Director of Public Prosecutions v Audsley

[2023] VCC 2024

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. 23-00972

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRETT AUDSLEY

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	30 October 2023
DATE OF SENTENCE:	2 November 2023
CASE MAY BE CITED AS:	DPP v Audsley
MEDIUM NEUTRAL CITATION:	[2023] VCC 2024

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Possess firearm contrary to a firearm prohibition order – Store firearm in insecure manner whilst unlicensed – Store cartridge ammunition in insecure manner whilst unlicensed – Cultivation of narcotic plant – Possess drug of dependence – Possess cartridge ammunition without approval – Possess controlled weapon without excuse – Deal with explosives without authorisation – Relevant criminal history – COVID-19 pandemic.

Legislation Cited: Firearms Act 1996 ss 112B, 124(1)(a), 129A; Drugs, Poisons and Controlled Substances Act 1981 ss 72B, 73(1); Control of Weapons Act 1990 s 5AA; Dangerous Goods Act 1985 s 54(5).

Cases Cited:Chief Commissioner of Police v Websdale VSCA 305; DPP v Graroroski [2018] VSCA 215; Worboyes v The Queen [2021] VSCA 169, [39]; Biba v The Queen [2022] VSCA 168; Bugmy v The Queen (2013) 249 CLR 571; Bruce v The Queen [2022] VSCA 100.

Sentence:                  Imprisonment for a period of 2 years and 9 months with a non parole period of 18 months; for Summary Charges 10, 19 and 20, conviction and $500 fine on each charge.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms U Ramachandran	Office of Public Prosecutions
For the Accused	Ms E Clark	Fayman lawyers

HIS HONOUR:

Introduction

1Brett Audsley, you have pleaded guilty to:

(a) two charges of possessing a firearm contrary to a Firearm Prohibition Order, contrary to s 112B of the Firearms Act 1996 (‘Firearms Act’) which carries a maximum penalty of 10 years imprisonment (Charges 1 and 2);

(b) one charge of storing a firearm in an insecure manner whilst unlicensed contrary to s 129A of the Firearms Act which carries a maximum penalty of 4 years imprisonment (Charge 3);

(c) one charge of storing cartridge ammunition in an insecure manner whilst unlicensed contrary to s 129A of the Firearms Act which carries a maximum penalty of 4 years imprisonment (Charge 4);

(d) one charge of cultivation of a narcotic plant contrary to s 72B of the Drugs, Poisons and Controlled Substances Act 1981 (‘Drugs, Poisons and Controlled Substances Act’) which carries a maximum penalty of 1 year imprisonment (Charge 5); and

(e) one charge of possession of a drug of dependence contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act which carries a maximum penalty of 1 year imprisonment (Charge 6).

2You have also pleaded guilty to the following related summary offences:

(a) one charge of possessing cartridge ammunition without approval contrary to s 124(1)(a) of the Firearms Act, which contains a maximum penalty of 40 penalty units (Summary Charge 10);

(b) one charge of possessing a controlled weapon without excuse contrary to s 5AA of the Control of Weapons Act 1990, which carries a maximum penalty of 2 years imprisonment (Summary Charge 19); and

(c) one charge of deal with explosives without authorisation contrary to s 54(5) of the Dangerous Goods Act 1985, which carries a maximum penalty of 100 penalty units (Summary Charge 20).

3You have also admitted your prior criminal history.

Circumstances of the offending

4A summary of prosecution opening was tendered on the plea and may be summarised as follows:

5You were born in 1980 and were 43 years old at the time of the offending. Your home address was in Pearcedale. At the time of the offending, you were subject to a Firearm Prohibition Order.

6At 4.00pm on 3 February 2023, police executed a search warrant pursuant to s 456 of the Crimes Act1958 at your address in Pearcedale.

