not offended since being charged and bailed. I have had regard to the many references provided on your behalf, by family and friends, all of whom speak of you as friendly, responsible, caring and trustworthy. Your two children speak highly of you as a caring father. Although many are aware of your long-standing abuse of cannabis, they say this has not diminished their respect for you or impacted on your behaviour. Your former employer, Mr Semertzidis, says you were a valued and integral part of his work team during your four years with his manufacturing company. At the age of 51, you are entitled to the benefit of your previous good character in mitigation of sentence. It would appear that your engagement in this serious offending was very much out of character.
50Much of the plea hearing focused on the question of family hardship. Ms McKay in her submissions urged the court not to impose a sentence of imprisonment given the hardship a custodial sentence may have on your eldest son, Leon, who suffers from epilepsy. A report of consultant neurologist Dr Hannah Rosenfeld from the Northern Hospital dated 11 August 2022 outlines Leon's diagnoses of epilepsy during puberty and of his having many seizures during his adolescence and into young adulthood. The report states:
'Leon suffers from a lot of anxiety surrounding his epilepsy and fear of having another seizure. Stress plays a part in his epilepsy and significant stress can precipitate seizures. Leon's prognosis is good if he is compliant with his medications. His medications include sodium valproate and lamotrigine which he takes twice a day…
'Only having known Leon for a short time, my impression is that Leon is able to study or work in a normal capacity in the future, given that his seizures are relatively well controlled at the moment. I do recommend that he address his anxiety and this may be with the assistance of a psychologist. Leon would benefit from having a family member being close in case he does have a seizure. If Leon does not have family members close by, this can precipitate his anxiety'.
51In her letter to the court, your wife Sally outlines the impact a sentence of imprisonment may have on the family. She states she would not cope with caring for Leon and being in full-time employment and would need to leave her job. Whilst there are family savings following an inheritance, she says she does not know how long these would last. The family is reluctant to have your younger son, Peter, take time away from university to care for his brother. Moreover, it is submitted that as Leon's primary carer you are the one he relies upon to calm his anxiety, and thus to alleviate his seizures.
52Given the limited information available from Dr Rosenfeld's report, the plea was adjourned to enable further material to be provided in respect of this submission.
53Two subsequent reports were provided by neurologist Dr Cynthia Chan, who assessed Leon and spoke with you on 20 October 2022. Dr Chan's first report is dated 20 October 2022 and, following receipt of medical notes from the Northern Hospital, she prepared a further report dated 12 December 2022. In her most recent report, Dr Chan noted that Leon had frequent seizures in the past, particularly in 2019. Dr Chan recorded that Leon was admitted to hospital on four occasions in 2019, all with 'a dislocated shoulder secondary to seizures'. She states:
'When he was last seen at the Northern Hospital in August 22, he informed the neurologist then that anxiety could be the trigger of his seizures and his father generally calmed him down apart from physically holding him down so he would not dislocate his shoulders.
'It is therefore reasonable to comment that if his father was incarcerated and unable to assist with stress relief for Leon, it is possible that the occurrence of seizures and associated shoulder dislocations may increase'.
54Dr Chan recommended increasing Leon's medication to improve his epilepsy management.
55The authority of Markovic v the Queen[9] sets out the circumstances in which family hardship may call for the exercise of mercy in mitigation of sentence. The plurality of the Court of Appeal held that, '…unless the circumstances are exceptional, family hardship is to be disregarded as a sentencing consideration'.[10] The Court clarified that it is only in the exceptional case, where the plea for mercy is seen as irresistible, that family hardship can be taken into account. In so stating, the Court of Appeal recognised that 'it is almost inevitable that imprisoning a person will have an adverse effect on the person's dependents', quoting the NSW Court of Criminal Appeal in R v Edwards,[11] where it was said:
'There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed … it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full-time imprisonment'.
