Director of Public Prosecutions v Gardiner and Hornby

[2023] VCC 1198

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT Melbourne

CRIMINAL DIVISION

CR-22-01540
  CR-22-01541

Indictment No. N10565637

DIRECTOR OF PUBLIC PROSECUTIONS

v

Chea GARDINER
Ross HORNBY

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	2 February 2023, 31 March 2023, 7 July 2023
DATE OF SENTENCE:	12 July 2023
CASE MAY BE CITED AS:	DPP v Gardiner and Hornby
MEDIUM NEUTRAL CITATION:	[2023] VCC 1198

REASONS FOR SENTENCE
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Catchwords: Gardiner - Home invasion, false imprisonment, common law assault, theft of firearms, possession of trafficable quantity of firearms, theft and 3 summary offences : commit indictable offence on bail ,possession of prohibited weapon and possession of ammunition without licence.

Hornby - Home invasion, false imprisonment, theft of firearms, possession of trafficable quantity of firearms x 2, theft, handle stolen goods, possession of drug of dependence and negligently deal with proceeds of crime and 2 summary offences: possession of prohibited weapon and possession of ammunition without licence.

Early guilty plea in pandemic, Worboyes; increased burden arising from Covid. Targeted home invasion to steal guns. Handgun presented by Gardiner. Victim hog tied and mouth taped. Each with relevant criminal history. Gardiner younger 25 years of age at sentence but with lengthier and more serious criminal history than Hornby who is 36. Gardiner on bail and CCO at time

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Fisher	Office of Public Prosecutions
For the Accused	Ms J. Poole (for Gardiner) Ms A. Hancock (for Hornby) Mr C. King (for McPhee at Plea on 2 Feb - sentenced on 3 Feb 2023)	Ajak & Associates Emma Turnbull & Associates RV Legal

HIS HONOUR:

1Chea Gardiner and Ross Hornby, you have pleaded guilty to a variety of criminal offences laid on the indictment filed before me. Some of the charges are laid jointly against each of you. Some are not.

2You Mr Gardiner have pleaded guilty to home invasion, false imprisonment, common law assault, theft of firearms, possession of a trafficable quantity of firearms and theft. There were also 3 summary offences namely committing an indictable offence on bail, possession of a prohibited weapon and possession of ammunition without a licence. You Mr Hornby have pleaded guilty to home invasion, false imprisonment, theft of firearms, 2 charges of possession of a trafficable quantity of firearms, theft, handling stolen goods, possession of a drug of dependence and negligently dealing with the proceeds of crime. You have also pleaded guilty to 2 summary offences namely possession of prohibited weapons and possession of ammunition without a licence.

3You are now 25 years of age Mr Gardiner, with an extensive enough and relevant criminal history. You are older Mr Hornby. You are now 36 years of age and though your history before the courts is not as extensive, dating only from 2015, it is plainly relevant to my task given the nature of your past offending, your lack of response to many court orders and the escalation represented by this offending.

4As you both know, I have dealt already with the other person named on the indictment. That was Liam McPhee. He had no role to play in the home invasion or false imprisonment or many of the other serious offences that you each admit by your plea. The view was taken correctly by all counsel involved in the case that it would be entirely appropriate for me to deal with him following the plea which was conducted in your presence on 2 February of this year. I did just that when I sentenced him to a community corrections order the following day. My sentencing remarks, once revised, were then provided to your counsel on a restricted basis but of course there is no question of parity of sentence arising from the disposition imposed on him, as was conceded by each of your counsel. Further as you know last Friday, you were for the first time joined in the dock by Mr Kindred. He was arraigned on a handful of charges on a separate indictment that had been filed and the matter was briefly opened, and that plea has been adjourned off part heard to a date in November. Mr Kindred likewise does not fall to be sentenced for the home invasion, false imprisonment, theft of the guns or possession of a trafficable quantity of firearms. His charges therefore were very different with a very different factual setting and there is simply no issue of parity arising in either his direction or yours. For that reason, again no-one thought it necessary or appropriate to delay the sentences to be imposed on either of you. I will hear Mr Kindred's plea in November and nothing I say in my reasons about the factual basis of sentencing in your cases will alter the factual basis placed before me in Mr Kindred's case.

5With the exception of the maximum penalty for the theft of the firearms, the maximum penalties are correctly set out in the lengthy written summary and I will not repeat them all. It is worth noting that the home invasion is what is described as a Category 2 offence and it is punishable by a 25 year maximum term of imprisonment.  As to it being a Category 2 offence, no submission has been made that either of you fall under any of the exceptions set out within the Sentencing Act 1991 provisions. That concession was in each case plainly correct and so I will not further discuss those complex legislative provisions. The theft of firearms is a separate offence under the Crimes Act. It has a greater maximum penalty than is applicable to a theft not involving firearms which says something as to the Legislature's attitude to theft involving firearms. The summary specifies the maximum penalty under s74. That is a 10 year maximum, but I am dealing with a 15 year maximum penalty as the offence is laid under s74AA.

6Each of your counsel conceded the seriousness of the offending and the inevitability of a sizeable or substantial prison term requiring the fixing of a non‑parole period. Again, that concession was plainly correct.  

7The agreed summary dated 5 January 2023 was read aloud after arraignment took place on 2 February of this year. That summary was marked as Exhibit A. I will sentence each of you pursuant to the relevant portions of that summary. Now as I have endeavoured to make clear, there were some charges laid only as against one or other of you and of course I must only pass sentence in relation to the charges to which you have pleaded guilty.  As I indicated, the plea for McPhee was completed on 2 February and I sentenced him the next day. Your plea Mr Hornby was pretty much completed on that first date but had a few issues remaining including the issue of a forfeiture application relating to your car. However, Mr Gardiner's representatives needed to obtain an expert report and so his plea did not even commence on that date, and the parties agreed that it was not appropriate that I finalise your matter Mr Hornby ahead of Mr Gardiner's plea. Hence regrettably each of your pleas was adjourned to 31 March.  Unfortunately, on that date, the matter had not been at all progressed for Mr Gardiner. Ms Poole on your behalf Mr Gardiner again applied for an adjournment of the matter owing to the absence of the neuropsychological report. I said a fair bit about the unfortunate nature of that application when the matter was called on before me on 31 March. It seemed to me that your solicitor had failed to act in a timely fashion and had not kept the Court informed. Ultimately though, your legal team wanted to obtain those materials and I was certainly not prepared to shut them out from doing so. That is because none of this was your fault and your counsel was submitting to me that those materials might assist you. So the matter was adjourned to last Friday, 7 July. That delay has nothing to do with you Mr Hornby. You have been powerless in all of this. You have waited for the finalisation of the matter and I take that into account. It has not been easy.

8Though the adjournment was made on your behalf Mr Gardiner, you were not responsible for it. So the unfortunate delays are in no way held against you. I put them behind me and I deal with you on the basis of the material that has now been assembled.

9On 31 March, Ms Hancock completed the plea on your behalf Mr Hornby and she made submissions resisting the application to forfeit your car. She also referred me to a Court of Appeal decision where there had been some discussion about the point in time at which a home invasion ended, there had been some discussion in the course of the plea on that topic.[1]

[1] Jackson v The Queen [2020] VSCA 95 (“Jackson”)

10Last Friday, Ms Hancock updated me as to things that had occurred since I had last seen you including a range of courses you had completed. She indicated last Friday that she would try to file the certificates in relation to any further courses or programs and that was done yesterday, and I have marked as Exhibit RH6 the Department of Justice and Community Safety document that spells out your performance on the ATLAS remand program. She reminded me on Friday of your anxiety in having the matter hanging over your head in the way that it has since I first saw you.

11As to the factual basis of offending in each of your cases, it is set out in that agreed summary which was read aloud by the prosecutor Mr Fisher in February. I see no need to set out much of that detail. This was really serious offending and that much is conceded.

12In very broad terms, you Mr Hornby received a message on Wickr in the early hours of 21 March 2022 containing a photograph of a handwritten note of Brendan Wilson's name and address. Then you received messages which provided information about guns stored at the property and advice on how to steal them and how to avoid police detection. The message is at the depositional material at p437 and the pages following. It very clearly spells out how this was a ‘job’ which you were performing.

