Director of Public Prosecutions v Gibbons

[2017] VCC 1606

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

AT MELBOURNE
CRIMINAL JURISDICTION

Case No CR-17-01192
Indictment No G13537006

DIRECTOR OF PUBLIC PROSECUTIONS

v

MYLES GIBBONS

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	24 October  2017
DATE OF SENTENCE:	1 November 2017
CASE MAY BE CITED AS:	DPP v Gibbons
MEDIUM NEUTRAL CITATION:	[2017] VCC 1606

REASONS FOR SENTENCE
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Catchwords: Trafficking in Drug of dependence (CQ: Methylamphetamine) Possession of Drug of dependence, Prohibited person possess firearms, Failure to store firearms securely, Related summary offences possess prohibited weapon (knuckledusters) , drive whilst suspended, Firearms Act ammunition charges; use drug of dependence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms Bruhn	Office of Public Prosecutions
For the Accused	Mr Walmsley QC	Condello Lawyers

Pages 1 - 31

 

 

HIS HONOUR: 

1       Myles Gibbons, last week on the 24 October, you pleaded guilty to seven charges that were laid on the indictment filed in this court.  The charges on the indictment were one charge of trafficking in a commercial quantity of a drug of dependence, two charges of possession of a drug of dependence, two charges of being a prohibited person in possession of firearms, and two charges of failure to safely store those firearms.  In addition, there were five summary offences, to which you also pleaded guilty, being one charge of possessing a prohibited weapon (the knuckle dusters), one charge of drive whilst suspended, two Firearms Act offences pertaining to either unlicensed possession or insecure carriage of ammunition, and, finally, one charge of use of ecstasy.  You have admitted a single prior appearance in the Magistrates' Court in 2016.  Your counsel told me of two other court appearances over in New Zealand in 2009. Perhaps that was owing to a desire for completeness.  They are referred to in the chronology prepared by your own counsel.  Well, firstly, they are not even alleged against you in the formal criminal history, and even had they been, they would have assumed no relevance at all to my task, given that they were driving matters.  Anyway, I have no regard at all to those matters.  I put them entirely out of my mind. 

2       You were born on 2 October 1990.  You are now 27 years of age.

3       The maximum penalties are correctly set out in the prosecution summary.  As is always the position in relation to possession of a drug of dependence, the relevant Act, that is, the Drugs, Poisons and Controlled Substances Act sets up two penalty provisions, and which one applies in any given case is dependent upon whether the court is satisfied on the balance of probabilities that the possession was not committed for any purpose related to trafficking in that drug.  As I said in the course of the plea - and I meant it when I said it - frankly, the relevant maximums for the possession charges are the least of your problems, given the relatively small quantities of those drugs, and of course the far greater seriousness of some of the other offences on the indictment.  Still, your counsel, Mr Walmsley, argued that the lesser provision applied to each of charges 2 and 3.  It is fair to say that the Crown seemingly conceded the application of the lower maximum penalty for charge 3, that that applied, and that was given the small quantity of that drug, being less than .5 grams of Alprazolam, which is known under another name, Xanax.  They did not make that concession in relation to the 1,4-Butanediol the subject of charge 2, owing to the greater quantity of the drug.  It was 87 grams, and well above the small quantity (10 grams under the Act), and even above the traffickable quantity under the Act (50 grams).  Ultimately, though, whatever concessions are made, it is for the court to make a decision in terms of the application of the particular penalty.  Of course, your possession of those drugs is in the context of a man charged with, and admitting trafficking in a commercial quantity of methylamphetamine.  The possession charges therefore do not just exist in some vacuum.  I can well understand the concession made by the prosecution in relation to charge 3 if one focusses purely on the miniscule quantity of the drug.  That approach, though, seemingly overlooks the fact that though the quantity of drug was so very, very small, it was contained in 35 pills, and those pills were located in a safe in your friends' room.  That is all a pretty unpromising situation from which to argue against the existence of any purpose related to trafficking.  There is much more I could say in this area, but I choose not to.  You did give an account in the interview, citing personal use in each instance, and I cannot ignore that.  Your counsel elected not to place any evidence before me in this area - a sensible decision, if I might say so - but he maintained his submission that I ought be satisfied on the balance of probabilities that the possession of those drugs was in no way related to a purpose connected with trafficking.  The fact is, if I was not so satisfied, then the higher penalty provision would be operative, but it would be operative in relation to the very same quantities.  I am far from sure that that would make any difference at all, actually.  But to take it any further as a sentencing judge, and to find against you some circumstances of aggravation, I would then need to be satisfied beyond reasonable doubt of the purpose, and as "the purpose related to trafficking" would only, in this case, it seems to me, be possession for sale, that purpose would in fact amount to actual trafficking in those drugs.  That is because possessing for sale is actually trafficking.  Such a conclusion would not be open to me as an aggravating feature increasing any sentence, because, of course, you are not charged with trafficking in those drugs.  I refer to the cases of Wylie 1989 VR 21, Doble 2007 VSCA 47, and Morgan 2015 VSCA 143.  I believe, ultimately, that it is simplest (and fairer) to act on the prosecution concession in relation to charge 3, and to reach the same view on the balance of probabilities in relation to charge 2.  I am, therefore, prepared to accept your counsel's submissions, so the lower penalty provision will apply to charges 2 and 3.  I am satisfied that the burden has been carried.  

Facts

4       The prosecutor, Ms Bruhn, opened this matter to me in accordance with an agreed written prosecution opening, and that was dated 24 October 2017.  Your counsel, Mr Walmsley, made clear that it was an agreed summary, so I do not see any need to describe the full factual setting in my reasons.  It was a lengthy agreed summary, spelling out the various matters that are relied upon, and agreed to be the sentencing facts.  Though there was occasionally some discussion in the course of the plea as to materials within the depositions, I will not stray beyond the agreed facts. 

