Director of Public Prosecutions v Conn
[2024] VCC 288
•15 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-23-01348
Indictment No. P10576070
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICKY LEIGH CONN |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 28 November 2023 and 8 February 2024 | |
DATE OF SENTENCE: | 15 March 2024 | |
CASE MAY BE CITED AS: | DPP v Conn | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 288 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Two charges of possessing a firearm contrary to a firearm prohibition order – one charge of a prohibited person possessing an imitation firearm – three uplifted summary matters – one charge of possessing cartridge ammunition while not the holder of a licence under the Firearms Act 1996 or a permit under s58A – one charge of driving a motor vehicle on a highway during a period of disqualification from obtaining an authorisation to drive a motor vehicle – one charge of using a motor vehicle on a highway without such vehicle bearing number plates affixed and displayed in accordance with the Regulations – pleas of guilty
Legislation Cited: Firearms Act 1996, s112B, s124(1); Control of Weapons Act 1990, s5AB(2); Criminal Procedure Act 2009, s145; Road Safety Act 1986, s30(1); Road Safety (Vehicles) Regulations 2021, Reg 65(1);
Cases Cited:Berichon v R; Houssein v R (2013) 40 VR 490; Phillips v R [2012] VSCA 140; Worboyes v R [2021] VSCA 169; Bugmy v R (2013) 249 CLR 571; Marrah v R [2014] VSCA 119; Director of Public Prosecutions (DPP) v Herrmann [2021] VSCA 160; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Dirbass v R [2018] VSCA 272; Baumer v R (1988) 166 CLR 51; R v Doran [2005] VSCA 271; Singh v R [2022] VSCA 178; Younan v R [2017] VSCA 12
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J O’Halloran | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr S Ranjit | Pappa Hughes Lawyers |
HIS HONOUR:
1Ricky Leigh Conn,[1] on 28 November 2023 you pleaded guilty to the following charges on Indictment No. P10576070:
CHARGE 1 – that you, at Tarneit in Victoria on 20 January 2023, possessed four firearms, namely a S510 carbine .22 air rifle; a Sportco model 62S rimfire long rifle; a Squires Bingham longarm and an Air Force Condor air rifle, while being a person to whom a firearm prohibition order (“FPO”) applies.
Charge 1 is a rolled-up charge.
The offence of possessing a firearm contrary to a firearm prohibition order is contrary to s112B of the Firearms Act 1996 (“FA” Act) and carries a maximum sentence of ten years’ imprisonment;
CHARGE 2 - that you, at Tarneit in Victoria on 20 January 2023, being a prohibited person, possessed two imitation firearms, namely an M4-style gel blaster and a replica handgun.
Charge 2 is a rolled-up charge.
The offence of a prohibited person possessing an imitation firearm is contrary to s5AB(2) of the Control of Weapons Act 1990 and attracts a maximum penalty of ten years’ imprisonment.
CHARGE 3 – that you, at Truganina in Victoria on 21 January 2023, possessed firearm-related items: namely, two scopes, while being a person to whom a FPO applies.
Charge 3 is a rolled-up charge.
The offence of possessing a firearm-related item contrary to a firearm prohibition order is contrary to s112B of the FA Act and carries a maximum penalty of ten years’ imprisonment.
[1]Also known as Ricky Roderick.
2Charges 1, 2 and 3 are rolled-up charges, which means that each charge is a collection of identifiable charges bundled together in a single charge of the same type on a specified, or over a specified, period. Rolled-up charges also require your agreement and are only for the purpose of a guilty plea. A rolled-up charge simplifies the task of the sentencing court and works to your benefit by allowing multiple incidents of similar offending to be dealt with in a single charge, rather than through numerous separate charges.
3When sentencing on a rolled-up charge, the Court must consider all the circumstances of the offence and the offender, including whether the offending was carried over an extended period, victimised people, and the totality of harm described in the charge.
4While the Court may consider all the relevant considerations of a rolled-up charge, the plea must still be treated as presenting a single formal charge and, accordingly, the maximum penalty is limited to the maximum for any single charge.
5Three summary charges were transferred to this court, pursuant to s145 of the Criminal Procedure Act 2009.
6On 28 November 2023, you agreed to have these matters heard before this court and pleaded guilty to the following uplifted charges:
CHARGE 8 – that you, at Tarneit in Victoria on 20 January 2023, did possess cartridge ammunition while not the holder of a licence under the FA Act 1996 or a permit under s58A.
Such offence of possessing cartridge ammunition while not the holder of a licence or a permit under the FA Act is contrary to s124(1), with a maximum penalty of forty penalty units (a fine).
CHARGE 9 – that you, at Tarneit in Victoria on 16 March 2023, did drive a motor vehicle on a highway, namely O’Reilly Road, during a period of disqualification from obtaining an authorisation to drive a motor vehicle.
The offence of driving a motor vehicle while disqualified is contrary to s30(1) of the Road Safety Act 1986 and carries a maximum penalty of 240 penalty units (a fine) or two years’ imprisonment.
CHARGE 10 – that you, at Tarneit in Victoria on 16 March 2023, did use a vehicle on a highway, namely O’Reilly Road, without such vehicle bearing numberplates affixed and displayed in accordance with the regulations.
The offence of using a vehicle without number plates is contrary to Reg 65(1) of the Road Safety (Vehicles) Regulations 2021 and carries a maximum penalty of ten penalty units (a fine).
7The prosecution seek a forfeiture order in relation to the S510 carbine .22 air rifle; the Sportco model 62S rim fire long rifle .22 calibre; the Squires Bingham longarm (disassembled); the Air Force Condor air rifle, the two rifle scopes, the replica handgun and the M4-style gel blaster and ammunition. Such order is not opposed.
Relevant legislation
8I refer to the FA Act and note the following:
(a) Section 112A of the FA Act defines “firearm prohibition order” to mean an order made under s112D(1) of that Act. In turn, s112D of that Act, states:
“(1)The Chief Commissioner may make an order prohibiting an individual from doing all or any of the following—
(a) acquiring any firearm or firearm related item;
(b) possessing, carrying or using any firearm or any firearm related item.
(2) The Chief Commissioner must not make a firearm prohibition order in respect of a person who is under the age of 14 years.
(3) A firearm prohibition order may be made even though the individual to whom the order applies or is to apply has never acquired, possessed, carried or used a firearm or a firearm related item.
(4) A firearm prohibition order may be made that applies to an individual to whom a previous firearm prohibition order applied that has expired or been revoked.”;
(b) Section 3(1) of the FA Act defines “firearm” to mean:
“… any device, whether or not assembled or in parts—
(a) which is designed or adapted, or is capable of being modified, to discharge shot or a bullet or other missile by the expansion of gases produced in the device by the ignition of strongly combustible materials or by compressed air or other gases, whether stored in the device in pressurised containers or produced in the device by mechanical means; and
(b) whether or not operable or complete or temporarily or permanently inoperable or incomplete— and which is not—
(c) …
(d) …
(e) …
(f) …
(h)…
(i)…
(j)…”;
(c) Section 112A of the FA Act defines “firearm related item” to mean any of the following:
“(a) a part of a firearm;
(b) cartridge ammunition;
(c) a silencer;
(d) an attachment for a firearm;
(e) an accessory for a firearm;
(f) any other prescribed item related to a firearm.”
(d) I also refer to the Control of Weapons Act 1990 (the “CW” Act). In particular, I refer to s3(1), which defines “prohibited person” to have the same meaning in s3(1) of the FA Act;
(e) Section 3(1) of the CW Act defines “prohibited weapon” to mean:
“an imitation firearm or an article that is prescribed by the regulations to be a prohibited weapon.”
Section 3(1) of the CW Act defines “imitation firearm” to mean:
“… a device—
(a)the appearance of which could reasonably b mistaken for that of an operable firearm; but
(b)which is not designed or adapted to discharge shot or a bullet or other missile by the expansion of gases produced in the device by the ignition of strongly combustible materials or by compressed air or other gases, whether in the device by mechanical means and is not capable of being made to do so;”
The circumstances of the offending
9Counsel for the prosecution tendered a document headed “Summary of Prosecution Opening” dated 31 October 2023 (exhibit 1). I was informed by your counsel that the circumstances outlined in such document were accepted.
10I will not repeat all the contents of such document, but highlight the following important matters:
· You were born in October 1981 and are presently forty-two years of age. At the time of the subject offending you were forty-one years of age and residing at 1150 Tarneit Road, Tarneit (“the property”). You are subject to a current, active and served FPO which was served on you at the Marngoneet Correction Centre by police on 17 May 2022. Such FPO expires on 16 May 2032.
