Director of Public Prosecutions v Gahan
[2022] VCC 298
•8 March 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT BENDIGO
CRIMINAL DIVISION
Case No. CR-21-02094
| DIRECTOR OF PUBLIC PROSECTUTIONS |
| v |
| JOSHUA GAHAN |
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JUDGE: | HER HONOUR JUDGE QUIN | |
WHERE HELD: | ||
DATE OF HEARING: | 16 February 2022 | |
DATE OF SENTENCE: | 8 March 2022 | |
CASE MAY BE CITED AS: | DPP v Gahan | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 298 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D. Cordy | OPP |
| For the Defendant | Mr T. Antos | Docherty Legal |
HER HONOUR:
1 Joshua GAHAN you have pleaded guilty to the following offences: Two charges of burglary; three charges of theft; two charges of possessing a firearm in contravention of a Firearms Prohibition Order, three charges of possession of a firearm related item in contravention of an FPO. one charge of criminal damage and one charge of handling stolen goods. The maximum penalty for each of these offences is 10 years, other than for theft of a firearm and handling stolen goods where the maximum penalty is 15 years. Additionally, some of the thefts or Charges 2 and 9 involved stealing a motor car so the provisions of s.89(4) of the Sentencing Act apply and the Court must make an order regarding your licence.
2 At the time of this offending, you had been served with a Firearms Prohibition Order, FPO, by Victoria Police. The FPO prohibited you from acquiring, possessing, carrying or using a firearm or firearm related item from the date of its service to the date of its expiry, 27 September 2030.
3 The circumstances of your offending are set out in the Summary of Prosecution Opening dated
4 28 January 2022, Exhibit A and be summarised as follows:
Strathdale burglary & theft
5 Between 6:00 pm on 6 November and 8:30 am on 7 November 2020, you attended at an address in Strathdale. You moved a sensor light near a shed located at the rear of the property to prevent it from being activated, removed a panel of sheeting from the shed wall and entered the shed as Charge 1, Burglary.
6 Inside the shed was a gun safe that contained four firearms which had a combined value of approximately $20,000. You forced the corner of the safe door, enabling access to the firearms and stole them. That is Charges 3 and 4. The four firearms are as described in paragraphs 5A-D of Exhibit A. Only the Kimber in altered form has been recovered.
7 You also accessed a cupboard and removed a belt containing .303 ammunition, Charge 5 and stole an unregistered motorcycle and helmet, Charge 2.
8 Police attended the Strathdale property and located a cigarette butt at the point of entry to the shed, in proximity to several .303 calibre bullets that had been dropped on the ground. Subsequent analysis of a sample taken from the cigarette butt linked your DNA to the property.
9 On 15 November 2020, the stolen motorcycle was located by police in possession of
10 Corey Roberts, an associate of yours. Also, on Roberts’ phone were photographs of the stolen motorbike, as well as pictures of the four firearms stolen (see pp279-288 of the depositions).
11 On 17 November 2020 police conducted a search at a property in Kangaroo Flat where you were residing in a bungalow. Within the main house police located part of a barrel to the
12 Kimber .22 calibre rifle that had been stolen. It was also apparent that the area where the motorbike had been photographed and a distinctive pillowcase and hat depicted in the photos referred to above, were at or of your property.
13 Further, cell towers used by your phone number indicate that your mobile phone was in the Strathdale area at the time of the incident.