5       I will still say something very briefly about this offending.  It was serious offending, as your counsel correctly concedes.  The trafficking is a between-dates Giretti type charge.  You were conducting a business, and there were  many texts and/or discussions with the person you were supplying over October, November and December 2016.  Unhappily for you, that person was, unbeknown to you, a police undercover operative, and of course all those discussions were recorded.  There were four completed covert buys, for which over $20,000 changed hands, and you were arrested on the end date of the operation in December, and had in your possession at the scene some methylamphetamine.  You obviously possessed it for sale, and it is included in the between-dates charge.  The total quantity of drugs by way of mixed weight was 246.8 grams, with a quantity of 186 grams of pure methylamphetamine.  This was over the commercial quantity.  Commercial quantity is attained with a weight of 500 grams or more, mixed, or 100 grams or more pure.  So commercial quantity by pure weight ranges from 100 to 749 grams.  At 750 grams pure, or 1 kilogram mixed, it becomes a large commercial quantity, with a higher penalty.  It follows, then, that you had 86 grams above the commercial quantity threshold, so of course it follows that you are nowhere near the top of the range in terms of commercial quantity.  Of course, quantity of drug is but one of a large range of factors to be taken into account in reaching an assessment as to the seriousness of the offending, but it is undoubtedly a very important consideration. 

6       The drugs the subject of charges 2 and 3, which I have already discussed when dealing with the lesser maximum penalties, were found upon the search that was conducted.  The two firearms were possessed by you.  Indeed, they had been sourced by you when the covert operative asked if you could get any firearms.  You could; these two.  You were prohibited from possessing any firearms, and yet you were sourcing weapons, took them into your possession for the purposes of selling them to a person you believed was going to use them in future criminal conduct.  There is no doubt about that, and your counsel conceded that matter.  The weapons themselves were sold by you for over $8,000.  They were fully functioning weapons, and you provided a number of shotgun shells as well.  One was a very much modified and cut-down weapon.  It is a sinister weapon indeed, in that it is hard to think of any lawful explanation for any person wanting such a weapon, and of course, you were the person possessing it.  Unmistakeably, from your perspective, you were sourcing and supplying, and hence possessing as a prohibited person, weapons you believed were bound for future criminal use.  As I say, your counsel conceded that this was very serious conduct, and of course he was right.  The failure to store charges on the indictment relate to those very same two weapons, and two of the summary offences relate to your unlicensed possession of, and failure to correctly handle the ammunition, so I have got to be careful to avoid any double punishment here.  You made admissions to use of ecstasy, and that, of course, founds that offence that is before me, the summary offence number 27.  At one point, you were a suspended driver, and drove.  Hence, summary offence 8, and the search also disclosed a knuckle duster, which is picked up by summary offence 7.  You co-operated with police, in that you answered some of their questions. You did admit possession of the 1,4-Butanediol, though of course you thought the liquid was GHB.  You made admissions to the Xanax (the Alprazolam), the subject of charge 3, and admitted the knuckle duster.  You chose not to comment in relation to any of the methylamphetamine or the contention that you had sold any of the guns.  That was, of course, your right to make that no comment response.  You have been in custody since the date of arrest (28 December 2016).  It was 300 days as at but not including the day of the plea, and you pleaded guilty at the earliest opportunity.  Your visa was cancelled the other day, owing to the existence of these matters and the past appearance in the Magistrates' Court.

7       So much, then, for my very brief summary of the summary.  The full summary of course will remain available on the court file.

Mitigation

8       Your counsel, Mr Walmsley, raised a number of matters in mitigation.  I will list the matters he did raise in one moment.  There was a large plea book that had been filed with the court.  I needed to know what was relied upon, as well as what was not.  I must say, my task was not made any easier by the inclusion of what I judged to be some irrelevant material within the plea book, in conjunction with an outline of written submissions that cast little, if any, light on a number of matters.  I do not want to make a big thing about this, but I need you to understand what happened in court the other day and why.  You will recall that I took Mr Walmsley to task over his selection of the various cases which were presented in his written outline as recent dispositions in cases involving similar offending.  He relied on those other cases.  What he was relying on were the sentences imposed in those other cases.  It was being suggested that those other sentences somehow informed my sentencing task in your case (see paragraph 5 of the written submissions).  I had read those cases the night before the plea, and discovered that they were not comparable cases at all.  Not one of those cases even dealt with the offence of commercial quantity trafficking.  They were all sentences imposed for the lesser offence of non-commercial quantity, or simpliciter trafficking, as we lawyers refer to it, an offence which has a much lower maximum penalty.  One of the cases had an accused receiving a substantial discount for giving an undertaking to give evidence.  Another had a judge feeling constrained by what was said to be an inadequate sentence imposed on a co-accused.  None of the cases were comparable.  They all had the much lower maximum penalty, and the dispositions in those cases really said nothing at all as to the disposition required in your case.  The case of Haddara at least had some relevant observations as to the prevalence of the offence of trafficking in methyl-amphetamine.  The firearms case, to which reference was made (the case of Powell) again bore no relationship to your offending.  Of the firearms in that other case, one was obtained many months before for some form of protection.  One was not even a functioning weapon, nor was there any ammunition.  There was no suggestion of either of the weapons having any connection to future offending.  Your offending was very different, and it clearly fell into the second Berichon category, as your counsel correctly conceded, and yet the case he provided to the court, and hence the sentence in that other case he was seeking to rely upon was clearly in the lower Berichon offence category.

9       The selection of these cases just made no sense.  Now, I am sure there can be very serious examples of non-commercial trafficking, even cases where, though there is the lesser maximum penalty at play, the offending itself may be judged to be more serious than an instance of commercial quantity trafficking, despite the higher maximum penalty at play.  But I do believe that much greater care needs to be taken if so-called comparable cases are placed before the court.  It is not helpful at all to place before the court cases that are not comparable, and that is what happened here.  Nor was it sensible that non-commercial sentences were provided to me, whilst omitting any reference at all to a number of very important Court of Appeal decisions dealing with commercial quantity trafficking, including the quite recent cases of Gregory and Fernando.  Those cases had a fair bit to say about sentencing practice, but they also contained a very decent survey of sentences for commercial quantity trafficking, as well as many useful statements of matters of principle.

