Director of Public Prosecutions v Conor Lavery
[2020] VCC 1989
•18 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01260
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CONOR LAVERY |
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JUDGE: | HER HONOUR JUDGE LEWITAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 December 2020 | |
DATE OF SENTENCE: | 18 December 2020 | |
CASE MAY BE CITED AS: | DPP v Conor Lavery | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1989 | |
REASONS FOR SENTENCE
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Subject:Possess a trafficable quantity of firearms, trafficking in a drug of dependence, possess a drug of dependence, possession of cartridge ammunition without a licence and possession of controlled weapon
Cases Cited:Glen Brown (aka James Davis) v The Queen [2020] VSCA 60; Guden v R (2010) 28 VR 288 (Guden); Djemal v The Queen [2020] VSCA 25 (Djemal); Powell v The Queen [2015] VSCA 93 (Powell); DPP v Fleiner [2010] VSCA 143 (Fleiner); Boulton v The Queen [2014] VSCA 342.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. J. Pickering | Abbey Hogan Solicitor for Public Prosecutions |
| For the Accused | Mr S. Pica | Steven Pica Pica Criminal Lawyers |
HER HONOUR:
1Conor Lavery you have pleaded guilty before me to one charge of possess a trafficable quantity of firearms for which the maximum penalty is ten years' imprisonment, one charge of trafficking in a drug of dependence for which the maximum penalty is fifteen years' imprisonment, one charge of possess a drug of dependence namely Nandrolone and Testosterone for which the maximum penalty is twelve months' imprisonment where the court is satisfied on the balance of probabilities that the offence was not committed for any purpose relating to trafficking and five years' imprisonment in any other case.
2You have also consented to this court dealing with the summary offences of possession of cartridge ammunition without a licence for which the maximum penalty is twelve months' imprisonment and one charge of possess controlled weapon for which the maximum penalty is twelve months' imprisonment.
3On Saturday 27 June 2020 you were living in a rental property at 37 Cheyne Street, Werribee (the Werribee property). You were outside the Werribee property at 9.50pm. You sustained a gunshot wound to the heel and arch of your right foot.
4Your partner’s sister, Cindal Amery, was at the Werribee property babysitting the children. Anthony Folino was also at the property. Folino heard a loud bang, like something blew up out the front of the house. You then came into the house limping and Folino and Cindal Amery could see injuries to your foot. You told Folino and Cindal Amery that you were cutting a fuel tank with a grinder out the front of the property when an explosion occurred. Folino called 000.
5
The Country Fire Authority (CFA), Ambulance and police attended the scene. They found no evidence of an explosion, no fuel tank and no grinder.
CFA also scanned the immediate area with their forward-looking infrared (FLIR) camera. The only source of heat was from the engine and brakes of a white BMW bearing clone registration plates ING4SJ (the BMW) parked in the front yard.
6Directly opposite the premises and on the common driveway, was a white Ford XR6, registration TRY623 (the XR6 Ford). The vehicle was registered to you. Between the BMW and the XR6 Ford were three small blood smears on the ground consistent with you walking.
7Police suspected the injury to be a gunshot wound and set up a crime scene in the front yard and driveway. Police attempted to conduct a safety clearance of the home; however Cindal Amery would not allow police or emergency services to conduct a safety search of the property. Police asked Cindal Amery if she had the keys to your vehicle. She told police that she could not find them. As a result, police made an application for a search warrant.
8At some point in the evening, Cindal Amery and Folino left the premises. Your partner, Kyralee Amery, returned to the premises, took her two children and locked the Werribee property.
9Police executed a search warrant at the home and seized the XR6 Ford in the early hours of the following morning. No one was present at the home at this time.
10 Police seized the following items from within the boundary and inside the premises:
· White BMW bearing clone registration plates 1NG4SJ;
· 12-gauge shotgun cartridge located in the garage;
· Three sets of Victorian number plates;
· Blood swab from driveway;
· Blood swab from kitchen floor;
· Single barrel 12-gauge shotgun located on the couch in the middle lounge room set up as a children’s play area;
· 12-gauge shotgun cartridge removed from the above shotgun (summary charge 5 possess cartridge ammunition);
· Double barrel (under/over) shot gun located in roof space next to manhole.