14 When your property was searched again by police on 4 December 2020, a black iPhone was found underneath your bed. Photographs and analysis of the contents of the iPhone located:
a) Images of the 4 stolen firearms laid out on the bed and in other locations inside and outside your bungalow. Metadata indicated that the photos of the firearms were taken on 7, 8 & 9 November 2020, on the iPhone (see pp279-288 of the depositions).
b) Images of the stolen motorbike parked at the corner of the rear of the house at your property taken on 7 November 2020, on the iPhone ;
c) Messages to other parties on Facebook Messenger on 8 November 2020, depicting the stolen motorbike in photos taken at your property with accompanying messages from you ‘Its band (brand) new, only got 2 hours riding on the motor’; and
d) A screen shot from a Facebook group, where Mr. Darius Thomas, the son of victim
15 Mr Chris Thomas, had posted seeking information about the stolen bike.
Wychitella burglary & theft
16 Between 10:50 am and 12:10 pm on 29 November 2020, you drove a white ute and attended a property in Wychitella. You went inside the house which was unoccupied at the time. Burglary. Once inside the house you and the two other offenders located and stole the items listed in paragraph 10 of Exhibit A.
17 You and the two other offenders also accessed a gun safe located inside the premises and stole a Lee Enfield .303 magazine and rifle bolt for a Remington rifle. That is Charge 8.
18 All of the items were placed in the ute and you were observed driving away from the property at fast speed by the owners as they returned to it.
19 Subsequent analysis of the cell towers used by your mobile phone number indicate your mobile phone was in the Wychitella area at the time of this incident. Some of the stolen property items were recovered on 2 December, near a Holden Commodore that had been stolen by you and during the execution of a search warrant at your address on 4 December 2020 (see paragraph 22A, B, C and F of Exhibit A).
Theft of a motor vehicle
20 Between 28 November and 1 December, you attended an address in Wedderburn and stole a Holden commodore sedan which was in the shed. After the theft you damaged the vehicle interior, exterior and engine by removing various parts, including the rear left tyre, the interior computer and stereo, the steering wheel, the rear bumper bar, various engine components and external panels. Some of the parts were located by police when your property was searched on 4 December.
21 Your palm print and shoe prints matching shoes later found at your bungalow on 4 December, were detected on the stolen car. Additionally, near that car, police located personal ID cards and Samsung tablet boxes belonging to victims of the Wychitella offending.
22 On 4 December, you were arrested by police at your address in Kangaroo Flat, along with your partner Renee Gray and co-accused Kevin Grose. I had no other information regarding Mr Grose, other than his matter was proceeding.
23 Police located and photographed firearms and related items inside a black case buried in the garden of the property, the details of which are listed in paragraph 18A-D of Exhibit A. The firearms buried in the rear yard were forensically analysed and your DNA was linked to each of them, other than the small antique reproduction powder pistol, which was not analysed. The staple gun located met the definition of handgun under the Firearms Act.
24 All four seized firearms were capable of being discharged by a ballistics expert, including the pistol.
25 Police also located and photographed other associated ammunition of various types and calibres inside a plastic drum, and a .22 calibre firearm suppressor inside a toolbox within the rear garden. The suppressor meets the statutory definition of a silencer under the Firearms Act.
26 In both the rear garden and a car parked therein, police located items listed in
27 paragraphs 19A-C of Exhibit A, belonging to Bendigo Locksmiths, that had been stolen from two vans belonging to that company on the morning of 4 December.
28 You made a no comment interview and were remanded in custody.
Personal Circumstances
29 I was provided with a report from Warren Simmons, Psychologist, dated 4 February 2022, Exhibit 2 and I take that material into account.
30 The psychological report sets out your upbringing. You are currently 31. You were born in Bendigo and have four siblings. Your parents separated when you were aged about 6 years and your siblings are all as a result of your mother re-partnering. Your upbringing was marred by family violence and difficulties. Your father was physically violent towards you and you witnessed your father stabbing your mother after discovering that she was with another man. Your father spent eight years in jail and you and your siblings were placed in foster care. You were made a ward of the State and were moved into about 3 different foster care related homes and families. Your mother died in the tragic circumstances set out in Mr Simmons' report. When your father was released from custody you returned to live with him. Apart from one of your sisters, you have little contact with your family members.