· On 20 January 2023, at approximately 1.30pm, police attended the property, at which time you were present, together with two of your vehicles parked in the driveway.[2]
[2]I was informed by the parties that the attendance at the property on 20 January 2023 was in relation to allegations of animal cruelty on the property.
· There were several people in the house, being yourself and the following co-accused persons:
§Mr Matthew Craven (“Craven”)
§Darcy Jenkins (“Jenkins”)
§Brent Hindson (“Hindson”)
§Casey Gray (“Gray”)
§Kathleen Connolly (“Connolly”).
· Enquiries revealed that your bedroom was the room off the kitchen towards the rear of the house. The co-accused, Craven, and his partner, the co-accused, Connolly, shared the first bedroom on the right; the co-accused, Jenkins, had a bedroom second on the right, whereas the co-accused, Hindson and Gray, although visiting regularly, did not reside at the property.
· Police conducted a search of the house and the following items were located and subsequently seized:
§One replica handgun modified to fire cartridge ammunition, located in the drawer of the coffee table in the loungeroom (Charge 2).
§One plastic case containing various ammunition, located in the drawer of the coffee table in the loungeroom (Uplifted Charge 8, possessing cartridge ammunition).
§One s510 carbine .22 air rifle; one Sportco model 62S rimfire long rifle .22 calibre (Charge 1 on the Indictment, possessing firearms when subject to a firearm prohibition order) located under Craven’s bed, with Craven’s wallet and other identity cards located in that bedroom.
· A shed was located and a search undertaken, with the following items located and seized:
§One Squires Bingham model squibman dissembled long arm rifle (Charge 1 on the Indictment, possessing a firearm when subject to an FPO).
§One Air Force Condor air rifle paintball gun, modified to fire cartridge ammunition (Charge 1 on the Indictment, possessing firearm when subject to a FPO).
§One M4-style gel blaster (Charge 2 on the Indictment, prohibited person possess imitation firearm).
· Numerous individual ammunition rounds were located throughout the house and shed. One of your vehicles, an orange Ford XR6 bearing false New South Wales plates – MY05XR – was unable to be accessed. That vehicle was seized and towed to be accessed and searched.
· You were arrested and transported to the Werribee Police Station and interviewed on 20 January 2023 (“the first interview”). At that time, you made partial admissions in the record of interview, including that:
§You are aware of the FPO.
§You had seen some of the firearms before.
§You were released pending further enquires.
· After being released, you were provided the keys to your orange Ford XR6 that had been seized.
· On 21 January 2023, police conducted a search of your orange Ford XR6 and during such search located and photographed two rifle scopes and numerous documents in your name.
· On 31 January 2023, police transported the firearms seized from the property on 20 January 2023 to the Victoria Police Forensic Services Centre for examination.
· On 16 March 2023, police observed you driving your orange Ford XR6 bearing false registration plates – ICQ9CA – on O’Reilly Road, Tarneit (Uplifted Charge 10).
· You were intercepted and a licence check conducted, which revealed that your driver’s licence was disqualified from 3 August 2022 to 2 August 2023 (Uplifted Charge 9).
· You were arrested for possession of a firearm-related item in contravention of a FPO, being the two rifle scopes located in your vehicle on 21 January 2023 (Charge 3 on the Indictment).
· You were transported to the Werribee Police Station and underwent a record of interview on 16 March 2023 (“the second interview”).
· You were further questioned in relation to the firearms and related items that were located at the property on 20 January 2023. At that time, you stated that those firearms were yours and that you had a friend, Leon Derose, who would provide a statement to police to corroborate this information.
· Furthermore, you stated that the following firearms belonged to you and that you only used them for plinking, that is to say, target shooting, and not for criminal activities:
§One replica handgun.
§One plastic case containing various ammunition.
§One s510 carbine .22 air rifle and one Sportco model 62S rimfire rifle .22 calibre.
§One Squires Bingham model squibman disassembled long arm.
§One Air Force Condor air rifle paintball gun, modified to fire cartridge ammunition.
§Two Bushnell rifle scopes.
· You stated that:
§You had no knowledge of the M4-style gel blaster.
§That you had come into possession of the handgun on 20 January 2023 and was playing with it before police arrived. You added that it does not fire and it is only an imitation firearm.
§You stated that the long arms were owned by you and that you have had them for approximately two years, including the paintball gun.
§You stated that you buried the firearms in the backyard of the property prior to being served with the FPO and serving time in custody in 2022, but did not dig them up, but conceded you knew someone who had dug them up and they were stored within the shed of the property.
§You further advised that you could not comment on Craven’s knowledge of the long arm rifles located under his bed, but that Craven was not aware of the handgun.
11You were remanded on 16 March 2023 and up to, but not including 28 November 2023, you had served 257 days of pre-sentence detention. The prosecution accept that your plea of guilty was at an early stage following a counteroffer from the prosecution on 7 August 2023 and, accordingly you are entitled to a discount by reason of this.
12The prosecution also seek a forfeiture order pursuant to s151 of FA 1996. The Schedule to such order includes: the S510 Carbine .22 air rifle, the Sportco model 62S Rimfire long rifle .22 calibre, Squires Bingham long arm (disassembled), the Air Force Condor air rifle, two rifle scopes, a replica handgun and an M4 gel blaster and ammunition. Such order is not opposed.
Your criminal record
13Counsel for the prosecution also tendered your criminal record, dated 10 October 2023 (exhibit 2). I note the following:
(a) on 22 March 2000 at the Werribee Magistrates’ Court, you were found guilty of burglary and theft, with those matters, without conviction, being adjourned to 22 March 2021, with $200 to be paid in the court fund and compensation paid of $40;
(b) on 21 February 2014, at the Melbourne Magistrates’ Court, you were found guilty of theft of a motor vehicle and sentenced to ninety days’ imprisonment, with such sentence being suspended, save for fourteen days, with an operational period of twelve months.
Furthermore, on that day, you were also found guilty and convicted of failing an oral fluid test within three hours of driving, driving while authorisation suspended, failure to ensure child seat restraints for six to seven year olds and a load not secured by appropriate means. You were sentenced to a fine of an aggregate of $2,000;
(c) On 17 October 2018, at the Melbourne Magistrates’ Court sitting at the Melbourne County Court, you were convicted of failing to answer bail and contravening a conduct condition of bail, and fined to an aggregate sentence of $1,000;
(d) On 19 June 2019, at the Sunshine Magistrates’ Court, you were convicted of contravening a conduct condition of bail; using an unregistered motor vehicle on a highway and fixing numberplates, other than issued to your vehicle, unlicensed driving and careless driving of a motor vehicle, and were sentenced to an aggregate fine of $1,000;
(e) On 17 September 2019, at the Melbourne Magistrates’ Court, you were convicted and sentenced to eight months’ imprisonment (with 100 days pre-sentence detention) in respect of being a prohibited person possessing a firearm and a prohibited person possessing an imitation firearm.
Furthermore, on that day, you were also convicted of possessing cartridge ammunition without a permit and sentenced to a fine of $400;
(f) On 13 December 2019, at the Sunshine Magistrates’ Court, you were convicted of failing to answer bail and discharged. You were further convicted of an indictable offence while on bail, entering a section on a red traffic light, possessing a dangerous article in a public place and affixing an altered numberplate onto your vehicle, and sentenced to an aggregate fine of $1,000;
(g) On 3 August 2022, at the Melbourne Magistrates’ Court, you were convicted of being a prohibited person possessing a firearm and sentenced to a period of ten months’ imprisonment (with 136 pre-sentence days declared), together with an aggregate fine of $1,000.
You were also convicted of four charges of using an unregistered motor vehicle on a highway and were also convicted of three charges of unlicensed driving, one charge of going equipped to steal or cheat, one charge of being a known thief loitering in a public place, one charge of dishonestly undertaking the retention of stolen goods, one charge of driving a vehicle without appropriate numberplates, two charges of obtaining property by deception, three charges of driving a vehicle while authorisation suspended, one charge of exceeding an 80-kilometre speed sign by 10 kilometres, but less than 25 kilometres, one charge of theft, one charge to destroy property, one charge of unlawful assault and two charges of resisting a police officer.
In respect to that offending, you were convicted and sentenced to a community correction order for eighteen months. Beyond the basic orders, you were required to perform 200 hours of community work, undergo treatment and rehabilitation for drugs and offending behaviour, and, in particular, to undergo various road safety courses.
14I was informed by your counsel that you were released from prison in late December 2022, but are also facing proceedings in relating to driving offences and for breach of a Community Correction Order made on 3 August 2022, which was to commence after your release from prison. At the further hearing of this matter on 8 February 2024, I was informed that this proceeding has been adjourned.