7Police located the following:

(a)   one .32 calibre pistol and magazine in the second drawer of the left bedside table in your bedroom (Charge 1);

(b)   eight .32 calibre pistol rounds located in the magazine of the .32 calibre pistol (Charge 4);

(c)   one five shot revolver located in the fourth drawer of a chest of drawers (Charges 2 and 3);

(d)   one empty firearm magazine in the same location as the revolver;

(e)   one loose 7.65 mm round located in the bedroom (Charge 10);

(f)    13 cannabis plants located at various locations around the property (Charge 5);

(g)   two bags containing white powder located in the bedroom (Charge 6);

(h)   one vacuum sealed bag containing a white crystallised substance located in the bedroom (Charge 6);

(i)    three bags containing a white crystallised substance located in the bedroom (Charge 6);

(j)    one double-sided dagger located in the living room (Charge 19); and

(k)   assorted fireworks located in the bedroom (Charge 20).

8The white substance located at the address is believed to be methylamphetamine.  The total weight seized was 30.7 grams.

9In total, 13 cannabis plants were seized.

10You were conveyed to Narre Warren Police Station for interview.

11In relation to the items seized by police under search warrant, you stated that:

(a)   you were ‘told to look after’ the .32 calibre handgun located in a bedside table drawer, and that it did not belong to you;

(b)   the second firearm located in a tall boy, being the revolver, did not belong to you;

(c)   a blue container containing a bag of white crystallised substance and a Pandora charm box containing white powdery substance located in bedside table drawers both belonged to you;

(d)   a plastic bag containing a quantity of fireworks at the foot of the bed belonged to you and were ‘for [your] wedding’. You stated you did not know a licence was required in relation to the fireworks, and that you had obtained the fireworks from a friend;

(e)   you did not know anything about the white powder residue located in two small bags, two small bags located in a jewellery box containing a small quantity of crystallised substance, or the vacuum sealed bag containing a large quantity of a white crystallised substance located in an Adidas shoe box;

(f)    the red double-bladed dagger located on the TV unit did not belong to you;

(g)   all cannabis plants located on the property belonged to you;

(h)   you had grown the cannabis plants from seed and were the only person who tended to the plants; and

(i)    all the drugs were for your personal use.

Nature and gravity of the offending

12Charges 1 and 2 on the indictment are inherently serious offences each carrying a maximum penalty of 10 years imprisonment. As to the nature of the charge of contravention of a Firearm Prohibition Order, it is clear that the intention of the legislation and the issue of firearm prohibition orders is to protect the public. As noted in Chief Commissioner of Police v Websdale:[1]

The power to make a prohibition order is enlivened if, and only if, the decision-maker arrives at a state of satisfaction that it is in the public interest to do so for one or more of the reasons set out in s 112E. The phrase ‘in the public interest’ is, potentially, of very wide scope. The content to be given to it will vary with the statutory context. It was common ground on the hearing of this application that the public interest to which these provisions were directed was the public interest in keeping the community safe from firearms-related violence. This is, in other words, a power conferred — and exercisable — for the promotion and maintenance of ‘public safety and peace’.

The provisions enable the Chief Commissioner to prohibit a person from acquiring, possessing, carrying or using a firearm. They confer search and seizure powers intended to facilitate enforcement of the prohibition. The risk to which the provisions are directed is that the person will come into possession (broadly defined) of a firearm in circumstances where the firearm may be used to endanger the peace and safety of the public. The risk is not confined to that person’s possible use of the firearm.

As the provisions make clear, an affirmative conclusion on risk may be reached even though the person has never previously acquired, possessed or used a gun. The antecedents of the person and of his or her associates bear on both the risk that the person may come into possession of a firearm and the risk that the firearm will be used illicitly. There is an obvious interplay between these risks. For example, there may be a very low risk that the person will come into possession of a firearm but, by reason of their antecedents or associates, a very high risk that if that occurs the firearm will be connected to illegal activity.

[1] [2019] VSCA 305

13In this instance there are a number of matters that inform the gravity of your offending.

14First, the Firearm Prohibition Order that you are subject to was served on you in June 2020 for a period of 10 years. It is not disputed that you were aware of the terms of the order. This offending occurred in February 2023, less than three years into that 10 year order.

