Director of Public Prosecutions v Horton
[2019] VCC 2053
•6 December 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCase No. CR-19-00104
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PHILIP HORTON |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3 October 2019 |
| DATE OF SENTENCE: | 6 December 2019 |
| CASE MAY BE CITED AS: | DPP v Horton |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 2053 |
REASONS FOR SENTENCE
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Subject:Importation of Weapons and Firearms – whether items weapons or toys – soft air handguns – tasers (and parts thereof) – knuckle dusters – batons – items prohibited – no license or exemption for importation – Commonwealth Offences – State Offences
Offender continued importing despite prior ABF seizures – relevant priors – drug addiction – mental health issues – anti-social behaviour.
Catchwords: Recognisance Release Order
Legislation Cited: Crimes Act 1914 (Cth) s.20(1)(b), s.16A(2), Customs Act 1901 (Cth) s.233BAB(5), Customs (Prohibited Imports) Regulations 1956 (Cth), Control of Weapons Act 1990 (Vic) s.8C, Sentencing Act 1991 (Vic) s.9.
Cases Cited:Hutchinson [2015] VSCA 115
Sentence:Sentenced to a term of imprisonment of 12 months to be released on Recognisance Release Order (undertaking $1000) after 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Dane | Solicitor for the CDPP |
| For the Accused | Mr B. Tait | Tait Lawyers |
HIS HONOUR
1Mr Horton is now 42. This offending took place when he was 39 to 41. This plea of intentionally importing goods, being reckless to whether they were prohibited, was heard by me initially on 3 October. Ms Dane appeared on behalf of the Director, Mr Tait on behalf of Mr Horton and assisted me on both occasions with their submissions.
2The seven charges set out in the presentment are pursuant to s.233BAB(5) of the Customs Act. The seriousness of such are demonstrated from the fact that the maximum penalty imposed by Parliament is one of 10 years and/or 2500 penalty units or both.
3There was one other point, Mr Tait, in your written submissions you said there is no evidence that he did that, something along those lines. As I understand it, each of those mis-descriptions have been done by your client, have they not?
4MR TAIT: Sorry, the description on the packages, Your Honour?
5HIS HONOUR: Yes. For example, sometimes they are called a pillow - say the first item is ‑ ‑ ‑
6MR TAIT: Yes.
7HIS HONOUR: ‑ ‑ ‑ either called a toy, a pillowcase, the batons were called tools.
8MR TAIT: Your Honour, my friend has assisted and said that's not their case that there was ‑ ‑ ‑
9HIS HONOUR: So who put these labels on them?
10MR TAIT: Well the labels themselves are the shipping labels.
11HIS HONOUR: Yes.
12MR TAIT: That are obviously put on the packages ‑ ‑ ‑
13HIS HONOUR: Yes.
14MR TAIT: ‑ ‑ ‑ by the senders. Now there's no ‑ ‑ ‑
15MR TAIOT: So that would suggest at least the senders knew there was a need for some form of subterfuge.
16MR TAIT: Absolutely, I take no issue with that, Your Honour.
17HIS HONOUR: No, no, well that does not go against your client.
18MR TAIT: Exactly.
19HIS HONOUR: Although having received the number no doubt he was aware of what was going on. That is important, because I did not understand your comment about that. Yes, thank you.
20MR TAIT: Thank you, Your Honour.
21HIS HONOUR: Yes, I am sorry, I will come back to where I was.
22Those charges, all seven charges, relate to various importations which are set out in the presentment and took place over the period of December 2016 through to August 2018, with the majority in the four months before August of 2018.
23Each of those as indicated had various descriptions, and as has been explained to me, those descriptions which clearly are false, were put on either by the vendors or the persons responsible for sending these items. Clearly such actions cannot be sheeted home to Mr Horton, however given the number of items and the multifarious descriptions, he must have become aware that such was a process being used and it is a factor no doubt that accompanies the general charge as to recklessness.