11 Police collected swabs from the two shotguns as well as the cartridge of the shotgun located on the couch. Your DNA was located on the trigger guard of the shotgun located on the couch.
12 The single barrel shotgun located on the couch in the children’s play area was loaded with a 12-gauge shotgun cartridge. As such, the shotgun could have easily been discharged.
13 Kyralee Amery attended at the address later that day and confirmed to police that she did not know about the firearms in the home.
14 You underwent surgery where a number of fragments consistent with shotgun pellets were removed from your right foot.
15 On Monday 29 June 2020 police attended the Werribee tow yard to conduct a search of the BMW and the XR6 Ford. The following items were seized from the BMW:
· Knuckle dusters (summary charge 7 possess controlled weapon);
· Wallet and cards in your name ;
· Five 12-gauge shotgun cartridges (summary charge 5 possess cartridge ammunition)
· Two steroid vials (Indictment Charge 3 – possess a drug of dependence);
· Zip lock bag containing methamphetamine – 5.3 grams (Indictment charge 2 – trafficking in a drug of dependence);
· Silver iPhone;
· Black iPhone;
· Two cloned registration plates 1NG4SJ;
· Digital scales;
· Black zip-up pouch containing multiple deal bags;
· Miscellaneous paperwork in the names of people other than you.
16 No items were seized from the XR6 Ford.
17 5.3 grams of methamphetamine was found in a small zip lock bag inside a small zip bag containing deal bags. This item along with the electronic scales was located hidden underneath the handbrake cover.
Arrest and Interview
18 You were discharged from the Royal Melbourne Hospital on 9 July 2020. You handed yourself into police and were interviewed. You provided a no comment response to questions, however you provided your telephone number as 0402 459 869. You were remanded in custody.
19 Your mobile phone was searched. The following relevant text messages were located:
· On 25 June 2020 you were asked: “how much for a ball”, to which you responded “1200”.
· On 28 June 2020 you forwarded a text to Cindal Amery, “ipping my shit I’m now fucked when the cops get the warrant. It’s kira’s home she and anyone else is allowed in it there was no crime inside the house.”
20 You are the respondent in a Personal Safety Intervention Order. As a result you are prohibited from possessing a firearm.
21 The facts in this case are very serious and disturbing.
22 As has been pointed out by your counsel, there are however some mitigating factors. You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial. Further, I take it into account in your favour that you intimated your intention to plead guilty to these charges at the earliest opportunity.
Remorse
23
Your counsel submitted that you are ashamed about your actions and, in particular, to the consequences to your family. You acknowledged to
Mr Cummins the complete unacceptability of having a loaded firearm in any proximity to the children.[1]
[1] Exhibit 1, [51].
24 The prosecution submits that there is limited if any evidence of remorse beyond the plea of guilty itself and submits that the continuing obfuscation of the reasons for possession of the firearms is indicative of a lack of remorse.
25 In the circumstances I accept that your plea indicates some remorse for your actions.
Personal circumstances
26 I have been told something of your personal history and your circumstances. You were born in Auckland, New Zealand on 6 December 1987 and are 33 years old. At the time of the offence you were 32 years old.
27
Your mother Linda Ivory is a lawyer who works for the government.
Your father, Thomas Lavery, is the general manager of a large housing commission maintenance company in New Zealand. Your parents separated when you were three or four years old and you were the only child of that relationship. Your mother had a daughter prior to the relationship who was seven years old when you were born. She lived with you and with her own father at times. Your father had two more sons who are now 16 and 17 years old. Your father remains in a stable relationship with the mother of your
half-brothers. Neither of your parents have had any trouble with the law or any issue with alcohol, drugs or gambling.
28 Your mother says that you were a contented, social boy, happiest with your family, outdoors and being active. When your parents separated, you resided amicably between them. Your parents remain on good terms and are both highly supportive of you.
Education and employment
29 You were educated in New Zealand. You attended primary school at Epsom Normal Primary, then secondary school at Auckland Grammar School. Whilst not overly academic, you progressed well enough in school. You were very good at sport and excelled in soccer. You represented Auckland and travelled around New Zealand. You played out of your age group and top grade in your club.
30 You left school, having completed the equivalent of year ten at the age of sixteen. You were gainfully employed in New Zealand at a timberyard from 2004 to 2005 when you were sixteen to seventeen years old; as a panel beater in the automotive industry from 2005 to 2007 when you were seventeen to nineteen years old and as a bricklayer from 2007 to 2008 when you were nineteen to twenty years old.