15Secondly, of the two handguns the subject of Charges 1 and 2, the first was loaded and within easy reach in your bedside table, while the second was in a cabinet in the house. Thus, neither gun was secure.[2]

[2] DPP v Graroroski [2018] VSCA 215, [56].

16Thirdly, while the substantial amount of methylamphetamine in your possession was for personal use, it was conceded by your counsel that you were using heavily at the time of the offending. Thus the combination of your drug addiction, your access to a loaded handgun and the fact that you have a significant history of serious violent offending, in my view created a dangerous combination of circumstances, elevating the seriousness of your offending.

17Charge 3 relates to the storage of the revolver the subject of Charge 2, and Charge 4 relates to eight .32 calibre pistol rounds, in each case because those items were stored in an insecure manner. While there is clearly an overlap of these charges with Charges 1 and 2, they are nonetheless separate offences adding to the overall seriousness of your offending.

18As to Charges 5 and 6, cultivation and possession respectively, it is accepted that the drugs were for personal use and thus the lower maximum penalties apply in each case.

Personal circumstances

19You were raised in Springvale with your older brother. A psychological report, dated 23 October 2023 prepared by psychologist Peter Hanley, provides a thorough account of your tumultuous childhood. Your father was a drug dealer who ‘cooked’ drugs for bikie gangs and was eventually arrested for running an amphetamine lab. He bullied your mother, who sought refuge at a woman’s shelter when you were about eight years old. She was a harsh disciplinarian and emotionally negligent, beating you with wooden spoons and telling you that you were ‘no good’ and ‘a shit’. Despite her treatment of you, you expressed sympathy towards your mother in your assessment with Mr Hanley, acknowledging that she was mistreated throughout her life. At 18 years of age, you discovered you had four older siblings – they were the result of your mother being sexually abused whilst she had been in foster care.

20As a child, you were aware of your father’s criminal activity, witnessing him coming home with stolen trucks and drugs. Evidence of criminal activity was scattered throughout the family home – for example, the garage was sometimes full of marijuana and amphetamines, and knives and guns were commonplace. You and your brother would play with your father’s handguns. Your father was violent and abusive, and you experienced symptoms of intense fear as a result, including wetting your pants in anticipation of being punished.

21When you were 10 years old, a ‘bikie’ friend of your father sexually abused you on three occasions. He was later charged with offences related to child abuse material. After the abuse, your behavioural problems escalated; you slept with the lights on, would place objects in front of your bedroom door to alleviate fear, and also experienced bed-wetting until you were 12 years old. You disclosed this abuse to your father as an adult but he did not believe you.

22Despite your father’s treatment of you, you maintain a close relationship with him. He is your sole surviving parent following your mother’s passing in 2020 while you were in custody. Your father has recently been diagnosed with cancer and prior to your arrest on these matters, you played a significant role in his care, taking him to daily chemotherapy appointments and assisting him with pain management. You are fearful of your father passing away while you are in prison, as happened with your mother.

23You struggled academically at school and were forced to transfer high schools a number of times due to the schools closing down. This disrupted your school and you found it difficult to make friends at the new school. You were also bullied for being overweight and would react with anger when provoked, which led to many suspensions, although I note you were never expelled. Despite these problems, you still preferred being at school to being at home. You completed Year 10 at Noble Park Secondary College and went on to study welding at TAFE, commencing a boilermaker apprenticeship. You have worked as a boilermaker for some time and were working full-time on large rail construction projects prior to being arrested for this current offending. You plan to work in a similar role upon release. Your employer at M.James Group provided a reference which describes you as a ‘dedicated’ and ‘indispensable’ member of the team who demonstrated ‘remarkable personal and professional growth’ since commencing employment in 2019.

24You have two children with your ex-partner, who you were in a relationship with for 18 years commencing when you were 17 years old. Your substance use issues and criminal offending destabilised the relationship, and you disclosed to Mr Hanley that you had engaged in physical violence against your ex-partner on two separate occasions, which both happened in the context of an argument where you were attacked by your ex-partner. Mr Hanley notes you did not raise your ex-partner’s actions as a justification or excuse for your own use of violence.