24Charges 2 to 7 involve clear items that one can understand fully why they are prohibited; we have in Charge 2 two tasers, in Charge 3 eight batons, in Charge 4 19 knuckledusters, in Charge 5 a trench knife, Charge 6 an automatic knife and Charge 7 which makes up parts of tasers.
25The interesting item, of which I have had discussions this morning with counsel and which I did not quite understand why it should be so prohibited, is the BB soft handguns which on the last occasions was variously described as a toy. Given the material that I have been given this morning, clearly in both the photos and the description from Victoria Police, the Airsoft BB guns are used for military simulation games. Whether that in fact takes place in Melbourne, irrespective of whether there are appropriate areas for it and/or an approved range is probably questionable. However it seems to me that there is a discrimination to be made insofar as that offence, as against the others, simply because of the type of material.
26What is of course significant is that all of this offending was done in Mr Horton's name. All of the items were ultimately, by way of the warrant executed on 6 September 2018 at his premises at Caulfield, all of those items were found and have been retained by Border Force or Customs authorities, nor is there any suggestion - and indeed I suppose the facts of them being found at Mr Horton's premises give proof to this, that he was dealing with them in any way.
27The summary matters; I must take into account in addition to the indictable matters two summary matters. The first notice - they are both dated 27/05/19. The first one is under s.145 I must take into account two charges under s.233(1)(b) for which the maximum penalty is 1000 penalty units. The first of those relates to four imitation firearms imported in the period 03/18 to 08/18 and then 13 imitation firearms imported over the general period.
28The second notice relates to a state offence, possessing a prohibited weapon without a permit. That was in April of 2018 and as such is a breach of s.8C of the Control of Weapons Act 1990 (Vic), for which a maximum penalty of two years applies.
29As I said these matters came to light due to the execution of a warrant in September 2018 at Caulfield. No doubt these processes take a long time to be effected, however clearly Border Force was aware that Mr Horton was importing this sort of item, because they had seized a number from December of 2016. No doubt eventually the processes developed, whereby the warrant was issued. Hence the ascertaining of who was involved in these crimes and the issuing of the warrant was not complicated.
30In the record of interview, which Mr Horton willingly undertook, he admitted to the fact that, despite seizure notices being sent to him from Border Force, he continued importing. He thought, according to his statements that many of these items would be overlooked and his explanation for this criminality was essentially that he did it out of interest.
31I must say that the prior offences of Mr Horton are quite concerning. There are a number of like charges, there are a number of charges of possession of dangerous articles and controlled weapons. In the period 2002 to 2004 he was given three prison terms, in particular he got a sentence in 2001 of 14 months for a series of deceptions, burglaries and cause injury. When one looks at the history it is clear that a lot of these crimes were related to his drug taking.
32That drug history goes back unfortunately a long way. His first offence occurred in February of 1995 when he was 18 years of age. In 1998 he had further thefts and possession of weapon charges. At that stage he was given a 12 month ICO. He breached that, and ultimately served as a result of that sentence a period of 11 months and 25 days.
33Throughout his background he has been given a series of CCOs, suspended sentences and sentences which have had attached with them provisions whereby he should seek psychiatric help or psychological help for his intellectual issues, and in particular his drug issues. Unfortunately he is a person who has been afflicted by such issues for many, many years and indeed is on Suboxone, now to try to suppress those desires.
34As I say he has been given over the years many opportunities due, it appears, to various mental issues to avoid gaol, if possible. However due to a number of breaches of such orders, be they ICOs or CCOs, and further criminality subsequently committed, the obvious intent of various Courts to keep him out of gaol, unfortunately was not able to be achieved.
35As an adult he has been offending for a period of 24 years in circumstances which I find aggravate the culpability in this matter. I make the point, Mr Horton, very strongly that you do not come here to be sentenced again for the crimes for which you have been before the Court, however when you have a history such as you do it limits the alternatives that are available to this Court.