31 Upon your relocation to Melbourne in 2008, you continued to be fully employed up until last year. You worked two jobs as a tyre fitter during the week and a bricklayer on weekends from 2008 to 2017 from the age of twenty until thirty. You worked for Damorange Refrigerated Transport (DRT), an interstate transport company as a truck tyre fitter and later as a truck driver from 2017 until 2019 when you were thirty to thirty one years old. You were casually employed as a bricklayer from 2019 until 2020 when you were thirty one to thirty two years old.
Relationships and drug use
32 When you turned twenty in 2007, your mother bought you a ticket to visit your grandparents in Melbourne. You determined to relocate permanently, finding full time work within ten days. Your maternal grandparents lived in South Melbourne and you stayed with them.
33
You first experimented with recreational drugs not long before leaving
New Zealand. You formed a relationship with Kristen Dwyer within the first six months of arriving in Melbourne. The stresses of the relationship led to your using an increasing amount of methamphetamine.
34
You separated at a time when Ms Dwyer was pregnant. She told you she intended terminating the pregnancy. A mutual friend later told you that
Ms Dwyer had given birth to a daughter, Isabelle, on 9 July 2011. You sought to have contact with your daughter. Consistent contact proved difficult with
Ms Dwyer allowing and then denying contact.
35 Your drug use continued until 2014. You subsequently commenced a relationship with Ms Kyralee Amery. Ms Amery had no prior convictions and has never been a drug user. You agreed to withdraw from the drug lifestyle you were leading. Ms Amery became pregnant and your daughter, Alexis, was born in April 2015.
36
You settled down and were hardworking and a dedicated family man.
You were trying to save money to build a family home.
37
In 2017 you began work as a truck tyre fitter at DRT in Werribee South.
The tyre fitting work was very physical and involved a lot of heavy lifting.
You loved your job.
38 On 10 January 2019 you suffered a workplace injury to your left shoulder as you were changing a tyre.[2] You were unable to work and were at home on Work Cover for a number of months. You returned to work on modified duties. You obtained a heavy rigid licence and commenced driving locally. Your next goal was to upgrade to a heavy combination licence and begin interstate runs.
[2] Exhibit 6.
39 In 2019 you obtained your truck licence. The land you had purchased was due to be titled and you could commence building, you got a new puppy and Ms Amery fell pregnant for the second time. You located your former partner Ms Dwyer and commenced visits with your daughter Isabelle.
40 Ms Dwyer subsequently withdrew from arrangements so you were unable to have contact with Isabelle. In September 2019 you had a dispute with a man at work. The dispute amounted to shouting at each other and there was no physical contact between you. Following the dispute, your boss told you that the employer did not want further drama and had determined to lay off both of you.
41 On 23 September 2019 this man made a complaint to the police alleging that you had threatened to kill him during the work dispute. An interim intervention order was issued. The application was heard in January 2020. Initially you were intent on contesting the matter as you disputed that you had made a threat to kill. Ultimately you agreed to a twelve month order without admission. In June 2020 you were informed by letter from the police that the matter had been thoroughly investigated and there would be no charges arising.[3]
[3] Exhibit 5.
42 You lost your job. This was a significant blow because you loved your job. Without this employment and with the birth of a second baby fast approaching, you and Ms Amery were no longer able to afford a mortgage and had to withdraw from your land contract.
43 In November 2019 Ms Amery gave birth prematurely and your son Dallas was born with pneumonia. Dallas was in the Neonatal Intensive Care Unit for three weeks. This was a very stressful and difficult period.
44 You tried to keep going. You continued to do bricklaying work and did work experience with a heavy haulage company. By the time the 12 months was up in order to upgrade your licence, the coronavirus had hit and testing had been cancelled.
Medical treatment in custody
45 You suffered a serious injury to your right foot on 27 June 2020. You were admitted to the Royal Melbourne Hospital where you underwent a number of surgeries. Metal fragments were removed from your right foot. You had received a skin graft over muscle which had been exposed in your foot.[4]
[4] Exhibit 7.