Your co-offender, Matthew Craven
15Counsel for the prosecution tendered various notices of an order made against your co-accused, Craven, at the Melbourne Magistrates Court on 13 November 2023. On that date, Craven was charged and convicted with one charge of being a prohibited person possessing a firearm.
16He was sentenced to a community correction order for a period of twelve months, commencing on 13 November 2023. [3] Beyond the core conditions, the order also contained a condition requiring 100 hours of unpaid community work, supervision, treatment and rehabilitation for drug use’ and mental-health assessment (see exhibit 4).
[3]Counsel for the prosecution tendered a criminal record of Craven, dated 20 March 2023 (exhibit 3). I also direct that the Notice of Order made by Magistrate J D Williams on 13 November 2023 in relation to the orders made against Craven were tendered and marked as exhibit 4.
Your personal circumstances and background
17Your counsel tendered the following documents:
(a) a document headed “Defence Submissions for Plea”, dated 24 November 2023 (exhibit “A”);
(b) psychological report from the clinical psychologist, Ms Alison Mynard, dated 12 November 2023 (exhibit “B”). Ms Mynard interviewed you on 13 October 2023;
(c) ballistic report of Leading Senior Constable Jonathan Bamford, declared on 1 August 2023 (exhibit “C”);
(d) your record of interview, conducted at the Werribee Police Station on 16 March 2023 (exhibit ‘D”);
(e) statement of Mr Leon Derose, declared on 23 March 2023 (exhibit “E”).
18Partly based on some of the documents tendered on your behalf and partly based on various submissions made by your counsel, I note the following:
· You are the oldest of three brothers. You reported to the psychologist, Ms Mynard (“the psychologist”), that your mother was violent towards you, hitting you with a kettle cord and physically abusing you on a regular basis, and that your father would give you a “hiding” on a regular basis – although you believed you deserved that.
· You told the psychologist that you were “frightened” of your mother and father and thought that your parents had a strict parenting style, which caused you to rebel.
· You attended primary school and reported to the psychologist that you had trouble applying yourself at times, and found it easier to learn as an adult.
· You ultimately left home at fourteen years of age during Year 8. On leaving home, you did not see your parents for a decade, and over that period of time, you were “couch surfing, in boarding houses and renting single rooms”. You reported to the psychologist that you did have a friend, whose parents supported you the most, including cooking.
· On leaving school, you obtained an apprenticeship, but found it hard to cope on your own on apprentice wages. You were still doing such apprenticeship at age twenty, and then started working as an excavator, which earned you more money. Leading up to when you were remanded in custody, you were doing some work concreting and driving a concrete pump, but otherwise had been working in carpentry or as a plant operator. In this sense, you had been working full time for a landscaping company driving an excavator and more recently working on new homes and house frames. You have never been unemployed for very long.
· At age thirty, while working, you mended your family relationships, and apparently your parents live together, with your father working as a refrigerator mechanic and your mother not working. You consider that, now, your parents do show concern for you and give you a level of support.
· Prior to being remanded, you were in a relationship with Hayley Boyle and such relationship had been ongoing for about twenty-one to twenty-two years, from which there are five children, including a twenty-two year old, an eighteen year old, a twelve year old, ten year and a seven year old. All are sons, save for your ten-year-old daughter, and that the relationship with “Hayley”, over the last ten years, has been “rough” because of your difficulties of commitment to the family – in particular, you were spending money on drugs.
· Since being in custody, you and Hayley have separated, however she has been to visit you, but the children have not been to visit and you believe that they are struggling without you. You told the psychologist that Hayley always “stuck by [you]” when you have been in custody, although she does not have much support, aside from your mother. You noted that your twelve-year-old son has ASD and is difficult to manage.
· When you left home at fourteen, you commenced smoking cannabis, and continued that for about ten years, smoking up to two grams per day, being dependent on it. You later commenced methamphetamine in your early twenties and admitted to the psychologist that you had been spending too much on the “ice” and prioritising your drug condition over your family.
· You told the psychologist you had been using “ice” daily, using a few points of ice each day, and at time it had been worse for you, depending on how available it was. You denied injecting ice regularly, it was only when you had less ice you injected it to make the substance more effective. In particular, you stated you had been self-medicating with ice, and that you were lethargic without it. You have been more confident on the ice and it reduced your worries.
· You denied using any other substances and noted you had been on a pharmacotherapy program – that is on methadone, 100 milligrams a day. You informed the psychologist that the methadone had stabilised you in custody, and you were hoping to stay on methadone when you are released from prison.
· You described yourself to the psychologist as an “arsehole” as a child, adding that you were “selfish”, but with little nurturing from any parental figure. In this sense, you identified that you parents did provide a house and food for you, but were unable to identify you had an emotional connection with them.
· You informed the psychologist that you had not had any psychological assessment in the past, and that you had not talked to anyone in the past about past issues, or, what you described as depression and anxiety.
· In relation to current legal matters, the psychologist records:
“26. Current legal Matters
[You] stated that [you] had guns, and [you were] caught with one of them, and went to jail for it. [You] stated that [you] had always had other guns and a mate had been storing them for [you]. The guns were at [your] friend’s house, and the police raided him and found the guns under [your] friend’s bed. [You] stated that [you were] going to surrender them to the police station and found under mate’s bed. [You] and [your] friend were both arrested, and were incarcerated, and then [you] admitted to the guns being [yours].
27. [You] stated that [you have] always been around guns, always for hunting or shooting. [You] stated that these had been not very high-powered ones, ‘squirmish’ guns, air rifles using them for target shooting. [You] had been on a prohibition order but stated that [you] had been too scared to walk into the police station with a bag of guns. [You] stated that [you] had made arrangements with [your] friend to pick the guns up and take them to the police station. There was no DNA on the guns, and [you] stated that [you] had not touched the guns for quite a few years. However, [you] admitted to owning the guns because did not want [your] friend to take the blame for it.
28. [You] stated that it was only three weeks ago that [you] had been released from prison when [you] made arrangements to have the guns surrendered. [You] had just been in custody for twelve months.
29. [You] stated that [you] had been staying with a friend, sleeping on the couch. [You] had [your] interest in guns from [your] father, because [you] would often go out duck shooting when [you were] young.”[4]
(sic)
[4]See exhibit “B” – report of Ms Mynard, dated 12 November 2023 at paragraphs [26]-[29]
The evidence of the clinical psychologist, Ms Alison Mynard
19As I have already recorded, Ms Mynard assessed you on 13 October 2023 and obtained histories of your background, significant relationships, educational history, vocational history, substance-use history and mental-health history.
20Furthermore, Ms Mynard tested you on the Beck Anxiety Inventory and the International Trauma Questionnaire. On the basis of the information obtained and the test results, she formed certain opinions, which I now set out:
“33. Opinion
[You] grew up in a household where both of [your] parents were abusive and aggressive. [You were] often physically assaulted by [your] father and [your] mother often hit [you] with a kettle cord or clipped [you] around the ears. [You] made excuses for their behaviour by saying [you were] a difficult child, and [you] had no insight, that perhaps being in an unsafe environment [your] behaviour or attitude may have become rebellious. [You] admitted that [you were] scared at home of [your] parents and when [you] could bear it no longer, [you] left home at age fourteen, deciding to try and make it on [your] own. [You] lived between couch surfing and finding random places to stay. [You] eventually found a job and [were] able to live independently.
34. In the writer's opinion, [you have] developed an avoidant attachment and elements of a disorganised attachment with [your] own parents. [You] felt unsafe and frightened, and [you were] unable to reach out to them for emotional support. When emotionally deprived and being unable to rely on [your] parents to express [yourself], [you] had developed a belief that [you] could not reach out for support in terms of [your] emotional and mental health. This has continued into adulthood and has formed patterns where [you are] generally avoidant of emotions, avoidant of expressing [yourself] and avoidant of getting close to people.
35. [You] admitted that [your] wife had been ‘emotionally cold’, and [you have] also been using substances to avoid difficult emotions. [You have] displayed emotional dysregulation, being mistrustful of others, anxious and depressed.
36.[You have] not considered therapy because [you do] not think this would benefit [you]. However, it is the writer’s opinion that [your] avoidant attachment style feeds into [your] resistance to forming a therapeutic relationship, believing that no one could help [you] anyway. [Your] depression and anxiety have been evident and in the writer’s opinion [you have] suffered from Complex PTSD. In a frightening and unsafe environment as a child, [you have] developed symptoms where [you] felt stuck in trauma that [you] experienced many years ago. Rather than experiencing the emotion overtly, [you have] generally very prominent symptoms of avoidant PTSD, where [you avoid] talking about, thinking about, and noticing thoughts or emotions about [your] past. Complex PTSD has a component of neglect, inconsistent and unstable affections from a primary caregiver, or obvious invalidation of [your] trauma. [Your] father and mother were supposed to be safe and comforting, but instead were a source of fear and dysregulation. This has created core negative beliefs, and patterns of behaviour that have become difficult to manage.