36Exhibit B tendered was the Crown submission on sentence. The matters set out therein were reconfirmed this morning by Ms Dane as to the circumstances and I have already clarified the explanation in regard to Charge 1. The nature and circumstances of the offence were set out in particular at paragraph 9, the total that is set out is one of 51 weapons and already detailed. The types of weapons it was submitted have the potential to cause serious injury, that is true but for item 1, it says very serious injury and I suppose the use of a knuckleduster can indeed come into that - and/or the baton.
37It was put at paragraph F, nature and circumstances, that most of the parcels contained false descriptions. That has been clarified today, that those false descriptions are part of the recklessness, in the sense that if Mr Horton did not notice initially, upon the beginning of the importations, that the exporters of those goods, from wherever they come, were using false names then it is clearly to be inferred that he knew throughout the period.
38Further, the prosecutor pointed out the provision of s.16A(2)(c) which avails this Court to take note of the fact that this was a course of conduct which occurred over a substantial period of time being from December 2016 through to August 2018, although the point I have already made was the bulk of the parcels were ordered between March 2018 and August 2018. At paragraph 23 the matters of that were relevant under s.16A(2)(k) were put out on the basis of what are the factors that come under the general heading of a need for adequate punishment and I take into account all of those matters. It was the ultimate submission of the DPP, maintained today on instructions having read the two psychiatric reports and the community corrections report, that a sentence involving an immediate term of imprisonment, should be imposed and, as has been detailed, that a combined order being a Commonwealth matter is not possible. What was also pointed was that an aggregate penalty can be imposed under the provisions of the Victorian Sentencing Act, should the Court deem that appropriate.
39Mr Tait in his plea tendered the written submissions, Exhibit 1, on behalf of Mr Horton. Essentially the proposition from Mr Tait was that given the totality of the circumstances in this matter, in particular the psychiatric report and now the additional psychological report and the comments made in the report from the community correction order, that an appropriate sentence should not involve imprisonment, but a community correction order.
40Insofar as the report that I have referred to which we have labelled Exhibit C, it is positive. As pointed out by Ms Dane it does have a number of factors which, I think, only demonstrate the great work that those officers do in this community and appreciative of their work difficulties, they still in the end determined to give a positive report.
41At p.2 they noted the memory issues and manner of description of Mr Horton. At p.4 an assessment was made insofar as risk was concerned and a determination was made as to a high risk of general reoffending with which, it seems to me on the basis of his prior matters, one must accept. Also detailed in some particularity on p.4 was his history of drug abuse and dependency. It is quite clear that Mr Horton had significant problems from an early age. Whether the epilepsy relates to that, or whether the issues as to his cognition and abilities of thought relate to the degree of addiction is a matter of conjecture. I am told however by Mr Tait that Mr Horton had stopped, and he confirmed this in the statements in that document, significant drug taking at the age of 31.
42As is clear unfortunately because of the totality of those factors he has been unemployed essentially for a period of 20 years. He has been on a disability pension, the particular factor for a disability pension apparently is his epilepsy. The matter remarked on in the report, seems to be consistent in both in the psychiatrist's report and the psychological report, is a failure by Mr Horton to fully appreciate the consequences of his criminal behaviour. As has been pointed out, despite all those matters and the significant criminal history, a positive report was given to the Court.
43In addition Mr Tait relied upon the two professional reports, the first being Exhibit 2, Dr Zimmerman, psychiatrist, report dated 12 September 2019, Dr Zimmerman being a forensic psychiatrist. At paragraph 9 on p.2 when in interview and assessing his mental state on interview the doctor made the following comment:
'He provided a disorganised and at times contradictory account of himself but there was no evidence of formal thought disorder.'