46 A discharge plan was made, and you were released on the basis that you kept your foot elevated, your wound dry and had available to you a shower stool and walking stick. The plan also involved the prescription of pain killers and attending regular appointments including for wound dressing changes, wound and skin graft examination by the plastics specialist and physiotherapy.
47 You were placed in the Melbourne Custody Centre and transferred to the Melbourne Assessment Prison (MAP) on the following day. You did not receive antibiotics or pain relief until the second night following your arrest. During the entire time you were at the MAP, you were unable to keep your foot elevated although you asked for extra pillows in order to do so. You were permitted to shower but were not given a shower stool. Your skin graft became wet as no waterproofing material was supplied.
48
On the third day, 11 July 2020, your dressing was changed by a nurse.
You had a fall the next day which caused your wound to reopen and it became infected. Your foot began changing colour. You did not receive regular painkillers or antibiotics. You were not able to have an appointment with the plastics specialist to examine the wound and skin graft. Ultimately you were taken to hospital and your wound began to improve. You are concerned that you have not received appropriate physiotherapy and that you have lost function in your foot that you otherwise might have regained.
You have only received one session of physiotherapy. You are concerned about the physical consequences because of the injury to your foot because of your occupation as a bricklayer.
49 I have had regard to the fact that you have suffered and continue to suffer physical pain and suffering as a result of being shot. I have had regard to the medical treatment of your injury in custody. I take these matters into account in sentencing you.
The offending
50 You instructed your counsel that you were out the front of the house when you were shot. It was dark and you are unable to say who it was that shot you. You did not have a gun with you at the time this occurred. You instructed your counsel that whilst you accept that the loaded gun was found on the couch in the children’s playroom, you said that you did not put it there and you do not know how it got there. Your counsel submitted that whilst the gun was loaded, it was not immediately able to fire. The gun required locking and the safety mechanism to be taken off before it was capable of firing.
51 The second firearm located was disassembled and hidden in a ceiling cavity.
52 In terms of possession of the gun, you told Mr Cummins that you had developed a fascination with firearms and ammunition during your decline into drug use.
53 The prosecution submits that these are two sawn-off shot guns. Both of them are capable of being fired. One of which was on the couch and the other dismantled. The only explanation from the defence is that you developed an interest in firearms. The prosecution submits that there is no explanation as to why you were in possession of the guns.
Trafficking in a drug of dependence
54 Your counsel submitted that Charge 2 relates to a single charge of trafficking on 27 June 2020 when 5.3 grams of methylamphetamine was found in a car belonging to an associate. You instructed your counsel that the drugs were in your possession, both for use by you and for sale. Your counsel submitted that the amount is at the lower end of the scale of trafficking cases.
55 However in that car police also located digital scales, a black zip-up pouch containing multiple deal bags and miscellaneous paperwork in names of people other than you.
56
You have admitted before me to prior convictions. There are 17 such convictions involving four court appearances between 2013 and 2015.
In 2013 you were sentenced to a Community Correction Order (CCO) following driving related offending. In September 2014 you appeared for a breach of this CCO because of further driving and property related offences. The original CCO was essentially extended and you were sentenced to a further CCO for the new offending. In 2015 you were sentenced in relation to the charges of possess controlled weapon without excuse, possess cartridge ammunition without licence or permit, possess drug of dependence, possess diazepam, deal property suspected proceed of crime and use unregistered motor vehicle - highway. The nature of the convictions for possess controlled weapon without excuse, possess cartridge ammunition without licence or permit and possess drug of dependence are such that they are highly relevant to my task of sentencing you today.
57
A report dated 8 October 2020 by Jeffrey Cummins[5] has been tendered.
Mr Cummins expressed some concern that your ability to mentally cope will deteriorate the longer you spend in custody.
[5] Exhibit 1.
58
I take into account, too, the other material that has been put before me. I refer to the reference dated 25 November 2020 by Kyralee Amery,[6] the reference dated 27 November 2020 by Linda Ivory[7] and the offer of employment dated
5 June 2020 by Joshua Lim.[8]
[6] Exhibit 2.
[7] Exhibit 3.
[8] Exhibit 4.
Rehabilitation
59 You are employed as a billet in the isolation area where you are responsible for cleaning the officers’ area. You have not had any trouble with prisoners or prison staff since you entered custody.
60 You have previously successfully withdrawn yourself from methamphetamine and remained drug free for a significant period between 2014 and late 2019. Following the events surrounding the offending you have again withdrawn from methamphetamine.