37. In the writer’s opinion, [you do] suffer from Complex PTSD and these symptoms have been exacerbated since [you have] been in custody. Prior to being in custody [you have] suffered from complex PTSD for many years and generally has used methamphetamine or cannabis when [you were] younger to shield [yourself] and numb [yourself] from these symptoms. The drugs have impacted [yourself] and [your] partner and the children in a significant way in terms of not being around enough for them and not being emotionally present or able to help [your] wife raise the children in a proactive way.
38. [Your] decision to have guns in [your] mate’s possession and not surrender them earlier, may have been a function of [your] poor judgement. [Your] judgement had been impaired by methamphetamine addiction for many years, with lack of foresight and organisation of [yourself] to figure out a way to surrender the guns. [You] had poor judgement, impaired reasoning and [were] numb to the reality of consequences if [you were] caught. [You appear] to have suffered from complex PTSD since childhood, with difficulty regulating [your] affective impulses, being emotionally dysregulated and trying to manage this with substances, difficulty trusting people, hopelessness, despair, difficulty learning and having trouble developing [your] sense of self. In the writer’s opinion, given [your] ongoing mental health issues, [you] will find being in prison more burdensome, with higher levels of anxiety, lower in [your] mood and more difficulty managing [your] everyday life. [You] would benefit from rehabilitation and treatment options that are targeted at [your] addictions and underlying mental health issues, and [your] risk of reoffending would reduce.
39. Recommendations
a)AOD counselling to assist [you] with relapse prevention strategies, understanding more about [your] triggers to using, and learning more adaptive coping mechanisms for [your] mental health issues.
b) [You] would also benefit from trauma focused therapy to process past traumas.
c) Schema therapy could assist [you] to work with [you] to understand better [your] early experiences and how this has impacted [you] in terms of [your] core beliefs, and [your] view of the world and [your] relationships this provides corrective experiences in order to reduce [your] underlying depressive and anxiety symptoms.
d) [You] would benefit from CBT approaches to help [you] with [your] anxiety and depressive symptoms.
e) [You] would benefit from medication review to work with managing [your] mood and mental health issues.”[5]
(Emphasis added.)
[5]See exhibit “B” – report of Ms Mynard, dated 12 November 2023 at paragraphs [30]-[39]
Your record of interview
21I refer to your second interview[6] and, in particular, I note the following:
[6]See exhibit “D”
· Police arrived at the property situated at 115 Tarneit Road in Tarneit on 20 January 2023 – initially at the request of the RSPCA in relation to various dogs situated there and, at the time, performed a firearm search at the property.
· You accepted that you had been served a firearm prohibition notice on 22 March 2022 and that that notice extended for ten years. Furthermore, you confirmed with police that you understood that such notice was preventing you possessing or “being anywhere near firearms”.
· When queried about your knowledge of the Notice, you described it as being that you were “scared of it”, and when queried as to what you meant, you stated:
“How – how we – if I had firearms or ammunition for bloody – how do I, you know, get of ‘em? You – you know, I can’t just throw in a bin or - - -
- - - leave ‘em in a park or bloody anything life that - - -
…
- - - and really didn’t think I could walk through the door of a police station with them either.”[7]
[7]See answers to Questions 44, 45 and 46 of the record of interview.
(sic)
· You identified the following firearms: A .22 rifle without a bolt or without ammunition,[8] a .22 air rifle and the paintball gun, which you have had for a few years,[9] a Squires Bingham-model Squibman disassembled long arm in broken pieces, which you described as a “real old firearm”,[10] and what you described as a “toy” firearm sitting on the coffee table, which appears to be like a handgun.[11]
[8]See Question 51 and answer of the record of interview,
[9]See Questions 87 to 92 and the answers thereto.
[10]See Questions 99 to 103 and the answers thereto.
[11]See Questions 106 to 124 and the answers thereto.
· You also identified a paintball gun, which you thought “maybe” operational, but had missing parts.[12]
[12]See Questions 147 to 151 and the answers thereto.
· When shown the Squires Bingham dissembled long arm, you informed the police you had never seen that particular weapon and described it as looking like a plastic toy gun.
· When queried about you having these firearms, you informed the police that they were for recreational pursuits and that you had grown up shooting and, in the past, had a firearms licence. When queried about recreational shooting, the following evidence was given:
“Q 176 Yeah. When you say recreational shooting, you had them for, what - what is that, like - - -
A Plinking.
Q 177 PIinking, yeah.
A Mm.
Q 178 So from the way you've described it, was it ever your intent to use these firearms in a crime - - -
A Nuh.
Q 179 like an armed robbery or a - - -
A Nuh.
Q 180 - - - stick-up or - - -
A Nuh.
Q 181- - - go and shoot someone?
A Nuh.
Q 182 Were they secured properly the day that we arrived?
A(NO AUDIBLE REPLY)
Q 183 Like, you've had - - -
A Yeah.
Q 184 - - - a firearms licence - - -
A Mm.
Q 185 - - - in the past, you know how - - -
A Yeah, yeah.
Q 186 - - - firearms are meant to be secured.
A Yeah.
Q187Were they secured properly when we got there? They can't have been if they were under the bed. did have 'em in a cabinet, but - or they'll be – you know, I didn't put … pick pick 'em up or - - -
Q 188 Yeah.
A Yeah.
Q 189 Was there any children that lived at that address?
A Nuh.
Q 190 Nuh. How many other people lived there?
A:There were two people.
Q:Two people?
A:Could've been three people at some stage.
Q:Yeah. So when we went there, Matthew Craven, he was arrested - - -
A:Mm.
… .”[13]
[13]See Questions176 to 192 of the record of interview
· You advised police that you had buried the firearms in the ground prior to going to prison in 2022 and that they had been dug up by an unknown person while you were in prison. You then went on to advise the police that a friend of yours, “Leon”, became involved and he agreed to hand in the firearms to the police. In particular, I refer to the following:
“Q 277 So you were only at freedom for - what date were you at … released?
A Late December.
Q 278 Late December?
A Yeah.
Q 279 Yeah. And then we were there at 20th of January.
A Yeah.
Q 280 So you're right, that's hardly even, yeah, a month - - -
A Mm.
Q 281 - - - that you were at freedom.
A:And I spent most of me time with the kids and – and - and my partner and - in Manor Lakes.
Q 281In Manor Lakes?
AYeah.
Q 283 O.K.
A Yeah.
Q 284 So what did you speak to Leon about?
A About surrendering the rifles for me.
Q 285 Yeah.
A Yeah.
Q So what did you tell him, specifically?
A 286I told him what - what I - what was there and – and - and that I wasn't gunna walk through the door of a police station with a bag of guns, and - - -
Q 287 Yeah.
A:- - - gun parts and - and he'd said he's happy to do it, you know, but he - he wasn't, yes, worried about it at all. He goes, ‘That's what you're supposed to do as well,’ and I'd just done, you know months for, yeah, stupid gun shit, you know.
Q 288Yeah. So you understood that these firearms should be surrendered to the police.
A Mm.
Q 289Is that right?
A:Yeah.
Q 290 Yeah. Or - you just - you didn't - - -
A Responsible.
Q 291 - - - want them any more?
A Yeah.
Q 292 Yeah. Did you have any other ideas about how to get - how to get rid of them or - - -
A:That's the thing. They’re – unless you’re gunna sell 'em or something like – you don’t – wouldn’t know how to get rid of ‘em, yeah.
Q 293 Yeah. And why did you decide that the best thing was to surrender them to the police?
A:Yhat was – that was – yeah, me and Leon decided that.
Q 294You and Leon decided - - -
A Yeah.
Q 295- - - that?
A:Yeah, yeah.
Q 296 Yeah.
A:When we – when we discussed it, what – you know – yeah. ‘Can I get rid of these,’ you know, and - - -
… .”[14]
[14]Questions 277 to 296 of the record of interview and the answers thereto
· In your record of interview, there was also set out the email that you sent to your solicitor, wherein you advised him you would take ownership of the guns and, also, they would be surrendered to the police through your friend Leon.[15]
[15]See Question 322 and the answer thereto.
22I also refer to the Statement of Mr Leon DeRose, declared on 23 March 2023,[16] wherein he confirmed that, as a result of discussions with you, he was intending that, on Sunday 22 January 2023, he would take the various firearms from the property to the police.
[16]Exhibit “E”
Ballistics Report
23I refer to the Ballistics Report compiled by Leading Senior Constable (“LSC”) Jonathan Bamford, dated 1 August 2023 (exhibit “E”). LSC Bamford describes himself as working in the Ballistics Unit situated in the Victoria Police Forensics Services Centre.