44She took the Court through the psychiatric history, the history as to substance use and ultimately the actual offences. She noted the ongoing support of the family, the disappointment of Mr Horton's mother as to the use of her credit card to make these particular purchases and the great pride exhibited by Mr Horton as to his father's abilities. In response to the questions posed the question was raised as to the possibility of some borderline or mild intellectual impairment. Dr Zimmerman noted at paragraph 43a in the last sentence thereof the following:
'However his interview with the police and the nature of his offending raise the possibility of borderline or mild intellectual impairment. He appears to be dependant financially on his parents to a degree. He appears to have accumulated the weapons and accoutrements in an almost compulsive fashion although he certainly did use some of the items on at least a couple of occasions. It may be of assistance to obtain a neurological testing to rule out an underlying intellectual disability.'
45She went onto say in part B of paragraph 43 on that page:
'Mr Horton's drug dependence has impacted significantly on his life and is likely to be closely related to his past offending such as the burglaries and thefts.'
46At p.8 she stated in paragraph C:
'Sentencing appropriately remains a matter for the Court but in the absence of any significant mental illnesses I do not believe there is any reasons that a custodial sentence would impact more heavily on Mr Horton compared to any other person.'
47Subsequent to the plea a further report was sent and that is the report of Mr Ball which was have discussed today. That report is Exhibit 3 and is dated 25 November 2019. As pointed out by Ms Dane it came about as a result of two attendances which are referred to. Unfortunately as a result of him undertaking his treatment it meant that a formal IQ quotient could not be provided to the Court. I note also on p.2 that Mr Horton takes Xanax daily for what he describes as nervy situations. He also takes Rivotril daily for epilepsy and the Suboxone already discussed. A combination of those might well result in the circumstances that Mr Ball found on those two occasions. As a result of that he made the following estimate on p.3 of the IQ of Mr Horton. He said this, 'I would estimate his IQ to fall within the borderline range.'
48He further said this:
'Overall Mr Horton impressed me as an immature man for his age with impairment to his capacity for good judgment and to his ability to plan and execute positive and self-sustaining behaviours. He has a substantial history of substance abuse and remains dependant on his parents, relying upon them to function albeit on the fringes of community.'
49Under 'Current Situation' it was put at p.4 that Mr Horton said to Dr Ball that he now understands that he is not allowed to order weapons online, and that he will not do it again. Mr Ball’s opinion as to his personality functioning was that he presents with significant schizoid and rising anti-social personality features. He lives as a socially detached individual with a crushingly low self-esteem who tends to perceive others as being more capable and worthy. However, on formal diagnosis based upon his personal, forensic and medical history and clinical view Mr Ball was of the opinion that though he suffers features of personality issues, those features fall short of what can be described as a diagnostic criteria for a disorder. He experiences, because of those features, episodes of lowered mood and anxiety.
50As to the offending, as I said, Mr Tait tendered written submissions which became Exhibit 1 and spoke to those submissions. He essentially put that the Court was dealing with a person who can be described as generally naive, if not immature. He pointed out in regard to the offending that there was no evidence of any ongoing sale, not that he is charged with that, but there were no aggravating features in that regard. That is, as I have said, supported by the fact that all the items were found at home and recovered.
51Mr Tait referred me, to the somewhat sheltered lifestyle, the isolated circumstances, the lack of work and the need for support by the family. He also submitted a description of Mr Horton senior of his son, that though his son is 42 he can be seen essentially, to use the word put to me, 'as a teenager in a 42 year old body.' He still has the support of his family, who have been consistent in that support.
52The circumstances therefore as to a sentence are difficult, it requires a balancing. There are, and clearly have been, considerable difficulties in Mr Horton's life. However, despite that, he has a significant criminal history which has continued from the age of approximately 20, right through to his current age.
53It has been a difficult matter for me as to the ultimate written submission of Mr Tait that a non-custodial sentence was appropriate, namely a community corrections order, I indicated at the time I would seek a report but I also indicated to the Court, that such did not mean I would agree to that, but I would consider it.
