Director of Public Prosecutions v Flower
[2018] VCC 2274
•4 December 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 18-01819
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICHARD FLOWER |
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| JUDGE: | HIS HONOUR JUDGE WRAIGHT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 November 2018 |
| DATE OF SENTENCE: | 4 December 2018 |
| CASE MAY BE CITED AS: | DPP v Flower |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 2274 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW - SENTENCE
Catchwords: Guilty plea – two charges of being a prohibited person in possession of a firearm – one charge of being a prohibited person in possession of a silencer – two charges of theft – two charges of handling stolen goods – seven related summary charges – relevant prior criminal offending – whether Verdins principles apply
Legislation Cited: Crimes Act 1958, Firearms Act 1996, Road Safety Act 1986, Control of Weapons Act 1990, Bail Act 1977, Sentencing Act 1991
Cases Cited: DPP v Berichon (2013) 40 VR 490, The Queen v Henderson [2009] VSCA 136
Sentence: Total effective sentence 5 years and 2 months imprisonment, 3 years and 9 months non-parole period---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms P Thorpe | OPP |
| For the Accused | Mr L Dean | Slades & Parsons |
Pages 1 - 13
HIS HONOUR:
Introduction
Richard Flower, you have pleaded guilty to the following charges:
·Two charges of being a prohibited person in possession of a firearm contrary to s 5 of the Firearms Act 1996, which carries a maximum penalty of 10 years imprisonment on each charge (Charges 1 and 5);
·One charge of being a prohibited person in possession of a silencer contrary to s 5 of the Firearms Act 1996, which carries a maximum penalty of 8 years imprisonment (Charge 2);
·Two charges of theft contrary to s 74 of the Crimes Act 1958 which carries a maximum penalty of 10 years imprisonment on each charge (Charges 3 and 7); and
·Two charges of handling stolen goods contrary to s 88 of the Crimes Act 1958 which carries a maximum penalty of 15 years imprisonment on each charge (Charges 4 and 6).
You have also pleaded guilty to seven related summary charges:
·Charge 15 – possession of cartridge ammunition contrary to s 5(2) of the Firearms Act 1996, which carries a maximum penalty of 40 penalty units;
·Charge 18 – unlicensed driving contrary to s 18(1)(a) of the Road Safety Act 1986, which carries a maximum penalty of 3 months imprisonment or 25 penalty units;
·Charges 29 and 41 – possessing a prohibited weapon contrary to s 5AA of the Control of Weapons Act 1990 which carries a maximum penalty of 2 years imprisonment or 240 penalty units;
·Charge 30 – possessing a controlled weapon contrary to s 6(1) of the Control of Weapons Act 1990 which carries a maximum penalty of 1 year imprisonment or 120 penalty units;
·Charge 31 – committing an indictable offence while on bail contrary to s 30B of the Bail Act 1977 which carries a maximum penalty of 3 months imprisonment or 30 penalty units; and
·Charge 32 – failing to appear in accordance with an undertaking of bail contrary to s 30(1) of the Bail Act 1977 which carries a maximum penalty of 2 years imprisonment.
You have also admitted your prior criminal record.
Circumstances of the offending
At the time of this incident you did not hold a driver's licence or a firearm’s licence. You were also a ‘prohibited person’ within the meaning of the Firearms Act 1996.
On 16 May 2018, you drove a stolen white Toyota Hilux along Hudson Circuit, Meadow Heights with Berhat Unal seated in the passenger seat. The vehicle was stolen from Brian Loughnane between 6 April and 9 April 2018 who had rented it from Budget Rentals (Charge 3 - theft and Summary Charge 18 - unlicensed driving).
The vehicle also had stolen registration plates fixed to it which were stolen on 26 April 2018 from a vehicle owned by the Hume Collision Centre at Campbellfield (Charge 4 - handling stolen goods).
At approximately 4.21pm, you were observed by police officers First Constable Archdale and Constable Smith to begin to turn from Hudson Circuit into Malmsbury Drive, Meadow Heights.