61 You have been referred to a clinician since you have been in custody. The clinician assisted you to obtain access to the “Ice & Me” course and you obtained a Certificate of Completion dated 3 September 2020.[9] You have also participated in one on one counselling with him in order to assess you for further programs. You have been assessed as suitable for a number of further programs which have been unavailable as a result of the coronavirus restrictions. You also obtained negative urine screens on 4, 18 and 24 August and 20 November 2020.[10]
[9] Exhibit 9.
[10] Exhibit 10.
62
You are of the view that your experience in custody has been positive.
You are healthier than you have been in a long time and are determined that you will never again find yourself in such a position. You indicated that having put in gaol has been the best thing for you. The experience of having been shot and then being separated from your family has been enough to scare you straight.
63
You have displayed a consistently strong work ethic. You have the continued support of your partner, your parents and grandparents. Further support is available from Mr Cummins when you are released from custody. You and Ms Amery are engaged and will be married after you are released from custody. You have spoken about moving interstate for a fresh start.
You have some good friends located in Queensland. You are confident that they would assist you in obtaining employment.
64 Having considered the whole of the evidence, in my view your prospects for rehabilitation remain guarded and are dependent on your ability to remain drug free when you are released from custody. Your prospects for rehabilitation will also depend on your willingness to engage in drug rehabilitation programs and psychological counselling.
The COVID-19 pandemic
65
The defence submits that your remand in a period of COVID-19 confinement has placed a further burden on you. You were placed in a period of complete lockdown for twenty-two days close to the commencement of your incarceration. For the last fourteen of those days you were not permitted to leave your cell and for six of those days you were not permitted to make any telephone calls. The restrictions have substantially limited your ability to move about within the prison, even when you have not been in strict isolation.
You have lived with the daily anxiety associated with the consequences of the virus entering the prison system especially because you are susceptible to infection. There are restrictions on the rehabilitative programs available within the prison.
66 You have not seen your partner or your two young children in person for a period of five months since your arrest . You have video calls with them two to three times a week. You have only recently been able to arrange video calls to your father in New Zealand, as the expense of overseas telephone calls has been prohibitive. You have not been able to speak to your sister. Your mother and grandparents congregate in the one location on Sundays and you speak to them once a week.
67 In Glen Brown (aka James Davis) v The Queen[11] the Court of Appeal (Priest and Weinberg JJA) accepted that the COVID-19 pandemic is 'causing additional stress for prisoners and their families'. The impact of the COVID-19 pandemic is a matter I take into account in your favour in mitigation of sentence.
[11] [2020] VSCA 60, [48].
Possibility of deportation
68 You are a New Zealand citizen and have not yet taken Australian citizenship. Your counsel submitted that despite your having lived in Australia since the age of 20 and having settled having a family here, you will be at risk of being deported back to New Zealand if you are sentenced to a term of imprisonment of twelve months or more. This possibility causes you and your family deep distress.
69 In Guden v R (Guden)[12] the Court of Appeal stated:
"[T]he fact that an offender will serve his/her term of imprisonment in expectation of being deported following release may well mean that the burden of imprisonment will be greater for that person than for someone who faces no such risk. Moreover, we respectfully agree with the view expressed by the New South Wales Court of Criminal Appeal in Kwon[13] that, in an appropriate case, it will be proper to take into account the fact that a sentence of imprisonment will result in the offender losing the opportunity of settling permanently in Australia. Taking a practical approach, as the court there did, this may well be viewed as a serious 'punishing consequence' of the offending."
[12] (2010) 28 VR 288,[27].
[13] [2004] NSWCCA 456
70 The Court made it clear that an offender bears the burden of establishing that the prospect of deportation is more than a speculative possibility before it can be taken into account because:
"[T]he sentencing court cannot be asked to speculate. If defence counsel on a plea in mitigation can say no more than a term of imprisonment of more than 12 months will, upon its expiry, enliven the power of the Minister for Immigration either to revoke an existing visa or to decline to renew one, then deportation may properly be viewed…as 'a completely speculative possibility'.”[14]
[14]Guden, [28].
