Director of Public Prosecutions v Gartside
[2022] VCC 115
•11 February 2022
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
Case no. CR-21-02457
Indictment no. M11106580
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NATHAN GARTSIDE |
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JUDGE: | HER HONOUR JUDGE CARLIN |
WHERE HELD: | Ballarat |
DATE OF HEARING: | 21 January 2022 |
DATE OF SENTENCE: | 11 February 2022 |
CASE MAY BE CITED AS: | DPP v Gartside |
MEDIUM NEUTRAL CITATION: | [2022] VCC 115 |
REASONS FOR SENTENCE
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Subject: Criminal
Catchwords: plea of guilty; possession of a traffickable quantity of firearms; possession of a firearm and related items in contravention of a firearm prohibition order; possession of a drug of dependence; summary offence of possession of a controlled weapon without lawful excuse; summary charge of possession of a Schedule 4 poison; summary charge of dealing with property suspected of being the proceeds of crime; no remorse demonstrated; relevant priors; aggregate sentence imposed on charges arising on same facts and being of similar nature.
Legislation Cited: Sentencing Act 1991 (Vic); Firearms Act1996 (Vic).
Cases Cited: Acciarito v The Queen [2019] VSCA 264; DPP v Graoroski [2018] VSCA 332; DPP v Piscopo [2021] VCC 698; Worboyes v The Queen [2021] VSCA 169.
Sentence: Total Effective Sentence of three years and eight months imprisonment with a non-parole period of two years and seven months. Fined a total sum of $1700.00.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | Office of Public Prosecutions |
For the Accused | Mr A. Paull and Ms H. Lyons | Adrian Paull Criminal Lawyers |
HER HONOUR:
Introduction
1Nathan Gartside, on 28 May 2021 police attended your home, as they were entitled to do, to monitor your compliance with a Firearm Prohibition Order. That order was served on you on 22 July 2020 and you knew it prohibited you from acquiring, possessing, carrying or using a firearm or related item for a period of 10 years. You also knew, on 28 May 2021, that you were in breach of that order. You initially told the attending police that your bedroom was the second bedroom in the house, which was clearly not true, and that you were unaware of any firearms or firearm related items in the house. A search of the bedroom you in fact shared with your girlfriend, Rebecca Slade, revealed this to be another lie. A total of five firearms, one of which was a stolen firearm, and a range of different ammunition was discovered in various places about your bedroom, including in a cavity underneath your wardrobe drawers.
2Also hidden in that same cavity was a stash of drugs both illicit and prescription, although not prescribed to you, and two knives in their sheaths. The drugs comprised approximately 121 grams of substance containing crystal methylamphetamine, commonly known as ice, 16 Oxycodone tablets, 13 buprenorphine (suboxone) strips, 22 diazepam tablets (Valium), and 24 pregabalin (Lyrica) tablets.
3You were arrested and taken to Ballarat Police Station where you were interviewed with the assistance of an independent third person. You were then charged and remanded in custody where you have remained ever since, a total of 259 days, not including today.
4On 21 January 2022 you pleaded guilty before me to: one charge of possession of a traffickable quantity of firearms (Charge 1); one charge of possession of a firearm and related items in contravention of a firearm prohibition order, that is Charge 2; and two charges of possession of a drug of dependence, Charge 3 relating to methylamphetamine and Charge 4 relating to oxycodone and buprenorphine.
5There were also related summary offences being: two charges of possessing a controlled weapon without lawful excuse, being summary charges 14 and 15; one charge of possessing a Schedule 4 poison, namely pregabalin, that is summary charge 16; and one charge of dealing with property, namely a Enfield centre fire bold action rifle, suspected of being the proceeds of crime. That is summary charge 18.
6I should note that not only was your possession of the firearms illegal by virtue of the Firearm Prohibition Order, you did not hold a Firearms Licence under the Firearms Act1996 (Vic) and none of the firearms were registered to you. Similarly, you were not authorised to possess, carry or use cartridge ammunition.