54Further Mr Tait submitted that an immediate term of imprisonment would be unduly harsh, that Mr Horton’s prospects of rehabilitation are good, that he has the support of his family and intends to complete further courses. Insofar as that is concerned I accept that he has the ongoing support of his family, I accept his comments about his desire to re-engage, his history does not necessarily give me faith about that. His prospects of rehabilitation must I think be realistically seen by this Court as guarded. Dealing with the issue as to the submission that a term of imprisonment would be unduly harsh, as I say given the type of person the Court is dealing with, that is a matter that has concerned the Court very much.
55However, given the balancing in totality and his history, it is an aggravating effect insofar as the criminal culpability in this matter, the fact that that history has continued for such a time, when one balances the mitigatory factors that have been put, in particular the plea of guilty and the appropriate discount that has to be given as a result of that because of the assistance to the Court, the utilitarian benefit of it and the matters that I have referred to. All those matters have to be balanced unfortunately against the serious nature of these crimes.
56I conclude that the crimes set out in Charges 2 to 7 are far more serious than the crime in Charge 1, however there are large penalties imposed by Parliament for these crimes. There is a need to effect general deterrence in regard to these crimes. There is a need for specific deterrence in regard to Mr Horton.
57I have concluded that it is not appropriate to grant a community corrections order and I do so after taking account of all the factors, in particular the factors set out in s.16A of the Commonwealth Crimes Act.
58Mr Horton, if you would stand please. As to the presentment on all of the seven charges pursuant to s.9 of the Sentencing Act (Vic), I sentence you to a period of imprisonment of 12 months. It gives the Court no joy to do that, however I hope that should you read this sentence and if you have listened to what I have said, in the end you will understand that there is no alternative but for a term of immediate imprisonment, which was the submission put by the prosecution.
59The simple fact is that you must realise that you cannot continue to commit crime. It is quite clear to me that Courts have done their best to keep you out of gaol, unfortunately you keep committing crime. In these circumstances it is my view that it was not appropriate to impose a community corrections order. As Court of Appeal, Priest AJ, said in Hutchinson [2015] VSCA 115 at paragraph [17]:
'There will be cases - indeed many cases - when a community correction order … will be insufficiently punitive …”
60I find this is one of them. Pursuant to s.19 AC(1) of the Crimes Act (Cth) I order that you be released on a recognisance release order after serving a period of six months. That recognisance release order can be upon your own undertaking and the fundamental requirement of that, Mr Horton, is that you must be of good behaviour. I will explain what that means to you in due course. I notice you are struggling with it.
61As to the first s.145 notice on the two Commonwealth matters he will be convicted and discharged. On the state matter I order a period of one months' gaol to be served concurrently with the Commonwealth sentence.
62Ms Dane, I will check with you whether I can do all those things but, Mr Horton, what essentially is happening is you are being sentenced to a period of imprisonment of 12 months. You have got to serve six months and then you will be released on a recognisance release order for the balance of that period, and it is important that in that period you be of good behaviour because you do not want to come back in front of me, okay? Just take a seat and I will just check that everything I have done it, okay.
63MS DANE: Yes, Your Honour.
64HIS HONOUR: I have to make a formal declaration under s.6AAA of the State Act, whether it applies to Commonwealth matters I do not know, but it clearly applies to one state matter, but on the assumption that it applies to all matters doing as best I can do in a multi-factorial situation such as this case is to comply with Parliament's request to explain to Mr Horton the result of one factor but doing as best I can, Mr Horton, had you not pleaded guilty, the sentence that I would have imposed upon you would have been a sentence of 18 months. So that the benefit that you get from pleading guilty, as best as can be explained by me, is that instead of getting a sentence of 18 months, you get a sentence of 12 months.
65Now, Ms Dane.
66MS DANE: Yes, Your Honour, that's all suitable.
67HIS HONOUR: All okay.
68MS DANE: The only thing you will need to do is declare an amount of the recognisance should that be breached.
69HIS HONOUR: I just said on his own undertaking, I do not have to declare an amount, do I?
70MS DANE: We might just need to check that briefly, Your Honour.
71HIS HONOUR: Yes. I have done those before I think. No, perhaps you have to - it is on his own undertaking but I have got to set a sum, do I not?