13Later that day, at 11 am, you travelled with Mr Gardiner in your Hyundai car to that address and you arrived there at around midday. You entered as trespassers with intent to steal and you confronted Mr Wilson in his garage. You Mr Gardner held a black handgun and told Mr Wilson to lay down. You then 'hog tied' him with a trailer tie, then used PVC tape to cover his mouth. You produced a knife and tapped it in front of his face and said 'shut up, just keep your mouth shut and don’t look'. Now you Mr Gardiner fall to be sentenced for that discrete assault but you each have pleaded guilty to false imprisonment and the home invasion preceding the false imprisonment. The home invasion is founded on your intent to steal and it is a home invasion owing to acting in company as you were, and the possession of the handgun. It is serious stuff indeed.

14While Mr Wilson had been tied up and gagged, you Mr Hornby were unloading firearms from his gun safe and also located the keys to a second safe and to Mr Wilson's car. The two of you unloaded the guns and the other items into Mr Wilson's car which was then stolen. You Mr Gardiner drove that car and you Mr Hornby drove the car that you had attended the property in, this is your Hyundai vehicle which is the subject of the forfeiture application. It was of course very intimately connected with these serious crimes.

15Mr Wilson had been left tied up in his garage. He broke free a short time after you had left and he went inside, told his daughter what had happened, and the police were then notified. He identified 11 firearms that had been stolen, 10 of his own and one that he was storing. A phone and identification papers were stolen. The cash mentioned in the summary is, for whatever reason, not part of any charge so I will not sentence either of you in relation to that.

16You have pleaded to the theft of the phone and the identification documents Mr Hornby.

17Now Mr Wilson had possessed these guns as he had a connection with a gun club. He legally held these weapons. Charge 4 on the indictment particularises the firearms that were stolen and Charge 5 repeats those particulars in relation to a charge of possession of a trafficable quantity of firearms which is laid against each of you.

18The two of you drove in those two vehicles out to Mt Duneed and abandoned Mr Wilson's car. You two then attended in your car Mr Hornby at a cement business in Waurn Ponds and some stolen registration plates were affixed to your car Mr Hornby, hence the handling charge laid against you.

19The summary describes the booking by you Mr Hornby of an Airbnb property in Bannockburn. Again, it speaks of the level of organisation in these crimes.

20You travelled together to that property and CCTV footage captured your arrival and the unloading of the firearms from the car. They were carried inside the rental property and then photographed by you Mr Hornby. Later that afternoon at around 6.20 pm, a white 4WD arrived. This car was being driven by Mr Kindred whom as I have said, I am yet to deal with. I note in his summary which your counsel was aware of Mr Hornby, it was read before me the other day, that you called Mr Kindred at 5.36 pm and Kindred then spoke to Mr McPhee a couple of minutes later. A few hours after Mr Kindred arrived, Mr McPhee turned up in his car and he describes in his statement seeing within the house a number of firearms and ammunition. Mr Kindred and you Mr Hornby divided up the guns. See paragraph 17b of the agreed opening. Mr McPhee assisted Kindred in wrapping up some of the weapons and he was then tasked to transport three of them up to a storage unit in Essendon. He did so and hence he, McPhee, was sentenced for his role in handling those three stolen firearms as well as the related possession of a trafficable quantity of firearms. The other two charges to which he has been sentenced related to items found in his possession upon his arrest on 24 March being a sum of cash and also some methamphetamine. As I say Mr Kindred's case waits in the wings and the factual basis of sentencing is as is set out in the agreed summary in his case, so in so far as I refer to what McPhee said and did in these reasons, that does not alter the agreed facts in Mr Kindred's case. I want to make that very clear.

21Back then to the two of you and the 21 March and your attendance together out at the Bannockburn property. The agreed summary describes your comings and goings from that Airbnb property, at paragraph 19 and 20.

22Your vehicle Mr Hornby was identified as being connected to the home invasion and you then became the primary target. Surveillance was carried out on your home address and your red Elantra was seen there at 9.50 am on 22 March. Undercover police followed that car which carried the two of you back to the Bannockburn rental and the police then saw you leave that property together later that day. The car, your car, was intercepted later that day in Pascoe Vale and the two of you were then arrested.

23Warrants were executed on your car Mr Hornby as well as your home in Kurunjang and a number of items were seized. See paragraph 23 and 24. Amongst those items was an amount of cash (Charge 12) and also a quantity of drugs (Charge 11) as well as some ammunition and the weapons which found the summary offences. Also incidentally, three firearms which had no connection to the home invasion at all. Those three, which were found in your home, included a lever action rifle and a sawn-off shotgun as well as an air rifle and the three others from the home invasion were found in your car. It is those 6 weapons which found Charge 13 which is laid against you alone Mr Hornby.

24You were also in possession of ammunition Mr Gardiner, as well as a knife and you were on bail at the time for possession of a drug of dependence. Your counsel told me that that matter had ultimately been dealt with by of a small fine being imposed.  

25You were each interviewed. As was your right, you made predominantly a no comment interview, Mr Hornby, in relation to the offending including the home invasion.  The summary states that you took responsibility for the items located in your home and car, but the reality is at Question 47 you were asserting a potential lack of knowledge but a taking of responsibility owing to your occupation of the premises. You made a no comment response in relation to the vehicle.

26You denied any involvement Mr Gardiner and provided a demonstrably false account of your movements.

27In each case, I want to make it very plain that your stance in the police interview is in no way an aggravating feature against either of you. It simply impedes your counsel from pointing to the mitigatory value of any meaningful co-operation or any truthful account having being offered up at that early stage.

28You have each been in custody since your arrest on 22 March 2022. The total stood at 472 days not counting last Friday. It has obviously risen by a few days since.

29Of the 11 stolen firearms, 8 have been recovered.

30So much then for my summary of the summary. I sentence in accordance with the far more detailed agreed summary. Of course, the summary references materials that are to be found within the depositions including the Wickr messages and the various photographs. There is no need for those things to be separately exhibited. As I say, the summary is an agreed one and there is no issue taken with reference to those materials. These were serious firearms as the photographs make very plain.

31This was unmistakably serious criminal offending and though there are some differences in the make-up of the charges between you, the most serious aspect is the joint offending represented by the home invasion and false imprisonment and the theft and then the possession of those stolen firearms. This was targeted offending and was designed to obtain guns which from the very moment that they were obtained were illegally held and were destined to make their way into the illegal market, one way or another. You were both prohibited from possessing any firearm at the time, though as you are pleading guilty to the trafficable quantity of firearms charge, there is no prohibited person charge in either case. That state of affairs arises courtesy of s7C(2) of the Firearms Act.

32You had recent highly relevant criminal history Mr Hornby and a miserable history of non-compliance with a variety of Court orders over the last 6 or 7 years, orders which were seeking to foster your rehabilitation. You had only quite recently completed a community corrections order which had been imposed for a variety of offences including being a prohibited person in possession of firearms and imitation firearms. That order had been combined with a 180 day prison term. Here you were in March of 2022 doing this 'job' within months of the expiry of that community corrections order. You have a longer and more serious prior criminal history Mr Gardiner and you were on bail and a community corrections order at the time. The community corrections order took effect upon your release from prison and had been imposed for offences including being a prohibited person possessing imitation firearms.

33In each case, as is conceded, this serious offending can only be met by a substantial prison term.

Impact  

34There is an impact statement from Mr Wilson. A very understated and reasonable one if I may say so. He tries not to discuss with others what he went through, he gets a bit overwhelmed when the Court case is discussed. He has been seeing a psychologist and I am pleased to see that he says he is getting some benefit from that. He still feels jumpy and is hypervigilant at home. There have been financial costs as well and the loss of the car, which had sustained some damage, was most inconvenient. It seems that he has beefed up his security system. As I say it is a very understated impact statement, but he has undoubtedly felt sizeable impact from your crimes. This was frightening offending. I take into account the impact in this case.