The police officers performed a check of the registration plates and discovered that they were stolen. The police officers drove in front of your car preventing you from completing the turn into Malmsbury Drive.
Police officers approached the car and told you and Unal to get out of the car and sit on the side of the road. You and Unal were both arrested. You told First Constable Archdale that there were a lot of rifles in the car, that you were on bail, and that you had a Court hearing listed for that day. Detective Senior Constable Matthew Wilson-Hawe attended to assist with the incident and you told him that the firearms were ‘big bangers’ and that they were stolen.
You gave First Constable Archdale a key and told him that it was the key to the safe located in the back of the utility vehicle and that some of the firearms were located in the safe.
Other police officers attended to assist with the search of the vehicle including Senior Constable Frances Sheehan. You assisted Senior Constable Sheehan to open the safe. The police officer observed that there were a number of unloaded firearms contained within the safe (Charge 1 - prohibited person in possession of a firearm and Summary Charge 31 - commit indictable offence whilst on bail).
You told Detective Senior Constable Wilson-Hawe that you had been in possession of the firearms for years and stated: ‘I was moving em because the bloke's moving’ and that you were taking them to an address in Craigieburn. You stated that you were not going to sell the firearms.
The vehicle was subsequently searched by police and the following items were found:
·a 1856 Lithgow SHT LE3 .830 rifle;
·a 1901 Remington Model 700 rifle;
·a 1903 Marlin Longarm rifle;
·a 1907 Marlin Longarm rifle;
·a 1911 Savage Longarm rifle;
·a 1917 Savage Longarm rifle;
·a 1920 Tikka T3 rifle;
·a 1924 CZ527 rifle;
·a 1927 Winchester rifle;
·a 1933 Sako Model 85 rifle;
·a 1935 Marlin Longarm rifle;
·a 1938 Norica rifle;
·a 1941 Harrington and Richardson flare gun (adapted for firearm ammunition);
·a silencer (Charge 2 - prohibited person in possession of a silencer);
·a machete, a sword, multiple laser pointers, multiple prohibited knives (Summary Charge 29 - possess prohibited weapon without exemption);
·a bayonet (Charge 30 - possess controlled weapon);
·a significant quantity of ammunition including; 12 gauge shotgun shells, Remington 303 caliber rounds and Winchester .223 caliber rounds (Summary Charge 15 - possess cartridge ammunition);
·multiple pairs of gloves; and
·a skull-face mask.
You were taken by police officers to the Broadmeadows Police Station where you were interviewed at 6.46pm by Detective Senior Constable Vaughan.
On 17 May 2018 at approximately 1.35am police officers executed a search warrant at your address in Coolaroo. Your mother was present at this address and advised police that you lived in a caravan at the rear of the house. Police officers searched the caravan and the following items were found:
·a Marlin Longarm, serial number 045322I6 (Charge 5 - prohibited person in possession of a firearm);
·a Baikal shotgun, serial number CI6511 (also part of Charge 5);
·an electronic impulse device (Summary Charge 41 - possess prohibited weapon without exemption);
·a Winchester firearm barrel;
·Victorian registration plates SRI 926 (Charge 6 - handling stolen goods); and
·a Harley Davidson Motorcycle with the VIN removed displaying false registration of ILIID (Charge 7 – theft).
The registration plates SRI 926 were stolen between 25 March 2018 and 26 March 2018 from a location in Williamstown and the motorcycle was stolen on 5 May 2017 from Eaglemont. It is not alleged that you actually stole the motorcycle rather that you had assumed the rights of the owner.
Of the 15 firearms that were seized by police, 14 of the firearms were capable of being fired.
All but two of the firearms located in your vehicle and caravan were found to be stolen during various burglaries as detailed in the prosecution opening.
Finally, in relation to the summary charge of failing to answer bail, on 27 April 2018, you were bailed to appear at the Heidelberg Magistrates' Court on 16 May 2018 and you failed to appear at court on that day in accordance with this undertaking (Summary Charge 32 - fail to answer bail).