10     Finally, I found myself in the position on the plea of having to ask questions of Mr Walmsley, virtually to tease out from him what was being relied upon and what was not.  That was because, despite all of the bulk of the materials in the plea book, the very brief written plea outline was quite silent in a number of areas, including on the issue of, for instance, whether remorse was relied upon or not, the application or non-application of the principles from the case of  Verdins, and the issue of the relevance, if any, of deportation, to name but a few.  There was a large amount of medical history documents inserted into the plea book.  How was it relevant?  It is not my job just to pore my way through the material placed before me; it is counsel's job to alert me to matters relied upon.  I had to ask about that material, and, having asked, I found that it was not being relied upon at all.  Why was it there?  I still do not know.  There was a report from Ms Lechner.  What was being relied upon in that report?  Again, I had to ask.  In any event, it required me to ask a number of questions of your counsel, as I was not prepared to have the material simply placed before me without knowing what was being relied upon and what was not.  These are things that, really, should have been spelt out in the written outline, but they were not, and it had me intervene on the plea more than I would have liked to, but I simply had no choice.

11     Despite these criticisms - and they have been criticisms of Mr Walmsley - I want to make clear to you that he has said everything that could be said on your behalf, and that ultimately I was provided with all I needed on the plea to give me a very true sense of what was really being relied upon in mitigation here and what was not.  I leave behind me, then, these criticisms.  Ultimately, your counsel relied chiefly upon:

·     Your guilty plea;

·     Some cooperation with the police;

·     The early stage of that plea;

·     The presence of some remorse;

·     He did rely upon the report from Ms Lechner, but not as enlivening any of the principles from the case of R v Verdins;

·     He took me to your background as contained in the report of Ms Lechner, but made plain that it was not being relied upon as leading to any reduction in your culpability or in enlivening any of the principles from the case of R v Verdins;

·     He mentioned that you had received the visa cancellation notice (exhibit 2 on the plea), but then he explicitly disavowed any reliance at all on any of the principles from cases dealing with the "risk" or impact of deportation, the potential increased prison burden flowing from that risk (or certainty), and the loss of prospect of permanent settlement in this country.  Those matters were not being relied upon at all.  He said that at one point, deportation would have been a real concern to you, but now, it was not, as you had many friends and supporters resident in New Zealand, and you were not troubled by it.

·     Mr Walmsley relied upon a large number of personal and work references.  A number of those authors were present in court, and there were a good number of other supporters who were present, including your mother and your younger sister and younger brother. 

·     He relied upon a large number of courses and programs that you have completed in custody, as well as a number of clean drug screens that were provided.

·     He relied particularly upon the position of responsibility you have taken in mentoring intellectually disabled, and challenged and challenging prisoners in the Marlborough Unit.

·     He argued that you had either very good or excellent prospects of rehabilitation.  Each term was employed;

·     He made some submissions as to the way in which the crimes may be categorised.  He chose not to put any instructions as to where you actually sat within any given hierarchy.  He conceded the inevitability of terms of imprisonment, and one that would require the fixing of a non-parole period, but argued that when regard was had to all the matters in mitigation, your parole eligibility date:

"Should be measured hereafter in terms of months rather than years before that future prospect becomes available to him"

(see paragraph 10).  That submission, at least read literally, was entirely unrealistic and ignored the gravity of the offending, the maximum penalties at play, the need for cumulation, as well as  current sentencing practice..

Prosecution

12     Ms Bruhn, who appeared on behalf of the Director, made a number of submissions and challenged that contention as to the fixing of a non-parole  period which would provide imminent possible parole release.  Her written submissions as to sentence were marked as exhibit B on the plea, and Mr Walmsley did not seek to respond to or challenge any of those matters raised.  That was, no doubt, because there were many matters of principle set out which were not contentious in any way, including statements generally as to the seriousness of the crime of trafficking in drugs.  This is a quantitative based regime.  I am not here to make, and must not make a qualitative assessment as to the harmfulness of a particular drug (see the case of Pidoto).  Ms Bruhn took me to some propositions from the case I have referred to, of Gregory.  She conceded that as quantities go, it was towards the lower end of commercial quantity.  However, she argued it was apparent that you were a trusted and active participant in this business, using encrypted communications in the way that you were.  The trafficking was not isolated in nature; it was between-dates, with a number of texts and meetings, four actual exchanges, and with the arrest interrupting the fifth.  This was all done for profit, and you received into your possession close to $21,000 cash from these four sales.  As to the nature of the business and the nature of any hierarchy, it was impossible to know, though the prosecutor accepted you were likely not at the top of any pyramid, and you were more likely to be a middleman of sorts.  As to the firearms offences, they were particularly serious, she argued.  You were possessing so as to sell guns for profit.  You were prohibited from possessing any firearm.  These were functioning weapons.

Background

13     I turn now relatively briefly, then, to your background.  I do so briefly, as I really have no reason not to accept the family background that has been placed before me in the plea conducted by your counsel.  It was also referred to in the report from Ms Lechner, and there is also some reference to it in some of the references or letters placed before me.  You are now 27 years of age, born on 2 October 1990.  You are still pretty young, and only with that one prior appearance alleged.  Your parents, as I read it, had an on-off relationship, but separated now many years ago.  The description of your early family background strikes me as quite chaotic and dysfunctional, and far from ideal, with violence at the hands of your father, who was a drug user.  You were exposed to violence, you were exposed to drug use.  You told Ms Lechner that at home, in your early days, you had to really, as you put it, "Walk on eggshells."  You were educated until you were 17, but you had problems at school, and then worked as a labourer.  You came to Australia when you were 21 years of age for a fresh start.  You have a very strong bond and relationship with your younger brother and sister, who were both present in court.  Indeed, from memory, you spoke very protectively of your sister when you were dealing with the covert operative.  You did well in Australia, working as a youth worker at Berry Street, where you remained for close to two and a half years.  That ended badly, in that you were injured at work in August 2015.  I say 2015, Mr Faatau says 2013, but that does not seem to accord with your account to Shine Lawyers, who were acting for you - there is a letter from them on the plea - nor does that 2013 date line up with the account you gave to Ms Lechner, or to the chronology prepared by your counsel.  It is no great matter; it is probably just a mistake on Mr Faatau's account, maybe even a typo, and it does not negatively impact upon the balance of his reference in any way.  You had a pre-existing injury from your rugby playing days, and that was further injured in the 2015 incident in August 2015, at Berry Street.  WorkCover payments commenced, but for some reason they ceased by about December of that same year.  Your financial position deteriorated; money was tight, you had bills, and you had started to use drugs, and your life, it would seem, spiralled out of control.  There is seemingly no explanation in the report of Ms Lechner, or placed before me by your counsel as to how you came to have connections such as to be able to obtain the drugs and the firearms, but you did.  There is seemingly no suggestion in your discussions with Ms Lechner of you working for anyone else.  The suggestion, rather, is of this being your business, of trying to source the drugs to meet the requests as they were received.