31 You attended several primary schools in Swan Hill and in other areas though you struggled with literacy. You also attended numerous high schools in Swan Hill, Kerang and Deniliquin districts managing to complete Year 10. You then moved back to Swan Hill and commenced an apprenticeship as a motor mechanic. Yet did not complete the course. You worked as a motor mechanic and tyre fitter for about three years until your employer closed that business. You subsequently obtained numerous qualifications in welding and in related areas.
32 You lost your employment in 2012 due to increased methylamphetamine use and you stole from your employer. You have not worked since that time.
33 When you were aged about 18 you were in a relationship for about four and a half years. You have a 10 year old son, a product of that union and I understand before you were incarcerated you were having weekly contact with him. You have had other more short-term relationships, though you are currently single.
34 You were introduced to amphetamines by your sister’s partner. Your father was a user and did not attempt to stop you from using. Your drug use progressed rapidly to daily usage, using up to half a gram a day. You commenced methylamphetamine around 2010 and your use progressed from weekend use to daily use, using around a point a week.
35 After being released from custody in 2016 for drug firearm and other related offending you almost immediately fell back into drug use with methylamphetamine. You have only had limited treatment for your drug issues prior to this period of custody. I understand you recently commenced the methadone program and other treatment programs in custody to deal with your drug problem.
36 Mr. Simmons opined you have Post Traumatic Stress Disorder, stemming from unresolved issues including the tragic incidents surrounding your mother. You were assessed as having a full-scale IQ of 55; with borderline verbal skills and non-verbal skills. Mr Simmons thought you would benefit from a neuropsychological assessment to explore your deficits and assist you with strategies in managing your daily life.
37 Your counsel indicated and it was also reported to Mr Simmons, that you became involved in this offending as your associates were not a positive influence on you and that your offending related to attempts by you to fund your drug habit. The learned prosecutor challenged that that was motivation, given your level of involvement, the amount of firearms involved, the manner in which the firearms were found and your prior history.
Criminal Record
38 You have a number of prior convictions dating back to October 2012. There are 10 previous court appearances with offending relating to driving, dishonesty, drugs and firearms. You have amassed a significant amount of firearm related offending between 2015 to date. You have had various penalties imposed ranging from fines, Community Correction Orders and terms of imprisonment.
39 In November 2018 you were convicted of firearm and drug offences as well as breaching your parole and sentenced to one year two months' imprisonment with a non-parole period of seven months. This offending commenced about 18 months after you were released from custody. Clearly issues of specific deterrence are relevant, given your very concerning history.
Plea of guilty
40 I take into account your plea of guilty. Although your plea was only forthcoming at a late stage in these proceedings, there is a utilitarian value in it. This is particularly so given the COVID situation and the impact it has had on the court and the administration of justice in this State. Your plea has facilitated the course of justice and is illustrative of your acceptance of responsibility for this offending. I accept your plea is consistent with remorse.
Custody more burdensome
41 As has been authoritatively recognised COVID and the restrictions have made conditions in custody more burdensome. The availability of programs is limited and the movement of prisoners restricted. Other services and visits are reduced. I take the fact that due to the pandemic, conditions in custody are more difficult.
Rehabilitation prospects
42 Your counsel submitted your rehabilitation prospects were fair, given that you had been accepted into Odyssey House. Though that did not proceed as you did not succeed in getting bail
43 (See Exhibit 3) and that you have participated in courses in custody to address your drug issues and commenced the methadone program (see Exhibits 4, 5 and 6).
44 It was submitted your plea of guilty, your troubled history and your recognition that you need to address these unresolved issues were also matters to take into account.
45 However, given your prior history I have significant concern about your future prospects. Your first lengthy period of imprisonment of six months imposed in June 2015, did not deter you from offending and you were convicted of dishonesty and firearm offences at that time. You have continued to
46 re-offend with terms of imprisonment imposed in 2017 and 2018, the latter again with serious offending involving dishonesty and firearms.
