Director of Public Prosecutions v Gauci
[2025] VSC 648
•16 October 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2025 0028
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| MICHAEL GAUCI | Accused |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 October 2025 |
DATE OF SENTENCE: | 16 October 2025 |
CASE MAY BE CITED AS: | DPP v Gauci |
MEDIUM NEUTRAL CITATION: | [2025] VSC 648 |
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CRIMINAL LAW – Sentence – Possessing an unregistered general category handgun – Loaded, shortened .22 rifle – Previously kept by accused in unsecured state in the bedroom of his house – Possession not in connection with ongoing criminal activity – Plea of guilty – Limited criminal history – Long period on remand for charges which ultimately resulted in verdicts of not guilty by jury – Good prospects of rehabilitation – Concession by defence that term of imprisonment appropriate – Sentence of imprisonment for 10 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A Moran with Mr S Tamburro, solicitor advocate | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr D Dann KC with Mr T Marsh | Marshall Jovanovska Ralph Criminal and Migration Lawyers |
HIS HONOUR:
Introduction
Michael Gauci, you have pleaded guilty to a single charge of possessing an unregistered general category handgun, contrary to s 7B of the Firearms Act 1996 (‘the Act’), and have admitted the limited prior convictions contained in the criminal record filed in this case.
Under the Act, a handgun means a firearm that –
a) is reasonably capable of being carried or concealed about the person; or
b) is reasonably capable of being raised and fired by one hand; or
c) does not exceed 65 centimetres in length measured parallel to the barrel.[1]
[1]Firearms Act s 3(1).
The weapon the subject of this charge was a handgun by virtue of having been shortened at the barrel and stock. The circumstances and timing of that occurring, and who carried out the shortening, are unknown to the Court. You claim to have acquired the weapon in that state from a friend of yours some years before the date of your offending.
The charge to which you have pleaded guilty is a serious one, with a maximum penalty of a fine of 600 penalty units or imprisonment for 7 years for a first offence, which is the case here.
There are a number of aggravating features to your offending.
Facts
At the time of this event, you lived with your partner and children at a house in Rivercoast Road, Werribee South. In the early hours of 28 December 2022, a dispute occurred between you and neighbours in a next-door unit as a result of excessively loud music being played by the neighbours. A confrontation occurred between you and the neighbours near the nature strip and driveway at the front of your property. During the course of the confrontation, you produced the sawn-off bolt action rifle which is the subject of the charge.
After the altercation, you promptly left the premises in your HiLux utility vehicle with your partner and daughters. You drove to the Werribee Police Station where you were arrested by police. Your vehicle was searched. The rifle was located under the front passenger seat. It was found to have a live cartridge in the chamber, and an attached magazine containing four cartridges.
You were not the holder of a firearms licence, and the firearm was not registered.
On your own account, prior to being in your possession at the front of your premises, the firearm had been kept by you in an unsecured manner in the walk-in wardrobe in your bedroom, alongside cartridges and the magazine, in the house you shared with your partner and daughters. You claimed in your evidence at the trial that you had acquired the firearm in response to incidents in which your home and your workshop had been the subject of burglary in the period of time leading up to 28 December 2022. During the plea hearing, Mr Dann KC, who appeared with Mr Marsh for the defence, indicated that his instructions were that you obtained the firearm, in its shortened state, from a friend, two to three years prior to the relevant date.
The rifle was subsequently analysed by Victoria Police. It was ascertained that:
a) the barrel had been sawn-off and measured 273 mm in length;
b) the buttstock had also been sawn-off to form a pistol-grip, further reducing the overall length of the firearm to 457 mm;
c) the firearm was capable of being discharged by the normal method of applying pressure to the trigger; and
d) at the time of analysis, the safety was not functioning.
Time in custody
You were arrested on 28 December 2022 in respect of this and other charges. You remained in custody until being granted bail by me on 30 September 2025, following your acquittal on those other charges, by a jury verdict on that day. You therefore spent 1008 days in custody.