24He has been a member of the Victorian Police since 2001 and attached to the Forensics Services Department since March 2014. His daily duties involve the examination and recording of firearm-related scenes of crime, as well as the collection and examination of firearm-related exhibits.
25I was informed by counsel for the prosecution that Items 10, 12, 17 and 18 are some of the exhibits relied on by police for the subject offending. In particular, I refer to Item 10, where LSC Bamford records:
“Item 10 was a .22 long rifle calibre, Armscor make, Squibman Model 11, bolt-action repeating rifle … The barrel had been sawn-off, the bolt as well as the magazine were missing. In addition, the trigger mechanism was not in working order, and the wood stock was not present …
The rifle was not capable of discharge.
The overall length of the rifle was 439 millimetres, and the barrel length was 332 millimetres.
Due to the reduced overall length, the rifle (Item 10) meets the definition of a handgun as per Section 3(1) of the Firearms Act 1996.”
26I also refer to Item 12, where LSC Bamford records:
“Item 12 was a .25 calibre, unknown make, single shot air rifle. The air rifle consisted of a commercially made barrel, workshop made receiver tube, breech mechanism and action springs. Also present in the exhibit bag was a metal cylinder containing compressed air. There was no serial number or identifying markings present. This air rifle was modelled loosely on a design made by US company ‘Airforce Airguns’, known as the ‘Condor’.
The exhibit air rifle used the pre-charged pneumatic (PCP) method of operation, in that an air cylinder is attached to the receiver tube and acts to provide the propellant compressed air for the projectile when the rifle is fired.
The air-rifle was fitted with a 3-9x40 mm Bushnell brand telescopic sight.
Despite being somewhat unsafe and clumsy to use, the home-made air rifle was in good working order, and was capable of discharge.
The overall length of the air rifle was 806 millimetres, and the barrel length was 660 millimetres.”
27I also refer to Item 17, where LSC Bamford records:
“Item 17 was a .22 calibre, Air Arms make, model S510 carbine, pre-charged pneumatic (PCP) single shot air rifle … The air rifle was in good working order; however, it was not capable discharge due to a depleted air cylinder. If the air cylinder were to be replenished, the air rifle would be capable of discharge again.
The overall length of the air rifle was 952 millimetres, and the barrel length was 512 millimetres.”
28I also refer to Item 18, where LSC Bamford records:
“Item 18 was a .22 Long Rifle calibre, Sportco make, model 62S, bolt action repeating rifle … The bolt was not present, and as such the rifle was not capable of discharge until such time that the correct bolt could be fitted. Other than the missing bolt, the rifle was in reasonable working condition.
The overall length of the rifle was 1032 millimetres, and the barrel length was 580 millimetres.”
Matters in mitigation of your sentence
29Your counsel noted that, at the time of the plea you had two outstanding matters listed before the Werribee Magistrates’ Court ꟷ one for a driving-related offence and one for a breach of a community correction order.[17] As noted, these matters have been adjourned to a later date.
[17]Presumably the Community Correction Order which was to commence after you were released from prison in late 2022.
30Initially, your counsel referred to various aspects of your background and, in particular, highlights the following:
· Your childhood was “marred with severe childhood deprivation that involved violence from the hands of your mother and father” and that you would be regularly assaulted by your parents. Reference was made to the diagnosis made by the psychologist, that you had suffered from “Complex PTSD”.[18]
[18]See report of Ms Mynard, dated 12 November 2023 (exhibit “B”) at paragraphs [25] and [36]-[38].
· That you have always been able to support your family, and, in particular, were involved with Ms Hayley Boyle for a number of years in a de facto relationship producing five children. Your counsel noted, on your instructions, that the relationship with Hayley did end in 2022, however a friendship has been maintained between the two of you.
· It was noted that your eldest child is now eighteen years old and your youngest is seven years old. That son has been diagnosed with Autism and requires ongoing care and you intend, upon your release, to be more actively present in your children’s life to assist in their growth and development.
· It was submitted by your counsel that your relationship with Hayley commenced to deteriorate in 2018, when your methamphetamine addiction escalated – such drug had been used since the age of twenty-four, increasing in 2018, when you made associations with negative peer groups.
· After your drug use escalated and spending time with negative peers, you experienced troubles in your relationship and regularly started to appear before the criminal justice system at the age of thirty-seven years.
· After serving a prison sentence for eight months in 2019, you returned to your family home with Hayley, resumed employment and intermittently used methamphetamine. Despite ongoing drug use, you were able to return to your responsibilities and maintain a lifestyle that did not require you to appear before the criminal justice system.
· Over the years, you have attained your heavy vehicle, bobcat and heavy machinery licences, and have always held employment in either carpentry and/or excavation. You held employment in 2022 as an excavator before being remanded in August 2022.
· In about 2022, you experienced further issues in your relationship and were required to leave the family home, causing you to become homeless and again re-engage with old associates and increasing your methamphetamine use.
· As a result, you came back to the criminal justice system and was sentenced to a period of ten months in 2022, being released in late December 2022. At that time, the relationship with Hayley had come to an end and you were homeless. You returned to Craven’s residence as temporary accommodation until you could obtain employment and your own accommodation.
· You were not able to commence the Community Correction Order made in 2022 or make a meaningful impact on the treatment and rehabilitation programs. As recorded, you were again remanded on 16 March 2023 and have been at the Marngoneet Correctional Centre for the duration of your remand.
· You are currently employed at Marngoneet and are currently on the Methadone Program (100 milligrams a day) and you instruct your counsel that you are experiencing positive effects of methadone and hope to continue methadone after your release in the community.
· Your counsel notes that you enjoy working as an excavator and hope, on your release, you can obtain stable accommodation, and return to work and rebuild relationships with your children.
31In particular, your counsel initially submitted that an appropriate disposition in all the circumstances should be a “combined sentence”. In this respect, he noted that the Court has the power to impose a further twelve months’ imprisonment from the date of the sentence and impose a community correction order of up to a period of five years.
32This matter was initially heard on 28 November 2023 and adjourned to 8 February 2024, over which time the Court ordered that you be assessed as to your suitability for a community correction order. Such assessment was made on 30 November 2023 and the assessing Community Corrections’ officer, Whiro Poutapu, assessed you to be unsuitable for such an order. In particular, it was noted that you were assessed as being a high risk of re-offending according to the Level of Service Risk Assessment Tool.
33It was also noted that, during the assessment, although co-operative, you attempted to minimise your offending, and you were then subject to a community correction order which was in contravention. In a contravention report dated 20 Mach 2023, it was apparently reported your engagement was considered to be unsatisfactory and you were given a senior officer caution. It was ultimately considered that you would have difficulty complying with any further community correction order.
34When this matter was further heard on 8 February 2024, I was informed by your counsel that you no longer wished to undergo a community correction order, but would prefer to serve a sentence of imprisonment, after which you intend to seek employment in the mining industry.
35Your counsel initially made the following general submissions as to matters relevant to, and in mitigation of, your sentence.
· It was submitted that your offending cannot be characterised as a serious example of possessing firearms and, in particular, your offending did not occur in the context of ongoing criminal activity. Reference was made to the Victorian Court of Appeal decision of Berichon v R;Houssein v R,[19] wherein Redlich AJA stated:
“The conduct of a prohibited person in possession of an unregistered firearm may be placed in one of two broad categories of seriousness. Those categories have been discussed in R v Graham and Armistead v R. 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. Sentences of a low order of imprisonment are usually appropriate unless the previous criminal history of the offender warrants a more substantial sentence, proportionate to the gravity of the offence. The second category of cases are those where the evidence enables the conclusion that the possession is for the purpose of criminal activity or a specific criminal purpose, more severe sentences are then usually in order. Such sentences will be appropriate where the firearm is for example possessed in the context of a criminal activity to provide security or as a means of enforcement. The prior convictions of the offender in conjunction with circumstantial evidence may also enable the conclusion to be drawn that the possession is for some unlawful activity.”
(Footnotes omitted.)
[19]2013) 40 VR 490 at paragraph [26]
I accept that there is no evidence before the Court that the subject firearms are associated with any ongoing criminal activity and accordingly your offending falls into the first category described by Redlich AJA.
· The firearms were located in the bedroom of a co-accused and a shed at the rear of the property. No firearms or ammunition was found in your bedroom at the property. The firearms were not readily or easily accessible by you.
· Three out of the four firearms were not capable of discharge.[20] It was submitted that this should be considered when assessing the objective gravity of the firearms offending. The only firearm that was capable of discharge was the Airforce Condor air rifle, which discharges non-lethal shots/missiles/bullets.