14     I am told that your drug use escalated significantly from that downturn in your life in December 2015, and that you were using all manner of drugs, including GHB, ice, cocaine and cannabis.  You told Lechner that you were selling drugs to make money for both living expenses and to cover your drug use.

15     Well you have been in custody now for over 300 days, and unlike many prisoners, you are actually doing pretty much whatever you can to maximise your chances.  You are at least doing something useful whilst you are being held, and that is a positive.  You have done a host of courses and programs, and you are also providing some very useful efforts in a high needs unit.  You are using the skills that you have used as a youth worker and putting them to use in a prison setting for the benefit of others, and I am impressed by that.  There is a reference from a prisoner, Mr Gutsell, who is your mentor.  Mr Walmsley made a point of spelling out the fact that he is a prisoner, but the fact is, that does not detract from the value of his letter.  He is entitled to write it, and the court is entitled to have regard to it.  His views are of worth, and what he says is also, by the way, supported by an excellent reference from Ms Dianne Morrison of the Prisoner Fellowship.  There have been a number of drug assays, or tests, which have been clean.

16     It is really beyond my capacity, nor is there any utility in my summarising all of the references and the letters placed before me.  It strikes me that they are a powerful body of material which shows the regard in which you were, and are, held by a variety of people from many different walks of life.  Some of them also give a sense of your slide into crime, especially the reference of Mr Faatau.  He describes his concern as to what he was observing from time to time; the deterioration in your appearance and state of mind.  That slide was heralded by the injury I spoke of, loss of employment, loss of income.  There is also, it would seem, the ending of a long-term relationship with your girlfriend; even a battle with your landlord over some flood damage.  Mr Haycraft, another author of one of the references, labels it as a chain of unfortunate events.  You did not ask for help.  What you have learnt is that you had so many people who would have helped, had you but asked.  Maybe you were just too proud to.

17     I have mentioned already that your visa has been cancelled, so I do not need to speculate about that, but your counsel does not suggest that there is anything mitigatory flowing from that event.  He said that you have rights in relation to that cancellation, and so there are the usual difficulties in assessing the true risk.  But the point he made was that you are not at all unhappy at the thought of being deported back to New Zealand, as you have seen, in the course of the plea, how many friends and supporters you have who are based there.  Mr Walmsley very explicitly disavowed any reliance at all on any of the Guden type principles in this case, as well as any of the principles from the case I have referred to, of Verdins.

18     You have a criminal history, but it is short, comprising that one appearance in April of 2016 for offences of assault, recklessly causing injury, and robbery.  I was told that you accompanied another man on some form of debt recovery visit which was not drug related, and that the visit somehow went sour, and those charges were the outcome.

Guilty plea

19     I turn, then, to consider some of the other submissions made on your behalf.

20     I turn firstly to your guilty plea.  You have pleaded guilty at what I will treat as the earliest stage.  There were a couple of adjournments in the Magistrates' Court, but that was so you could receive and then digest the certificate of analysis, which, of course, was your right.  So I will treat it as the earliest of pleas, and that is a significant mitigatory matter.  You have taken early responsibility for your offending, and there is a strong utilitarian value which must be recognised in the sentence passed.  The community has been saved the time, the expense and the effort associated with the conduct of a committal hearing in the Magistrates' Court and/or a trial in this court.  You have, in this way, facilitated the course of justice.  I must reward you for your decision to plead guilty, and at the early stage which you did.  I must pass a lesser sentence upon you than I would have imposed had you been found guilty by a jury after trial.  I also do pay regard to your level of co-operation with the authorities.  You answered some questions in the interview, and you made at least some admissions.  The summary offence of use of the drug ecstasy, for instance, is founded entirely on your admission.  I take your level of co-operation into account in your favour as well.   

Remorse

21     I turn to the issue of remorse.  You have pleaded guilty at the earliest stage, and that is usually evidence of at least some remorse.  There are also opinions expressed by others, including Ms Lechner and some of the authors of references, commenting on your evident or apparent remorse.  I certainly have no sense of your revelling in these crimes; not at all.  And whilst it is not a frequent thing for me to feel or to comment upon, I must say I was left with a sense of your being ashamed as you quietly entered the guilty pleas during the arraignment, occurring as it did before the assembled crowd of your supporters.  Ultimately, I am prepared to find the presence of remorse here, and I take that into account in mitigation as well.

Prospects

22     What, then, are your prosects of rehabilitation?  It is always difficult for a court to make an assessment to the prospects of a person sitting in the dock; it is never easy.  The truth is, I feel like I know very little about the finer detail or reality of your offending.  You obviously had some relatively serious criminal connections, to be sourcing drugs and weapons as you were.  Who were these people?  What was your relationship to them?  How was it that you knew them, and for how long?  What was your true role?  Were you an underling, were you a trusted associate, a middleman, a partner, a boss?  I really do not know.  What I do know is you have committed extremely serious crimes, and I do not believe they are totally consistent with just reaching some tipping point in your life, in terms of financial need.  You were, for a not insignificant period, behaving and talking as a criminal, one who was dealing with another person whom you believed to be a criminal.  You were supplying drugs and gun, and this was a business.  Was it your own business, or were you a cog in a much larger machine?  Well, no one is prepared to tell me how it was that you were sourcing drugs or guns, or what relationship you had with others in any criminal hierarchy or network.  I was not, after all, asking for names or identifying details.  That was the least of my interest.  I really just wanted to have a clearer sense of how you, the person spoken of in those references, came to offend in the way that you did, of where you sat in any hierarchy.  Anyway, that material was deliberately not placed before me.  I do not hold that against you, but it makes it difficult for me to truly understand your descent into crime here.    

