Director of Public Prosecutions v Kemp
[2023] VCC 235
•22 February 2023
F
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-02050
Indictment No. N10584751
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW KEMP |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 31 January 2023 | |
DATE OF SENTENCE: | 22 February 2023 | |
CASE MAY BE CITED AS: | DPP v Kemp | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 235 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – one charge of unauthorised possession of a trafficable quantity of firearms – one charge of possession of a drug of dependence – pleas of guilty – four uplifted summary matters, two charges of property suspected of being the proceeds of crime – one charge of possessing cartridge ammunition, while not the holder of a licence – one charge of entering a private residence without express or implied authority from the occupier or any lawful excuse – pleas of guilty – contravention of a Community Correction Order ꟷ breach by way of non-compliance with conditions ꟷ together with the offending the subject of this plea.
Legislation Cited: Firearms Act 1996, s7C(1), s124(1); Drugs Poisons and Controlled Substances Act 1981, s73(1); Crimes Act 1598, s195; s319AA(1) Summary Offences Act 1966, s9(1)(e); Criminal Procedure Act 2009; Sentencing Act 1991; Control of Weapons Act 1990, s5AB(2), s6(1); Road Safety Act 1986, s7(3), s30(1), s64(2), s65(1); Road Safety Road Rules 2017, r69(1), r270(1); Bail Act 1977, s30A(1);
Cases Cited:Phillips v R [2012] VSCA 140; Worboyes v R [2021] VSCA 169; Bugmy v R (2013) 249 CLR 571; Marrah v R [2014] VSCA 199; Director of Public Prosecutions (DPP) v Drake [2019] VSCA 293; R v Mills [1998] 4 VR 235
Sentence: Total effective sentence 12 months imprisonment; 18 month Community Correction Order; 335 days pre-sentence detention reckoned as a period of imprisonment already served; 6AAA declaration- 15 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Kats | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr N. Sood | Emma Turnbull Lawyers |
HIS HONOUR:
1Matthew Kemp, on 31 January 2023, you pleaded guilty to the following charges on Indictment No. N10484751:
Charge 1 – that you, at Hedley in Victoria on 24 March 2022, possessed a trafficable quantity of firearms, namely a .22 Lakefield Mark II rifle and .177 air rifle, Diana, otherwise in accordance with the Firearms Act 1996 or the regulations made under the Act.
The offence of possessing a trafficable quantity of firearms is contrary to s7C(1) of the Firearms Act 1996 and carries a maximum penalty of 1,200 penalty units or 10 years' imprisonment.
Charge 2 – that you, at Hedley in Victoria on 24 March 2022, possessed a drug of dependence, namely, methylamphetamine.
The offence of possession of a drug of dependence is contrary to s73(1) of the Drugs Poisons and Controlled Substances Act 1981 and carries a maximum penalty of 30 penalty units or a level-8 imprisonment (one year), or both.
2Four summary charges were transferred to this court pursuant to s145 of the Criminal Procedure Act 2009.On 31 January 2023, you agreed to have these matters heard before this court and pleaded guilty to these uplifted charges.
Uplifted Charge 8 – that you at Hedley in Victoria on 24 March 2022, did deal with property, namely a Stihl chainsaw, suspected of being property suspected of being the proceeds of crime.
The offence of dealing with property suspected of being the proceeds of crime is contrary to s195 of the Crimes Act 1958 and carries a maximum penalty of level-7 imprisonment (two years).
Uplifted Charge 9 – that you at Hedley in Victoria on 24 March 2022, did deal with property, namely a Cross Stihl blower, suspected of being the proceeds of crime.
As already stated, the offence of dealing in property suspected of being the proceeds of crime is contrary to s195 of the Crimes Act 1958 and carries a maximum penalty of level-7 imprisonment (two years).
Uplifted Charge 11 – that you at Hedley in Victoria on 24 March 2022, did possess cartridge ammunition while not the holder of a licence under the Firearms Act 1996 or a permit under s58A.
The offence of possessing cartridge ammunition while not a holder of a licence under the Firearms Act 1996, carries a maximum penalty of 40 penalty units (that is only a fine).
Uplifted Charge 12 – that you at Port Welshpool in Victoria on 19 March 2022, did enter a private place, namely a private residence, situated at Port Welshpool Road, Port Welshpool, without express or implied authority from the occupier, or any lawful excuse.
The offence of entering a private place without express or implied authority from the occupier carries a maximum penalty of 25 penalty units or six months' imprisonment.