· Overall, there was no sophistication and no organisation involved in the offending and, in particular, it was noted that you were ultimately charged for the possession of the firearms after making admissions to police during the second interview.
[20]See Items 10, 12, 17 and 18 of the Ballistics Report from Leading Senior Constable Bamford, dated 1 August 2020 (see exhibit “E”)
36In particular, your counsel referred to the following matters in mitigation of your sentence:
(a) Your plea of guilty
(i)it was submitted that your plea of guilty should be viewed as having been entered at the earliest opportunity and has significant utilitarian value, as it has saved the Court, the prosecution and Victoria Police a substantial amount of time and resources. In such circumstances, you are entitled to a meaningful discount;[21]
[21]Reference was made to Phillips v R [2012] VSCA 140 at paragraph [38]
(ii)such a plea was entered into when the ordinary operation of the Court had been affected by the COVID-19 pandemic, and such a plea should attract “an actual and palpable amelioration of sentence”.[22] In particular, reference was made to paragraph 39 of Worboyes v R,[23] wherein it was stated, in part:
[22]Reference was made to Worboyes v R [2021] VSCA 169 at paragraph [35]
[23]Op cit
“For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.”;
(iii)it was also submitted that such a plea demonstrates a willingness to accept full responsibility for your offending and to facilitate the course of justice.
As noted earlier, counsel for the prosecution accepts that you entered a plea at an early stage following a counteroffer from the Director of Public Prosecutions on 7 August 2023 and, accordingly, you are entitled to a discount by reason of this.
I also accept that, in all the circumstances, such plea was an early plea entitling you to an appropriate discount, and also a further discount consistent with the principles enunciated in Worboyes v R;[24]
[24]Op cit
(b) The application of the principles in Bugmy
(i)your counsel submitted that the principles enunciated in the High Court decision of Bugmy v R[25] apply to your circumstances. In particular, I refer to paragraphs [40] and [43]-[44] of Bugmy[26] which state:
[25](2013) 249 CLR 571
[26]Op cit
“[40]… The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.
...
[43]The Director’s submission should be accepted. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
[44]Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”
(Emphasis added.)
I also refer to the Victorian Court of Appeal decision of Director of Public Prosecutions (DPP) v Herrmann.[27] In that decision, the Court of Appeal (consisting of Maxwell P, Kaye, Nyall, T Forrest and Emerton JJA) explained that in Bugmy,[28] the High Court expressed, in two different ways, the potential relevance of childhood deprivation to the assessment of moral culpability. The first – described as “more general” – was expressed by those words underlined in paragraph 40 above, and the second – described as “more specific” – was expressed by those words underlined in paragraph 44 above.
[27][2021] VSCA 160
[28]Op cit
I also refer to the Victorian Court of Appeal decision of Marrah v R[29] and, in particular, at paragraph 16, wherein the Court (consisting of Redlich and Tate JJA) stated:
[29][2014] VSCA 119
“Circumstances of deprivation, abuse and other social disadvantage occurring during an offender’s formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time, and are likely to have profound and lasting consequences. The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender’s criminal behaviour. The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account. Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus.”
It was submitted that the more “general” way involving childhood deprivation was relevant to your moral culpability. Your counsel relied on the personal circumstances described by you and, indeed, the psychological report by Ms Mynard, dated 12 November 2023.[30]
[30]See exhibit “B”
I again refer to paragraph 40 of Bugmy,[31] which states that an offender who has been raised in a “community surrounded by alcohol abuse and violence” may give rise to mitigation of sentence because his culpability is likely to be less then the culpability of an offender whose formative years have not been marred in that way. On the evidence before me, I do accept that, to adopt the words of the psychologist, you grew up in a “volatile and frightening environment, where [your] parents were both abusive towards [you]”, causing you to leave home at age fourteen, and to not see your parents for ten years. In particular, she noted that you were often physically assaulted by your father, and your mother hit you with a kettle cord or clipped you around the ears. She also noted that you admitted becoming scared of your parents at home, up to when you could no longer bear it, causing you to leave. In particular, she accepts you have suffered psychological symptoms since that time.
[31]Op cit
Although there is an absence of any alcohol or drug use during that period of time, I do accept that was an unremitting situation, where you were exposed to violence from your parents.
However, I do note, as submitted by your counsel, when one considers your prospects of rehabilitation, you have demonstrated over the years you can maintain employment and, indeed, there have been reasonably-long periods between any offending.
As I understood the submission, counsel for the prosecution used the term “sliding scale” to mean, as I understood, that although not a clearcut case where Bugmy[32] would apply, some allowance should be made for the principles enunciated in that case.
[32]Op cit
In all the circumstances, I do intend to make some allowance for reduced moral culpability, given the background described by you, which I accept.
(c) The application of Verdins’ principles
(i)your counsel submitted that, on the basis of the report from Ms Mynard, you suffer from “Complex PTSD” and have suffered such disorder from childhood, and that your symptoms have been “exacerbated” since your time in custody.[33]
[33]See exhibit “B” at paragraphs [25], [36]-[38]
In such circumstances, it was submitted that Principles 2 and 5 set out in R v Verdins; R v Buckley; R v Vo,[34] are enlivened by such evidence. Principle 2 provides that such disorder may have a bearing on the kind of sentence imposed and the conditions under which it is served; and Principle 5, that the existence of such a mental impairment at the time of sentence, or its reasonably foreseeable recurrence, may mean that a sentence may weigh more heavily on an offender, than it would on a person in normal health.
[34](2007) 16 VR 269
Counsel for the prosecution submitted that he had “no issue” with Principle 5 being enlivened by the evidence in the Court. However, it was submitted that Principle 2 should not apply.
I accept that Verdins’ Principle 5 has been enlivened by the evidence in this matter and, accordingly, such a factor is relevant to mitigation of your sentence. I do not see that Principle 2 of Verdins is relevant – more so now, bearing in mind that you do not seek a combined sentence (which would involve a community correction order and various therapeutic conditions) but, rather, would serve a sentence of imprisonment accompanied by a non-parole period.
The Court queried your counsel as to whether Principle 6 of Verdins is enlivened by the comments from the psychologist that your mental impairment has been “exacerbated” by your time in prison. Your counsel expressly disclaimed any reliance on such principle, given that it could not be said that it had been made materially worse;
(d) Prior convictions
(i)your counsel noted your prior criminal history which was admitted and accepted. He noted that, although you have similar prior convictions for possessing firearms, that, in itself, is not an aggravating feature, as established in the case of Dirbass v R.[35] In that case, it was held that similar prior convictions do not aggravate the objective gravity of the offending before the Court. The Court cannot increase a sentence beyond what is considered to be an appropriate sentence for the incident offence, on the basis that the offender’s criminal history increased the seriousness of the incident offence;[36]
[35][2018] VSCA 272 at paragraphs [47]-[58]
[36]Reference was also made to Baumer v R (1988) 166 CLR 51
(ii)it was submitted that such criminal history will have a bearing on any assessment of your moral culpability and specific deterrence, but that must be weighed, so it was submitted, against the principles enunciated in Bugmy,[37] your personal circumstances and psychological findings already referred to.
[37]Op cit
I consider that, when determining an appropriate sentence, specific deterrence must play a role, given your two previous convictions are similar to the offending set out in Charges 1 and 2 on this indictment.
(e) Prospects of rehabilitation
(i)it was submitted that your prospects of rehabilitation should be viewed as “fair”. Your counsel noted that there are significant gaps in your criminal history when you have not appeared before the criminal justice system. Furthermore, you have generally maintained employment over the years, resided with your family and maintained a positive relationship with your then partner, Hayley;
(ii)it was submitted by your counsel that you are capable of living a crime-free life supporting your family and work, as has been demonstrated in the past. Previously he has noted that you have completed a carpentry apprenticeship and operated your own carpentry business for a number of years. You have also obtained heavy vehicle, bobcat and heavy machinery licences and, indeed, you intend to return to this work when released.
(iii)It is also noted that, during your period of imprisonment, you have entered the Methadone Program and hope to rid yourself of your past drug habit.
I also consider that your prospects of rehabilitation are guarded, given your past offending in relation to similar offences.
(f) Co-operation with police and the application of the principles enunciated in R v Doran:[38]
[38][2005] VSCA 271
(i)Your counsel submitted that there should be appropriate discounts in your sentence in relation to two particular matters – that what was referred to as “co-operation with police” and the “Doran discount”.