23     Yet at the same time, of course, I have a welter of material from friends, work colleagues and associates, speaking of your character; people who know you well, and have known you for a long, long time, including, for instance, the parents of an ex long-term girlfriend.  That is a reference from Beth and Gary Lord.  That sort of material might strike some as being of marginal relevance to my task, but it is not.  You have got no idea how many people I see who leave behind them a destructive trail of fractured intimate relationships in their wake.  To have parents of a long-term girlfriend writing that sort of reference, saying what they say:  it is another source of information as to how you are viewed and how you have behaved in the past.  You have only the very limited criminal record (as I say, I ignore the two other matters referred to in your counsel's chronology), and that single appearance you have admitted, though, of course, it must have had some seriousness, it has only very marginal relevance to my task, as it arises in that same unfortunate phase in your life.  You have held down jobs in the past.  You are not afraid of hard work.  I have the very decent efforts you have made in custody, and the observations of many who have written references.  I have the obvious sizeable support for you, as evidenced by the references and the many who attended court in person, both on the day of the plea and, of course, today.  It is your first time in custody, and you have already spent over 300 days.  What more can you really do in custody than you have been doing?  Probably nothing, and that is a positive.

24     The process of your being arrested in December of last year, charged, brought before the courts; well  I hope that will have a sizeable impact in deterring you from committing crimes such as these in the future.  I am sure also that the sentence which I will soon pronounce will also have a deterrent effect upon you.

25     Though it is always hard to be precise in this area, I have to make the best judgments that I can on the materials available to me, and I do assess your prospects of rehabilitation favourably.  I am prepared to find that those prospects are good, subject, of course, to continued abstinence from drugs and treatment and counselling in that domain, and as recommended by Ms Lechner upon your release from prison.  

Ms Lechner

26     I have mentioned the report of Ms Lechner a number of times.  I am not going to set out slabs of that report in any shape or form in these reasons; there is no need to.  I do take into account the report in the ways I have been asked to by your counsel.  Indeed, in one manner, I am actually going to go beyond his submissions, and that is in treating your pretty unfortunate early family background as deserving of some very modest reduction in your moral culpability.  Your sister spoke to Ms Lechner as to your family background as well, and is quoted in that report.  As I said earlier, it seems to me that it was a far from ideal early start in life.  Now, your counsel has explicitly disavowed any reliance on reduced culpability owing to your background, and perhaps that was owing to his reporting to me that you were not wishing or trying to blame any of these crimes in any way on your childhood experiences.  A large enough proportion of people sitting where you sit who come before the courts seek to blame their offending on their background.  You do not, and nor should you, actually.  I understand all of that, but I still actually believe that despite the submission made by your counsel, it is worthy of some allowance.  Ms Lechner makes plain that there are some issues you need to address in the future, and I am sure she is right about that.  I think you are showing some real insight, and again, that is a positive.  I do not wish to impose a sentence upon you which is somehow dismissive of your efforts.

27     I really should make plain, if I have not already - I hope I have made it plain, I have mentioned a number of sources of material placed before me, but I want to make plain that I take into account all of the materials that have been placed before me.  It really is quite impractical and unnecessary to work my way chapter and verse through the many references and letters.  I have read them all again more than once, including last night, and they are an impressive body of material; not just the weight of numbers, but what they actually say.  What they do is they remind me, the sentencing judge, that you are far more than just the offender who chose to commit these serious crimes.  You are that offender; there is no doubt about that.  You committed these crimes; there is no doubt about that either.  But there is almost always a back story, and yours is not unimpressive at all.  The authors of the references really speak with one voice as to your many qualities and their sense of the out-of-character nature of this offending.  Of course, I cannot ignore the reality of your offending and the fact that it spanned some months.

The Offences

28     As to the offences themselves, your counsel conceded that this was serious offending.  That concession was correct.  This was not spontaneous offending.  I accept that life was not going too well for you once you had been injured and you were unemployed and off WorkCover.  It would seem that there was something of a slide, as commented on by Mr Faatau, and that is seemingly the setting for increased drug use and then your entrée into these crimes. However, it was still very serious offending.  It was not a single piece of poor judgement.  This was pretty dedicated trafficking, in terms of the level of contact.  It is true that the quantity was not at the upper or even mid-range of commercial quantity, but there was a period of a couple of months where you were pretty dedicated to committing serious crimes, providing what drugs you did, and raising in discussions the possibility of larger volumes, as a possibility, not that the offence incorporates those larger amounts.  That is the context.  You received over $21,000, and I really have no sense at all as to who, if anyone, you had to account to in relation to that money.  The drug trafficking was serious.  The firearms offences are, in my view, very serious examples of such an offence.  In terms of your culpability, it is not greatly to the point that you were dealing with an undercover operative, or that he asked for guns.  You did not know he was an undercover policeman.  Yes, it is true that the covert operative asked the question about firearms.  Well, you were a prohibited person.  You were the person who was sourcing and then possessing these weapons, and you were doing it for profit.  That was a choice you made.  These were fully functioning guns.  One was modified, and ammunition was provided.  It is, as I said earlier in these reasons, inescapable that you believed that they were moving into criminal hands, for use in future crimes.  That conclusion, as I say, is inescapable, and is conceded by your counsel. I am satisfied of it beyond reasonable doubt.  Very comfortably, then, these two offences, that is, the prohibited person in possession of firearm charges, fall into the higher category spoken of in the case of Berichon.

Purposes

29     I have to consider a number of purposes of sentencing, and they are not limited only to your prospects of rehabilitation.  Of course, I cannot ignore your prospects.  But if all I had to consider in sentencing was your prospects of rehabilitation, sentencing would be a pretty easy task.  But that is not the position, and it is not an easy task.  There are other sentencing purposes which I must give weight to.  I am required to punish you, and that is a very significant sentencing purpose here.  I must also denounce your conduct, and I do.  Again, that is an important matter.  This was serious criminal conduct.

30     There are other purposes of sentencing, and one such purpose is the need for this court to seek to deter you from offending in the future.  Of course, I must give that principle of specific deterrence real weight in my sentencing task, given the nature of the crimes.  I must obviously also give real weight to community protection as well.