3On this day, there was also listed a contravention of a community correction order which was imposed by this court on 2 December 2021, and which expired on 1 December 2022. In addition to the mandatory terms, the order contained the following conditions: supervision, treatment and rehabilitation in relation to drugs and mental health, and a further condition for judicial monitoring.
4The contravention is alleged by way of non-compliance with conditions on 10 occasions and also the further offending in relation to the plea was during the currency of the order, together with other offences during that time.
5The court was informed that the breach was admitted.
The circumstances of the offending
6Counsel for the prosecution tendered the following documents: a document headed “Summary of Prosecution Opening for Plea”, dated 27 January 2023 (Exhibit 1) and a document headed “Submissions in relation to a Contravention Hearing” dated 25 January 2023 (Exhibit 2). In particular, I note the following important matters:
· On Saturday, 19 March 2022, at approximately 11.30 pm, you and a co-accused – your father, Darren Kemp – attended at Port Welshpool Road, Port Welshpool, the home address of Mr Mark McDonald ('McDonald'), his partner, Ms Amanda Emery ('Emery') and their eight-year-old son.
· You parked out the front of the address in a 1997 silver Subaru, registered 00B 407, and also inside the vehicle was Erin Richmond ('Richmond'). Both you and the co-accused left your vehicle and then forced open a locked shed door, which is the doorway into the property. Beside the shed, at that time, was McDonald, who heard and observed both you and your father enter the shed area, after which he then made his way towards the front door of the house. Both you and your father then walked through an open side door of the shed and walked towards the front door of the house.
· In the front of the premises, Emery confronted both of you, and your father lifted his right hand up behind his head in a fist, causing Emery to think he was going to punch her.
· As both you and your father made your way towards the front door of the house, your father was yelling out words similar to, “[g]ive me your drugs and money”.
· Your father then stood at the front door of the premises and attempted to push his way in. The door was made of wood, with a large see-through glass panel. McDonald was standing inside the front door, pushing back against your father. You stood behind your father.
· Also inside the house at the time was the son of McDonald and Emery.
· While your father continued to bang on the door, Emery walked out to the front of the premises and observed the silver Subaru vehicle parked on the opposite side. When she approached such vehicle, she observed Richmond lying in the back seat, causing you to walk in front of the premises and yell at Emery to get away from the vehicle.
· During this time, she could still hear your father banging on the front door of the house and yelling at McDonald.
· Both you and your father left the premises for a short time, after which McDonald and Emery secured the shed door by using a chain and padlock and placing some logs up against it, and then re-entered the house.
· Both you and your father, and Richmond, drove into Port Welshpool, and a short time later, both you and your father re-attended the property and tried to force the gate open, which you were unable to do. McDonald and Emery heard banging and smashing out the front of the property, before you and your father – together with Richmond – left the area.
7On Thursday, 24 March 2022, at about 9.00 am, a search warrant was executed at your home in Hedley. During the search, the following items were located and seized:
(a) a .22 Lakefield Mark II rifle found in the backseat of the vehicle UOK 374, a 2006 Ford Courier utility, registered to you;
(b) an air rifle, Diana .177, located in the rear of the open shed;
(c) firearm part bolt and magazine located in the rear locked shed;
(d) one Stihl-brand chainsaw, located in the boot of vehicle OOB 407, parked at the front of the premises;
(e) one Stihl-brand petrol blower, located in the boot of vehicle OOB 407;
(f) two snap-lock bags containing a crystallised substance (methylamphetamine) located in your pocket;
(g) a black handle covered in black tape, located in the back seat of vehicle OOB 407.
8On Thursday, 24 March 2022, you were arrested and conveyed to the Wonthaggi police station for a recorded interview and later remanded in custody. I was informed that the pre-sentence detention since your arrest up to then, but not including the date of the plea, was 313 days.
9During the record of interview, you admitted being the registered owner of the silver Ford Courier ute, registration UOK 374, but denied driving the ute or having any knowledge of the rifle found inside it. Furthermore, you denied any knowledge of the air rifle found in a shed at your address.
10In addition to the Stihl chainsaw and leaf blower, you stated:
'They – I got from a friend who – yeah. Was – sort of just had ‘em there and I happened to have needed it. Like, I had to use a chainsaw at – at home…So I just, ‘Can I borrow this?'