In relation to the first aspect – that is, co-operation with police – reference was made to the decision of Singh v R[39] and, in particular, I refer to paragraphs 33 to 35:
[39][2022] VSCA 178
“Legal principles relating to cooperation with authorities
It is in the public interest that those who commit offences be encouraged by the courts to inform on their co-offenders.16 An offender who assists the authorities is entitled to have that assistance considered in mitigation of their sentence. This principle is recognised in statute. Section 5(2AB) of the Sentencing Act 1991 states:
‘If, in sentencing an offender, a court imposes a less severe sentence than it would otherwise have imposed because of an undertaking given by the offender to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence, the court must announce that it is doing so and cause to be noted in the records of the court the fact that the undertaking was given and its details.’
The ‘discount’ or sentencing benefit to be applied in any particular case will depend on the nature of the assistance provided and the consequences for the offender in providing that assistance. The highest level of discount is reserved for what are known as ‘true informers’: offenders who assist authorities from within a criminal enterprise, acting to provide information, often while the offending is still on foot, and at great personal risk. Lower down the ‘discount’ scale are offenders who cooperate with authorities after participating in offending and being charged. If the cooperation extends to giving evidence against a co-offender or related offender, the discount to be applied will likely be significant.
The ‘cooperation discount’ must not frustrate the principle of adequate punishment for offending. In Mejia (a pseudonym) v The Queen, the Court discussed the challenge presented by a ‘cooperation discount’ in the sentencing process:
‘It has long been accepted that an offender who provides assistance to law enforcement authorities is entitled to seek a reduced sentence on that account. The availability of a ‘cooperation discount’ is of vital importance to the administration of criminal justice. It serves the public policy objective of encouraging offenders to provide information which will help bring other offenders to justice.
Determining the extent of the discount to which an offender is entitled is, however, a task of particular difficulty for the sentencing court. On the one hand, the discount must reflect the benefit flowing, or likely to flow, from the assistance provided, and the risk to which the offender is exposed by reason of having given the assistance. On the other hand, the discounted sentence must be — and be seen to be — an adequate punishment for the offending, having regard to its objective gravity, the offender’s moral culpability and the need for deterrence of the crime in question.”
(Footnotes omitted.)
It is to be noted that the so-called “co-operation discount” seems more concerned with co-operation with authorities by informing in relation to co-offenders.
(ii)I also refer to R v Doran[40] and, in particular, at paragraphs 13 to 15:
[40]Op cit
“There can be no gainsaying the seriousness of the offences. The appellant corrupted young children to most of whom he stood in a position of trust. Statements made by parents of the victims reveal that the children were disturbed and may have suffered serious psychological harm. Apart from protection of the community, judicial denunciation of the crimes and general deterrence are important sentencing considerations.
Yet there were in this case significant mitigating factors. The appellant's pleas of guilty were made at the earliest possible opportunity and spared the victims of the offences the trauma of having to give evidence at the committal or trial. The trial judge said that he was satisfied that the appellant was "genuinely remorseful". The appellant had no prior convictions and was able to lead evidence before the sentencing judge as to his good character.
Most importantly, however, the appellant quite voluntarily, without any pressure from any authorities, provided the prosecution with all the evidence necessary to convict him of the majority of the crimes. In my view, the consequences of the appellant's admissions are that they reduce the need for a sentence to personally deter the appellant, they increase the prospects of his successful rehabilitation and they demonstrate genuine remorse for his actions. I would add that I think it important that the appellant should receive a demonstrable discount in his sentence in order to encourage others to make like admissions.”
I also refer to the more recent decision of Younan v R[41] and, in particular, at paragraphs 35 to 40, to which I now refer:
[41][2017] VSCA 12
“The applicant also referred to three county court decisions, involving youthful offenders with no, or negligible prior matters. In Director of Public Prosecutions v Lahteenmaa, the 27 year old with no prior convictions was sentenced to a 2 year CCO with 50 hours of community work for one charge of armed robbery, in which $24,000 was taken from the Manningham Club. The offender had given an undertaking to give evidence, and it was found that his role was to conduct reconnaissance on the premises.
In Director of Public Prosecutions v Halabi, the 20 year old who had one prior Children’s court matter, received 3 years for one charge of armed robbery where firearms were used to rob $43,000 from the Furlan Club. He had pleaded guilty at an early stage and been attacked in custody because he had made a statement.
The final County Court decision referred to was the matter of Director of Public Prosecutions v Elrajab. The offender in that matter was nearly 21 years old, and had no prior convictions. He was sentenced to 5 years and 6 months’ imprisonment with a nonparole period of 4 years and 6 months for a series of offences. His sentence consisted of 18 months for an attempted robbery of the Eltham Hotel with handguns and other weapons, 3 years and 6 months’ for an armed robbery of the Furlan Club using a sawn-off shot gun in which nearly $9000 was taken, 4 years for the armed robbery of the Manningham Club using a rifle and sawn-off shotgun in which just less than $6000 was obtained, and 18 months for a criminal damage charge.
Despite the very serious nature of this type of offending and the need to give appropriate weight to denunciation and general deterrence, all of the mitigating factors present in the cases referred to were also present in this case. There were however two additional mitigating feature present, which distinguished this case from all those cited. First, the applicant was willing to assist investigating police. Second, there was the very significant mitigating factor of his frank admissions which provided the only evidence that implicated him in the offending. As was recognised by the sentencing judge, and conceded by the Crown, the prosecution had no evidence to establish the applicant’s guilt without his admissions.
The right to a significant discount where an offender, by his admissions, provides proof as to his guilt of an offence which the prosecution could not otherwise have established is now well settled. Street CJ recognised in R v Ellis that a significant added element of leniency arises from a confession of guilt in such circumstances. The principle rests upon the policy of the criminal law to encourage a guilty person to come forward and make a confession of guilt to his offending. The principle and its rationale was affirmed by McHugh J in Ryan v The Queen. Subsequently, in R v Doran, Buchanan JA (with whom Eames and Nettle JJA agreed) observed that the appellant had voluntarily provided the prosecution with all the evidence necessary to convict him of the majority of the crimes. His Honour considered it necessary that ‘the appellant should receive a demonstrable discount in his sentence in order to encourage others to make like admissions’. The principle is now often described in Victorian courts as the ‘Doran discount’. The principle was enlivened in JBM v The Queen, as the offences could not have been proved in the absence of the appellant’s co-operation and admissions. Weinberg JA, with whom Priest JA agreed, observed, citing Doran, that public policy demanded that the appellant receive a significant reduction in any sentence that might otherwise have been imposed. In order to facilitate their successful prosecution, public policy requires that offenders should be encouraged to admit their crimes by granting them transparently substantial reductions in sentence where that occurs.
The parameters of the discount afforded to an offender who made admissions in such circumstances was referred to in Adamson v The Queen, the applicant having complained that the sentencing judge had not made adequate allowance for the admissions he made. The Court (Warren CJ, Redlich and Weinberg JJA), observed that although the sentencing judge did not state in his reasons that a substantial discount had been given on the offences, it was to be inferred from the sentences imposed on all the charges, that the judge had allowed a discount of between 30 per cent and 50 per cent on all those charges that depended upon his admissions. There was no suggestion that such discounts were excessive.”
(Footnotes omitted.)
As has already been recorded, the subject firearms were not located in your bedroom at the property where you were residing at the time of police attending the property. In particular, some of the firearms were found in the bedroom of Craven and other firearms were found in a shed on the property at different places.
Your counsel submitted that you do not own the property or have any rental agreement to the property. Furthermore, he noted there were deeming provisions that apply to firearms in relation to issues of possession. Ultimately, it was submitted that, save for your admissions made at both interviews, but, in particular, at the second interview on 16 March 2023, it would have been difficult for the police to establish elements of possession on your behalf.
In relation to this submission, I consider that, although there is some force, I do not accept it is the type of case that, without such admission, the police would never have prosecuted you for the subject offences. Obviously enough, your admissions in relation to the possession of the firearms made it much easier for the police to bring the charges against you. In all the circumstances, I am going to allow some discount, consistent with the principles in Doran,[42] but not an extensive one, given the likelihood that, ultimately, you would have been charged of such offences.
[42]Op cit
37Furthermore, I do note how you stated in your Record of Interview that you had made arrangements for a friend to hand in the subject firearms, as it turned out, on a date which turned out to be shortly after your second interview. There is some support for your intention to be accepted, given there is a statement from a person confirming that was your intention, and that person was going to deliver the outstanding firearms. Unfortunately, it is a matter of speculation as to whether this would have ultimately occurred, and, indeed, as submitted by counsel for the prosecution, there is no mention of such intention, either at the time when the police were at the property, or, indeed, during the first interview conducted by the police. In all the circumstances, I take the view that, again, I give some generalised weight to an intention, again, which is consistent with you assisting the authorities at the second interview.
38There should be some moderation of a sentence to be imposed, recognising the burden of imprisonment you faced being incarcerated during the pandemic. In this respect, it is to be noted that you have been incarcerated since 16 March 2023, following your second interview.