25You first met your current partner Vikki-Lee Booker when you were a teenager and commenced a romantic relationship with her three years ago after you completed your most recent term of imprisonment. Ms Booker has two children of her own, and you play a fatherly role in their lives. You and Ms Booker had made plans to get married in February this year, but this never came to fruition due to your arrest. Tendered on the plea was a letter to the Court from Ms Booker in which she describes you as a ‘loyal, giving, likeable’ person and a ‘kind, loving, sweet man’ with a ‘work ethic beyond belief’, but notes you have not coped very well in the face of recent obstacles, including your father’s cancer diagnosis and your mother’s death, which in her view made you ‘turn to drugs to stay awake’. Ms Booker says she has observed a ‘massive change’ in your behaviour since being incarcerated, noting you have reverted to being the ‘man [she] fell in love with before [your] drug use’. I note also that many of the carer responsibilities in respect of your father and son you had shouldered prior to your incarceration have now fallen to Ms Booker, who also has her own health problems to manage, as evidenced by the letter from the MSK Pain Management clinic dated 5 October 2023 and tendered on the plea.

26You have a long history of mental health issues and substance use dating back to childhood. You were surrounded by illicit drugs as a child and reported using amphetamines and MDMA recreationally from the age of 15. This later escalated into regular use of methamphetamine and cocaine. Following a motor vehicle collision in 2008, you were prescribed oxycodone, naproxen and Xanax to assist with pain management. You had already been using Xanax prior to the collision but after they were prescribed, you started using the drug excessively as a coping mechanism. Whilst in custody you have been assessed by addiction counsellor Maria Hutchison, who concludes in her report dated 27 October 2023 that a better understanding of the links between your drug addiction, childhood trauma and offending behaviour would assist you with developing strategies for relapse prevention, cravings and triggers.

27Whilst in custody you have worked as a billet and remained free of illicit substances, as demonstrated by the two urinalyses tendered on the plea. You are prescribed buprenorphine and Ms Hutchison recommends that you continue to engage with this program.

28Mr Hanley concludes you meet the diagnostic criteria for severe Stimulant Use Disorder and Sedative, Hypnotic or Anxiolytic Use Disorder, both conditions now being in sustained remission due to you being in the controlled prison environment. You also display features of Borderline and Antisocial Personality Disorders. Mr Hanley opines that your current psychological symptoms are sufficiently severe to satisfy a diagnosis of Adjustment Disorder with mixed anxiety and depressed mood, persistent (chronic). He assesses your risk of recidivism as falling within the moderate to high range assuming you receive the necessary supervision, drug screening and monitoring.

29In his report, Mr Hanley notes your history of traumatic head injuries and estimates your cognitive functioning to be in the low average range, which would constrain your capacity for abstract reasoning, problem solving and executive functioning. Mr Hanley theorises that your vulnerability to negative peer influence may partly be explained by your intellectual limitations, but further neuropsychological testing would be required in order to reach any conclusions in respect of this issue.

30You appear to have some limited insight into the impact of your drug use on yourself and others, expressing to Mr Hanley that Xanax changed your behaviour significantly, both when you were using and in recovery. Mr Hanley notes you appear to have emerging insight into your psychological and behavioural problems. Importantly, he identifies that many of your criminogenic needs are treatable, and you appear to be motivated to seek out and respond to psychological intervention, such as addiction counselling.

31Your criminal record dates back to 2004 and contains relevant priors for firearm-related offending, as well as violent offences. You have received both custodial and community-based dispositions. Ms Clark, who appeared on your behalf, noted you have spent very little time in the community between being incarcerated in 2009 at the age of 29, and being released on parole in August 2020. Upon your release, you performed well on your parole order and completed the almost two years of parole without any breaches.

Sentencing considerations

32Ms Clark highlighted a number of matters in mitigation.