11You admitted to owning two snap-lock bags containing a small amount of methylamphetamines. In relation to the related summary charge of trespass by attending McDonald's and Emery's address on 19 March, you admitted that you went there with another person (whom you did not wish to name) and Amanda Richardson. You stated that the complainant, McDonald, owed money and was not very well liked, but you went there and had to take someone with you. You further stated that you knocked on the door and thought you heard someone say “come in”, so you pushed on the gate, and the gate opened as you walked in. You stated, “it wasn't aggressive or nothing, anything like that”.
12You further stated that you did not know why you ran inside, but denied being behind the door with your father, pushing the front door and yelling at the complainant, McDonald. When asked whether you had been to the house where McDonald was residing before and whether you were friends, you stated you had been there before and, “[W]ell I guess they were friends, like – yeah”. However, you denied knowing they had an eight-year-old son.
13You do not have a firearms licence and are a “prohibited person” under the definition contained in the Firearms Act 1996. Furthermore, you are not licensed to possess a drug of dependence.
14Besides those matters to which reference has been made, there was also a contravention of a community correction order proceeding involving you, listed on 31 January 2023. The alleged contravention arises out of a 12-month community correction order imposed by this court on 2 September 2021 for 12 months and which expired on 1 September 2022.
15In addition to the mandatory terms, the order also contained the following conditions, being supervised, treatment and rehabilitation of drugs and mental health, and judicial monitoring.
16The contravention is alleged by way of non-compliance with conditions on 10 occasions, together with the subject offending which occurred during the currency of that Order.
17On 31 January 2023, you admitted the breach.
18The original offences giving rise to the community correction order, together with the maximum penalties, are set out below:
· Charge 1 – possession of a drug of dependence – 30 penalty units or Level 8 imprisonment (one year maximum imprisonment), or both if trafficking purpose excluded – s73(1) of the Drugs Poisons and Controlled Substances Act 1981.
· Charge 2 ꟷ prohibited person possessing an imitation firearm without exemption or approval – 1,200 penalty points or imprisonment for 10 years – s5AB(2) of the Control of Weapons Act 1990.
· Charges 4 and 5 – possession of a controlled weapon without lawful excuse – 120 penalty units or imprisonment for one year – s6(1) of the Control of Weapons Act 1990.
· Charges 6 and 24 – driving in a manner dangerous – 240 penalty units or two years' imprisonment, or both – s64(2) Road Safety Act 1986.
· Charges 7 and 11 – careless driving – 12 penalty units for a first offence or 25 penalty units for subsequent offences – s65(1) Road Safety Act 1986.
· Charges 8 and 14 – driving while suspended or disqualified – 240 penalty units or imprisonment for two years – s30(1) Road Safety Act 1986.
· Charges 9 and 15 – using unregistered motor vehicle – 25 penalty units – s7(3) Road Safety Act 1986.
· Charge 12 – failing to give way at a give-way sign – 10 penalty units – r69(1) Road Safety Road Rules 2017.
· Charges 13 and 21 – failure to wear motorbike helmet – 10 penalty units r270(1) Road Safety Road Rules 2017.
· Charge 22 – dangerous driving while being pursued by police – maximum of three years' imprisonment – s319AA(1) Crimes Act 1958.
· Charge 25 – commit indictable offence while on bail – 30 penalty unit points or three months' imprisonment – s30A(1) Bail Act 1977.
Your criminal record
19Counsel for the prosecution tendered your criminal record dated 19 January 2023 (Exhibit 3). Your record commences on 19 December 2019 at the Korumburra Magistrates' Court, when you were convicted of driving without P plates displayed, possessing methylamphetamine, possessing ecstasy, possessing cannabis, possessing a controlled weapon without excuse, committing an indictable offence while on bail, dishonest undertaking disposing stolen goods, dishonest assisting retention of stolen goods, failing to answer bail, dishonestly receiving stolen goods, contravening a conduct condition of bail, careless driving of a motor vehicle, attempting to traffic cannabis, using cannabis, theft from shop, number plates not affixed as required and using and owning an unregistered vehicle on a highway.
20You were sentenced to a Community Correction Order for 18 months, which, beyond the normal conditions, had the following conditions: unpaid community work for 300 hours, supervision, treatment and rehabilitation in relation to drug use, mental health, and offending behaviour.
