Director of Public Prosecutions v Hawkins
[2023] VCC 1008
•1 May 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT Melbourne
CRIMINAL JURISDICTION
CR 23-00241
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NICHOLAS HAWKINS |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 1 May 2023 | |
DATE OF SENTENCE: | 1 May 2023 | |
CASE MAY BE CITED AS: | DPP v Hawkins | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1008 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Possess firearm – contravene prohibited order – handle stolen goods (course of conduct) – commit indictable offence whilst on bail – Verdins applied
Legislation Cited: Criminal Procedure Act 2009, s145
Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Verdins (2007) 16 VR 269
Sentence:Total effective sentence is 250 days' imprisonment with a two-year Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Hannan | The Office of Public Prosecution |
| For the Accused | Mr R van der Wiel KC | Marcevski Lawyers |
HIS HONOUR:
1 Nicholas Hawkins, on 1 May 2023, that is today, at the County Court in Bendigo, you pleaded guilty to the following charges on indictment number M11970225:
(i) Charge 1, possess a firearm contrary to the firearm prohibition order. This charge has a maximum penalty of 10 years' imprisonment.
(ii) Charge 2, handle stolen goods, which were two firearms. This charge has a maximum penalty of 15 years' imprisonment.
2 You have consented to a related summary charge being heard at the same time as your plea to the above charges. Charge 6 was transferred to this court pursuant to s145 of the Criminal Procedure Act and you pleaded guilty to that charge, which is commit an indictable offence whilst on bail by possessing a firearm in contravention to a firearms prohibition order. This charge has a maximum sentence of three months' imprisonment.
3 You have admitted your criminal history. You have previous court appearances for firearm related offending and are as follows:
· On 27 January 2011 at Geelong Magistrates' Court, you were fined without conviction for possession of a prohibited weapon and a controlled weapon.
· On 25 January 2017 at the Melbourne Magistrates' Court, you were convicted of unlicenced storage of a firearm and ammunition, possess a firearm without a serial number, possess a prohibited weapon, ammunition, and placed on a CCO for that offending. You were also convicted and sentenced to 48 days' imprisonment for possession of an unregistered Category E longarm.
· On 15 January 2018 at the Heidelberg Magistrates' Court, you were convicted of breaching the CCO imposed on 25 January 2017, the breaching offences were burglary and theft.
· On 24 July 2019 you were convicted and sentenced to eight months' imprisonment for the charge of a prohibited person in possession of a firearm.
4 You had admitted other prior offending involving violence and dishonesty charges. You have served 250 days pre-sentence detention in respect of these charges. You were granted bail on 22 June 2022.
The circumstances of your offending
5 The prosecutor tendered a Summary of Prosecution Opening for Plea dated 21 March 2023, it was Exhibit “A” and read into the record of the court. I will read parts of that in this sentence.
6 You are now 32 years old, and at the time you were 30. You resided in Ocean Grove, which I now know is your father's address. You were a prohibited person pursuant to the Firearms Act and not the holder of a firearms licence. You were the subject of a firearms prohibition order which was served on you on 19 January 2021.
7 Mr Tricarico, who resided in Shepparton is the owner of the guns in question. He was a member of the Pine Lodge Shooting Club and a licenced gun owner.
8 On 28 August 2021, Mr Tricarico went to a friend's house at about 9 pm and stayed there until the early hours. While he was away, your co-offenders, Garrie Scott and Shaun Bourke went to Mr Tricarico's home in Shepparton. Mr Scott and Mr Bourke located the gun safe within the house, which had been locked and bolted to the floor and the plaster wall within the house.
9 Inside that safe was a .308 Ruger Scout rifle, a Bruno CZ 9 millimetre handgun, a .45 calibre 410GA Taurus Circuit Judge handgun/shotgun hybrid, a Crossman air rifle, and a 9 millimetre, .45 and 410 ammunition.
10 Mr Scott and Mr Bourke used power tools to cut around the floor and the wall of that house, at the premises, and took the gun safe away. When Mr Tricarico returned home at 3am and realised his gun safe had been stolen he rang the police.
11 Mr Scott and Mr Bourke then went to James Sheehey’s home in Clarence Street in Shepparton. They removed the safe from their vehicle and took it to the garage. Mr Scott, Bourke and Sheehey together used various tools to open the safe and remove the firearms and ammunition from it. Mr Scott and Bourke then drove away with the firearms and assorted ammunition. Mr Scott took photographs of the firearms and the ammunition, and sent the photographs to Mr Sheehey via an encrypted messaging application. Mr Sheehey then forwarded those photographs by an encrypted messaging application to you. Messages from Mr Sheehey were offering the longarms and the handgun to you for sale.