Objective seriousness of the offending
It is self-evident that the possession of 15 firearms together with ammunition, other weapons including multiple prohibited knives and a silencer is of significant concern. It is also a concern that all except two of the firearms that were located in your vehicle and caravan were found to have been stolen during burglaries. Further, the vehicle you were driving was stolen and was fitted with false number plates.
While the firearms that were found in your vehicle were in a locked safe and not loaded, they were found together with such items as ammunition (some of which was capable of being used in the weapons in the car), a silencer, multiple prohibited knives, a skull-face mask and multiple pairs of gloves. The firearms found in your caravan were not secured in any way.
It is also concerning that on your own admission you had used ice for many years on a daily basis up until the day you were arrested on these charges.
Both Ms Thorpe who appeared on behalf of the Director of Public Prosecutions and Mr Dean who appeared on your behalf made reference to the decision of DPP v Berichon[1] and the two broad categories of seriousness that are discussed by Redlich JA in relation to a being a prohibited person in possession of a firearm. The first category relates to cases where it is not open to conclude that the possession of the firearms is associated with ongoing criminal activity. The secondary category of cases described are those where the evidence enables a conclusion that the possession is for the purpose of criminal activity or a specific criminal purpose. His Honour also noted that in determining the seriousness of the offence 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.[2]
[1] (2013) 40 VR 490.
[2] Ibid at [26].
While the evidence does not allow the conclusion that the possession of the weapons was for a specific criminal purpose, in my view in all the circumstances, including your prior criminal history, the number of weapons that were found, the fact that the firearms were obtained as a result of burglaries, that you were driving a stolen car and the fact that there were other items found with the rifles such as a silencer, knives, a face mask and numerous pairs of gloves, allows a conclusion that the possession of the firearms was for the purpose of criminal activity. As such I do not accept your explanation that you were collecting guns in order to keep them out of the hands of other people.
Further, in my view the comments of Priest JA in relation to the applicant in Berichon are apposite in your case:
[T]he applicant had a very serious and disturbing prior history with respect to the use of firearms. Although, of course, he is not to be punished again for the prior offences, the applicant's prior history is relevant as an indicator of his moral culpability, his prospects of rehabilitation, his dangerous propensities and the communities need for protection, and the real importance of specific deterrence as an animating factor in the sentencing process.[3]
[3] Ibid at [44].
The comments of Warren CJ in The Queen v Henderson[4] are also relevant to the circumstances presented here. Her Honour noted:
For the applicant, it was submitted to this court that there was no evidence of sale or supply of the firearms or the stolen goods. However, the potential harm to be rendered by the array of firearms should not be underestimated. They were capable of rendering dreadful harm in the community. The offending involving the firearms was a particularly bad example of that type. The judge at the sentence observed the firearms were all in working order and all with ammunition. The offending was not out of character for the applicant with his previous offending as to offences for possession of firearms save as to the number of weapons.
In my view, the nature and number of weapons warrant important recognition as to general deterrence. Specific deterrence might be expected to be of lesser significance for a man of the age and experience of the applicant. However, the applicant has not seized previous opportunities to rehabilitate himself. Instead, when his criminal history is reviewed, notwithstanding his age and experience, specific deterrence is called for. He was also on bail for the Queensland offence at the time of the offending.
[4] [2009] VSCA 136 at [214]-[215].
Given your relevant prior history, including a prior offence of being a prohibited person in possession of a firearm and other prior firearm and weapons charges, in my view your offending on this occasion in all the circumstances can only be assessed as very serious.
Personal circumstances
You are 47 years of age. You are the middle child of three. Your older brother suicided in 1993 at the age of 26. You have a younger sister. Your early life was spent in a household where your parents were separated and your father was intermittently present. As such, you were essentially raised by your mother until the age of 11 or 12.
When you were about 11 or 12, your mother sought that she be released from custody of you on the grounds of ‘irreconcilable differences’. You then became a ward of the state.