7A plea on your behalf was conducted before me on the same day and it now falls to me to sentence you for your conduct. Your counsel Mr Paull conceded the inevitability of a term of imprisonment.
8In arriving at an appropriate sentence, which in your case really means the length of the term, I am required by law to have regard to a variety of factors which I will outline in these sentencing remarks.[1] Some tend towards leniency and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence. However, before I discuss these factors I will need to outline your firearm offending in more detail.
[1]Sentencing Act 1991 (Vic) s 5(2) (‘Sentencing Act’).
Circumstances of the offending
9The agreed facts upon which I sentence you are set out in the Summary of Prosecution Opening.[2]
[2] Exhibit A on the Plea.
10The five firearms found in your bedroom consisted of two rifles and three handguns. Details of those weapons and their associated ammunition are as follows:
11Located in the right-hand side wardrobe cupboard were two firearms. The first was an Enfield .303 calibre bolt action repeating rifle, serial no. E92668, and that was found in a rifle bag. It had a detachable magazine with a capacity of 10 cartridges and was in working condition. That rifle had been stolen during a burglary in Axedale, which is in the greater Bendigo area, between 26 and 27 November 2018. Inside the rifle back was a box of unfired cartridge ammunition and a clear resealable bag of unfired cartridge ammunition. In total there were 35 .303 British calibre soft point centre fire cartridges, which were suitable for use with that rifle.
12The second firearm found in that location was a black air rifle which had a defaced serial number and a fitted scope. That rifle was also in working condition. It was a breakopen single shot air rifle and the serial number could not be recovered it was so defaced.
13Located in the second drawer in the wardrobe was a bag containing a manufactured revolver style handgun, which was loaded with a 12-gauge Winchester cartridge and was found to be in working condition. It was a break-open single-shot pistol that was originally a single shot flare gun. It had been modified by sleeving the existing barrel to accommodate a 12-gauge shotgun cartridge. Also in that bag were three unfired 12-gauge shotgun cartridges.
14Seized from a cavity underneath the bottom drawer of the wardrobe was an improvised revolver style handgun in a sheath loaded with four .22 calibre cartridge ammunition. That gun was found to have started life as an imitation revolver and to have been heavily modified. It was unable to be fired due to a design flaw with the firing pin, which could be easily fixed.
15Together with that gun were 20 unfired Winchester shotgun cartridges and 17 .22 calibre Winchester cartridges, as well as one .22 calibre cartridge and a container of Pro Magnum air rifle ammunition.
16The final firearm was a Colt Gel Blaster found between the mattress and the headboard. It was not loaded, however, on the bedroom floor, beside the bed, was a single ball bearing which was capable of being used in that pistol.
Your personal circumstances
17Turning to your personal circumstances. These were outlined in Defence submissions, a 2010 report of consultant psychologist Ian Joblin, and a recent report of consultant psychologist Su Gorkem. Ms Gorkem saw you on 8 December 2021 and administered various tests.
18You are now 31-years-old.
19You were born and raised in the Ballarat area. You have an older brother, a younger sister, and a younger half-sister on your father's side. Your childhood was characterised by instability, neglect and abuse. Your parents separated when you were 10 years old, and you lived with your father and step-mother during primary and secondary school. You report being physically abused by your father and having a difficult relationship with your step-mother. Your mother had serious medical issues, as well as problems with gambling and alcohol. You are no longer in contact with your parents.
20Your experience at school was also fraught. You describe yourself as a 'below average student' and report attention, behavioural and learning difficulties.[3] You struggled to form and maintain friendships. You were suspended from several high schools due to behavioural issues. You finally attended Ballarat Learning Exchange where you completed an equivalence of Year 10. You completed a pre-apprenticeship at School of Mines, and then returned to secondary school with the aim of completing Year 12, but left halfway through the year.
[3] Exhibit 2 on the Plea, Report of Su Gorkem, 2 [25] (‘Exhibit 2’).