31     As to general deterrence, that is a very important purpose of sentencing in this sort of case.   This court must send a loud and clear message to other individuals in the community, to those who might be minded to commit these sorts of serious offences.  I am speaking now of the commercial quantity trafficking and the prohibited person in possession of the firearms charges in particular.  Drugs have really changed our community forever.  They cause untold misery to the very many who fall under their spell.  Those who are prepared to sell the drugs, to traffick them:  really, they should expect little by way of leniency.  People who do that are almost always taking a calculated risk and hoping that the potential financial benefits outweigh that risk.  The courts have a strong role to play, by conveying the message through the sentences imposed that that risk should not be taken on.  We must seek to deter future likeminded offenders from committing these crimes.  The same may be said of the guns.  I am not sure that there has ever been a time where there have been more firearms in our community.  Barely a week passes without some report of some shooting or another.  They are disastrous when in the wrong hands, and your hands were the wrong hands.  You were prohibited from possessing any weapon, yet you possessed them, and you possessed them so you could supply them on to others.  Obviously, you thought they were going from your hands into the wrong hands, namely criminal hands.  There is the need for a very powerful signal to those who may choose to possess firearms, especially those who are prohibited persons dealing commercially with such weapons as these. I must, and I do pay regard to current sentencing practices.  However, every case and every offender is different. What I have got to do is pass an appropriate sentence in your case.  Now, it is here, as I said earlier, that I was critical of your counsel for selecting a number of non-comparable cases, and I am not going to go back to that issue or waste my time pointing out the many differences.  One obvious one, of course, was the lower penalty provisions at play in those other cases he relied upon.  Nor, for that matter, was I greatly assisted by the prosecution taking me to two non-commercial, or simpliciter cases, but at least they took me to the case of Gregory, recently decided in the Court of Appeal.

32     If I may say so, it seems to me there are more than enough commercial quantity traffickers dealt with by the courts, and a very good starting point is to look at the very many sentences imposed upon them, not upon people charged with a less serious offence (see Judicial College of Victoria overview dealing with this offence, 33.13.3.1&2).

33     The case of Gregory to which I was referred has a very decent survey of other sentences passed for commercial trafficking.  There is also the Sentencing Advisory Council snapshot that deals with this offence, disclosing, amongst other things, that the most common prison sentence in the period covered by the data was between four to less than five years.  But I do not sentence based on statistical material, or badges such as average sentences or most common sentences or medians.  A median sentence is just an accidental or contingent statistic, and is not a measure of offence seriousness (see the case of Tiong 2016 VSCA 257).  What I have got to do is sentence you for your crimes.

34     Now, in that case of Gregory, the Court of Appeal concluded that the current sentencing practices for serious examples of commercial quantity trafficking had been unduly compressed, were inadequate, and did not reflect the inherent seriousness of the offence, the impact upon the community, or the fact that the maximum penalty was 25 years.  They looked at some of the cases, and they also analysed the statistical data.  They went on to identify features which would lead to an expectation of sentences well into double figures.  That is referred to at paragraph 98.  One factor was if the quantity was close to the large commercial quantity.  Another was a person having a senior role, or role in charge, or lengthy duration of offending, or relevant prior convictions, or, for that matter, running a trial and being found guilty.  There are a host of factors which they said would lead to far greater sentences being imposed in the future in serious examples of the crime, that is, instances in the upper category.  The eight-and-a-half-year term imposed upon Gregory was not disturbed, but the Court of Appeal went on to say that had they not been constrained as they then thought they were by current sentencing practice, a sentence of 13 to 15 years would have been in the range on a guilty plea in that case.  They are high numbers indeed, and of course would be far higher still on a not guilty plea.  The knock-on effect in relation to offences dealing with large commercial quantities will produce some very high sentences indeed, well into the 20-year bracket, if not higher.  Well, that is what Parliament intended.  They fixed a maximum of life imprisonment for large commercial quantity trafficking.

35     What does all this mean, then, for you?  I am mentioning some very large and alarming numbers.  I make clear that your offence, in my judgment, is nowhere near the offence seriousness of Gregory for a number of reasons, including the far lesser quantity in your case and the lesser duration in your case.  Another case decided quite recently, of Fernando suggests that Gregory requires that sentencing in the upper category and the upper range of the mid-category should be decompressed, with the knock-on effect of uplift across the whole range of offence seriousness to maintain relativity.  Redlich JA in Fernando said it would not be the sizeable uplift spoken of in Gregory applied uniformly across every band.  The greatest increase would be in the most serious cases, with less, even far less by way of increase in the mid and lower offence range.  Redlich JA contended that there would be much greater flexibility in the mid and lower categories of seriousness, and that the sentencing uplift would have an increasingly diminished effect as one moves from the upper to middle, and then the lower categories of seriousness, with modest increases in the lowest category.  I should say that this view was not uniformly adopted by each member of the Court in Fernand.  Ashley JA seemed unconvinced (see paragraph 11).  Tate JA was seemingly silent on the topic, but the decision of Redlich JA makes good sense to me, and is consistent with other cases dealing with the concept of uplift.  That is aside from the uplift, modest though it is, produced by the decision of Haddara.  That was more concerned with the prevalence of trafficking in ice, and the need to increase sentences to reflect that prevalence and give greater emphasis to general deterrence.

36     Again, I am sorry to engage in this excursion off into these legal authorities.  I am sure it is all very interesting, but I am exercising a discretion.  I am not here to sentence by numbers.  I am not a statistician. I am not a mathematician.  I am sentencing you for your crimes, and that is not a mathematical or fixed exercise controlled by finding a particular category of offending and then pasting a number across to that category from some ledger or statistical material to fit that category.  The selection of a particular category cannot be the critical task, and so often, it is none too easy even reaching a view as to a particular category of offence seriousness, especially when we hear talk of the distinction between the upper mid category as opposed to the mid category.  Where does one stop and where does the other start?