From the ages of 12 to 16 you were primarily housed in institutionalised care. You resided at St Vincent's Boys Home for 2 years and 11 months. You were released at age 15 for nine days, before returning to custody at Baltara Reception Centre and Turana Reception Centre for nine months. You witnessed your cellmate at Turana commit suicide when he was 15 years old.
You attended Thornbury Primary School until year 6, followed by brief periods at Preston Technical College and Glenroy Technical College. You ceased education roughly three months into year 7 due to being sentenced to a term of imprisonment. You have not undertaken any further education since. Your reading and writing skills have not properly developed and you continue to struggle with these tasks.
Despite the difficulties you had in your younger years, you now have a close relationship with your mother and sister and both were in court supporting you at the plea.
Your first serious relationship commenced upon your release from Turana. You have two children from this relationship who are now aged 30 and 26 respectively. You have not had contact with these children for many years.
Your next serious relationship commenced shortly after your first relationship ended and lasted for 20 years. From this relationship you had two further children, now aged 22 and 20. You maintain contact with these children and they are gainfully employed.
You have had a variety of jobs over the years including driving, demolition work, forklift driving, and other labouring jobs. However you have not worked since 2014.
You have suffered from a number of health difficulties. Approximately two years ago you were diagnosed with Type II diabetes and also suffered a heart attack.
You have over many years struggled with drug use including the use of cannabis and heroin. You have not used these drugs for some time however you reported using methylamphetamine for 16 to 17 years smoking it daily up until the day you were arrested in relation to these matters.
A psychological report was prepared by Pamela Matthews and tendered on the plea. Ms Matthews documents that you have struggled with depression and anxiety for a number of years. While she only saw you for one session, she was provided with historical medical and psychological material which, together with her own assessment of you, enabled her to form the view that you have symptoms consistent with post-traumatic stress disorder. This diagnosis was determined as a result of witnessing the death of your brother as a result of suicide in 1993 and the death of an associate who was shot dead in your presence in 2013.
Three references were tendered on the plea from your sister, your mother and a long-term close friend. Despite acknowledging the many difficulties you have had over the years, they speak of you as a person who is kind in nature and a loving father to your children. Your close friend Melissa Ramsdell, a community services worker, who has known you for some 30 years, documents the difficulties you have had as a result of being in and out of state correctional and juvenile detention facilities since a very young age. She too says that you are kind hearted, genuine and maintain close relationships with your children, mother and sister.
Sentencing considerations
Ms Thorpe submitted that in the circumstances general deterrence, specific deterrence and protection of the community are sentencing considerations that must each carry weight in the sentencing equation. I agree.
As to specific deterrence, you have an extensive criminal history and specifically you have relevant prior criminal offending related to firearms, other weapons and ammunition. In 2012 you were convicted in the Magistrates' Court of being armed with a firearm with criminal intent and unlawful assault. I was provided with a summary of that matter which involved you pointing a loaded sawn off shotgun at your 15 year old son. You threatened to kill yourself and your son on that occasion. Also in relation to that matter you were in possession of a machete which you held at the throat of your then partner.
In 2014, you were sentenced by His Honour Judge Smallwood for being a prohibited person in possession of a firearm and possession of cartridge ammunition. I was provided with the sentencing remarks of His Honour Judge Smallwood and I have read them and taken them into account. On that occasion police searched your car and found a sawn off shotgun, loaded with two ammunition cartridges. In that case, as a result of your prior matter in 2012, His Honour concluded that in that instance general deterrence and specific deterrence were important sentencing considerations.
You now fall to be sentenced again as a prohibited person in possession of a large number of firearms and other weapons. You are also to be sentenced in relation to the theft of the car and the motorcycle and you have a number of dishonesty priors for which you received on occasions, periods of imprisonment. As such, in all the circumstances in my view, specific deterrence must weigh heavily in the sentencing discretion.