21A consistent and influential factor in your life has been drug use. It has contributed to your criminal history and caused other difficulties in your life. I will return to your criminal history later in these remarks.
22You began to use cannabis at the age of 15, and by 17 you were abusing alcohol and methamphetamine. At the age of 18, you were abusing MDMA as well. You told Ms Gorkem that your addiction was 'a long running battle over 11 years’, with 'the only time I didn't use was in 2017 for six months, when I was in jail for 173 days for possession of a handgun'.[4]
[4] Ibid 3 [33].
23You have had numerous jobs since leaving school. It was difficult for you to maintain full time work during periods of heavy use of illicit substances. Most significantly you have been employed as a concreter and your current employer, Andrew Fleming from Ballarat Associated Concreters, has provided a letter of support to the Court. He is aware of your offending but believes you can turn your life around and is willing to re-employ you upon your release.
24You have four children from three long-term relationships. From your first relationship, which had ended before you saw Mr Joblin in 2010, you have a 13-year-old son. You have two sons aged nine and seven from your second relationship, which ended approximately five years ago, and from your most recent relationship you have a young son. At the time of the offending, you were separated from the mother of your youngest child, but describe the relationship in positive terms and remain in contact. You are pragmatic about the effect imprisonment could have on the future of that relationship.
25In 2016, you collided with a power pole whilst driving at 130 kilometres per hour and sustained head and spinal injuries. You claim to have fallen asleep on your way home from work. You report depression and an attempted suicide in the aftermath of that event.
26In the 2010 interview with Mr Joblin – which was well before the current offending – Mr Joblin did not diagnose any psychological conditions, but noted that you had impulse control and anger issues.[5] Eleven years later, Ms Gorkem concluded that you presented with 'Post-Traumatic Stress Disorder (PTSD), Major Depressive Disorder (MDD), Stimulant Use Disorder, and Attention Deficit Hyperactivity Disorder (ADHD)'.[6] She considered your ADHD to be longstanding and explanatory of your difficulties at school and early behavioural issues. Likewise she considered your PTSD and depression to stem from your childhood.
[5] Exhibit 3 on the Plea, Report of Ian Joblin, 5.
[6] Exhibit 2 (n 3) 8 [88].
27You are currently prescribed 60 milligrams of Avanza for depression and receive Panadol for pain relief.
28As I have said, you have been in custody since 28 May 2021. Due to COVID-19 restrictions, you have experienced periods of quarantine isolation and numerous lockdowns. Access to programs, psychological supports and visits have been restricted.
29Despite custody programs being limited, you are aiming to attain your forklift licence and attend Alcohol and Other Drug rehabilitation programs. You have also indicated a willingness to engage with counselling and psychological supports on your release.
30You claim to have been abstinent from illicit drugs since your remand and are on the methadone program. You have indicated that you intend to continue the program when released as a way of helping you to rebuild your life.
Objective Gravity of your offending and moral culpability
31Two factors of central importance in determining any sentence are the objective gravity of the offending and the moral culpability of the offender.
32The seriousness of your offences is reflected in their maximum penalties, which are as follows:
33Charge 1 – the possession of traffickable quantity of firearms – the maximum penalty is 1200 penalty units or 10 years' imprisonment.
34Charge 2 – which is the acquire, possess, carry or use a firearm or firearm related item in contravention of a firearm prohibition order – is punishable by a maximum of 10 years' imprisonment.
35Charge 18 – the summary offence of deal with property suspected of being the proceeds of crime – is punishable by a maximum of two years' imprisonment.
36Charges 3 and 4 – possession of a drug of dependence – are punishable by a maximum of one year imprisonment or 30 penalty units or both if the court is satisfied on the balance of probabilities that the offence was not committed by the person for any purpose relating to trafficking in those drugs and in this case I am so satisfied.
37Summary offence Charge 16 – unauthorised possession of a poison or controlled substance – is punishable by a maximum of 10 penalty units.