Plea in Mitigation

35Mr Gardiner, your counsel Ms Poole conducted the plea in its entirety as I say last Friday (7 July) and relied upon an amended written outline of plea submissions dated 28 June 2023. Those submissions superseded the earlier filed written submissions.  She filed a report from a psychologist Dr Aaron Cunningham as well as a report from a neuropsychologist Dr Jennifer McDowall. It was the obtaining of that later report which had necessitated the various adjournments of this matter. Though not enlivening any of the principles from the case of Verdins[2], the matters referred to, in particular in the report of Dr McDowall, still had relevance to my task. Just not in a Verdins fashion. There were also letters from Ross Morgan, Andrew Rush and Mark Kulkens and a copy of an ABC online article from 2016 where you were featured. There was also a letter from your mother spelling out some details about your background.

[2] R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 ('Verdins')

36Ms Poole's written submissions contained some details of your background and the expert reports placed before me set that out in far greater detail. It follows then that I was more than adequately informed as to your personal and family background as well as to your educational, relationship, employment, medical, mental health and drug history.  

37She made some submissions as to the objective gravity of the offending and dealt with the relevance of your quite extensive past criminal history. I asked her and she told me about some of the restrictions arising from COVID‑19 in your case. You had initially been quarantined for 14 days, had in fact caught COVID‑19 twice and spent close to 2 months in isolation up at Fulham prison. She made some submissions as to your prospects of rehabilitation as well as to the relevant sentencing purposes in this case. She reminded the court of the need to pay regard to the principle of totality of sentence, but I needed no reminding on that score. I had in fact raised that very issue myself on the first day the matter was before me on 2 February, commenting on the close relationship between a number of charges on the indictment. 

38Ms Poole relied chiefly upon the following matters in mitigation: 

·Your early guilty plea in the midst of the global pandemic;

·The presence of some remorse;

·Your relative youth; and

·An increased custodial burden arising in the period in which you have been held owing to COVID‑19;

39She specifically disavowed any reliance on any of the principles from the case of Verdins or from the Bugmy[3]/Herrmann[4] line of authority. She conceded that Dr Cunningham's report was not particularly useful and had a number of limitations. She conceded the inevitability of a substantial term of imprisonment here but argued that I might provide for a decent gap between the head sentence and the non-parole period.

[3] Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (‘Bugmy’)

[4] DPP v Herrmann [2021] VSCA 160 (“Hermann”)

40Mr Hornby, your counsel Ms Hancock relied upon a written outline of plea submissions dated 30 January 2022 but that obviously should read 2023. She relied upon a report from a psychiatrist Dr Best dated 16 January 2022, again that should read 2023. She also and correctly disavowed any reliance on any of the principles from the case of Verdins. There was a letter from Caraniche, a file note about your efforts in employment whilst in custody as well as a bundle of course certificates. There was the additional document that was received yesterday as to the ATLAS program and I have marked that this morning. There were references from your mother and father as well as from your sister. Finally, there was a statutory declaration from your father and a couple of car registration documents. Those later materials pertained to the issue of forfeiture of your car.

41Ms Hancock's written submissions contained much detail of your background and so too did the expert report from Ms Best. Your counsel made some oral submissions adding to that detail and in this way, I was informed of your personal and family background as well as your educational, relationship, employment, mental health and drug history.  She updated me, as I have said, about more recent efforts in custody.

42She too made submissions as to the objective gravity of the offending and dealt with the relevance of your past criminal history. She told me about some of the restrictions arising from COVID‑19 in your case and how there had been relaxations of those restrictions along the way. She made some submissions as to your prospects of rehabilitation. She also made submissions as to the relevant sentencing purposes and the need to pay regard to the principle of totality of sentence.  

43In the plea conducted on your behalf, your counsel relied chiefly upon the following matters in mitigation: 

·Your early guilty plea in the midst of the global pandemic;

·The presence of some remorse;

·An increased custodial burden arising in the period in which you have been held owing to COVID‑19;

44She conceded the inevitability of a substantial term of imprisonment here but she argued that I might provide a decent gap between your head sentence and non‑parole period. She reminded me of the impact of delay that had arisen here for which you are not responsible.

Prosecution  

45The prosecution had prepared some very detailed written submissions which were really in no way controversial. They were marked as Exhibit C on the plea. I am not going to set them all out in these my reasons. Nor will I mention everything raised orally by Mr Fisher. It was abundantly clear that there were very serious aspects to this offending and a strong need to punish, denounce, deter and protect the community. It was equally clear that in each case, there was a sizeable enough criminal history casting a decent cloud over your future prospects. The aspect of planning was also plain enough as well. The Director of Public Prosecutions was calling for a substantial prison term with a non-parole period in each case and of course so much had already been conceded by each of your counsel.

46I remove from the equation any suggestion of the knife being employed in the home invasion. See paragraph 4(vi), (vii) and also paragraph 6 of the Prosecution Plea Submissions. The knife was not so particularised, and it was used discretely by you in the common assault Mr Gardiner.  

47There was also some discussion on the plea as to the ambit of home invasion and whether it was complete upon entry. I am prepared to find that it is so complete and as I say, I was referred to the case of Jackson. Here of course though, once entry was effected, other serious offences commenced. The sum total of the offending was undoubtedly a frightening ordeal for Mr Wilson. It was unmistakably high-level offending. In fact Mr Hornby, your counsel conceded that the home invasion was a serious example of such an offence and that characterisation was plainly correct. So too your counsel's concession Mr Gardiner that the circumstances of the offending placed it at the higher end of the range of seriousness. Neither counsel was quibbling with the seriousness of this offending.

48Mr Fisher last Friday submitted that it was very hard to distinguish between your roles. It was true that Mr Hornby received the messages from the unidentified person using the Wickr handle but Mr Fisher submitted that you were then plainly working as a team travelling to the property together. That you were more involved at the property Mr Gardiner and had the gun and used the tape but you were party to all of that in any event, Mr Hornby. Just not the discrete common law assault which was laid as against only Mr Gardiner. The Crown submitted that you were acting together as a team. You both knew about the firearms. They were obviously the target. In relation to you Mr Gardiner, Mr Fisher expressed some concerns about the adequacy of Dr Cunningham's report and the risk assessment contained within that report. Those concerns were very well founded as was conceded by your own counsel. It was apparent that Dr Cunningham for whatever reason, had very few materials, not even a summary of the offending, and it would seem then, little appreciation of the factual basis of sentencing in this case. He had the charge sheets but nothing besides and he provides no account at all in his report from you, as to the offending. Mr Fisher submitted that the court should take a less optimistic view of your rehabilitative prospects than was being mooted by Ms Poole and judge them to be poor rather than reasonable. He also queried the extent of remorse in your case Mr Gardiner.

49The prosecutor also made some submissions as to the forfeiture of the car. Those submissions were made to me back in March.

50I will deal with the various submissions in one moment but before doing so I will turn briefly in each case to your personal background.  

Background

51I say briefly, as I really have no cause not to act on what I have been told as to your family and personal background in each case. I see no point then in just repeating all that detail in my reasons which will be quite long enough as is.  

52Firstly then to you Mr Gardiner. You were younger than Mr Hornby but have the more serious criminal history. You were born on 28 April 1998 and so you are now 25 years old but you were 23 years of age at the time.  You were born in Melbourne and raised by your mother. You are an Aboriginal man and have a close relationship with your mother. You had almost no contact with your biological father who went to live in America. I was told that some contact has resumed recently. You have 4 biological siblings and 4 stepsisters and you are the only member of the family who has transgressed the law. Your mother was in a long-term relationship with a Mr Mackay until you were about 14 years of age. There was some domestic violence in that relationship.  You ran away from home at times and started using drugs at a very young age. There were periods of homelessness as a teenager. I was told that you were bullied at school and left school in either Year 7 or Year 8. It really was not the easiest of backgrounds and I do not ignore that fact. You did some TAFE certificates when you were held at Parkville. You have had some jobs and the ABC online article speaks of the desire you held back in 2016 to open a food van and to travel the country. You had a 5-year relationship with Mikaela. I was told it was a troubled relationship and you completed the Ngarra Jarranouth men's 16 week residential program for Aboriginal men run by Dardi Munwurro program. There is some positive written material connected to your efforts on that program.

