Director of Public Prosecutions v Hogarth (a pseudonym)

[2022] VCC 91

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL HOGARTH (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	1 February 2022
DATE OF SENTENCE:	7 February 2022
CASE MAY BE CITED AS:	DPP v Hogarth (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 91

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – possessing a traffickable quantity of firearms without authorisation – possessing a drug of dependence – possessing a firearm with no serial number – trafficking in a drug of dependence – failing to comply with an order to provide information or assistance – fail to store firearm in a secure manner – failing to store cartridge ammunition in a secure manner – possessing a prohibited weapon – possessing a controlled weapon – dealing with an unauthorised explosive device – possessing cartridge ammunition – plea of guilty – rehabilitation

Legislation Cited:                  Sentencing Act 1991 (Vic)
Cases Cited:  Gregory v The Queen [2017] VSCA 15
Sentence:  Drug and Alcohol Treatment Order for 24 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	Office of Public Prosecutions
For the Accused	Ms K. Sheridan	Slink and Keating Solicitors

HIS HONOUR:

1Daniel Hogarth[1], you have pleaded guilty to:

·        one charge of possessing a traffickable quantity of firearms without authorisation (Charge 1), for which the maximum penalty is a term of imprisonment of 10 years;

·        three charges of possessing a drug of dependence (Charges 2, 4 and 6), for which the maximum penalty is a term of imprisonment of one year (the prosecution having accepted these drugs were for personal use);

·        one charge of possessing a firearm with no serial number (Charge 3), for which the maximum penalty is a term of imprisonment of four years; and

·        one charge of trafficking in a drug of dependence (Charge 5), which the maximum penalty is a term of imprisonment of 15 years.

[1]A pseudonym.

2You also pleaded guilty to the following summary offences:

·        Summary Charge 4, failing to comply with an order to provide information or assistance, for which the maximum penalty is a term of imprisonment of two years;

·        Summary Charge 8, fail to store a firearm in a secure manner, for which the maximum penalty is a term of imprisonment of one year;

·        Summary Charge 9, failing to store cartridge ammunition in a secure manner, for which the maximum penalty is a term of imprisonment of one year;

·        Summary Charge 14 and 15, possessing a prohibited weapon, for each of which the maximum penalty is a term of imprisonment of two years;

·        Summary charge 16, possessing a controlled weapon, for which the maximum penalty is a term of imprisonment of one year;

·        Summary charge 20, dealing with an unauthorised explosive device, for which the maximum penalty is not more than 100 penalty units; and

·        Summary charge 25, possessing cartridge ammunition, for which the maximum penalty is 10 penalty units.

3Tendered on the Plea as Exhibit 1 was a Summary of Prosecution Opening, which set out the agreed facts of your offending.  In brief, the circumstances of your offending were as follows.

4On 5 July 2021 at approximately 7:30 pm, police executed search warrants at a unit on Screen Street in Frankston, where you were residing.  You were not at home but were apprehended nearby in Bondi Avenue in your vehicle, which was then searched.  A mobile phone and a box cutter style knife (Summary Charge 16) were seized.  A further search of the vehicle located a plastic bag of hallucinogenic mushrooms (part of Charge 4).  You were then placed under arrest.  A black taser was also found (Summary Charge 15).

5You were brought back to the unit at Screen Street, where you were reminded you were under arrest and given your caution and rights.  Police informed you they had found plastic clip-seal bags of what appeared to be methylamphetamine in your bedroom and requested that you provide the PIN number to your phone, however you declined to assist (Summary Charge 4).

6Police found a lever action rifle lying against the wall in the bedroom (Summary Charge 8) and cartridges of ammunition in the wardrobe and under the bed.  The rifle was not registered and did not have a serial number (Charge 3).  An unregistered and loaded black handgun, together with a magazine of several cartridges, was located in the pantry (part of Charge 1).  A glass bowl in the kitchen cupboard contained an ammunition cartridge.  Two unregistered handguns were found in a bag inside the kitchen oven (part of Charge 1), along with two plastic clip-seal bags containing what appeared to be methylamphetamine and a container of diazepam tablets (Charge 2).