38And summary offences Charges 14 and 15 – possession of a controlled weapon – are punishable by a maximum of 120 penalty units.
39Whilst all your offending is serious, your firearm offences are the most serious.
40You told the police in your interview that you bought all the firearms at the same time from a friend who was having mental health issues and who you believed was a danger to himself and possibly others. You said you had only had them for about one week and paid $900 for the lot. You essentially repeated that story to Ms Gorkem, also telling her your friend later killed himself. As I said to your counsel, I find that story implausible and I simply do not accept it.
41When discussing the seriousness of the offence of being a prohibited person in possession of a firearm, which is analogous to your Charge 2, our Court of Appeal recently said,
'At one end of the spectrum is possession of a weapon unrelated to other criminal activities and at the other end of the spectrum is the use of a weapon in the commission of another offence'.[7]
[7]Acciarito v The Queen [2019] VSCA 264 [55].
42However, the cases also make clear that the seriousness of the crime can be elevated by considerations unrelated to the purpose of possession, for example, by an offender's prior criminal history.
43In your case it is not alleged by the Prosecution that your possession of firearms was for any particular illegal purpose, nevertheless for the reasons which follow I regard your offending as a serious example of Charge 1 and Charge 2.
44You were in possession of five different firearms, four of which were in working order and the fifth could easily be made so. You were also in possession of ammunition for each firearm and in fact two of them, being the revolver style handguns, were loaded, albeit that one of those was the inoperable firearm. Whilst they were all dangerous weapons, it is notable that the .303 rifle was a high-powered centrefire rifle, and that the three handguns were capable of being concealed on your person and that two of the handguns had been converted from their original state as a flare gun and an imitation revolver.
45Legally manufactured firearms are subject to stringent controls in relation to design and integrity to ensure their safe operation as far as possible. It does not take much imagination to appreciate that home-made firearms, such as the ones you had, are inherently more dangerous than their legally manufactured counterparts. The former flare gun, for example, was loaded with ammunition normally used in a shotgun, meaning discharge would produce significant recoil with consequent effect on accuracy.
46Further, your possession of such modified firearms indicates either that you had the capacity to manufacture them or that you had access to others who could do so. In that regard Mr Cordy pointed to the remarkable coincidence that your prior conviction for being a prohibited person possessing a firearm in July 2017 related to you carrying a home-made handgun loaded with a single round of .22 calibre cartridge ammunition and the fact the converted imitation revolver found in your bedroom on this occasion was also loaded with .22 ammunition. It is notable that you were also, in relation to that July 2017 matter, wearing a makeshift holster. I am not satisfied beyond reasonable doubt that you were the person who modified the two guns in this matter, however clearly you have an ongoing interest in such weapons and an ability to access them.
47There was simply no good reason for your possession of any firearm, let alone five of them, especially given you knew you were prohibited; you had a history of firearm offending and you were involved in the illicit drug trade even if only as an end user. That is not to say your possession of the firearms was related or incidental to your possession of the drugs, but merely to recognise the heightened risk that firearms will end up being used to cause injury or death when they are possessed in combination with illicit drugs.[8] In that regard, I note that the quantity of ice in your possession was not insubstantial. In fact it was more than 40 times the traffickable quantity of 3 grams, even though it is not alleged that you were trafficking. Moreover, the fact you were on a Community Corrections Order at the time for offences which included possession of cartridge ammunition aggravates your firearm offences. Indeed, your being on a Community Corrections Order aggravates all your offences.
[8]DPP v Graoroski [2018] VSCA 332 [38].
48Turning to your drug offences, you told the police that you had all the drugs, the ice and the prescription medication, to treat your back pain. You said you stocked up on it because of the pandemic. To Ms Gorkem you said that you were abusing drugs to cope with your feelings of abandonment by the mother of your youngest child. The Prosecution accept that your possession of the drugs was for your own use and I proceed on that basis, but I do not accept that you were using them to treat your back pain. The fact your possession was for your own use undoubtedly lessens the seriousness of your drug offences and this is reflected in the lower maximum penalty in that situation. However, once again, there is simply no good reason for you to use and possess all those drugs, especially since only four months before you agreed to a Community Corrections Order which was designed to treat your drug addictions and especially given your access to firearms.