[9]Markovic v The Queen [2010] VSCA 105 (‘Markovic’)
[10]Ibid, at [3]
[11] (1996) 90 A Crim R 510, 515.
56Whilst every case must be considered on its own merits, and noting the primary function of a sentencing court is to impose a sentence commensurate with the gravity of the crime, the following cases are instances where exceptional circumstances were found to exist and the plea for mercy was found to be irresistible.
57In Borg v The Queen,[12] the offender was breastfeeding her five-month-old infant and her other child, aged five, would have been left in the care of her abusive husband if she were imprisoned. These factors, combined, were sufficient to establish exceptional circumstances.
[12] Borg v The Queen [2020] VSCA 191
58In Hiu Mei Lam v The Queen,[13] the offender's son, who was aged two and was an Australian citizen, had been returned to China on a temporary visa after the offender was charged, and would have been placed in foster care if (as was likely) the offender's visa was cancelled and she was deported, or would remain in China with no maternal contact at all if she were imprisoned. Mercy was warranted in that case.
[13] Hiu Mei Lam v The Queen [2021] VSCA 241
59Here, I am acutely conscious of the burden your incarceration will have on other family members, particularly your son Leon. He will be deprived of the person he has long relied upon to calm his anxiety, which he believes is a trigger for his seizures. Dr Rosenfeld expressly states that Leon would benefit from having a family member close by in case he does have a seizure. For a long period, that family member has been you. However, I also note that Dr Rosenfeld opines that as at August 2022 Leon's seizures were 'relatively well controlled' by medication such that he could work or study in the future. The medical records referred to by Dr Chen indicate that Leon's seizures were more significant, requiring hospitalisation in 2019. Leon has not required hospitalisation since.
60In Dr Chen's opinion, it is 'possible' your incarceration 'may' increase the occurrence of seizures and associated shoulder dislocations but does not express the likelihood of this occurring. I appreciate that the management of Leon's medical condition will impose a difficult burden on other members of the family and may be the cause of financial difficulty if your wife needs to relinquish work for a period; however, even in combination, such hardship whilst considerable is not exceptional.
61However, I do accept that your time in custody will be made more difficult by reason of your anxious concern for Leon's welfare and the impact your incarceration may have on his anxiety and epilepsy. You will also bear the burden of worrying about the impact, both emotional and financial, on other family members who now assume responsibility for managing Leon's condition in your absence. I take this additional burden into account. As stated in Markovic:
'An offender's anguish at being unable to care for a family member can properly be taken into account as a mitigating factor - for example, if the court is satisfied this will make the experience of imprisonment more burdensome or that it will materially affect the assessment of the need for specific deterrence or of the offender's prospects of rehabilitation'.[14]
[14] at [20]
62Restrictive conditions in custody, whilst not as significant as previously, continue in order to respond to COVID-19. This includes periods in isolation to manage the pandemic. For you, experiencing custody for the first time, these restrictions will be an added hardship. I have given weight to the additional burden of your imprisonment, particularly the distress arising from your concern for Leon and your family, in moderating the sentence I impose.
63I also have regard to Mr Cummins’ diagnosis of an adjustment disorder at the time of your arrest, although it was not submitted and there is no evidence of any correlation between this disorder and your offending at the time such as to enliven the principles in Verdins in mitigation of sentence.
64Finally, I am satisfied that, having regard to your previous good character, the circumstances of this offending, the remorse indicated by your early plea and your demonstrated preparedness to engage in drug treatment and, most significantly, the absence of any prior criminal history, that you have very good prospects of rehabilitation provided you continue with drug treatment and avoid any future association with Mr Angelovski. The need for the sentence to operate as a specific deterrent is correspondingly reduced.
65Ms McKay submitted that a term of imprisonment was not warranted in the circumstances of this case. She submits that a community correction order would adequately address all relevant sentencing considerations, including the need for the sentence to operate as a general deterrent and to denounce your conduct. The prosecution submit that the gravity of the offending warrants a term of imprisonment but accepts that any custodial term could be served in combination with a community correction order.