7A plastic bag of hallucinogenic mushrooms was located in the wardrobe (part of Charge 4).  A plastic bag containing biscuits and labelled “Gluten free Weed Brownies” was found in a freezer in the second bedroom (Charge 6).  A plastic bag labelled “Mushy Caps” containing, again, what appeared to be hallucinogenic mushrooms was found in the laundry cupboard (part of Charge 4), along with another ammunition cartridge.

8In the living room, an aerial shell containing gunpowder was found inside an unzipped bag (Summary Charge 20), along with a butterfly knife (Summary Charge 14).  An ammunition cartridge was also found inside the bag and three ammunition cartridges were found in a toolbox on the floor, close by. The totality of ammunition seized forms the basis of Summary Charge 9 and Summary charge 25.

9Later analysis of the drugs seized revealed the following quantities:

·        Methylamphetamine: 67.8 grams net, 58 grams pure (Charge 5)

·        Psilocybin mushrooms: 2 grams, less than 0.1 grams pure (Charge 4)

·        Biscuits containing tetrahydrocannabinol: 200.1 grams, but that is the weight of the biscuits.  The actual quantity of tetrahydrocannabinol inside the biscuits could not  be measured (Charge 6)

10The Prosecution accepted that the drugs of dependence in Charges 2, 4 and 6 were for personal use or, alternatively, cannot contend that they were for anything other than personal use and I proceed on that basis.

11The three handguns, namely the FN single barrel semi-automatic handgun, the Francotte single barrel revolver handgun and the homemade Derringer double barrel tip-up handgun, were examined and all were found to be capable of discharge (Charge 1).

12Following your arrest on 5 July 2021, you were interviewed and you made no comment, as of course was your right.  You were remanded in custody.  You were granted bail on 13 September 2021 with a condition of engagement with the CISP program.  Whilst on remand, you were briefly prescribed antipsychotic medication.  

13The matter resolved at a committal mention on 11 November 2021 and proceeded by way of a straight hand-up brief.  Yours is, therefore, a plea of guilty at the earliest opportunity.  Your case was adjourned into Drug and Alcohol Treatment Court on 13 December 2021 for a Determination Hearing held in front of me on 1 February 2022.

14Exhibit 2 on the Determination Hearing was a Case Management Assessment Report authored by Megan Kew, dated 7 January 2022.  Exhibit 3 was a Clinical Advisor Report authored by Harry Howe, dated 10 January 2022.  Both reports identified your challenges, your substance abuse and your forensic history.  Ms Kew concluded that you were a suitable candidate for a Drug and Alcohol Treatment Order (DATO) and Mr Howe set out treatment plans for your engagement, supervision and therapeutic intervention.  Neither party filed a notice of intention to dispute the court ordered assessment reports.  I proceed on the basis that no challenge is made to the contents or their conclusions.

15Exhibit 4KM was a report from Dr Aaron Cunningham, forensic psychologist, dated 9 September 2021.  I also received progress reports from CISP (Exhibit 5 and 6KM) and a letter from your wife Mackayla Warren[2] (Exhibit 8KM).  Other reports and materials were also tendered, which material confirmed the key aspects of your personal narrative.

[2]A pseudonym.

16You were born in June 1991 and are aged 30, both now and at the time of this offending.  You have no prior or pending criminal matters.  You were raised in Clayton and have two older brothers with whom you remain in distant contact.  You report a lack of emotional connection with your parents, although they remain still supportive of you.  You reported childhood abuse, perpetrated by a trusted family member.

17You attended local Catholic schools where you were bullied, which reaffirmed your sense of being an outsider.  After VCE, you commenced a plumbing apprenticeship and you have worked consistently in the construction industry.  In February 2021, however, you suffered a serious workplace injury to your hand and you have not worked since.  You are able, now with hindsight, to see the impact of this injury not only on your physical health, but also upon your mental health.  Work provided you with an identity and you keenly felt the loss of that identity.  It seems your long-standing drug use escalated in the intervening months between your loss of employment and your arrest.