33The first is your plea of guilty, which was entered at the earliest opportunity, at the committal mention stage. Your plea has saved significant court time and expense and has brought the matter to an early conclusion, thereby facilitating the course of justice. While the backlog of cases as a result of the pandemic has now eased, there are still some pandemic related delays and thus a moderate amelioration in sentence is still able to be taken into account.[3]

[3] Worboyes v The Queen [2021] VSCA 169, [39]; Biba v The Queen [2022] VSCA 168, [26].

34Ms Clark placed significant emphasis on the many disturbing aspects of your childhood, but did not ultimately submit that these circumstances rise to the level of ‘profound childhood deprivation’ as enunciated in cases such as Bugmy v The Queen.[4] I am inclined to agree. Nonetheless, the difficulties you faced as a child are relevant. As such, I have taken into account the contents of the reports tendered and the impact of your traumatic childhood experiences, including parental abuse, neglect and exposure to criminal activity, which has undoubtedly impacted your social and emotional development.

[4] (2013) 249 CLR 571.

35Ms Clarke also sensibly conceded that based on the material presented, Verdins principles are not enlivened. However, Ms Clark submitted that the matters identified in Mr Hanley’s report are relevant to understanding the factors that have led to your drug use and offending and ultimately your prospects of rehabilitation. Your psychological profile provides some explanation as to the difficulties you have faced in trying to turn your life around and I have taken these matters into account.

36As to your prospects of rehabilitation, the psychological material and the references suggest that you are at a point in your life where you have the determination to remain drug and crime free. You are in a stable and supportive relationship and according to Ms Hutchinson, you are determined to address the issues that have led you to drug use and crime, including being open to discussing your childhood traumas. Mr Hanley was also of the view that you are gaining insight into the causes of your attraction to your criminal lifestyle and that you expressed a desire to change. I note also that in your most recent period on parole you performed well. Given your lengthy and relevant criminal history these observations must be approached with some degree of caution, however with appropriate supports in place in my view your prospects can be assessed as reasonable.

37General deterrence, specific deterrence, denunciation of your conduct and protection of the community are all relevant sentencing considerations. The type of weapons that you had in your possession have the potential to cause enormous harm in the community. A clear message must be conveyed that persons found with such weapons will face serious consequences. As noted by the Court in Bruce v The Queen:[5]

As to general deterrence, the purpose of the FPO scheme is to promote community safety by ensuring that weapons do not fall into the wrong hands. It is of the first importance that the sentences imposed for possessing firearms in breach of an FPO are set at a level which will send a strong message to others who might be tempted to disregard an FPO to which they are subject.[6]

[5] [2022] VSCA 100.

[6] Ibid [39] (Maxwell P and Kennedy JA).

38Further, given your extensive criminal history, specific deterrence must also carry some weight in the sentencing discretion.

39Ms Clarke submitted that the relevant sentencing considerations could be met by a combination sentence. Ms Ramachandran, who appeared to prosecute this matter submitted that a head sentence with a non parole period is the only appropriate disposition given the seriousness of the offending and your prior criminal history. I accept that submission. While it is apparent that you are beginning to gain insight into what you must do in order to address your long term drug and psychological issues, a combination sentence in my view is unable to address the applicable sentencing considerations, most importantly general and specific deterrence.

Sentence

40Mr Audsley, would you please stand.

41Brett Audsley, on Charges 1 and 2, possess firearm when subject to a Firearm Prohibition Order, you are convicted and sentenced to 2 years imprisonment on each charge. On Charges 3, unlicenced storage of firearm, and Charge 4, unlicensed storage of cartridge ammunition, you are convicted and sentenced to 6 months imprisonment on each charge. On Charge 5, cultivation of cannabis and Charge 6, possession of a drug of dependence, you are convicted and sentenced to 1 month imprisonment on each charge. On Summary Charge 10, possess cartridge ammunition, Summary Charge 19, possess controlled weapon and Summary Charge 20, deal with explosives, you are convicted and fined $500 on each charge.

42I direct that 9 months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1, making for a total effective sentence of 2 years and 9 months. I direct that you serve 18 months before becoming eligible for parole.

43Pursuant to s 18 of the Sentencing Act, I declare that 272 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

44Pursuant to s 6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 4 years with a non parole period of 3 years.