Objective seriousness of the offending
47 As to the objective seriousness of this offending, your counsel conceded that this was serious offending, particularly given your prior history;
48 Other features that point to the objective seriousness of this offending are that you have a prior for modification of a firearm 5 April 2017 and you modified the Kimber. It was in an altered state when it was photographed compared to when it was stolen. Three of the firearms from Strathdale have not been recovered. Strathdale and Wychitella were soft targets. Many residents on rural properties have firearms and related items at these relatively isolated properties.
49 The firearms located at your property were capable of being fired and in working order. They were buried, the number of firearms and related items involved in this offending located at your property and stolen from Strathdale.
50 Your counsel properly conceded that a term of imprisonment with a non-parole period was the only appropriate sentence to impose.
51 In offending of this nature there is the potentially dangerous combination of firearms and drug use and a market for firearms only encourages criminal activity. Those who engage in such conduct need to be aware that they will be punished. There is an inherent risk to the community where offenders in possession of firearms also have complex personal and drug issues. Community protection, denunciation and just punishment are also important sentencing considerations in offending of this kind.
52 As noted above specific deterrence is relevant. These must all be balanced against matters personal to you and other matters in mitigation, including your plea of guilty.
53 Given the number of offences, I have considered issues of totality and also considered aspects of double punishment in respect of Charges 3 and 4 relating as they do to the same firearms from Strathdale.
54 In respect of Charge 1, Burglary, you are convicted and sentenced to a term of imprisonment of two years. (Discussion between prosecution and Her Honour) In respect of Charge 2, Theft, you are convicted and sentenced to a term of imprisonment of 12 months. In respect of Charge 3, Theft of a Firearm, you are charged and convicted and sentenced to a term of imprisonment of three years and six months.
55 In respect of Charge 4, Possession of a Firearm in Contravention of an FPO, you are convicted and sentenced to a term of imprisonment of three years. In respect of Charge 5, Possess Firearm Related Item in Contravention of an FPO, you are convicted and sentenced to a term of imprisonment of 12 months.
56 In respect of Charge 6, Burglary, you are convicted and sentenced to a term of imprisonment of two years. In respect of Charge 7, Theft, you are convicted and sentenced to a term of imprisonment of 12 months. In respect of Charge 8, Possessing a Firearm Related Item in Contravention of an FPO, you are convicted and sentenced to a term of imprisonment of 12 months.
57 In respect of Charge 9 you are convicted and sentenced to a term of imprisonment of 12 months. That is for the theft of the motor car. In respect of Charge 10, Criminal Damage, you are convicted and sentenced to a term of imprisonment of six months. In respect of Charge 11, Possession of a Firearm in Contravention of an FPO, you are convicted and sentenced to a term of imprisonment of three years.
58 In respect of Charge 12, Possessing a Firearm Related Item in Contravention of an FPO, you are convicted and sentenced to a term of imprisonment of 12 months. And in respect of Charge 13, Handling Stolen Goods, you are convicted and sentenced to a term of imprisonment of two years.
59 The base sentence is in respect of Charge 3, which is three years six months, 12 months of the sentence imposed on Charge 6, six months of the term imposed on Charge 9 and 12 months of the sentence imposed on Charge 11 will be cumulative, giving a total effective sentence of six years.
60 I set a non-parole period of three years and eight months. In respect of Charges 2 and 9 you are disqualified from obtaining your licence and any licences are cancelled. You are disqualified for a period of two years.
61 Pursuant to s6AAA of the Sentencing Act if you had not pleaded guilty to this matter I would have imposed a sentence of eight years with a non-parole period of six. I will declare 459 days PSD. Is there disposal orders and matters of that nature Mr Cordy?
62 MR CORDY: There are Your Honour, but they haven't been e-lodged yet. I'm hoping Your Honour is happy to have them lodged later today for signature in Chambers.
63 HER HONOUR: Yes that's fine.
64 MR CORDY: Thank you.
65 HER HONOUR: Is there anything else?
66 MR CORDY: No, Your Honour.
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