12 At approximately 8.30 am on 30 August 2021, Mr Scott went to a house in Halliwell Court in Corio, where he met you and a co-offender, Shaun Hutchinson. The address is the home of Mr Hutchinson. Mr Scott agreed to sell the firearms to you for the price of 1.5 ounces of methylamphetamine, $1,000 in cash, 1 litre of GHB and two nights accommodation. In accordance with the agreement, Mr Scott handed over the firearms and ammunition to you and Mr Hutchinson, but did not receive any of the payment in return at that time. The prosecution allege that you were aware that there were at least two firearms being delivered by Mr Scott into the possession of yourself and Mr Hutchinson.
13 The CCTV at Mr Hutchinson's home showed the following:
(a) You assisted Mr Scott to remove the firearms from the car and into the residence with Mr Hutchinson following the two of you.
(b) You and Mr Hutchinson left the premises, with Mr Hutchinson carrying one of the boxes containing the firearms and placed in the back of his wife's Honda Odyssey, and you carried the other to the same vehicle.
(c) Mr Hutchinson and his wife then left the premises at about 9.30 am in the Odyssey and Mrs Hutchinson returned at 2.30 pm without you. Mr Hutchinson returned to the residence at about 3 am the next day, 31 August 2021.
14 Your co-accused, Mr Hutchinson, was arrested on 16 September 2021, police seized his mobile phone and downloaded its contents, which included photographs of the Ruger Scout rifle, the Taurus Circuit Judge calibre gun, and the Crossman air rifle believed to have been sent to Mr Hutchinson by you using Facebook Messenger. There were text messages between Mr Hutchinson and his wife regarding payment of “a bag” which would cost you “12K”.
15 You were arrested on the same day, 16 September 2021. In accordance with your rights, you made a no comment record of interview. None of these firearms have been recovered. At the time of the offending, you were subject to a grant of bail which was made on 17 August 2021.
16 The prosecution accept your role in this offending is carrying the guns to and from the Hutchinson house. Approximately your involvement with the guns was a total of some 20 minutes, and Mr Hutchinson and his wife took them away. You were in effect the conduit between the thieves and Mr Sheehey to get the guns to the Hutchinson house.
Your personal circumstances
17 You are 32 years old, at the time of the offending, on my calculation, you were 30. You live in a relationship, you have an 18-month-old son, and two step-children who make up your family group. I note your little son is here in court today.
18 You have an older sister who works at Monash Health. You have a very supportive father who gave evidence on your plea here today. Your father is a retired public servant.
19
You suffer from mental health conditions, specifically schizophrenia. You also have depression and anxiety. Your mother died when you were 14 or 15 years of age. Your mental health deteriorated with depression and resulted in an attempt on your life at the age of 15. In 2008, when you were approximately
17 or 18 years of age you were first diagnosed with paranoid schizophrenia. Over the years you have been treated with various anti-psychotic drugs, including olanzapine, quetiapine, aripiprazole, which you are currently taking, and clozapine. You are currently on a compulsory treatment order under the Mental Health Act and have four weekly depot injections of 300 milligram aripiprazole. This order is administered by Barwon Health.
20 Your prior criminal offending commences when you were approximately 18 years of age. By that time, you had started your drug use, including cannabis, which I note in the history you say you started at 14, methylamphetamine, cocaine, GHB and ecstasy. You have attended detoxification in 2015 and remained abstinent for approximately 18 months after that time, and then you relapsed into methylamphetamine. Your offending pattern runs parallel to your drug use, particularly the use of methylamphetamine.
21 You attended school to Year 12 but did not complete VCAL. You did two years of a turf apprenticeship and have not worked since that time. You are a disability pensioner. Since your release from prison in June/July 2022 you have remained drug free. In January 2023, due to a rapid decline in your mental health, your father had you admitted as an involuntary patient at Barwon Health. Your treatment and care plan is a result of that admission.
22
You now help your partner with the care of your son and your two step-children.
Your father's observation is that you have matured, grown up a bit due to the role you now have with your son since your release from prison.
Sentencing considerations
23 The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation, rehabilitation and denunciation of your actions, and the protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of your offending, your culpability for it, and your personal circumstances.
24
I am required to balance the interests of the community in denouncing your criminal conduct with the interest of the community in seeking to ensure, as far as possible, that you as an offender are rehabilitated and reintegrated into society. I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly, but not exhaustively,
or exclusively, to the kinds of sentences imposed in comparable cases and the statistics for those sentences.