49Similarly, there is no good reason for your possession of the two knives, especially given your prior convictions for possessing unlawful weapons.
50Mr Paull relied on Ms Gorkem's opinion that:
'His untreated mental health issues have contributed to a deterioration in his functioning, impacting his ability to rationalize, consider alternative solutions, and make appropriate decisions. It is likely that Mr Gartside would have exerted more control over his behaviour had he not been experiencing symptoms of depression, untreated ADHD, and regularly using illicit substances. Substance use can heighten the impulsivity and immaturity present in adults, leading to reduced self-inhibition and cognitive and behavioural self-control, thereby contributing to his offending'.[9]
[9] Exhibit 2 (n 3) 9 [95].
51I do take into account the deprivations and difficulties you suffered in your youth and your mental health issues, however these were not impulsive offences. They were planned and ongoing and occurred against a background of relevant prior offending and whilst you were on a court order designed to rehabilitate you. Further, reliance on your mental health as a mitigating factor is complicated by your ongoing substance use. In short, I consider your moral culpability for all offences to be extremely high.
Current Sentencing Practices
52One of the matters to which I must have regard in arriving at an appropriate sentence for you is current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both.[10]
[10] The rationale for doing this is to promote consistency of approach in sentencing, particularly, the application of relevant sentencing principles.
53Whilst no two cases are ever truly the same, and other sentences are not precedents to be applied or distinguished, sentences imposed in comparable cases may provide a convenient yardstick against which to measure any sentence proposed in the instant case.
54I have had regard to the county court sentence of DPP v Piscopo[11] to which I was referred by the Prosecutor as well as other cases, including those referenced in the footnotes to these sentencing remarks, concerning the offence of prohibited person possessing a firearm, which as I have already said is analogous to your Charge 2. These cases provide some guidance but ultimately my duty is to impose a just sentence in the unique circumstances of your case.
[11][2021] VCC 698.
Plea of Guilty, co-operation and remorse
55You are entitled to a significant discount in your sentence for the fact you pleaded guilty and did so at an early stage. You indicated your intention to plead guilty on 23 September 2021 at a committal mention and in fact pleaded guilty after your application for summary jurisdiction was refused and you were committed to this Court by way of straight hand-up brief. This was on 16 November 2021.
56By pleading guilty you have facilitated the course of justice and taken legal responsibility for your crimes. The fact the case against you was overwhelming does not detract from the utilitarian value of your plea of guilty. Moreover, our Court of Appeal has recently emphasised the need for sentences to reflect the high value of pleas of guilty in the current COVID-19 environment where the legal system is under considerable strain.[12]
[12] See, eg, Worboyes v The Queen [2021] VSCA 169 [39].
57I am not satisfied that your plea of guilty is accompanied by remorse given the explanations you have given in relation to your offending and which I have not accepted. This is not an aggravating factor, it just means you do not get any additional discount on that basis.
Your character and risk of reoffending
58You have a significant and concerning criminal history dating back to 2009. It is consistent with your history of drug addiction but also includes driving, crimes of violence, weapons and firearms offences. I accept that there are gaps in your criminal history and that your offending has become less violent over time, but that is of small comfort given your appearances for firearms, ammunition and weapons offences in 2017 and 2021. That you committed the instant offences so soon after you were placed on a corrections order for relevant offences does not augur well for your future.
59Mr Paull submitted that the current period in custody has been your longest period of abstinence from drugs since you started using. He also relied on the fact you have previously completed corrections orders, are supported by your former partner and ex-employer, that you have a desire to maintain a relationship with her and your youngest child and also the fact that you have been able to maintain a job at various times.