53Your medical history is described as complex. You have had a number of head injuries and hence there was the quite understandable desire of your legal team to obtain the neuropsychological report. You do not meet the criteria for intellectual disability though you do not function at a high level at all. You suffer from epilepsy, I believe thought to be connected with some of the head injuries you have sustained. There is no link between any of the conditions spoken of in the report and the offending.  Your seizures are well controlled by medication now but there is a history of not taking prescribed medication in the past and also using illegal drugs which are not wise for one with that medical condition. There is plainly family support as evidenced by your mother's letter and the presence of a variety of family members during the course of the proceedings, including today.

54You have a quite lengthy criminal history with appearances dating back to the Children's Court in 2013. Serious matters are disclosed in the Children's and adult court histories. Robbery, recklessly causing serious injury, attempted armed robbery, burglary, car theft, aggravated burglary and a host of dishonesty offences. You have breached many court orders. Your most recent prior matter from October 2021 involved, amongst other charges, assault, prohibited person possessing imitation firearms and threat to kill.  You received a combination sentence of 114 days with release onto a 12-month community corrections order. That order was made on 14 October 2021. You were on that community corrections order at the time of this offending in March 2022 as well as an undertaking of bail relating to the possession of a drug charge, which had arisen since you had been released. You had not been released for all that long from prison and were already on bail when you committed these offences. I do accept there are also some gaps in the offending which Ms Poole took me to.

55Now you do not fall to be sentenced a second time for any of that past offending. You received those sentences and you served them, and that past history does not aggravate the matters that I am dealing with. It does though inform my view as to the extent to which I must deter you and protect the community from you, as it touches upon your prospects of rehabilitation and your risk of re-offence.  You really should have no expectation of being treated leniently given the nature of this offending that I am dealing with and your past lack of response to many court orders. You just keep offending and this offending involves a serious escalation indeed.  Since being remanded you have been working as a unit billet and I am told that you are going to the gym and using your time productively. You are also taking your prescribed medication. So these things are positives.

56Now briefly to your background Mr Hornby.  You are 36 years of age born on 1 August 1986. You are the youngest of two children and you enjoy support from your family. There are two impressive references from your parents and your sister, which I take into account.  I do not see any need to further detail those things in my reasons or mention them again. Your parents have attended the two previous hearings remotely and attended in person last Friday and they are back in person here again today. You had a pretty uneventful early life. You left school at the age of 16.  You completed a 4-year apprenticeship as a boiler maker and you worked in that field for some years.  You met your wife to be Rebecca when you were a young man, at the age of 21, and you then saved to buy a house together. You purchased a block of land and you built a house and that took many years. It seems to me you were ‘off and running’ in life in a way that Mr Gardiner really never was. Things were looking promising for you.  Tragically though, before you could move into the house, your wife was diagnosed with cervical cancer and in fact she succumbed to that illness in 2013.

57Your life pretty much fell apart at that point. I will not set out all the details contained in the expert report but essentially you lost your wife, your home and your job. Drugs became a very sizeable problem There were the mental health issues spoken of in Dr Best's report. Depression and grief and even efforts to take your own life. There had been some drug use in the past but use of ice really 'took off' after Rebecca's death, also use of GHB and alprazolam. Your family in their references speak of the deterioration in your life from the time of Rebecca's diagnosis. There is support in relation to this notion of the collapse of your life provided in the criminal history.  It commences only in July 2015 when you were 28 or 29 years of age. It is pretty unusual to see a criminal history commencing at that age. Regrettably though, there have been a number of appearances. You have breached very many Court orders and in that sense the history is padded out a bit. Given that personal tragedy and your age when first appearing before the Courts, Courts would have understandably been very reluctant to imprison you and very keen to lead you away from crime, but it has proved impossible to date.  You have not complied with many of the Court orders. You have had many orders including orders with treatment conditions. You have just continued to offend. Your last appearance was in May 2020 and as was bound to happen if you kept offending, at last you were sent to prison. That was for an 180-day period in combination with a 18 month community corrections order. That community corrections order finished sometime in late November 2021. The serious offending I am dealing with occurred in March the following year. That last appearance included 2 charges of being a prohibited person possessing a firearm and 2 charges of being a prohibited person in possession of an imitation firearm as well as other weapons offences. The offending I am dealing with involved your theft of 11 firearms on 21 March 2022 and three other firearms found in your possession at home, so weapons independent of the home invasion, including a sawn-off shotgun and a lever action rifle. You have prior criminal convictions for handling and car theft and other firearms offences.

58I repeat what I said a moment ago to Mr Gardiner. You do not fall to be sentenced a second time for any of that past offending. You received those past sentences, you served them and that past history does not aggravate the matters I am dealing with. It does though inform my view as to the extent to which I must deter you and protect the community from you as these things touch upon your prospects of rehabilitation and your risk of re-offence.  Courts have tried repeatedly to lead you away from offending. Courts have been understandably very reluctant to imprison you, given the personal history that would have been placed before them. You have just failed to respond to these efforts. You just keep offending and this offending involves a serious escalation indeed.

59I have not mentioned what has occurred since you were remanded in custody and this is a positive aspect of the case before me. You have worked well.  You have taken steps to obtain counselling and to do courses and certificates.  There is I think developing insight, it appears to me, and I pay regard to those materials and to your mother and father and sister's descriptions of the positive things they have observed.

Guilty Plea

60Let me then turn to the matters that have been raised in mitigation in this case.  In each case your counsel relied upon the guilty plea. I accept that you have each pleaded guilty at the earliest stage. You have each taken this early responsibility for your offending.

61As a result of that, the time, the cost and the effort of a committal hearing in the lower court or a trial up in this Court has been avoided.  Witnesses including Mr Wilson have not been required to give evidence. Giving evidence can sometimes be a difficult or even a harrowing experience. Mr Wilson has not had to relive his experience whilst giving evidence before a Court.  He has been spared that by your guilty pleas and that is important.

62In each case, your early guilty plea must be adequately recognised. It must reduce your sentence. That is the law.

63As was discussed in the course of the plea, there is also a heightened benefit in pleading guilty in the course of the global pandemic for the many reasons spelt out in the Court of Appeal decision of Worboyes[5] and subsequent cases following on from that decision.  I take these various matters into account in mitigation. 

[5] Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’)

Remorse

64I turn to the aspect of remorse which was argued before me.

65A guilty plea is often, but not always, indicative of some remorse. There is reference to remorse in some of the written references and the expert report filed in your case Mr Hornby. There is really no material speaking of remorse in your case Mr Gardiner.

66The case against each of you was of course overwhelming. Now the strength of the case has nothing to do with the extent of the benefit to give for your guilty plea. They are quite separate matters.  It is a quite separate matter and that benefit does not depend upon whether I find the presence of remorse or not.  However, given the strength of the case, can I actually infer the presence of remorse from your guilty plea?  Am I satisfied on the balance of probabilities that you are actually remorseful? What evidence is there of remorse in this case? I must say I was a little offput to observe your conduct in the course of the reading of the Crown opening. You two sat in the dock alongside Mr McPhee. As I looked out into the Court you were at the far left of the dock at that stage Mr Gardiner, you in the middle Mr Hornby and McPhee was on the far right. As the opening was read aloud and the portion dealing with Mr McPhee's statement (and paragraph 17 onwards) was read, and again when the prosecutor was summarising his level of co-operation at paragraph 28, you Mr Gardiner saw fit to crane forward in your seat. You looked to your left trying to 'eyeball' Mr McPhee in a manner intended either to intimidate him or to at least make him aware of how you felt about him. You foolishly joined in, but to a lesser degree, Mr Hornby. You were each endeavouring to convey to him what you thought of his stance. Heaven knows why, as he had pleaded guilty and so too had you. The case against you was not dependent upon him at all. There was communication between the two of you as you went about these foolish endeavours to get McPhee's attention. It was a pretty unfortunate display.  Why dress up in your best suit Mr Gardiner to try to convey to the Court a certain impression and then take these steps to betray that by acting in this foolish manner? It was silly, really silly stuff. However, I do not want to let that matter swamp my consideration of the other matters that might actually suggest the existence of some remorse. Further, as I said on Friday, such silly action as that might be no more than spelling out to Mr McPhee your disapproval of his having transgressed the ‘code of silence’. You were voicing and displaying your attitude to one who had transgressed ‘the code’. Silly and immature but when I pause, as I have and analyse it, it is not of any true importance to my sentencing task. I do accept the Crown submission made on Friday that I should put that conduct aside altogether. I mention the matter now only as I raised it shortly after it had happened in February and again in the course of the plea and I raise it now to spell out directly that I put that issue aside altogether.  