Mr Dean submitted that in the psychological report Ms Matthews draws a connection between your post-traumatic stress disorder and the collecting of these weapons. As was discussed at length during the plea, I have difficulty in accepting that conclusion. Ms Matthews states that ‘collection and maintenance of possessions is likely an unconscious expression of his trauma related to his brother and his friend’. There is then a footnote reference which speaks of the relationship between compulsive hoarding and attention deficit/hyperactivity disorder. In that sense I have difficulty in understanding how Ms Matthews makes the connection. Ms Matthews also reports that in interview with her, you demonstrated generally rigid and concrete thinking and there was no indication of formal thought disorder.
As noted, I accept that there is evidence that you have suffered trauma as a result of being exposed to the deaths of your brother and friend however the submission of Mr Dean that there is a connection with the offending that gives rise to Verdins principles in my view is not made out.
Mr Dean also submitted that given your various physical and mental health issues, prison will be more difficult for you. Ms Matthews states that while you are managing in prison, you have not settled and appear visibly agitated and anxious. She concludes that your time in custody presents as being more difficult for you than many others. I accept to that to some degree given your history and the various health issues you suffer, including post-traumatic stress disorder, that prison will be more difficult for you.
I take into account that your plea of guilty which was entered at the committal mention stage is an early plea and I also accept that once stopped by the police, you immediately cooperated to them indicating to them that there were weapons in your car. Your plea of guilty has of course saved court time and has therefore facilitated the course of justice.
As to your prospects of rehabilitation, given the matters already raised, specifically your relevant prior history, in my view your prospects of rehabilitation can only be viewed with caution and as such, I assess your prospects as poor. You are now aged 47 and have a significant, and relevant, prior criminal history. It is up to you to decide to cease being involved in criminal activity of this type. I was told that you have produced clean urine screens in custody and of course, it is self-evident that you must continue to remain drug-free upon your release in order to assist you in moving on with your life away from crime.
You are fortunate that despite your troubled upbringing and involvement in the criminal justice system, you have a mother and sister who support you and understand the difficulties you have faced in your life and it would seem they will be there to assist you on your release from prison.
Sentence
Mr Flower please stand.
Richard Flower, on charge 1, being a prohibited person in possession of a firearm, you are convicted and sentenced to 4 years imprisonment.
On charge 5, being a prohibited person in possession of a firearm, you are convicted and sentenced to 3 years and 6 months imprisonment.
On charge 2, being a prohibited person in possession of a silencer, you are convicted and sentenced to 2 years and 6 months imprisonment.
On charges 3 and 7, the charges of theft, you are convicted and sentenced to 18 months imprisonment on each charge.
On charges 4 and 6, handling stolen goods, you are convicted and sentenced to 6 months imprisonment on each charge.
In relation to summary charge 15, possess cartridge ammunition, you are convicted and fined $500.
In relation to summary charge 18, unlicensed driving, you are convicted and fined $500.
In relation to summary charges 29 and 41, possess a prohibited weapon, you are convicted and sentenced to 3 months imprisonment on each charge.
In relation to summary charge 30, possess a controlled weapon, you are convicted and sentenced to 2 months imprisonment.
In relation to summary charge 31, committing an indictable offence while on bail, you are convicted and sentenced to 1 month imprisonment.
In relation to summary charge 32, fail to appear in accordance with your bail undertaking, you are convicted and sentenced to 3 months imprisonment.
I direct that 6 months of the sentence on charge 2, 3 months of the sentence on charges 3 and 7 and 1 month of the sentence on charges 4 and 6 be cumulative on each other and on the sentence on charge 1 (the base sentence). That makes for a total effective sentence of 5 years and 2 months imprisonment.
The sentence on charge 5 on the indictment and the sentences on the summary charges are to be served concurrently with the other sentences I have imposed. I direct that you serve 3 years and 9 months imprisonment before becoming eligible for parole.
In relation to the charges of theft of the car and the motorcycle (charges 3 and 7) pursuant to s 89(4) of the Sentencing Act 1991 you will be disqualified from obtaining a licence for a period of 12 months.
Pursuant to s 18 of the Sentencing Act 1991, I declare that 202 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of 7 years imprisonment with a non-parole period of 4 years and 6 months.
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