60I am guarded about your prospects of rehabilitation. I do not think you are a lost cause, but unless you change your attitude to drugs and firearms you will end up spending much of your adult life in custody.
The burden of imprisonment
61In determining the appropriate sentence, I must consider how a term of imprisonment would be likely to impact you. I accept that a term of imprisonment will be harder for you than a person not suffering your mental health conditions. I also take into account the fact that you are being sentenced during the COVID-19 pandemic. I accept that a term of imprisonment during the pandemic is generally harder than at other times. There are lockdowns and periods of isolation. Activities and programs are curtailed and personal visits are reduced or suspended. These are all additional burdens you have faced and will continue to face.
Purposes of Sentencing
62I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes of just punishment, deterrence, rehabilitation, denunciation, and protection of the community.[13] A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required.
[13]Sentencing Act (n 1) s 5(1), (3).
63Further, when there are multiple charges, such as here, the total effective sentence must not offend the principle of totality. What that means is that you must not be punished any more than is proportionate and appropriate to your overall criminality. A distinct but related matter is that I must also avoid punishing you more than once for the same activity. These principles are particularly relevant in this case because of the potential overlap between charges, especially Charges 1 and 2. Indeed because Charges 1 and 2 are founded on the same facts and are of a similar character I will impose an aggregate sentence on them.
64As I said during the plea, I will not treat the fact the Enfield rifle was stolen as an aggravating feature of those charges to avoid doubling up with summary Charge 18.
65I will also not treat the firearms offences as aggravating the drug offences.
66I will impose aggregate sentences on Charges 3 and 4 and also on summary Charges 14 and 15 as they also are respectively founded on the same facts and are of a similar character.
67The principles of just punishment, general and specific deterrence and denunciation are all relevant to your offences. Community protection is also relevant to your firearms and weapons offences. I will allow for your rehabilitation by the setting of a non-parole period.
Sentence
68So the sentences I impose are as follows.
69On Charges 1 and 2 on the indictment, the firearms offences, I impose an aggregate sentence – with conviction – of three years and four months. That is the base sentence.
70On Charges 3 and 4 on the indictment, the drug offences, I impose an aggregate sentence of five months.
71On the summary offence of Charge 18, I impose a term of imprisonment of six months.
72I direct that two months of the aggregate sentence imposed on Charges 3 and 4, and two months of the sentence imposed on Charge 18 be cumulative upon each other and upon the base sentence of three years and four months. That makes a total effective sentence of three years and eight months.
73In respect of that total effective sentence, I set a non-parole period of two years and seven months.
74On the summary offences 14 and 15, I convict and fine you an aggregate of $1,500.
75On the summary offence, Charge 16, I convict and fine you $200.
Section 6AAA
76I declare that if not for your plea of guilty I would have sentenced you to a total effective sentence of five years and eight months and with a non-parole period of three years and nine months.
Presentence Detention
77I also declare that you have served a total of 259 days, not including today, in custody in respect of this sentence and order that this declaration be entered in the records of the court and that the period be deducted administratively.
Ancillary orders
78The Prosecution have made applications for ancillary orders, being a forfeiture order and a disposal order. The forfeiture order is in relation to the firearms and firearm related items and the disposal order is in relation to the drugs and controlled weapons, and I will make those orders.
79MR CORDY: Your Honour pleases.
80HER HONOUR: Now is there anything that I have neglected to mention that I should or any issues?
81MR CORDY: No, Your Honour, and no issues from the Prosecution.
82MS LYONS: No issues from Defence, Your Honour, as Your Honour pleases.
83HER HONOUR: All right, thank you. So, Mr Gartside, did you get the bottom line. I know that is what you are concerned with. In terms of the total effective sentence, it is three years and eight months with a non-parole period of two years and seven months. So the two years and seven months is the earliest point at which you can be released; it depends on the Adult Parole Board.
84OFFENDER: Yes, thank you.
85HER HONOUR: All right. We will adjourn the Court, thanks.
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