67Ultimately, I am prepared to treat your early guilty plea in each case as being indicative of some remorse in this case. I do not see any other evidence in support of it in your case Mr Gardiner.

68In your case Mr Hornby it is a bit different. There is actual material before me speaking of the presence of remorse and your attitude to this offending. I am speaking of the references from your family and what can be found in your discussions with Dr Best.

69I take the existence of remorse into account in each case. It is certainly more on display in your case Mr Hornby.

Rehabilitation

70I turn now then to your prospects of rehabilitation. It is very hard to be particularly optimistic in either case given the nature of the offending and the past failure to take the opportunities presented by past court orders.  

Gardiner

71In your case Mr Gardiner, you are far younger but you have a more serious criminal history. I have all the issues thrown up by long term use of illegal drugs. I have the failure repeatedly to comply with Court orders. I have in your case the failure to have been deterred by past orders including a number with a custodial component. There is family support at least and you are doing reasonably well in custody and working there. I do also have the documented efforts in the past where you have buckled down and made some effort at change as disclosed by the written materials from the residential men's program and also the ABC online article.  Those positive steps taken in the past were relied upon by your counsel as giving some hope that you could again head in that direction in the future. I have what was unmistakably serious and planned offending here by someone who was both on bail and a community corrections order.  You will to a degree be deterred by the sentences which I will soon impose. The risk assessment in Dr Cunningham's report is not one that really can sensibly be acted on. The report actually has little value. As I said earlier, he seemingly had no information about the offences and in any event, his risk assessment is couched as being conditional upon your remaining abstinent from drug use. Drug abuse would increase your risk, he says. That has been a major issue for many years, almost half your life. I really cannot rate your prospects that highly.

Hornby

72You are older Mr Hornby, but in my view you have slightly better prospects than Mr Gardiner. You have a greater level of remorse and insight into the seriousness of the offending. You are doing all you can in custody both working and doing the full range of courses.  Your criminal history is not as serious as Mr Gardiner's.  As with Mr Gardiner, you also have family support and you will be deterred to a degree by the sentences that I will soon impose.

73Ultimately in each case, your ability to remain abstinent from illegal drugs will have a large role in shaping your future prospects. If you continue in each case to use illegal drugs your prospects of rehabilitation will be very much dimmed.

74Neither of your counsel was suggesting that I could be particularly optimistic.

75I am ultimately prepared to find the existence of some prospects of rehabilitation in your case, Mr Gardiner. Those prospects would surely improve if only you could remain abstinent from illegal drug use. You have had periods where you have done that and you have in the past made some decent efforts. You are still quite young and I certainly will not write you off.  Though you have a more serious criminal history, your youth is not something that I can just ignore. You are a long way removed from being a youthful offender however. You were not some silly teenager committing these offences. You were a mature enough adult and you have behind you a sizeable and serious enough criminal record. The principles spoken of in cases such as Mills[6] and Azzopardi[7], though not irrelevant to my task, have to be sensibly adapted to the instant case.  Unlike Mr Hornby who really had fallen off the rails, you have really never been on them other than perhaps for a few years from 2016. I am less optimistic in your case but must not lose sight of your relative youth.

[6] R v Mills (1998) 4 VR 235 ('Mills')

[7] Azzopardi v The Queen [2011] VSCA 372 ('Azzopardi')

76I believe your prospects Mr Hornby are slightly better than Mr Gardiner's, as whilst you are older, you came to crime at an unusually late age and flowing on from a time of great tragedy and stress in your life. Your life was derailed back in 2013 and the hope is that you can get back on the rails that to that point you had been travelling pretty smoothly on. Your criminal history is less serious. You have a supportive family, you have previously had a very decent employment record and you have been doing well in custody with some increasing insight. I believe that you have more realistic prospects than Mr Gardiner.

77Plainly those future prospects in each case will increase significantly if you can abstain from illegal drugs and conversely, they will be greatly lessened if you cannot.

The expert reports

78I turn then to the expert reports that have been placed before me.

79I do not intend to set out in my reasons slabs of text from those reports. I have regard to the various expert reports.

80In your case Mr Hornby the report of Dr Best was relied upon in a limited fashion. Your counsel correctly disavowed any reliance on any of the principles from the case of Verdins. Correctly so, upon my examination of that report. Still the report is of use.  It sets out the details of your background and your personal circumstances including your serious deterioration following on from the death of your wife back in 2013. It sets out the history of treatment and admission and the extent to which your descent into drug use was linked to that very sad event in 2013. Now perhaps this offending that I am dealing with was connected up to your drug use but your use of drugs or your desire to fund that habit is in no way mitigatory. However, your personal circumstances undoubtedly altered and drastically so following that tragic event in 2013 and it is very hard to resist the suggestion that, but for that event, you would be most unlikely to be sitting where you sit now. There is plainly a road back for you. It is a matter of whether you will take it. You have not in the past, that is the problem. I take into account the report in the manner contemplated by your counsel. It is actually a very informative report.

81In your case Mr Gardiner, there was the report from Dr Cunningham which, as I have said, was of very little use. The report from Dr McDowall was far more useful, setting out not just your personal history but pertinent aspects of your complex medical situation. It described your low level of functioning. You do not have an intellectual disability and there is no link between such conditions as are described and the decision to offend. You are not disinhibited by any of the conditions spoken of either. However, those conditions, that level of functioning, is not irrelevant to my task. After all I am sentencing you and I take into account your background as far as I am able to. Just not in a Verdins fashion. I accept the submission made by your counsel at paragraph 27(e) as to my ability to take into account the broader personal circumstances and the difficulties that you have experienced in your life. As I said earlier, it was not an easy start in life for you.

COVID 19

82I turn to the issue of COVID-19 and its' impact upon each of you as prisoners.  It really was not a prominent aspect of either plea. No doubt that is owing to the relaxation of restrictions which has taken place.

83I have no difficulty at all in accepting as a general proposition that the COVID-19 virus and the response to it by those who run the prisons has in the past increased the burden felt by prisoners. The extent of that burden though, has not been uniform over the course of the pandemic or one affecting every prisoner in the same way.  You have both been in custody only since March of last year. No doubt there would have been some worries about catching the virus in such a setting and no doubt each of you would have experienced the increased burden posed by quarantine or lockdown on occasions. I was told that you had. Perhaps also the absence of the full range of courses and programs being offered for some of that period.

84But, as you know, things have looked up in prison since about the time that you were each remanded. Prior to that point, there had been very severe limitations to personal visits but that has not been your lot at all. Restrictions have eased in the community as well as in prison. This was accepted by each of your counsel. Counsel in each case placed before me some submissions as to the impact in your given case and I act on those submissions.  You were both quarantined upon arrival. In your case the issues were said to arise mainly in the first 6 months Mr Hornby. You caught COVID twice Mr Gardiner and were isolated for a couple of months all up.

85I accept the submissions made by each counsel as to a modest increase in your burden for a pretty limited period.

86As to what lies ahead in the future on the COVID front for prisoners, well that is impossible for a court to determine.  I am not free to guess about that.  Those whose job it is to run the prisons will be able to reflect on the impact of any past and ongoing limitations on a case-by-case basis.  They would have the power to address any increased burden in either case by way of conferring emergency management days in relation to the sentences I am about to impose.  I cannot know if that will take place or not and I make it clear that I do not proceed on the assumption that it will.  To take that into account in that way would be for me to contemplate a future executive action, which is of course prohibited to me.

87I believe it is reasonable to think that prisoners may yet have some issues thrown up by COVID-19 in the coming handful of months.  There might be very occasional lockdowns and/or quarantine. There is no reason at all for me to think that we will be plunged back into the dire position experienced by prisoners in 2020 where there were no visits, no courses and very sizable time locked down in cells.

88

I take into account the increased burden imposed by the response to

COVID-19 in the manners that I have described.  So that which has arisen in the past and in a far more limited way into the future.