72MS DANE: Yes.
73HIS HONOUR: I will make it $1000.
74MS DANE: Yes, Your Honour.
75HIS HONOUR: Does that fit into your draft order, Madam Associate?
76MS DANE: Excellent, thank you to Your Honour's associate. So we have a hard copy.
77HIS HONOUR: Mr Tait, any matters I have to clarify?
78MR TAIT: No, Your Honour.
79HIS HONOUR: Yes, Mr Horton, it gives the Court no pleasure to put you in gaol, okay? But you have got to make sure you do not commit any more criminal offences and if there is problems, go and talk to your Dad about it. Make sure that you do not get into any more trouble, all right? We will just get the order. Sorry, Mr Tait, you will have to explain to your client the ramifications of a recognisance release order so that when he signs it he understands its effect. If you would be good enough to do that and tell the Court he understands.
80MR TAIT: Thank you, Your Honour.
81HIS HONOUR: I will hand back, Mr Tipstaff, to the prosecutor please.
82MR TAIT: Thank you, Your Honour, my client understands that. He has asked that he urgently needs to use the bathroom.
83HIS HONOUR: Quick. Yes, I appreciate your presence, Mr Horton, not easy, I am sure.
84MR HORTON SNR: Thank you for your wisdom of your words.
85HIS HONOUR: I do not know about wisdom, but it is certainly a worrying sentence as far as I am concerned.
86MR HORTON SNR: I think Mr Ball, I thought he was spot on.
87HIS HONOUR: Yes, he is a pretty good operator actually.
88MR HORTON SNR: Yes.
89HIS HONOUR: Do you notice a difference with Suboxone when you see it?
90MR HORTON SNR: No, no difference from any of his experience with drugs in the past that we've been exposed to.
91HIS HONOUR: You don't notice any difference?
92MR HORTON SNR: No.
93HIS HONOUR: So what, he appears to be exactly the same whether he's on Suboxone or whether he is on heroin?
94MR HORTON SNR: Just as dopey.
95HIS HONOUR: Just as dopey?
96MR HORTON SNR: Yes.
97MS DANE: Your Honour, I can hand that up to you. I've showed my learned friend.
98HIS HONOUR: We haven’t had him sign yet, have we? Give that to - I am assuming it is fine. Ms Dane, are you happy with that?
99MS DANE: Yes, we're happy with that, Your Honour.
100HIS HONOUR: Good.
101MS DANE: And you just need to sign on the bottom.
102HIS HONOUR: Yes, well I will wait until Mr ‑ ‑ ‑
103MS DANE: Horton returns, of course. The only other thing, Your Honour, is you will need to state a commencement date for the period of imprisonment.
104HIS HONOUR: Today.
105MS DANE: I of course assumed that, Your Honour, but - thank you, Your Honour.
106HIS HONOUR: I thought the Act makes that clear, does it not? But anyway. If I need to say it the period of commencement of the prison sentence commences today.
107MS DANE: Thank you, Your Honour.
108HIS HONOUR: Mr Tait, we will give you the order.
109MR TAIT: Thank you, Your Honour.
110HIS HONOUR: Mr Horton, can we take - Officer, Mr Horton can be taken away. Good luck, Mr Horton, no doubt your Dad will come down and see you.
111MR HORTON SNR: Can I do that?
112HIS HONOUR: Sorry?
113MR HORTON SNR: I can do that, can I?
114HIS HONOUR: Yes, I think so.
115OFFICER: Not here.
116HIS HONOUR: Not here?
117OFFICER: No.
118MR TAIT: No, Your Honour.
119HIS HONOUR: Right.
120OFFICER: He can down at the prison. He will be taken back to the prison today.
121HIS HONOUR: I see, so your Dad would like to see you now but he unfortunately cannot and he will see you at the prison, all right. Good luck. Yes, can I thank counsel for their assistance in this matter.
122MS DANE: Thank you, Your Honour.
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