25 I have considered the statistics and the current sentencing practices, mindful that each case must be considered in light of its own particular circumstances, and many of the cases will be distinguishable from your case, as indeed they are from one another. Nevertheless, current sentencing practices are only one of the considerations I must take into account. In particular, in firearms offences, the broad statistical data has little weight in establishing current sentencing practices.
26 You have pleaded guilty to these charges. Your plea of guilty was indicated and it is accepted in general terms an early plea. Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome in the resolution of the substantive issues raised by your offending.
27 Your plea also allows for the preservation of court and police resources to deal with other matters, and your plea vindicates the public confidence in the legal process set up to protect the community.
28 Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea to these charges indicates and demonstrates some remorse on your part.
29 There has been a delay between your arrest in September 2021 and the day of your plea hearing today. In that time, you have spent 250 days on remand, which are attributable to this offence. The period of remand was done in the restrictions of the COVID-19 for prisoners during that time. This has meant a limitation on visits, lockdowns and limiting the contact you have with your family.
30 You have been on bail since June 2022. In that time, you have been clear of drugs and you have returned to your mental health treatment. I take into account the interruption to your return to civil society caused by this delay in fixing your final sentence. I also take into account your attempts to rehabilitate once you have been on bail for these offences.
31
You have an extensive criminal history, commencing in 2011, and
eight subsequent court hearings up until August 2020. I have outlined your firearm convictions earlier in these reasons for sentence. In particular, you have a prior conviction for being a prohibited person in possession of a firearm and you were sentenced to eight months' imprisonment, only two years before this offence.
32 The gravity of your offending is indicated by the following matters:
(a) There were two firearms the subject of these charges.
(b) The ammunition that was involved was fitting for these firearms.
(c) None of the weapons have been recovered.
(d) The offending occurred whilst you were on bail for other matters.
(e) The first handler, Mr Sheehey, sent you a message and photographs on an encrypted messenger application for the firearms. I have deducted from that that you were known to be in the market for the firearms by Mr Sheehey.
(f) There is insufficient evidence to determine whether you were handling or obtaining these firearms for any criminal purpose, so I make no such finding. The prosecution accept that you were only in possession or control of these two guns for a period approximately 20 minutes.
33 I find your moral culpability for these offences is problematic, given your direct prior conviction for Charge 1, and the means by which you came into possession of the two firearms, and the ammunition. This was not opportunistic offending; this was a deliberate and planned activity by you, together with others. Specific deterrence is of some significant relevance in your sentencing process.
34
Your moral culpability is moderated by the application of what is known as the Verdins principles. You have a long-term diagnosis of schizophrenia. You are currently on a compulsory treatment order under the Mental Health Act, the order is in place, as I understand the documents handed to me, which was Exhibit 1, until the end of this year. You are presently medicated with depot injections every four weeks with 300 milligrams of aripiprazole. You have been presenting clean urine screens since you were released from prison in
June 2022.
35 Your father gave evidence that at the time of this offending that you had relapsed into using methylamphetamine. In his experience, you only relapse into methylamphetamine because you had ceased complying with the medical treatment regime. Your father's evidence was that you were obsessed with guns. He stated you wanted guns for your own protection from perceived dangers due to your paranoia. Your father also stated you had matured and grown up a bit now that you look after your son, who was born whilst you were in custody. I think he was born some six weeks after you were remanded in custody.
36 I accept your mental health problems would make any further time in custody more burdensome for you, compared to a prisoner who has normal mental health. I also accept that your untreated mental health status whilst you had been on remand in Ravenhall Prison would have been a harsh punishment regime with the added burden of the COVID-19 lockdowns.
37
I assess your prospects of rehabilitation as fair. If you manage to remain drug free and comply with your mental health treatment as directed by
Barwon Health you have a good chance of remaining out of the criminal justice system. You have a supportive father, and a partner, and the responsibility of your own son, and your two step-children. You owe it to these people who are close to you to continue with and persist in your mental health treatment. Undoubtedly the police will make many visits to your home to ensure that you are complying with the firearms prohibition order. So for you, no guns.
38
I have had you assessed for suitability for a Community Corrections Order.
You have been assessed as suitable. The prosecution agree that it is appropriate that you be assessed as suitable, the learned prosecutor announced just before this sentence that a combination sentence is appropriate.
39 Your prior conviction for being in possession of a firearm contrary to a firearm prohibition order some two years before this offending for the same offence dictates that the only appropriate sentence in respect of that charge is imprisonment. The fact that you commit this offence whilst on bail is an aggravating feature of that offence.
40 The criminality in the two charges on the indictment and the related summary charge overlap. The totality of the sentence must reflect that overlap, but at the same time mark out the separate offences themselves.