37     Where do you fall on the spectrum of offence seriousness?  The weight of the drug is a fixed matter here, something that does not require any speculation.  It is a given here; we know what it is, and it is clearly not in the upper range, or even mid or mid upper range of weight.  Nor is it at the very lowest margin, though.  Duration is what it is; it is not a massive period, but nor is it, as it is in some cases, a single transaction on a single day.  That is not the position here.  Your conduct spanned close to two and a half months.  Your role within any hierarchy is far from clear to me, as I spelt out earlier.  However, if there is a structure above you - and that is far from clear - you clearly were a trusted person and working with at least some level of autonomy.  You were certainly not trafficking to street level users.  That much is obvious, and conceded by your counsel, and profit was the driving force, as it always is.  I cannot accept that it was purely to support your addiction, but I do accept, in your case, that there were some pretty unfortunate events which had occurred in your life in the lead up to this offending.  You were either part of, or running a business; it is not entirely clear to me which.  You have no truly relevant prior matters, and you pleaded guilty at the earliest opportunity, and you are remorseful and have favourable prospects into the future.

38     Clearly, you are not at the highest level, or even in that upper mid-range spoken of in the cases to which I have referred.  Indeed, owing mainly to the pure weight of the substance, I am prepared to place you in the lower category of offence seriousness, but certainly not at the lowest level.  All this talk of level of offence seriousness can be easily misunderstood.  No one is saying your offending was not serious.  It was serious.  This was still serious offending, make no mistake about it, but it is a matter of where it fits on the spectrum, and you are, as far as I can see, a long way from the regions of offence seriousness that are subject to the very sizeable and dramatic uplift spoken of in the cases of Gregory and Fernando.  Rightly or wrongly - I say rightly - I am not applying those very sizeable increases to you.

Outcome 

39I have taken into account all of the materials that have been placed before me and the submissions made by counsel.  Your counsel conceded the inevitability of a prison sentence, and prison sentences generally, some cumulation and a head sentence requiring the fixing of a non-parole period.  He mentioned your possible release on parole in months, not years, and again, I say that was a pretty extravagant and unrealistic submission.

Totality  

40     I have taken into account the principle of totality of sentence.

41     I must consider whether the effect of the sentences is just and appropriate, and commensurate with your overall criminality.  I have engaged in a last look at the sentences imposed by this court and the total effect of them in endeavouring to guard against the imposition of a crushing term upon you.  It is clear that there must be some meaningful level of cumulation, especially as between the commercial quantity drug trafficking and the prohibited person possessing firearms offences.  They were each serious crimes with differing elements.  There is, though, a strong temporal connection between charges 4 and 5, which cannot be ignored; one charge for each firearm, and both provided and hence possessed by you on the same day.  It is equally clear that there is a very sizeable overlap between the failure to store charges and the prohibited person charges.  I know there are totally differing elements, but they all relate to the same guns, and I believe that that commands, in that instance, total concurrency.  The provision of ammunition is, after all, one of the factors of seriousness in the assessment of the prohibited person charge, so I must be very astute to avoid double punishment here.

42     Now, I must proceed on the footing that you will serve every day of the head sentence that I will soon pronounce.  I am not able to take into account the possibility of release on parole, even though, of course, I am required to fix, and will fix a non-parole period in your case.

Section 464ZF

43 There are some ancillary orders that have been placed before me. I have been requested to make a forensic sample order. That application is not opposed, and I pronounce the order in the terms in which it is sought. I order, pursuant to the provisions of the Crimes Act 464ZF(2) that you undergo a forensic procedure for the taking of a scraping from your mouth, in accordance with subdivision 30A of Part 3 of the Crimes Act, until the sample of sufficient standard is obtained for placement on the database. I have considered the application. It is not opposed. I am satisfied the making of the order is justified, owing to the seriousness of the offending, the fact that the order is by consent, and that I judge it to be in the public interest. There is also the aspect of the prior conviction as well that has some relevance. So what this deals with is your obligation to have a scraping taken from your mouth. It is not a particularly invasive process. I have not authorised a blood sample. The authorities can use reasonable force to take that mouth swab, Mr Gibbons. It should not be an issue, but as I say, they can use reasonable force to take it. It should be very straightforward. No doubt, if they encountered any sort of issues, the authorities would be back before me, making an application for a blood sample. I have not authorised a blood sample, as I would rather choose the least invasive process, which is what I have done. So that is what that is all about.

Disposal of drugs

44 Secondly, there is a disposal order that is sought in relation to various items set out in the schedule to that order, including, for instance, the shotgun shells and the weapons, and some of the drugs. Anyway, I am not going to spell out everything that is in the schedule. Your counsel have indicated that there is no opposition to the making of that order either, and so I will sign the disposal order as well. I am satisfied that the property referred to in the schedule has been used, or intended to be used in connection with the commission of the offences. I order, pursuant to s.78(1) of the Confiscation Act, the forfeiture to the State of the property. I direct that it be dealt with and handled in the way contemplated by the actual order, so I have signed that as well. That stands essentially as the forfeiture as well, does it? That deals with the firearms as well?

45     MS BRUHN:  Yes, it does, Your Honour. 

46     HIS HONOUR:  There's no a particular separate forfeiture application? 

47     MS BRUHN:  No.

48     HIS HONOUR:  Yes, all right. 

Sentence

49     Mr Gibbons, stand up, if you would.  I am sorry I have taken so long to get to this point, but you need to understand why it is I am doing what I am doing, and so do other people.  I am going to pass various individual sentences.  I say to you, and obviously also to your family and friends, do not just add the sentences up as we go along.  If you do that, there will be a growing sense of doom and gloom.  This is not the way these sentences will be structured.  I will tell you how they are going to be structured and what they mean, and that will be towards the end of the process.

50     On charge 1, that is, the charge of commercial quantity trafficking, I convict and sentence you to three years and nine months' imprisonment;

51     On charge 2 and 3, that is, the possession of the 1,4-Butanediol and the Alprazolam, I believe that it is open to me to pass an aggregate sentence such is the level of the unity there.  On those two offences, I am going to convict and sentence you to seven days' imprisonment;

52     On charge 4, that is, the first of the firearms charges, I convict and sentence you to two years' imprisonment.

53     I pass the same sentence, that is, two years' imprisonment, upon charge 5, the other charge of being a prohibited person in possession of a firearm.