Parity

89I turn then to the issue of parity of sentence.  As a general proposition, like offenders ought receive the same or at least similar sentences. That is a bit of a simplification of this principle but it suffices for present purposes. It is a principle designed to avoid a justified sense of grievance existing between co-offenders.  When two or more co-offenders are sentenced, any significant difference in sentences imposed upon them should be capable of rational explanation.  It follows then that a court must assess the individuals and the circumstances. Their ages, backgrounds, criminal history, health, character, rehabilitative prospects and roles played in the offending are some, but not all, of the relevant matters and the assessment conducted in these areas may justify disparate or different sentences.  A comparative analysis of the culpability and the circumstances of co-offenders is indispensable and it lies really at the heart of the correct application of this principle of parity of sentence.

90I sentenced McPhee and I will say very little about that sentence as it plays no real role in my sentencing task in your cases. As I said earlier, he faced totally different and far less serious charges and he had good prospects of rehabilitation. He had no role at all in the home invasion or the false imprisonment. His offending was limited to the later carriage of three weapons and hence handling of those weapons and possession of a trafficable quantity of firearms. Also possession upon arrest of some proceeds of crime and some methylamphetamine. He had no relevant prior criminal history at all and he had fully co-operated with the police and in fact had given a sworn undertaken to give evidence. He received a community corrections order but that disposition casts no light at all on the sentences demanded in your cases. That is all accepted by your respective counsel.  Mr McPhee is just not a 'like offender'.  That is what it boils down to.

91Rather my task relates to a consideration of the two of you and the application of these principles in that exercise. In terms of the most serious offending there is no sensible basis to differentiate your roles. You received the Wickr message Mr Hornby, but the two of you then jointly travelled down to Geelong and then jointly entered as trespassers, intending to steal and with knowledge of the handgun which you possessed, Mr Gardiner. So who held the gun and who did not is a matter of no moment in terms of your culpability. Who tied up Mr Wilson likewise is not a matter of any great importance. You acted jointly in terms of the entry to the premises and then the false imprisonment of the occupant.  Your individual common assault was very brief, Mr Gardiner, and adds very little to the event. You each stole the 11 firearms and you then each possessed that trafficable quantity of firearms. You each stole Mr Wilson's car. The theft of a phone and papers (Charges 7) is a matter of no great moment, Mr Hornby, nor the handling of some stolen plates or possession of a smallish quantity of drugs or cash. Charge 13 laid against you, Mr Hornby, at least in terms of the first three guns, adds nothing. They are three of the same guns the subject of Charges 4 and 5. The last three guns listed on Charge 13 however, are quite different. They have no connection to any of the joint activity and in their own right they constituted a trafficable quantity of firearms and one of those was a sawn-off shotgun and one a lever action rifle. That is a serious enough separate crime.

92You are the younger man Mr Gardiner but with a more sizeable and serious criminal history, less by way of remorse on display and in my view, lesser prospects of rehabilitation. You were on bail and a community corrections order at the time. You Mr Hornby, as I said earlier in my reasons, came much later to crime in circumstances where your life had been pretty much upturned in 2013. You have a less serious criminal history but have in the period since 2015 consistently breached Court orders. Your most recent court appearance was unmistakably relevant. Though older, you have in my judgement more realistic prospects of rehabilitation.

93I have engaged in this comparative examination of all the circumstances of the offences and also the matters personal to you and matters in mitigation in each case. I have not found it particularly easy. I am explaining these things in a transparent fashion, in the level of detail I am, so that you and others will understand how I have approached my task and why I am imposing the sentences soon to be imposed.

94As far as I am concerned these things very much even out ‘in the mix’ in this case. For instance, Mr Gardiner's youth is still a matter of some significance here despite his more serious criminal record and lesser prospects of rehabilitation. You do not have youth on your side at all Mr Hornby. Though your criminal history is less serious, your offending has escalated, and you have paid no regard to past Court orders. If you were the same age as Mr Gardiner, you Mr Hornby would very likely do better than him by way of individual sentences owing to the slightly more favourable prospects of rehabilitation, higher level of remorse and lesser history before the courts. But you are not the same age. You were 35 years of age. He was only 23. That is a significant difference in the other direction. He also had a pretty unfortunate background and some complexities as described in the report of Dr McDowall.

95So as to role I find no meaningful differences at all and as to matters personal to you, there are matters which obviously flow in each direction but such that in my judgment they even out along the way.

General

96Let me turn then to some general matters.  I am required to take into account a large range of matters.  They include things such as the maximum penalty and the nature and the gravity as well as the impact of your crimes.  Home invasion is an inherently serious offence as surely the 25 year maximum penalty would indicate.

97The manner of assessing the seriousness of a home invasion is well established. See the case of O’Brien[8]. That case draws on those cases dealing with the assessment of the seriousness of confrontational aggravated burglaries.  So cases such as Hogarth[9], Meyers[10] and Bowden[11].

[8] Director of Public Prosecutions v Shane O'Brien [2019] VSCA 254; 280 A Crim R 1

[9] Hogarth v The Queen [2012] VSCA 302; 37 VR 658

[10] DPP v Meyers [2014] VSCA 314; 44 VR 486

[11] DPP v Bowden [2016] VSCA 283

98It is not a matter in aggravation that you were in company or had an offensive weapon as they are elements of this offence. I am however entitled to consider the nature of the offensive weapon. Here it was a handgun. That is a feature of some aggravation, see the case of Clark[12].  Your counsel, Mr Hornby, spelt out that you were not the mastermind and referred to the Wickr message sent to you. Your counsel, Mr Gardiner, spelt out that you did not receive the message which Mr Hornby did. Well, it is plain enough that someone else was providing the details of the job to Mr Hornby but you were obviously a willing participant Mr Gardiner. 

[12] Chase Clark v The Queen [2020] VSCA 125

99It is not mitigatory that you entered these premises in broad daylight or did not kick down the door to do so.  What is clear, abundantly clear, is that this was very much a planned calculated event. This was not some home invasion with emotion driving the entry as is often enough seen. It was not a run through of some criminal rival. It was a calculated criminal entry designed to obtain firearms which were legally held by the occupant. I am not able to identify who was sending the message as to the address. It does not matter. You were both acting on that information in an organised manner. You Mr Hornby received the information from another person. The crimes were then committed by you two as a team of two. You travelled to Geelong together. You carried a handgun to the outing Mr Gardiner. The firearms once stolen were taken to the rented Bannockburn property where they awaited transport onwards. There can be no doubt at all that they were destined for the illegal market.  None.  I am satisfied of that beyond reasonable doubt and satisfied beyond reasonable doubt that these crimes were driven by the hope of large financial gain. It is not mitigatory that you may have each been drug users at the time. I do not accept that drug use drove this offending. As I say it was premeditated calculated offending. You were not powerless minions. A car bearing false plates was driven to the scene. That was your car Mr Hornby. You had received the message as to the address and the guns and you were acting in a premediated fashion. Once you had entered and the home invasion was complete, the other crimes commenced. Not every home invasion leads on to other offending. This one did and the offending was unmistakably serious. The false imprisonment was a serious one. Your victim was bound and gagged in his own garage with two intruders, one of them carrying a handgun. The theft of the guns was particularly serious. You were each prohibited. It is abundantly clear that this whole exercise was designed to obtain guns which would find their way into the criminal underworld. The fact is the moment they came into your possession they were held by criminals, as neither of you could lawfully possess any firearm. There is an air of commerciality to this whole exercise. It was serious offending indeed.

100The Court of appeal in a case of Benkic[13] had this to say about theft of firearms:

‘Furthermore, it is clear that the legislature regards the theft of firearms as a particularly serious species of theft. Section 74AA of the Crimes Act 1958, which created the offence of theft of a firearm, was inserted by s9 of the Firearms Amendment (Trafficking and Other Measures) Act 2015.  It prescribes a maximum penalty of 15 years’ imprisonment — as opposed to the maximum sentence of 10 years’ imprisonment for theft simpliciter — so much reflecting Parliament’s view of the seriousness with which the theft of firearms is to be viewed.  As the Minister for Police explained in the Second Reading of the relevant Bill:

Finally, the bill will introduce a new theft of a firearm offence into the Crimes Act 1958. The new offence will carry a higher penalty than the offence of theft under section 74 of the Crimes Act, in recognition that the theft of firearms can increase the illegitimate flow of firearms in the community and lead to very serious criminal activity.