39Furthermore, although conditions have ameliorated since the worst of the pandemic, some restrictions still apply in prison and, indeed, I make some allowance for that into the foreseeable future.
Conclusion
40In most civilised societies, there is legislative control in relation to the acquisition, possession and the carrying or use of a firearm or firearm-related items. Such legislative control is necessary, in part because of the potential dangers that firearms can cause through their use and, in particular, the particular dangers of firearms being used for criminal activity.
41In Victoria, the legislative control over firearms is mainly brought about by the Firearms Act 1996, to which I have referred to as the FA Act, and also the Control of Weapons Act 1990, to which I have referred to as the CW Act.
42In particular, s112A of the FA Act provides for the making of a firearm prohibition order, which is an order prohibiting any individual from acquiring, possessing, carrying or using any firearm or any firearm-related item. I have already referred, in these Reasons, to the definition of “firearm”[43] and also to the definition of “firearm-related items”[44] to mean, among other things, a part of a firearm, a cartridge ammunition and attachment to a firearm, or an accessory for a firearm.
[43]See s3(1)(a) and s3(1)(b) of the FA Act
[44]See s112A of the FA Act
43Furthermore, s5AB(3) of the CW Act provides that an individual to whom a firearm prohibition order has been issued (as defined within the FA Act) “must not possess, carry or use an imitation firearm”.
44Earlier in these Reasons, I have set out the definition of an “imitation firearm”.
45There is no issue that you have been served, and are subject to, a current, active and firearm prohibition order, which was served on you at the Marngoneet Correctional Centre by police on 17 May 2022. Such order expires on 16 May 2032.
46Charges 1 and 3 on the Indictment involve you being involved in possession of firearms on or about 20 January 2023 in breach of the Firearm Prohibition Order. Furthermore, Charge 2 on the Indictment involves you possessing an imitation firearm, as defined in the CW Act, in breach of the Firearm Prohibition Order. I consider such offending reasonably serious, bearing in mind the inherent nature of the potential danger of firearms and also taking account that Charges 1, 2 and 3 on the Indictment attract a maximum penalty of ten years’ imprisonment.
47Furthermore, you have prior convictions for the same offending, to wit, on 17 September 2019, at the Melbourne Magistrates Court, you were convicted and sentenced to eight months’ imprisonment in respect of being a prohibited person possessing a firearm and a prohibited person possessing an imitation firearm; and, more recently, on 3 August 2022, you were convicted and sentenced to a period of ten months’ imprisonment, together with an aggregate fine of $1,000 in respect of being a prohibited person possessing a firearm.
48Indeed, consistent with the agreed facts, you apparently buried the subject firearms at the property prior to commencing your sentence of imprisonment as a result of the conviction on 3 August 2022.
49Charge 8 of the uplifted charges, involves you possessing cartridge ammunition while not the holder of a licence under the FA Act, or a permit under s58A of that Act. Again, you had been previously convicted on 17 September 2019 of possessing cartridge ammunition without a permit and sentenced to a fine of $400.
50Charge 9 involves you driving a motor vehicle on 16 March 2023 during a period of disqualification from obtaining an authorisation to drive a motor vehicle. Again, you have been convicted of similar offences – to wit, on 19 June 2019, you were convicted of three charges of driving a vehicle while authorisation suspended. The Uplifted Charge 10 involves you using a vehicle, without such vehicle bearing number plates fixed.
51Some of the firearms were referred to the Ballistics Unit situated at the Victoria Police Forensic Services Centre, where they were tested by a firearms expert. In a report, dated 1 August 2023,[45] Leading Senior Constable Bamford was of the opinion that of the four firearms identified in Charge 1, the .22 long rifle had been sawn off and the bolt was missing. Furthermore, the trigger mechanism was not in working order and the Woodstock was not present. He was of the opinion the rifle was not capable of discharge; in relation to the single-shot air rifle, he considered that to be a Condor air rifle and, although “somewhat unsafe and clumsy to use”, such air rifle was in good working order and capable of discharge; the S510 carbine was generally in good order, but was incapable of being discharged due to a depleted air cylinder – although if the air cylinder were to be replenished, the air rifle would be capable of discharge again; and, in relation to the .22 Long Rifle calibre Sportco model, it was noted the bolt was not present and, as such, the rifle was not capable of discharge, although if a correct bolt was fitted, such firearm was capable of discharge.
[45]See exhibit “E”
52I accept that there is no evidence of such firearms being used for any criminal activity in the past and, indeed, no evidence to suggest that such firearms were destined to be used for criminal activity. In your Record of Interview, you asserted that such weapons, when capable of discharge, were used for recreational purposes only – what is referred to as “plinking”. As stated earlier, I am of the opinion your offending did not occur in the context of any ongoing criminal activity and, accordingly, you fall within the first category described by Redlich AJA in Berichon v R; Houssein v R.[46] In this respect, Redlich AJA went on to say, in such circumstances:
“… Sentences of a low order of imprisonment are usually appropriate unless the previous criminal history of the offender warrants a more substantial sentence, proportionate to the gravity of the offence. … .”
(Footnotes omitted.)
[46](op cit) at paragraph [26]
53I do consider that general deterrence is an important sentencing consideration, particularly in relation to the Charges on the Indictment, and also protection of the community and just punishment are appropriate. Furthermore, given your prior convictions for similar offences to those set out in the indictable offending and, indeed, your driving while disqualified, I also consider that specific deterrence is also relevant to an appropriate sentence.
54As pointed out, I do consider that your moral culpability in relation to such offending is reduced as a result of your youthful experience of violence at the hands of your parents and the application of the general principle enunciated in Bugmy.[47]
[47]Op cit
55Furthermore, as I have already recorded, in the circumstances of this matter, your assistance to police and relevant authorities has been noteworthy. This aspect also adds to your demonstration of a willingness to accept responsibility for your offending to facilitate the course of justice.
56In particular, again, as I have recorded, the Court will allow some further discount in relation to your sentences as a result of the particular assistance you gave police in accepting ownership of the various firearms (not in relation to Charge 3 on the Indictment, being the two scopes found in your vehicle) and in circumstances where clearly it would have been an issue as to your possession of any firearms, given that such firearms were found, not in your bedroom at the property, but in particular, the bedroom of Craven, and other places around the property, including the shed.
57I also take account of the various mitigating factors to which I have determined – that is, your early plea of guilty with the associated utilitarian benefit and the added discount brought about by the principles enunciated in Worboyes;[48] the application of Principle 5 of Verdins;[49] and the added hardship you have experienced in prison as a result of the COVID-19 pandemic, and the continuing hardship, albeit at a lesser level, for the balance of your incarceration.
[48]Op cit
[49]Op cit
58Again, as I have recorded, I consider your prospects of rehabilitation are guarded, but do note you are qualified to work in various driving jobs and as a carpenter. One hopes that the demonstration of assistance to police, and your attempts to rid yourself of your drug habits, will be continued after release from prison.
59I intend to convict you of all of the offences and sentence you to a period of imprisonment in relation to the indictable charges, and also in relation to the uplifted charge involving you driving without authorisation, that being an offence for which you have prior convictions.
60Bearing in mind the concepts of totality and an appreciation in relation to Charges 1, 2 and 3, that it is the same criminality giving rise to the offences – that is to say, the breach of a firearm prohibition order, I intend to only partially cumulate such sentences.
61Please be upstanding:
(a) in relation to Charge 1 on the Indictment, you are convicted and sentenced to a period of imprisonment of two years;
(b) in relation to Charge 2 on the Indictment, you are convicted and sentenced to a period of imprisonment of nine months;
(c) in relation to Charge 3 on the Indictment, you are convicted and sentenced to a period of imprisonment of six months;
(d) in relation to Uplifted Charge 8, you are convicted and sentenced to a fine of $500;
(e) in relation to Uplifted Charge 9, you are convicted and sentenced to a period of imprisonment of two months;
(f) in relation to Uplifted Charge 10, you are convicted and sentenced to a fine of $50;
(g) I direct that three months of the sentence in relation to Charge 2, two months of the sentence in relation to Charge 3 and one month of the sentence in relation to Uplifted Charge 9, be cumulated with the sentence in relation to Charge 1 and with each other;
(h) the total effective sentence is two years and six months and I order there be a non-parole period of one year and eight months;
(i) I declare that you have been in custody in respect of these offences for a period of 365 days and that they be reckoned as a period of imprisonment already served under this sentence and which are to be deducted administratively;
(j) I grant the Forfeiture Order sought by the prosecution;
(k) I declare, pursuant to s6AAA of the Sentencing Act 1991, that save for your pleas of guilty, I would have ordered a total effective sentence of four years.
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