71 The Migration Act 1958 (Cth) (Migration Act) has been amended since Guden was decided. Relevantly, s.501(3A) has been inserted into the Migration Act. That section provides;
"The Minister must cancel a visa that has been granted to a person if:
(a) The minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph 6(a)(substantial criminal record), on the basis of paragraph 7(1)(a),(b) or (c);…
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory."
72 A person does not pass the character test if that person has a "substantial criminal record". Section 501(7) (c) of the Migration Act provides that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
73 In DPP v Zhuang[15] the Court of Appeal stated that the amendment to the Migration Act by the insertion of s501(3A)[16] requires the relevant minister to cancel a visa if the visa holder has been sentenced to a term of imprisonment of 12 months or more, unless the Minister is satisfied there is a reason to revoke the cancellation.[17]
[15] [2015] VSCA 96, [54].
[16] With effect from 11 December 2014.
[17]Migration Act s501CA.
74 In the circumstances it is possible that during the term of your imprisonment you have faced and will face the possibility that you might be deported upon release from custody. I accept that this possibility is likely to make your experience of imprisonment more onerous for you than for someone who faces no such risk and I consider that this is a relevant factor in sentencing you.[18]
[18]DPP v Jensen [2019] VSC 327, [52].
Current sentencing practices
75 I am required to take into account current sentencing practices in fixing your sentence. Both the prosecution and the defence referred to Djemal v The Queen (Djemal),[19] The Queen v Afacan,[20] DPP v Graoroski,[21] Haddara v The Queen,[22]R v Barca,[23]Powell v The Queen (Powell)[24], DPP v Basic, [25]DPP v El Hage Hassan,[26] and DPP v Fleiner (Fleiner). [27]
[19] [2020] VSCA 25.
[20] [2015] VSC 755.
[21] [2018] VSCA 332.
[22] [2015] VSCA 158.
[23] [2007] VSCA 167.
[24] [2015] VSCA 93.
[25] [2017] VSCA 376.
[26] [2018] VCC 771.
[27] [2010] VSCA 143.
76 The defence referred to Powell. In that case the Court of Appeal resentenced the appellant to 15 months' imprisonment for the firearms offence. The facts in that case are different from the facts in this case. The handgun in that case was not functional and the appellant did not possess ammunition for either that gun or the shotgun. The appellant had no previous convictions for firearm offences. Although the appellant was a prohibited person by virtue of an intervention order, the Court of Appeal considered that the offending in Powell was of a gravity, scale and scope that went beyond what would have made a CCO appropriate, even if combined with a term of imprisonment of the length the appellant had already served.
77 I have considered the cases which have been referred to and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed, they are from one another.
78 As well as those matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. I am called upon by the Sentencing Act 1991 (Sentencing Act) to manifest the community's denunciation of your conduct and generally to impose a just punishment.
Submissions on sentence
79 Your counsel submitted that the Court should sentence you to a period of imprisonment of less than 12 months and in addition impose a Community Correction Order for the following reasons:
· This is your first time in custody;
· You have never received any drug counselling. Your final Community Correction Order included an order for assessment for treatment in relation to drug addiction, however no such treatment was mandated. Your counsel submitted that this was unfortunate because the treatment would have provided you with the tools to avoid relapse during periods of stress in your life. Courses in relation to drug addiction would be available as part of a community correction order or through mandated counselling sessions, such as with Mr Cummins;
· The limited time (one day) over which you offended;
· You were a prohibited person as a result of an unsubstantiated claim made by a co-worker. It was not related to previous firearm offending or having served a period of time in custody;
· It cannot be found that you were responsible for leaving the shotgun on the couch;
· The fact of your injury and subsequent treatment in custody;
· The circumstances of isolation that you have endured in custody;
· The time you have already served in custody and the steps you have taken towards rehabilitation;
· The imposition of a CCO in addition to a prison sentence would serve both a punitive and therapeutic purpose. It would satisfy the protective provisions of the legislation, the requirements of deterrence, and reflect the various mitigatory matters raised on your behalf. Such a sentence would enable the best prospects for your continued rehabilitation, which is in the best interests of both you and the community.
80 The prosecutor advised that his sentencing instructions were that a CCO with a term of imprisonment was not within range and that a term of imprisonment with a non-parole period should be imposed.