[13] Benkic v The Queen [2019] VSCA 34 para 18

101You Mr Hornby did not just steal those 11 guns and possess that trafficable quantity of firearms. The next day, you possessed three additional guns including a sawn‑off shotgun and a lever action rifle. So in the space of 2 days you possessed 14 firearms. Your most recent prior appearance in Court was relevant involving as it did a prohibited possession of 2 firearms and 2 imitation firearms.   

102I have scarcely mentioned some of the other offences on the indictment, for instance the car theft. There is a certain irony Mr Hornby in that you resist the forfeiture application relating to your car citing through your counsel the lawfulness of the acquisition of that car and its worth to you and the setback if that vehicle is forfeited and yet here you were stealing your victims car in the course of this serious criminal foray.

103Whilst this home invasion does not sit at the very top of the range of offence seriousness, it is a very very long way removed from the least serious examples of the offence.  Your respective counsel between them submitted that it was a serious or high range example of the offence.  No doubt that is true. It is in my judgment a serious example of an inherently serious offence punishable by a 25‑year maximum prison term.

104I am required to consider a number of purposes of sentencing.  I must pay regard to your prospects of rehabilitation.  I have spoken of my findings on that score. However, the nature of these crimes and the nature of your lack of response to past orders in each case leads to greater weight being applied to other purposes of sentencing with less weight given to your rehabilitation. That is not to say that I ignore those prospects. I do not.  The fact is though that community protection and specific deterrence are important considerations here. So too denunciation and punishment.

105I must protect the community from each of you and I must seek to deter each of you from future offending. Past Court orders have very evidently not achieved that end. I will try again to deter you.

106I must also denounce your conduct and I must also punish you justly and proportionately.

107General deterrence is of real importance in this case. That principle relates to the need to deter others. It looms large in this case. This Court must send a loud message to others in the community who might consider committing such serious crimes as the crimes that you have committed. The targeted entry to obtain guns, the theft of guns and the movement of those guns into the community are all very serious aspects of this offending. I must endeavour to deter any future ‘would be’ offender.

108I must also pay regard to current sentencing practices.  That is not a single controlling factor. I do pay regard to current sentencing practices.  There is no sentencing snapshot held by the Sentencing Advisory Council for the offence of home invasion.

109I have though looked at the online sentencing statistics for the various offences including home invasion, theft of firearms, false imprisonment and possession of a trafficable quantity of firearms as well as such overviews of cases as exists in the Judicial College of Victoria Sentencing Manual.

110Statistics have inherent limitations.  They omit all of the detail of the matters both in aggravation and in mitigation, the things which would actually explain a particular sentencing outcome.  Statistics tell me next to nothing about the offence, or the offender, represented in the data.

111Sentencing is not a statistical or mathematical task

112I am exercising a sentencing discretion in each of your cases, taking into account the known matters in aggravation and mitigation in your particular case. Statistics do not drive my task, nor do other sentences imposed on other offenders for other crimes.  Other cases are not precedents and there is no such thing as one correct sentence.

Totality

113I am required to take into account the principle of totality of sentence. That is very important here, as I mentioned in the course of the plea. Your object was to steal firearms. You went about that by targeting these premises, committing the home invasion and stealing the weapons. The car theft was to assist that exercise. Once you stole the firearms, you then possessed them and you were possessing them in a trafficable quantity. That is in relation to the same subject matter as the theft the subject of Charge 4. In your case Mr Hornby there is the relationship between three of those weapons stolen and possessed on 21 March and some of the weapons possessed the next day. For those same three, there was a continuing possession. No doubt the only reason they are represented in a separate charge on the indictment for 22 March is as a result of the additional firearms which themselves would have constituted a trafficable quantity. But for that, it is hard to imagine that there would have been a separate charge for the possession of the same guns from the day before. So recognition of the extent of the unity of the subject matter is important to my task. I must not doubly punish you and I will treat that charge (Charge 13) as though the first three guns are essentially omitted from the particulars.

114The individually charged acts occurred in this relatively tight time frame, for instance your assault Mr Gardiner, and your theft of the items the subject of Charge 7 Mr Hornby, as well as the handling the subject of Charge 10. Also the various summary matters. They do not add a lot to the overall criminality.

115So I have the temporal links and even unity of subject matter in some cases. Whilst there are these many separate charges with separate elements, there is this strong relationship between those individual charges or many of them, and I strive not to doubly punish you. I have taken a last look at the effect of the sentences imposed by the court to ensure that it is commensurate with your overall criminality.  Your overall criminality was very high here.

116I have ultimately taken the view that it is open to me to impose aggregate sentences in some instances here.

117Let me deal with the ancillary orders. 

118There has been an email received from the Crown in the course of my sentencing remarks, I think, dealing with some amendments to the final orders.

119MR FISHER:  That is right, Your Honour, there are two amendments.

120HIS HONOUR:  So in terms of the forfeiture order sought in relation to Mr Hornby, there's a cash amount which is amended to $1,206.60?

121MR FISHER:  Yes, so it is a lesser amount than was 1,450.

122HIS HONOUR:  It is a lesser amount and in terms of the forfeiture order under the Firearms Act relating to Mr Hornby, there is removal of items 9 through to 17 because they are Wilson's matters that have been essentially restored to him, is that?

123MR FISHER:  Well I am not sure they have been restored to him at this stage, but that is the anticipation.

124HIS HONOUR:  But they will be, so there is no need for a - - -

125MR FISHER:  No need and there is Mr Kindred's matter of course, we will have to wait for that to be resolved one way or the other.

126HIS HONOUR:  Yes, well I will deal with them when I deal with them.  All right, thank you.

127MR FISHER:  Thanks.

Forfeiture

Gardiner

128HIS HONOUR:  All right.  Well sorry about so let me just deal with you first, Mr Gardiner.  You may remain seated though. So there is an application to forfeit in your case, two items in the schedule, some track suit pants and some cash.  There is no opposition to the making of that order under s33 of the Confiscations Act.  I will make that order.  I have signed that order.

129I order pursuant to s33 of the Confiscations Act that the property referred to is forfeited to the Minister.

Hornby

130In terms of you Mr Hornby, there is a disposal order sought in relation to the drugs and under s78 of the Confiscations Act.  I am satisfied the conditions for the making of that order are made out.  I have signed that order and have pronounced it in this abbreviated fashion.

I order pursuant to those provisions that the property be forfeited to the State and handled in the manner contemplated by the signed order.

There is a forfeiture application also in relation to the firearms under s151 of the Firearms Act in your case Mr Hornby and it has been amended to remove a number of items.  I will sign that order as well.  Again, there is no opposition to the making of any of these orders.  I am satisfied that the conditions for the making of that order are made out and that the remaining items, so 1- 8 are forfeited to the Minister.

Disputed Forfeiture:  Hornby

131That leaves one application remaining.  It is a forfeiture order relating to you Mr Hornby under s33 of the Confiscations Act and this is the order that contains reference your vehicle.  There were some other things attached to the - just bear with me.  So item 3 is cash in the sum of $1,201.60.  The added item 8 is 12 - - -

132MR FISHER:  I think it $1,206.06 - 60 - - -

133HIS HONOUR:  Well, that is item 8.  Item 3 on the existing order is $1,201.60.  Is that the one that is meant to be amended or not?

134MR FISHER:  So it is $1,206.60, is what it should be.

135HIS HONOUR:  So I will remove item 3 then, or amend item 3, it does not really matter but - - -

136MR FISHER:  Amend item 3.

137HIS HONOUR:  All right, look I will amend.  I will get rid of item 8.  Item 3 will be amended to read $1,206.60.

138MR FISHER:  Yes.

139HIS HONOUR:  All right.  So this final forfeiture application pursuant to s33 relates to various bits and pieces.  The only contentious one relates to the vehicle.  Otherwise though there is no opposition to the making of the order in terms of those other matters are in the schedule.