18You report few close friends, but describe a (now) positive relationship with your parents.  You have been in a long-term relationship with your wife, Mackayla, whom you first met when you were both aged 15 and whom you married three years ago.  Her letter to the court (Exhibit 8KM) speaks clearly of your struggles to deal with past trauma, of her leaving the marriage due to your escalating and uncontrolled substance abuse and constant erratic and volatile behaviour, and, importantly, of the changes she has seen in you since your release on bail and your engagement in the CISP program.  You and your wife have recently reunited and continue to work on repairing your marriage.  You identify your wife as your most significant support.

19You also report previous diagnoses, including dis-associative identity disorder, autism spectrum disorder and oppositional defiant disorder, as well as significant past episodes of depression.  Dr Cunningham believes you present with complex Post-Traumatic Stress Disorder and are an individual with significant emotional regulation impairment.

20You first consumed alcohol at the age of 15, and you began binge drinking in your early 20s.  You first smoked cannabis at the age of 14 and quickly became a daily user.  By the age of 18 you were smoking Methamphetamine, which you identify as your primary drug of concern.  At the time of your arrest, you report using 2 grams of Methamphetamine per day as well as regular use of Heroin, hallucinogens and Valium.  You have also reported historical overdoses on synthetic Cannabis.  Mr Howe identifies that at the time of this offending you would have satisfied the diagnostic criteria of a stimulant use disorder.  Significantly, you report abstinence since your release on bail in September 2021 and you have achieved significant periods of abstinence in the past, following residential rehab in 2014/2015.

21Mr Howe states that “it is probable that (you were) predisposed to problematic substance use following adverse childhood experiences,” and he sees your substance use as being a strategy for managing your emotions, and that opinion is also advanced by Dr Cunningham.

22You told Ms Kew that you are at a point in your life where you are done with the bullshit that drugs have brought and that you recognised the inevitable trajectory of your life should you remain using.

23The particular purposes of a drug and alcohol treatment order are:[3]

(a)   to facilitate the rehabilitation of the participant offender by providing a judicially-supervised, therapeutically-oriented and integrated drug and alcohol treatment and supervision regime;

(b)   to take account of the offender participant's drug or alcohol dependency;

(c)   to reduce the level of criminal activity associated with drug or alcohol dependency; and

(d)   to reduce the participant's health risks associated with drug or alcohol dependency.

[3] Sentencing Act 1991, s 18X(1)

24Mr Roper, on behalf the Director, accepted your dependence upon methamphetamine and its contribution to your offending.  He fairly and correctly conceded that placing you upon a DATO was a sentencing disposition well open to the Court.

25Ms Sheridan, on your behalf, likewise submitted that a DATO was an appropriate disposition in your circumstances and in the circumstances of this offending.

26Mr Hogarth, those of us who sit in the criminal courts day after day are aware of this one simple truth:  drugs are tearing out the heart of our community.  Our community is losing a generation.  And those who participate in this evil trade can expect to be severely punished if and when they come before the courts.  What might start out as a fun Saturday night, what might be regarded as recreational and consumption that can be controlled, can quickly spiral into the horrors of addiction and dependence, which leads many lose everything, some even their lives.  Your own lived experience must show you how close you have come to losing everything.

27The trafficking offence to which you have pleaded guilty is a serious offence, as is clear from the maximum penalty of 15 years’ imprisonment which Parliament has seen fit to impose. Quantity, role, the duration of offending and the motivation for the offender's involvement in the offending are all important indicators of offence  gravity.[4]  I accept that, apart from the quantity of methamphetamine in your possession, there was no evidence of an ongoing business; no text messages, no 'tick lists', no recorded communications or anything of that kind.

[4] See Gregory v The Queen [2017] VSCA 15, 2 [24].

28The case is put that your possession of these drugs was for the purpose of sale.  Thus, I can find no more than that on 5 July you had in your possession, for sale, a quantity of methamphetamine that was in excess of the quantity required for a commercial trafficking charge, where the maximum penalty is a term of imprisonment of 25 years.  As Mr Roper correctly submitted, such quantity places your trafficking at the higher end of the charge of trafficking.  As such, sentencing purposes of general and specific deterrence and protection of the community must all have a role to play.