Sentencing facts
The other charges to which I have referred, arose from an incident in which your neighbour was set alight and sustained serious burns, and two others sustained burns. The charge of possession of the handgun had earlier been separated from the trial charges. Two trials of the other charges proceeded in this Court, first in February 2025, and later in August and September of this year. The first trial miscarried; and as noted, you were found not guilty of all charges in the second trial. In sentencing you, I will have no regard to the events in respect of which you were found not guilty by the jury. You are to be sentenced for your possession of the shortened rifle on 28 December 2022. That possession entails your possession of the rifle in its unsecured state in the bedroom of your house, your possession of the rifle as you conveyed it to the front of your premises in response to the events which were then taking place there, your possession of the rifle as you conveyed it to the Werribee Police Station in your utility, and your possession of it in the utility up to the point where it was found under the front passenger seat by the police, with the magazine containing four rounds attached, with a cartridge in the chamber, and with the safety mechanism inoperative. I have no regard at all to your admitted firing of the firearm that morning, or the events which transpired afterwards.
Your plea of guilty
You indicated an intention to plead guilty to this offence in February of this year. You pleaded guilty to the charge before me on 30 September 2025.
Personal background
You are 46 years old, having been born on 4 July 1979. You were born in Melbourne, and raised in Sunshine. Your father worked as a maintenance fitter, principally at Smorgons in Yarraville, and your mother was a dressmaker. Both are retired, and were present for much of the trial, and on the day of your plea hearing. You have two sisters. One was present on the day of the plea, and both were supportive of you during the trial. You attended St Paul’s Primary School in Sunshine, and Ardeer High School. You left high school during year 9 to commence a panel beating apprenticeship at Sunny Autos in Sunshine. You completed the apprenticeship across the span of four years, and remained at that company for ten years in total. You then worked as a panel beater at a number of companies before starting your own business, JH Auto, in about 2008. This was a mechanical repair shop, specialising in the service and repair of Toyota HiLux vehicles. That business operated until you were arrested on 28 December 2022. At the time, the business had six employees. Your then partner, Blane Sarah, worked in accounts and administration for the business. After your arrest, despite the efforts of Ms Sarah and others, the business collapsed, and it is no longer operating.
You met Ms Sarah when you were 21, and you were in a de facto relationship from that time. You have two daughters. They have been much effected by the events which led to your incarceration on remand, and your separation from the family. Your daughters live with Ms Sarah. Since your release, you have lived with your parents. You have spent time with Ms Sarah and your daughters, but it is still to be resolved whether you will resume living with Ms Sarah and your daughters in future.
Criminal history
You were convicted and fined for failure to comply with an undertaking order on 7 April 1999, after being placed on a 12 month good behaviour bond on 13 May of the previous year, for offences of careless driving and failing to have P plates conspicuously displayed on your vehicle. You also have some other minor traffic matters on your Road Safety Act history which was provided to the Court.
You were then convicted of breaching an intervention order and unlawful assault at Sunshine Magistrates’ Court on 6 February 2002. I was informed by your counsel that these convictions arose in the context of the breakdown of a relationship with a previous girlfriend. Following the breakdown of the relationship, she had retained possession of a necklace which you believed to be yours. An intervention order was in place, and you met with your former girlfriend, by agreement, in order to try to resolve the situation. You forcibly took the necklace from her, resulting in the charges of assault and breaching an intervention order. You were sentenced to 2 months’ imprisonment to be served by way of an intensive correction order (‘ICO’). You successfully completed the ICO. The fact that you received a term of imprisonment on your first occasion before a criminal court, albeit that you were permitted to serve the sentence by way of an ICO, indicates the seriousness of your prior offending. I note, however, that since that time, you have not been dealt with for any further offences until the present case.
Matters relied on in mitigation
Mr Dann relied upon a number of matters in mitigation of sentence.
First, he relied upon your plea of guilty to the charge. He referred to the utilitarian benefit associated with that plea of guilty, but made no mention of the question of remorse, or of any of the other subjective criteria of a plea of guilty considered by the Court in Phillips v The Queen.[2] As was stated by the Court in Phillips, it is always a question for the sentencing judge whether remorse, a willingness to facilitate the course of justice and an acceptance of responsibility are to be inferred from a plea of guilty.[3] Whilst the overwhelming strength of the prosecution case against you on the charge to which you pleaded guilty is not relevant to the discount to be allowed to you for the objective criteria of your plea of guilty, it is relevant to an evaluation of the subjective criteria, including remorse. There is an absence of any evidence, outside your plea of guilty, of your being remorseful for your offending, or in support of the other subjective criteria. In the circumstances, I will accord you the full benefit flowing from the utilitarian criteria of your plea of guilty, but not the benefit which would flow from the presence of the subjective criteria. Having said that, the overall benefit you receive will be significant, as indicated by the declaration I will make pursuant to s 6AAA of the Sentencing Act 1991 (‘Sentencing Act’).