140As to that disputed item, that is your car Mr Hornby, I have said already, I think I have made it pretty plain, that I do not regard rehabilitation is an unrealistic outcome for you. There are prospects of rehabilitation. I have spoken of those.  I accept that the car was integral to the commission of these crimes. It’s ordinary use was not in criminal conduct. That much is plain enough. Your father's affidavit informs me as to it's ordinary use. It is a quite valuable car and has been paid off by you and then repaired after it was stolen at one point. Plainly it is tainted property. There is no question about that. I have a broad discretion in relation to forfeiture. Ultimately, I accept that the loss of a car lawfully acquired by you might present a real hardship upon your ultimate release. As I said on the plea, a prisoner upon release needs a variety of things including accommodation, a job and to put their best foot forward in the job market. I accept that forfeiture might play some role in reducing your prospects of rehabilitation and despite the integral role fulfilled by the car in what were unmistakably serious offences, I am not satisfied that it is appropriate to forfeit the vehicle in all the circumstances before me.  So I will remove from the forfeiture order that particular item.  Otherwise though there is no issue taken with the various other items set out in the schedule.  I am satisfied the pre-conditions for the making of the order under s33 are made out and those items will be forfeited to the Minister.

Licence order on car theft for each

141In terms of other ancillary orders, there is a requirement for me to make a licence order in each case in relation to the Charge 6, the theft of a vehicle.  In each case all licences are cancelled and you are disqualified from obtaining any permit or licence or from driving for a period of 12 months effective from today's date. That order will have no tangible effect upon either of you, given the nature of the sentences I will soon impose, but I have decided not to structure a licence order such as to have you disqualified upon your ultimate release from prison, whenever that it is. Again, it strikes me that such an order as that might actually impede your rehabilitation.

Sentence

142I will now pass sentence upon each of you.  I will ask you each to stand now please.  Thank you.  I am sure you will lose track of the individual sentences.  You will lose track of the extent of cumulation between them and what it all means.  I will explain all this at the end, so you will have an understanding as to what you are looking at only when I get to the end of my reasons.

143On Charge 1 home invasion, in each case I convict and sentence you to 5 years 9 months' imprisonment.

144On Charge 2, false imprisonment, you are each convicted and I sentence you each to 2 and a half years' imprisonment.

145On Charge 3, common assault laid against you alone Mr Gardiner, you are convicted and sentenced to 5 months' imprisonment.

146On Charge 4 and Charge 5, theft of the firearms and then possession of a trafficable quantity of firearms, being those same firearms that had been stolen, given the unity of the subject matter and the complete temporal connection between those two charges, I believe an aggregate sentence is both open and appropriate. On those two charges, Charges 4 and 5, I convict and sentence you each to an aggregate period of 3 and a half years' imprisonment.

147On Charge 6 which is the charge of theft of the car, you are each convicted and sentenced to 9 months' imprisonment.

148On Charge 7, the theft of the phone and the identification papers by you, Mr Hornby, I convicted and sentence you to 1 month's imprisonment.

149On Charge 10 the handling of the registration plates by you Mr Hornby, again you are convicted and sentenced to 1 month's imprisonment.

150On Charge 11 the possession by you Mr Hornby of the methylamphetamine, you are convicted and sentenced you to 7 days' imprisonment.

151On Charge 12 negligently dealing with the proceeds of crime by you Mr Hornby, you are convicted and sentenced to 1 month's imprisonment.  

152Mr Hornby, Charge 13, is the second charge of possession of a trafficable quantity of firearms to which you have pleaded guilty. However, there is not complete unity with the weapons the subject of Charges 4 and 5. As I said earlier, three of the six weapons in Charge 13 have no relationship to those other 11 stolen in the course of the home invasion and they involve serious enough weapons including a sawn-off shotgun. Even excluding the three weapons where there is the relationship with Charges 4 and 5, Charge 13 stands as a serious offence in its own right. I have not for that reason aggregated this matter with the sentence imposed on Charges 4 and 5. As I have said though when dealing with the importance of totality to my task, rightly or wrongly, I sentence on Charge 13 as though the charge particulars omit the first three firearms. That is really to remove any risk of double punishment.  On Charge 13 you are convicted and sentenced to 20 months' imprisonment.

Summary offences in each case

153As to the summary matters, in your case Mr Gardiner on Charge 2 committing an indictable offence on bail you are convicted and sentenced to 7 days imprisonment.

154On Charge 15 the weapon offence, likewise I convict and sentence you to 7 days' imprisonment.

155On Charge 13 the possession of ammunition, I convict and fine you $500.

156In your case Mr Hornby on Charge 13 possession of ammunition you are convicted and fined $500. On Charge 16 the weapons offence, I convict and sentence you to 7 days' imprisonment.

BASE

157In each case the base sentence is the 5 years 9 months that I have imposed on the home invasion.

CUMULATION Gardiner

158Let me deal with the orders for cumulation.  Again, you will lose track of this and I will explain what it all means.

159In your case Mr Gardiner, I direct that  

·        8 months of the sentence imposed on Charge 2,

·        1 month of the sentence imposed on Charge 3,

·        16 months of the aggregate sentence imposed on Charge 4 and 5 and

·        2 months of the sentence imposed on Charge 6

is to be served cumulatively upon the base and each other. All other sentences will be served concurrently with the base and each other and I to that extent otherwise order under section 16(3C) of the Sentencing Act. 

Total Effective Sentence - GARDINER

160These orders produce in your case a total effective sentence of 8 years imprisonment

CUMULATION - HORNBY

161In your case Mr Hornby, I direct that 

·        8 months of the sentence imposed on Charge 2,

·        16 months of the aggregate sentence imposed on Charge 4 and 5,

·        2 months of the sentence imposed on Charge 6 and

·        4 months of the sentence imposed on Charge 13

is to be served cumulatively upon the base and each other. All other sentences will be served concurrently on the base and each other.

162Those orders for cumulation in your case produce a total effective sentence of 8 years 3 months imprisonment

Non-parole period for each

163In your case Mr Gardiner I fix a period of 5 years during which you will not be eligible for release on parole.

164In your case Mr Hornby, likewise I fix a period of 5 years during which you will not be eligible for release on parole.

Section 18 PSD for each

165You have each been in custody already for a period of 477 days and that period has been served under this sentence of course, so that will to be noted in the records of the court.

6AAA

166I have in each case taken into account your guilty plea and I have reduced your sentence owing to that plea. If you had pleaded not guilty and been found guilty of these various offences, Mr Gardiner, I would have sent you to prison for 10 and a half years.  I would have fixed a non-parole period of 7 and a half years in that case.

167In your case Mr Hornby, I would have sent you to prison for 10 years 9 months and I would have fixed a non-parole period again of 7 and a half years.  So those statements are to be entered into the records of the court 

168Just have a seat gentlemen and I will see if there is anything else or anything I have overlooked.  Anything from your perspective Mr Fisher?

169MR FISHER:  No, thank you, Your Honour.

170HIS HONOUR: From your perspective, Mr Ajak or Mr Chrisant, any matters?

171MR CHRISANT:  No.

172MR AJAK:  No.  No, Your Honour.

173HIS HONOUR:  (I will revise these reasons and get them out to the parties as soon as I can, but are you confident in terms of the individual sentences that I have announced and the mathematics of it?

174MR FISHER:  Yes, Your Honour, I am.

175HIS HONOUR:  Yes.  All right, okay.  Well as I say then, I will get these reasons back once they are sent to VGRS, I will get them back and once I get them back, generally I revise them pretty quickly so I will make those available to the parties once I get them back.  But if there is nothing else further for me to deal with then, I will have them removed.

176Mr Chrisant and Mr Ajak, you will go down and see your client today, will you, or not?

177MR AJAK:  Yes, Your Honour.

178HIS HONOUR:  Yes.

179MR CHRISANT:  Yes, Your Honour.

180HIS HONOUR:  Well whether it is today or not there will be someone in touch with them to discuss - whether it is counsel, it might be Ms Poole for all I know, and Ms Hancock might have a role to play in all this - but there will be someone who will be coming to see them at some point in the not too distant future to discuss what has happened here today and their rights in relation to the sentence.

181MR CHRISANT:  That's correct, Your Honour.

182HIS HONOUR:  Yes, all right.  Well look you heard that then Mr Hornby and Mr Gardiner.  Your legal teams will be in touch with you to discuss what has occurred and your rights in relation to the sentences that I have imposed, but otherwise that concludes the matter.  So Mr Hornby and Mr Gardiner can now be removed then please.  Thank you.

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