66The prosecution referred me to a number of cases where offenders have been sentenced for possessing a trafficable quantity of firearms. Current sentencing practices are only one of many relevant sentencing considerations. I have had regard to each of the sentences to which I was referred, only one of which I find of assistance.[15] In the other cases, the offender was either a prohibited person or in breach of a firearms prohibition order, being aggravating features that do not apply in your case.
[15] DPP v El Hage Hassan [2018] VCC 771
67In DPP v El Hage Hassan, the offender pleaded guilty at an early stage to the possession of four firearms relevant to the charge of possessing a trafficable quantity of firearms, two of which were loaded and one had a silencer and scope attached to it. The offender stored the firearm and other drug equipment for an associate. He had no prior convictions and was sentenced to three years' imprisonment on the relevant charge. He was sentenced to a total effective sentence of six years, six months' imprisonment for this and other offences. As always, each case turns on its own facts, and cases such as El Hage Hassan are instructive but not determinative.
68You have been assessed by Corrections as suitable for a community correction order and you have consented to such an order being made.
69I have given careful consideration to the appropriate sentence in this case. In sentencing you, I have regard to the fact that the illegal possession of firearms, in this case three times the trafficable quantity, is viewed seriously by the courts having regard to the prevalence of illegal firearms in the community and their potential for harm. Others must be deterred from such illegal activity and in sentencing you I must clearly denounce such offending. In my view, notwithstanding the powerful mitigating factors that operate in your case, the charge of possession of a trafficable quantity of firearms warrants an immediate custodial term.
70However, in giving weight to your early plea, the absence of any prior criminal history and my positive findings regarding your future rehabilitation and the other matters in mitigation to which I have referred, I agree with the prosecution submission that a sentence of imprisonment combined with a community correction order is an appropriate sentence and meets all sentencing objectives in this case.
Sentence
71Balancing each of the matters to which I have referred, whilst having regard to the maximum penalties for each offence, I sentence you as follows:
·On Charge 1, possession of a trafficable quantity of firearms, you are convicted and sentenced to eight months' imprisonment. This is the base sentence.
·On each of Summary Offences 11, being a non-prohibited person possessing a silencer, Summary Offence 16, non-prohibited person possessing an imitation firearm, and Summary Offence 19, possessing a prohibited weapon without approval, you are convicted and sentenced to two months' imprisonment.
·On Summary Offence 18, possessing cartridge ammunition without approval, you are convicted and fined $500.
72Summary Charge 11 and Summary Charge 19, relating to your possession of the silencers and weapons, are both rolled-up charges reflecting the multiple items found in your possession. I order that one month of the sentence imposed on Summary Charge 11 and one month of the sentence imposed on Summary Charge 19 be served cumulatively upon the sentence imposed on Charge 1 and upon each other. The sentence imposed on Summary Charge 16 is to be served concurrently. This gives a total effective sentence of 10 months' imprisonment. I declare, pursuant to s18 of the Sentencing Act, that you already have served one day of pre-sentence detention.
73I further order that on Charge 1, possession of a trafficable quantity of firearms, and charge 2, cultivation of a narcotic plant, that you be convicted and sentenced to an 16-month community correction order subject to the following conditions:
·That you be subject to supervision;
·That you be assessed for and receive ongoing treatment for drug abuse issues.
74These special conditions are in addition to the core conditions of a community correction order. I do not propose to order unpaid community work as a component of this order as the punitive component of your sentence will be met by the period to be served in custody. I direct that the 16-month community correction order commence immediately upon your release from prison.
75Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty the sentence I would otherwise have imposed would have been a sentence of two years, three months' imprisonment with a non-parole period of 18 months.
76Finally, I make the disposal and forfeiture orders sought by the prosecution, noting they are not opposed.
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