[2](2012) 37 VR 594 (Redlich JA and Curtain AJA).
[3]Ibid [36].
Secondly, Mr Dann relied on the fact that you have no prior conviction for offences against the Act. The prior convictions you do have are unconnected, and arose many years ago.
Thirdly, he relied upon your excellent work record, from the time that you left school in Year 9 until your arrest on the day of this offence.
Fourthly, Mr Dann relied upon the long period of delay from the time of your arrest until the disposition of the charge. You spent most of that long period of 2 years and 10 months in custody, with very serious charges which, if proved, could only result in a very long term of imprisonment, hanging over your head. In addition, your circumstances in custody were difficult. Some of the period was made all the more difficult because of the restrictions on custodial conditions during the latter part of the COVID-19 pandemic, and you were also afflicted by a number of medical issues.
Fifthly, Mr Dann relied upon the very significant financial impact upon you of your time on remand and the trials you have undergone. Not only have you lost your business, but all of your savings have been dissipated.
Sixthly, reliance was placed upon the fact that the time you spent in custody will substantially outweigh any sentence you receive, giving rise to the consideration which was the subject of a specific ground of appeal in Kim v The King, [4] and the subject of comment by Weinberg JA in Karpinski v The Queen.[5] I make it clear that in sentencing you, I do have regard to the dead time which you accrued in custody which will substantially exceed any sentence of imprisonment I could properly pass upon you.
[4][2025] VSCA 238 (Priest ACJ and Walker JA).
[5](2011) 32 VR 85 [7].
Seventhly, Mr Dann pointed out that you are to be given the full benefit of your acquittal on the charges upon which you faced trial. As I have already indicated, in sentencing you, I will have no regard at all to the circumstances surrounding those charges upon which you were acquitted by the jury. I will extent to you the full benefit of your acquittal.
Eighthly, Mr Dann pointed to the explanation you gave at the trial for your possession of the firearm, which was a defensive purpose. On Mr Dann’s submission, that characterisation of your purpose for possession of the firearm should be extended right up to the point where you took the weapon from your bedroom out to the front of your property where a confrontation was contemplated.
Ninthly, defence counsel submitted that I must sentence you on the basis that this is a case which falls into the first category of cases discussed in Berichon v R (‘Berichon’),[6] in that it is not open to conclude that your possession of the firearm was associated with ongoing criminal activity. That proposition can be readily accepted.
[6](2013) 40 VR 490.
Finally, Mr Dann relied upon your real prospects of rehabilitation. He tendered three character references and a number of certificates from courses you have completed in custody, and also pointed to your limited criminal history and excellent work history, in support of his contention.
Having set out the above mitigating features, Mr Dann made the submission that, as a result of the long period of time you spent in custody on remand, and the way that would be viewed by the community, you are not an appropriate vehicle for the full measure of general deterrence to be factored into the sentence I pass upon you. He likened your situation to that of a person suffering from a mental illness.
I do not accept this submission by Mr Dann. It was made without any supporting authority, and with all due respect to Mr Dann, is not correct. Whilst it might be arguable that your long time in custody might somewhat reduce the need for specific deterrence in your case, there is no reason why it would impact on the need for general deterrence. People in the community who may be minded to possess unregistered handguns need to have it brought home to them that such conduct will be met with strong punishment from courts upon apprehension.
Crown’s submissions
In her brief oral and written submissions, Ms Moran, who appeared with Mr Tamburro for the prosecution, pointed to several circumstances of aggravation which she argued were present in this case.
The prosecution also provided a table of comparative cases. I have had regard to those cases, as well as other sentences for possession of an unregistered handgun, in arriving at the appropriate sentence for you.
