Director of Public Prosecutions v Cassells

[2024] VCC 1174

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01011

THE DIRECTOR OF PUBLIC PROSECUTIONS	Prosecution
v
BRADLEY JOHN CASSELLS	Defence

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	29 July 2024 (Sentence indication)
DATE OF SENTENCE:	1 August 2024 (Plea and sentence)
CASE MAY BE CITED AS:	DPP v Cassells
MEDIUM NEUTRAL CITATION:	[2024] VCC 1174

SENTENCE
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Subject:Possession of trafficable quantity of firearms

Catchwords:              Guilty plea – low end offending – mental health – delay - totality

Legislation Cited:     Sentencing Act1991 (Vic).

Cases Cited: Berichon v The Queen (2013) 40 VR 490.

Sentence:80 days imprisonment and a two-year community correction order.

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	D Caruso	Office of Public Prosecutions
For the Defence	C Hooper	Emma Turnbull Lawyers

HIS HONOUR:

1Bradley John Cassells, you have pleaded guilty to one charge of possession of a trafficable quantity of firearms.

2The maximum penalty for the firearm theft offence is 10 years imprisonment.

Circumstances of offending

3Your offending occurred on 8 April 2021. [1]

[1] The circumstances of your offending are set out in the prosecution opening dated 30 July 2024 (Exhibit A). They are agreed facts.

4On 8 April 2021, around 1 PM, unknown offenders stole two firearm safes from a property at Smythesdale. One safe contained 13 firearms; three shotguns and 10 rifles. The other safe contained ammunition.

5Police spoke to you on 4 June 2021. You denied any knowledge of the firearms.

6They seized your phone.

7In it were two photos, taken using the camera function, at 4:03 PM, on April 8, 2021, showing a number of firearms in the boot of a motorcar. Two other photos, also taken on the phone, at 5:34 PM and 5:37 PM, show 12 firearms laid out on the ground.

8In telephone calls intercepted between your partner and you on 20 May, 23 June and 5 July 2021, you asked her to delete photos from your phone and expressed some anxiety when she told you she could not.

9By your guilty plea, you admit, you had access to the firearms, shortly after they were stolen, whether alone or in common with others, when you took the photos.

10There is no evidence of any other involvement by you.

11Police recovered one firearm when they arrested an offender for an unrelated burglary on 14 May 2021.

12The other 12 firearms have not been recovered.

Chronology

13On 10 May 2021, police arrested you for unrelated offending and you were remanded in custody.

14On 4 June 2021, police questioned you about the firearms. You denied any knowledge of them.

15On 10 June 2020, you were charged with a number of offences, including burglary and theft of the firearms.

Time in custody

16You served two terms of imprisonment, imposed in the Magistrates’ Court, on 13 October 2021 and 8 December 2021. Those sentences lapsed on 23 December 2021.

17You were admitted to bail on 17 January 2022.

18On 26 October 2023, you were remanded for unrelated offending.

19On 6 March 2024, a Magistrate sentenced you to 7 months imprisonment for those crimes.

20On 24 May 2024, your sentence lapsed.

21Over the period, you have accumulated 80 days of presentence detention.

Criminal record

22You have a history of firearms offending.

23On 14 August 2014, you were sentenced to 6 months imprisonment, wholly suspended, for the offence of being a prohibited person who used to firearm and driving offences.

24On 17 March 2016, you were convicted of being a non-prohibited person in possession of a long arm, and other offences, and sentenced to a 12 month community correction order,

25On 15 June 2017, you were sentenced to 3 months in prison for the offence of being a prohibited person in possession of a firearm and driving offences.

Personal circumstances

26You were born in April 1993. You were 27 years old when you are offended. You are now 31.

27You have five children with your partner, who supported you at court. She has another child from a previous relationship. All eight of you live in stable accommodation at Ballarat.

28You receive a disability support pension.

29Following your premature birth, you suffered neurodevelopmental problems.

30When you were teenager, you were assessed to have a learning disability.

31Since the age of 17 you have misused illicit drugs. It is likely your neurodevelopmental conditions have contributed to substance abuse.

32In 2022, a neuropsychologist diagnosed you with long-standing and permanent language disorder, specific learning disorder and ADHD.

33In her opinion, you need appropriate pharmacological treatment. While you report a gout problem,[2] you have the capacity to work, and she believes some form of meaningful employment would help you.