29As to Charge 1, possessing a traffickable quantity of firearms, the law serves the community interest in maintaining proper systems for the licensing and regulation of the possession, use, disposal and registration of firearms.  The law is designed to protect against the risks that come with the accumulation of weapons illegally and the difficulty of then detecting those who choose to so equip themselves.

30The guns found in your possession were variously in a cupboard and in the oven.  Ms Sheridan, on your behalf, informed me that that this collection of guns was because of your “unhealthy interest” in firearms, rather than for any more sinister purpose.  That is perhaps a most benign and favourable submission.  However, as sceptical as I may be about that explanation, there is no evidence to the contrary, apart from the collection and the nature of the particular guns themselves.  There was no evidence they were used in the commission of any offence or associated with this, or indeed any other, offending.  You must and will be sentenced accordingly, and general and specific deterrence have a clear and most important role to play.

31Mr Hogarth, in sentencing you I must have regard to a range of different factors.  I must give effect to the principal of general deterrence, that is I have to consider deterring others from behaving as you did, and to specific deterrence, that is to deter you from ever repeating such offending.  I must consider the need to protect the community.  I must express the community's denunciation of your conduct.  I must take into account the impact of your crimes upon the community.  I must have regard to current sentencing practices and the statutory maximum penalties for the offences to which you have pleaded guilty.  I must ensure as far as possible that you are rehabilitated and reintegrated into society.  In short, I must try and balance your personal circumstances with the circumstances of your offending. I must also pass no greater sentence than is necessary in all the circumstances of the case as I find them to be.

32Now all of those sentencing purposes identified in s 5(1) of the Sentencing Act1991 still have a role to play in your case.  However, if the Court is considering making a DATO then your rehabilitation and the protection of the community (which is achieved through your rehabilitation) have greater importance than those other sentencing purposes.[5]

[5] Sentencing Act 1991, s 18X(2)

33On all the material in front of me I am satisfied on the balance of probabilities that:

·        you are dependent upon methylamphetamine;

·        that your dependency contributed to the commission of the offending in front of me;

·        that otherwise it would be appropriate to impose an immediate sentence of imprisonment of no more than four years; and

·        that you are not charged with offending nor are you subject to any order that would make you ineligible for a DATO.

Ruling

34On Charges 1, 3, 5, and Summary Charges 4, 8 and 9 you are convicted and placed on a Drug and Alcohol Treatment Order.

Reasons

35I accept that your life has been shaped by your use of drugs of dependence in an attempt to deal with your past.  You have completed rehab in the past (at Malvern Private Hospital) and you have managed significant periods of abstinence of up to two years.  It seems that your work-place injury in March 2021 led to a collapse in your well-being.  You turned to methamphetamine as your comforter, but it quickly took command of your life and your drug use escalated beyond your control.  You became increasingly paranoid, isolated and withdrawn from the world, pushing away your wife and all who cared for you.  You spent your time, it seems, alone in your apartment, playing compulsively with your guns and surrendering to your methamphetamine dependence.  This is the immediate context for this offending.

36You pleaded guilty to this matter at the earliest opportunity.  Such a plea has a significant utilitarian benefit in that it saves the community the time and the expense of a trial.  Your plea also has a particular value to the courts and to the administration of justice in a time of the COVID-19 pandemic, when the backlog of cases is increasing.

37I accept that you are remorseful.

38You have family support.  You have the continued support of your wife, Mackayla, who speaks of the efforts you are making and the changes in you that she has observed, which is confirmed by the CISP progress reports that I have read.

39Your past drug use, I note, has not led to your involvement with the Criminal Justice System.  You have a strong work ethic and you have, in my view, good prospects for rehabilitation.

40You told Ms Kew that you were at an age where you could do something about your substance use.  Well, you certainly are at a turning point.

41Your future is not without its challenges.  You could benefit from the intensive structure and the oversight that the Drug and Alcohol Treatment Court program can provide, in order to break that cycle of your substance use.  I am going to provide you with that opportunity.