81 This is a serious example of possession of a trafficable quantity of firearms having regard to the type of firearms, the position they were in, the fact that one sawn off shot gun was loaded and that the weapon found in the ceiling cavity was a disassembled shotgun. You also pleaded guilty to the possession of both shotgun cartridges and a knuckleduster. You admit that you were both using drugs and selling them. You have prior convictions for possession of a controlled weapon without excuse and possession of cartridge ammunition during the period of your significant drug use.
82 In Djemal the Court of Appeal stated:
As explained in DPP v Fleiner, the offence of possession of a trafficable quantity of unregistered firearms is based upon s.7C of the Firearms Act 1996. The purposes of that Act are to give effect to the principle that the possession of firearms is conditional on the need to ensure public safety and peace by establishing appropriate systems for licensing them, and for the regulation of their possession, carriage and use, for dealing in them and acquiring and disposing of them, and for their registration and secure storage.
Given the protective purpose of the provision, the risks that attend the accumulation of weapons and the difficulty of detection, general deterrence was also important to the firearms offences and especially to Charge 6.[28]
[28] [23]-[24].
83 In my view this is serious offending. I have considered s.5(4C) of the Sentencing Act. Having considered the whole of the evidence and the submissions made by counsel, a term of actual imprisonment is required. The purpose or purposes for which the sentence is imposed cannot be achieved by imprisonment to be followed by the imposition of a community correction order, to which one or more of the conditions referred to in s.48F to J are attached. The imposition of a community correction order in this case would not give sufficient effect to the purposes of general and specific deterrence, the protection of members of the community from you, the community's denunciation of your conduct and the need to impose a just punishment.
84 In paragraph 140 of Boulton v The Queen [29], the Court of Appeal stated:
There will, of course, be cases where the sentencing court concludes, after engaging in the deliberation now required by s.5(4C), that certain sentencing purposes – typically, just punishment, denunciation and/or deterrence – cannot be sufficiently served by the making of a CCO, even with onerous conditions. Consistently with the principle of parsimony, the court would then impose the shortest term of imprisonment consistent with the achievement of those purposes.
s
[29] [2014] VSCA 342, [140].
85 In all the circumstances I have no alternative to the imposition of custodial sentences. I propose to record convictions on all charges and sentence you as follows:
Charge 1 –possess a trafficable quantity of firearms- to a term of imprisonment of two years.
Charge 2 –trafficking in a drug of dependence- to a term of imprisonment of twelve months.
Charge 3 – possess a drug of dependence (namely Nandrolone and Testosterone) - to a term of imprisonment of one month.
Summary Charge 5 – possession of cartridge ammunition without a licence -to a term of imprisonment of two months.
Summary Charge 7 – possession of controlled weapon – to a term of imprisonment of one month.
86 The base sentence is the sentence imposed on Charge 1, possess a trafficable quantity of firearms. I direct that five months of the sentence imposed on Charge 2 and one month of the sentence imposed on summary Charge 5 be served cumulatively on the sentence imposed on Charge 1. That results in a total effective sentence of two years and six months. I direct that you serve a minimum term of 20 months before becoming eligible for parole.
87 As prescribed by s.18(4) of the Sentencing Act, I declare that the period of time you have already spent in custody is 162 days. I direct that such be noted in the records of the court.
88 I order that the property referred to in the schedule of the disposal order (the property), which I have signed this day, be forfeited to the Minister. I further direct that the property be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings and then destroyed.
89 Lastly I order that property referred to in the schedule of the forfeiture order which I have signed this day be forfeited to the Minister.
90
Section 6AAA of the Sentencing Act requires me to state the sentence and non-parole period that I would have imposed but for the plea of guilty.
Your plea has saved time, expense and the need for witnesses to give evidence. But for your plea of guilty, I would have sentenced you to a term of imprisonment of thirty two months on Charge 1, eighteen months on Charge 2, forty-five days for Charge 3, three months for Summary Charge 5. I would have directed that nine months of the sentence imposed on Charge 2 and two months of the sentence imposed on Summary Charge 5 be served cumulatively on each other and on the sentence imposed on Charge 1, making a total effective sentence of forty-three months. I would have directed that you serve a period of twenty nine months before being eligible for parole.
91 Now does that take care of all matters, Mr Pica?
92 MR PICKERING: Yes, Your Honour.
93 MR PICA: Yes, Your Honour.
94 HER HONOUR: Yes, thank you.
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