[2] Community Corrections Order Assessment Outcome Report dated 1 August 2024.

34In 2022, you completed a CISP bail program. You told your worker you benefited from supervision, the care of your children, and the daily structure of therapeutic appointments improved your mental health.

Sentence Indication hearing

35On 29 July 2024, you applied for a sentence indication, in the event you pleaded guilty to the firearms possession charge.

Defence submissions

36Mr Hooper, who appeared on your behalf, acknowledged your offending was serious.

37In mitigation of penalty, he relied on:

(a)   your guilty plea;

(b)   your neuro developmental conditions;

(c)   the delay in prosecution; and

(d)   totality.

38He submitted, overall, I should impose a prison term, equivalent to your presentence detention, with a therapeutic CCO.

Prosecution submissions

39Ms Caruso, who appeared for the Prosecution, submitted, considering the number of firearms stolen and only one firearm has been recovered, your offending was serious.

40And, because you have a history of firearms offending, specific deterrence, as well as general deterrence have importance.

41She accepted you entered your guilty plea to the index offence at the first reasonable opportunity.

42She also accepted, because you have faced an uncertain outcome for a lengthy period, delay is a mitigating factor.

43In her submission, the only appropriate sentence is imprisonment structured by way of a head sentence and non-parole period.

Plea after sentence indication

44After I had considered the parties’ submissions, I indicated I would impose a combination sentence with a custodial component, which did not exceed your presentence detention.

45On 31 July 2024, you were arraigned, and you entered a guilty plea.

Consideration

46Firearm possession offences are very serious. [3]

[3] Berichon v The Queen [2013] 40 VR 490.

47The commercial movement of illicit firearms among criminals creates an obvious risk of causing serious injury or death. It is prevalent offending, which is difficult to detect.

48There are some concerning features to your offending.

49Firstly, you were in possession of a large number of firearms, being 13 shotguns and rifles.

50Secondly, only one of them has been recovered and there is a risk the others have fallen into the hands of criminals.

51Thirdly, because if your previous firearms convictions, you were a person prohibited from possessing any firearm.

52However, your possession of them was very limited.

53There is no evidence of your possession of the firearms, other than you had access to them when you photographed them.

54There is no evidence you were going to use them for a criminal purpose.

55Overall, I assess your offending to be a low-end example of this offence.

56There are mitigating factors in your favour.

57Firstly, you are entitled to a sentencing benefit for your guilty plea.

58It was entered early, in the circumstances, and has high utilitarian value.

59Additionally, to prove its case, the prosecution relied on two pieces of circumstantial evidence against you, the photographs in a phone, which you used, and your conversations with your partner, which were recorded while you were in custody. In my view, your conviction was not inevitable. I accept, in your case, your guilty plea also indicates a willingness to facilitate the course of justice.

60Secondly, you committed this offence more than three years ago. I accept, in the meantime, you will have anxiously awaited the outcome.

61Thirdly, while not directly linked to your offending, your neuro developmental conditions do impair your thinking and decision-making.

62Fourthly, because you have served terms of imprisonment for other offending, I must have regard to the totality principle to ensure your sentence is a proper measure of your overall criminality.

63Considering your history of firearms offending, I am cautious about your prospects of rehabilitation. Your supportive partner and your positive response, in large part, to previous court ordered supervision are protective factors. Additionally, the risk of you reoffending will be reduced if you address your mental health and drug problems.

64Overall, I am satisfied a combination sentence can achieve the purposes of sentencing in your case.

65I have had you assessed for a community correction order and you have been found suitable.

66The order I make will contain punitive and rehabilitative components.

67By the sentence I impose, I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind.  I must also look to your rehabilitation.

68Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charge of possession of a trafficable quantity of firearms, you are sentenced to 80 days imprisonment and a two-year community correction order.

69I attach the following special conditions to the order:

(a)   supervision;

(b)   mental health treatment and rehabilitation;

(c)   drug treatment and rehabilitation; and

(d)   150 hours community work.

70Considering your health problems, I have moderated the number of work hours you must complete.

71I also direct that up to 50 hours of your mental health and drug programs be credited to you community work.

72I declare you have already served your sentence by way of 80 days presentence detention.

73While there is some artificiality in the process, I declare, under section 6AAA of the Sentencing Act1991 (Vic), but for your plea of guilty, I would have imposed a total effective sentence of 12 months imprisonment.

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