I make it clear that no individual sentence passed in any other case is in any way a precedent for the sentence I must pass.
Nature and gravity of offence
The prosecution, in its written Summary of Prosecution Opening for Plea, described this as a serious example of the offence, calling for a term of imprisonment. The prosecution conceded ‘that it would be open to the Court to impose a term of imprisonment that would not require the fixing of a parole eligibility period.’[7] I take this to be a concession that a sentence of imprisonment of less than 2 years would be open to me.[8]
[7]Opening [16].
[8]Sentencing Act s 11(1).
Mr Dann did not take issue with the prosecution contention that a term of imprisonment is required in this case. Before outlining the mitigating features which I have already canvassed, he submitted that a short period of imprisonment would be appropriate in your case, which he also described as a ‘straight’ period of imprisonment. I take Mr Dann’s use of the term ‘straight’ in reference to the period of imprisonment I should impose to be a submission that it should be a term of imprisonment without an associated non-parole period. This accords with the common usage of the term.
When referring to Berichon, and the category of offence into which your crime falls, Mr Dann made mention of paragraph [26] in which Redlich JA stated that for offences in that category, ‘sentences of a low order of imprisonment are usually appropriate’, and footnote 21 which stated ‘sentences in the range of six to 18 months are ordinarily imposed’. However, he moderated his reliance on that paragraph by noting that Berichon concerned a prohibited person in possession of a firearm, which is a more serious offence than the charge upon which you fall to be sentenced, as you were not a prohibited person at the time of the offence.
Mr Dann’s submission that a short term of imprisonment would be appropriate in your case was an acknowledgment of the fact that nothing short of a term of imprisonment would be sufficient to meet the needs of justice in this case. In my view, that was a realistic concession.
Notwithstanding the mitigating features relied upon, your offending in this case was serious. Possession of an unregistered handgun is a serious offence, attracting a maximum penalty of imprisonment for 7 years for a first offence. In the lead-up to and on the day of this offence, you had kept the shortened firearm unsecured in a walk-in wardrobe in the downstairs master bedroom of you home, with a loaded magazine and other cartridges nearby. You shared the bedroom with your partner, and the home with your two young daughters. That is an aggravating feature of your offending.
Indeed, the fact that the weapon was functional and that you had ammunition for it, renders this a more serious example of this offence. [9]
[9]Cf Powell v The Queen [2015] VSCA 93 [26] (Weinberg and Kyrou JJA).
You then removed the firearm and ammunition from the wardrobe and took it outside to an area in close proximity to other people. I disregard the fact that you later discharged the gun, on your own admission during the trial, but the fact that you removed it and took it, in a loaded state, outside and into the street, even if for defensive purposes, is an aggravating circumstance of your offending.
As your possession continued on that day, you placed the weapon into your vehicle, with a partially-full magazine attached and with a round in the breech, in which location and state the weapon was found by police who searched your vehicle.
You were not at the time, and have never been, the holder of a firearms licence.
The explanation you gave for your possession of the firearm in the lead-up to the day in question is entirely unsatisfactory, and not remotely mitigatory. The possession of an illegal shortened firearm, or any handgun, complete with ammunition, even for defensive purposes, is a serious criminal offence.
Sentencing analysis
In light of the seriousness of your offending, it is necessary to impose a term of imprisonment in your case. Your counsel accepted as much. Having regard, however, to the mitigating circumstances applicable to you, including your plea of guilty, your limited criminal history, your good previous background, the long delay from the time of your offending until now, much of which saw you on remand in difficult circumstances, and your good prospects of rehabilitation, I consider that the purposes for which sentence must be imposed in this case, including just punishment, denunciation, general deterrence and rehabilitation, can be fulfilled by the imposition of a sentence of reasonably short duration, which, in light of the declaration I will make as to pre-sentence detention, will not see you further incarcerated.
Sentence
Michael Gauci, for possessing an unregistered general category handgun, you are sentenced to be imprisoned for 10 months.
I declare a period of 1008 days as being a period already served under this sentence. I direct that the fact of the making of that declaration and its details be noted in the records of the Court.
I indicate pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have imposed a sentence of 15 months’ imprisonment on this charge.
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