54     On charge 6 and 7 - these are the failure to store charges - again, I believe an aggregate sentence is open to me.  On those charges, 6 and 7, I convict and sentence you to an aggregate of two months' imprisonment on those. 

55     Moving to the summary offences.  Firstly, the weapons offence relating to the knuckle duster, that is, the subject of summary charge 7, I convict and sentence you to seven days' imprisonment.  Charge 8 is the drive whilst suspended, and on that charge I convict and fine you $600.  On charge 18, that is, the possession of the ammunition without a licence, and on charge 19, the insecure carriage of ammunition:  they are two charges pertaining to the ammunition on the same day.  There is that sizeable unity, obviously, and I believe, again, it is open to pass an aggregate sentence.  On those two charges, that is, the related summary offences 18 and 19, you are convicted and fined an aggregate of $1,000.

56     On the final summary charge, 27, that is, the use of ecstasy, I convict and fine you $300.

Cumulation

57     So what does all this mean to you, then?  The base sentence, then, is the longest of the sentences, so that is the three years and nine months imposed on charge 1.  I direct that 11 months of the sentence imposed on charge 4 and four months of the sentence imposed on charge 5 be served cumulatively upon the base sentence and upon each other.  All of the other sentences that I have spelt out will be served concurrently.

TES

58     That results in a total effective sentence of five years' imprisonment.

NPP

59     I fix, in your case, a period of two and a half years during which you will be ineligible for release on parole.

Section 18

60 You have spent 308 days in custody by way of pre-sentence detention. That period is declared pursuant to s.18 of the Sentencing Act as having already been served under this sentence.

6AAA

61     Had you been found guilty following a contested trial in relation to these matters, I would have imposed a longer sentence.  I would have sent you to prison for eight and a half years.  I would have fixed a non-parole period in that setting of six years, and that is to be noted in the records of the court.  Grab a seat, then, for a moment, please.  I want to make sure that I have dealt with everything that needs to be dealt with. 

62     Ms Bruhn, are there any matters I have overlooked, in terms of ancillary orders or anything like that?  I should always ask, as I do.  My maths is so poor, that's why I'm sitting up here as a judge.  Does the arithmetic work out, in terms - I hope it does.  Let me tell you again - these have come out of the blue, at least from your perspective.  They have not come out of the blue for me; I have been thinking about these matters for a significant period.   But just to recap, then, we have got the three-year-nine-month base sentence. 

63     MS BRUHN:  Yes.

64     HIS HONOUR:  I'm not going to go through, unless you want me to - I can go through all the individual sentences if you would be assisted, but there are only two that produce any cumulation.  So we've got a base of three years and nine months.  We've got two years in relation to charge 4 and a two-year term in relation to charge 5.  So the base is three years and nine months.  My intended outcome is a total effective sentence of five years' imprisonment.  I have directed that 11 months of the sentence on charge 4 is cumulative upon the base, so that gets us to four years and eight months, doesn't it, or am I miscalculating somewhere? 

65     MS BRUHN:  No, I think that's correct, Your Honour.

66     MR CONDELLO:  Correct, Your Honour.

67     HIS HONOUR:  And then, the other cumulation order, the four months of the sentence imposed on charge 5.  So that gets us to five, doesn't it? 

68     MS BRUHN:  That's correct, Your Honour.

69     HIS HONOUR:  If there's any doubt, tell me.  We're probably all of us doing what we're doing because none of us can do maths. 

70     MR CONDELLO:  Yes, hence the calculator, Your Honour.   

71     HIS HONOUR:  Anyway, the arithmetic is there.   

72     MR CONDELLO:  Sixty months, or five years, Your Honour.

73     MS BRUHN:  Yes.

74     HIS HONOUR:  All right.  We all agree with that, then.  And as I say, the non-parole period is straightforward; it's a two-and-a-half-year non-parole period.  So are there any other matters I need to deal with at all, or not?   

75     MS BRUHN:  No further matters from the prosecution side, Your Honour.  

76     HIS HONOUR:  And from your perspective? 

77     MR CONDELLO:  No, Your Honour. 

78     HIS HONOUR:  And your client has been in custody for a significant period already, so it doesn't seem to me - unless there's some reason for me to make any custody management directions - I can't see any need to at the moment. 

79     MR CONDELLO:  No, Your Honour.

80     HIS HONOUR:  All right.  All right, well, that completes the matter, then.  So are you going to go down and see your client downstairs, or not?

81     MR CONDELLO:  I certainly will, Your Honour.

82     HIS HONOUR:  Yes, all right.

83     MR CONDELLO:  I wonder whether Your Honour would permit the family just to give a brief goodbye as he's led from the dock. 

84     HIS HONOUR:  Yes.  There are goodbyes and there are goodbyes.  He is in custody, of course, and so I think any sort of contact is not really ‑ ‑ ‑ 

85     MR CONDELLO:  Of course.

86     HIS HONOUR:  ‑ ‑ ‑ is not permitted.

87     MR CONDELLO:  Certainly, Your Honour.

88     HIS HONOUR:  I think that's a problem.  There's just a bit of an issue with the order.  The computer is spitting it back out.  It's not that there's anything wrong, in terms of the maths, but I think I'll have to sign the order in my chambers in a moment, I'm afraid. 

89     MR CONDELLO:  Certainly, Your Honour.

90     HIS HONOUR:  I think, really, in terms of goodbyes, it's essentially a goodbye, Mr Condello.  They can't go up and touch him or anything like that. 

91     MR CONDELLO:  No, I'm not suggesting any contact, Your Honour. 

92     HIS HONOUR:  I think in the circumstances, the simplest thing is for me to have him removed at this stage. 

93     MR CONDELLO:  May it please the court.

94     HIS HONOUR:  Mr Gibbons, Mr Condello is going to come down and see you downstairs anyway, all right?

95     OFFENDER:  Thank you, Your Honour. 

96     HIS HONOUR:  Yes, all right.  I'll have to sign that order down in my chambers.  I've got another matter that's proceeding, so I'll leave the bench in a moment and come back for the new matter.  Yes, I'll leave the Bench.  I'll come back onto the Bench in maybe ten minutes.  Thank you. 

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