42Now I turn to the Drug and Alcohol Treatment Order itself, Mr Hogarth.

The Drug and Alcohol Treatment Order

43Now the Drug and Alcohol Treatment Order has the following parts:

44Part A:  the first part is the treatment and supervision part.

45It has core conditions and those core conditions are as follows: 

(a)   you must not commit either in or outside of Victoria any other offence punishable by imprisonment; 

(b)   you must attend Drug Court whenever required to do so.  you must report to Melbourne Drug Court House or other specified place within two clear working days after this order is imposed; 

(c)   you must report to and you must accept visits from members of the Drug Court;

(d)   you must undergo treatment for alcohol and drug dependence, as specified in the order;

(e)   you must give notice of any change of address at least two clear working days before the change to a specified Drug Court officer; and

(f)    you are not to leave Victoria without the permission of the court and you are to obey all lawful instructions of the Drug Court team. 

46And those conditions, they are the core condition part of that treatment supervision part, will remain in force for 24 months or until further order. 

47The second part of the treatment and supervision part are program conditions, which will remain in force for two years, or until further order. The program conditions are that:

(a)   you must submit for drug and alcohol testing as directed;

(b)   you must submit to detox or other treatments specified as directed;

(c)   you must attend vocational, educational and employment programs as directed; 

(d)   you must submit to medical, psychiatric and psychological treatments as directed; 

(e)   you must reside at your home at East Boundary Road, Bentleigh East, for the duration of the order or until further order;

(f)    you must comply with the curfew that you remain at your address at East Boundary Road, Bentleigh East, between the hours of 9:00 pm and 6:00 am.  That curfew exists until further order;

(g)   you are not to use a drug of dependence without lawful authorisation;

(h)   you are to abstain from alcohol; and

(i)    you are to do or not to do anything else that the Drug Court considers necessary or appropriate concerning your drug and alcohol dependency and the personal factors that the Drug Court considers contributed to your criminal behaviour.

48Part B:  The second part of the order is a custodial part.  And the custodial part of the Drug and Alcohol Treatment Order is a term of imprisonment of two years. That represents the term of imprisonment that I would have imposed had I not placed you on a Drug and Alcohol Treatment Order. Let me show you how that is made up: 

·        On Charge 1, Charge 3, and Summary Charges 8 and 9, you are sentenced to an aggregate sentence of 15 months' imprisonment;

·        On Charge 5, you are sentenced to a term of imprisonment of 16 months; and

·        On Summary Charge 4, you are sentenced to a term of imprisonment of three months.

49Now I am directing seven months of the aggregate sentence of Charges 1, 3 and Summary Charges 8 and 9 and one month on Summary Charge 4 run cumulative to each other and cumulative to the sentence on Charge 5. That makes a Total Effective Sentence of 24 months.

50On the other charges, Charge 2, 4 and 6, you are convicted and discharged. 

51On Summary Charges 14, 15 and 16, you are sentenced to an aggregate sentence of 14 days' imprisonment. That has already been served by you. 

52On Summary Charge 20 and on Summary Charge 25, you are fined an aggregate sum of $750.

53Pursuant to s 6AAA of the Sentencing Act 1991, had you not pleaded guilty you would have been sentenced to a Total Effective Sentence of three years and two months’ imprisonment and a non-parole period of two years and 2 months.

54I make no declaration under s 84 of the Sentencing Act 1991, but I note that Mr Hogarth has served 54 days as Pre-Sentence Detention.  That calculation is 71 days in custody before he was admitted to bail, minus the 14 days which I have imposed today for Summary Charges 14, 15 and 16 and which have already been served.

55I am going to sign the forfeiture orders that were sought.  And they will make their way to your instructor, Mr Roper.

56I should ask you, Mr Hogarth, do you consent to being placed on the order?

57OFFENDER:  Yes.

58HIS HONOUR: So, you are now waving all confidentiality of communications between the Drug Court and any of the various treatment providers, government agencies, including Corrections, authorities and government departments. You are happy with that?

59OFFENDER:  Yep.

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