41 I also must have regard to the sentencing principles of parity, the only sentence imposed at this time to any relevant co-offender is of Mr Sheehey. He was placed on a 30-month CCO with conditions. In your case, the appropriate sentence is a combination of imprisonment and a Community Corrections Order with conditions addressing your drug use, mental health, punishment and monitoring. The combination sentence will satisfy the sentencing principles of general and specific deterrence, protection of the community, rehabilitation and just punishment.
42 Would you stand, please.
43 On Charge 1 on the indictment, you are convicted and sentenced to 250 days' imprisonment.
44 On Charge 2 you are convicted and ordered to serve a community corrections order for a period of two years, commencing today, with the following conditions:
(1) You are to be supervised.
(2) Drug treatment and testing.
(3) Mental health treatment at the direction of Barwon Health pursuant to the compulsory treatment order that you are on.
(4) Unpaid community work of 100 hours within a period of 12 months from this day.
(5) And judicial monitoring, and you are to attend at judicial monitoring on 15 September 2023 at 9.30 am. Just on that, you can do that via video from the Corrections Office that you have to attend, and in the CCO you will be told where your Corrections Office is.
45 In relation to the related summary matter, you are convicted and sentenced to 30 days' imprisonment. For clarity, that 30 days is part of the 250 days, they are to be served concurrently. The total effective sentence is 250 days' imprisonment with a two-year CCO in those conditions I have just announced.
46 I declare that you have served 250 days pre-sentence detention in respect of the sentence I have just imposed.
47 Pursuant to Section 6AAA, but for your plea of guilty to all of these charges, I would have sentenced you to three years' imprisonment with a non-parole period of two years.
48 So if you agree to enter into this Community Corrections Order.
49 ACCUSED: I do, Your Honour.
50 HIS HONOUR: You do, yes. I will have it printed and I will show it to the parties, as in the two barristers, and then you can sign it. You can take a seat. There are no ancillary orders, Mr Prosecutor?
51 MR HANNAN: No.
52 HIS HONOUR: Thanks.
53 MR HANNAN: Is that just on – it just says Charge 1.
54 HIS HONOUR: Sorry, no, that's wrong, it should be on Charge 2.
55 MR HANNAN: Yes.
56 HIS HONOUR: So thanks, I didn't notice that. The handling charge is the CCO.
57 MR HANNAN: Well, that's probably right then, Your Honour.
58 MR van der WIEL: Handle stolen goods?
59 HIS HONOUR: Yes, that's the charge - - -
60 MR HANNAN: No, that's right. Yes, that's right.
61 MR van der WIEL: And we've got 250 days on Count 1.
62 HIS HONOUR: Yes.
63 MR van der WIEL: Yes.
64 MR HANNAN: Yes.
65 MR van der WIEL: That's fine.
66 HIS HONOUR: So imprisonment on Count 1, CCO on Count 2.
67 MR van der WIEL: That's correct.
68 HIS HONOUR: Yes, and so - - -
69 MR van der WIEL: Can I approach the dock?
70 HIS HONOUR: Absolutely.
71 MR van der WIEL: And I'll get it signed?
72 HIS HONOUR: Yes, certainly. I'll just have a number of copies made, three all up, one for each of the parties, and one for you, Mr Hawkins.
73 MR van der WIEL: Your Honour, I'm reminded by Mr Hawkins senior, can he be released from his bail undertaking and also can the bail be refunded to him, some $10,000.
74 HIS HONOUR: There was a surety paid, was there? Surety put up.
75 MR van der WIEL: Yes.
76 HIS HONOUR: Certainly. I order that the surety – it was in the sum of $10,000, you were saying?
77 MR van der WIEL: $10,000, yes.
78 HIS HONOUR: Yes, whatever the surety was, I'll order that the surety be returned to Mr Ian Hawkins.
79 MR van der WIEL: Thank you.
80
HIS HONOUR: Mr Hawkins, I suggest you hang that up in wardrobe or whatever, where you'll see it every day you get up to put some clothes on, just to remind you, don't think today was you've run into a nice, soft judge, you might think that, you might not. Just remember this; you breach this CCO, you'll come back before me to be sentenced. There's every chance he won't be here, for the first time he'll give up on you. He might. They might give up on you.
But I'll sentence you. We clear about that?
81 ACCUSED: Yes, Your Honour.
82 HIS HONOUR: No guns, no drugs. And you'll be fine. All right, I'll adjourn the court, thanks very much, gentlemen, for your assistance.
83 MR van der WIEL: Thank you, Your Honour.
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