21On 11 June 2021 at Wonthaggi Magistrates' Court, you were found guilty of attempting to traffic cannabis, driving in a manner dangerous, possessing methamphetamine, possessing a prohibited imitation firearm, possessing a controlled weapon without excuse, driving in a manner dangerous, failing to stop a vehicle on police direction, dangerous driving while pursued by police, driving in a manner dangerous, committing an indictable offence while on bail, contravening a conduct condition of bail, other minor traffic offences, and also contravening the Community Correction Order made on 9 December 2019.
22On being convicted of all these offences, you were sentenced to an effective total term of imprisonment of ten months, with fifty-three days of pre-sentence detention declared.
23On 2 September 2021 at the Melbourne County Court, you appealed various orders made at the Wonthaggi Magistrates' Court on 11 June 2021. The appeal was allowed and the Magistrates' Court order set aside, and in lieu it was ordered that your community correction order be cancelled and that you serve two months' imprisonment concurrently for those offences. On that day, you were also sentenced to a further community correction order for 12 months, with conditions involving supervision, undergoing assessment and treatment for drugs, and judicial monitoring. You were also fined an aggregate amount of $1,000.
The Community Correction Order made on that date was the subject of the breach application to which reference has already been made.
Your personal circumstances and background
24Your counsel tendered the following material:
(a) Defence submissions dated 27 January 2023 (Exhibit A);
(b) psychological report of Dr Aaron Cunningham, dated 28 April 2021 (Exhibit B).
I note the following important matters:
· You were born in May 1997 and, accordingly, are 25 years of age, and were 24 years of age at the time of the subject offending.
· At the time of your birth, your parents were separated and you were raised by your mother, together with an older brother, in the Dandenong area, to the age of about seven or eight, after which you lived with your grandparents.
· You informed the psychologist, Dr Cunningham, that your mother was a drug and alcohol abuser and that you were neglected by her. However, you described your grandparents as stable and supportive and you lived with your grandparents for about two years.
· You then moved to live with your father, who you described as 'really good'. Your father was employed as a concreter and labourer.
· You had a half-sister who died in a motor vehicle accident when she was 18 and you were aged 11. You advised the psychologist that your father 'went off the rails' and thereafter you lived intermittently with your grandparents.
· At the age of 17 you returned to live with your father and prior to being incarcerated you had been living with your father.
· You attended the Boisdale Primary School, Wooranna Park and Korumburra Primary School, after which you attended Korumburra Secondary School. You advised the psychologist that throughout school you had difficulty with learning and behavioural problems and was “always in trouble”. You were also bullied throughout your school years.
· You completed Year 9, after which you left school and commenced working in a concreting business with friends of your father. You worked for four months and a second period of 12 months, after which you worked for brief periods in a factory, and did some brick labouring.
· You had been unemployed for a number of years before being remanded in custody.
· You commenced using cannabis at the age of 15 and, at the time of the consultation with the psychologist, you were smoking up to half a gram per day. You also used methamphetamine, that is ice, from the age of 20 and again up to about the time of the consultation with the psychologist, small amounts of up to three points per day.
· You have had one significant relationship with Emma that has continued for two years and you stated to your psychologist that you are currently caring for your father, who suffers from schizophrenia. Your father and stepmother have ended their relationship and you do not have any significant relationship with your mother.
· In 2015, when you were 18 years old, your father attempted suicide by hanging in the garage of a property where you both lived. You discovered your father hanging, cut him down and called an ambulance. Furthermore, in 2015, your mother stabbed your father after developing schizophrenia, resulting in your father's further hospitalisation.
· At the time of the subject offending, you report that you were using 0.7 grams of methylamphetamine along with 12 milligrams of GHB on a daily basis.
· You informed your legal advisers that you suffer from symptoms of anxiety and depression and while in custody have been prescribed antidepressants and you are also on the suboxone program.
The evidence of the psychologist
25The psychologist, Dr Cunningham, assessed you on 28 April 2021. At the time of that assessment you had been charged with unlicensed driving, driving an unregistered vehicle, failure to wear a helmet, drive in a manner dangerous, careless driving, drive while suspended, failure to give name and address, fraudulently using registration plate, possessing methylamphetamine, prohibited person possessing firearm, possess unregistered handgun, possess controlled weapon without excuse, failing to give way and contravening condition of bail.
These matters came before the Wonthaggi Magistrates' Court on 11 June 2021, to which reference has already been made.
26Dr Cunningham obtained a history of your background, education and vocational history, drug and alcohol history, and also made a psychometric assessment and performed a mental state assessment.
27At that time, you advised Dr Cunningham that the offences to which I have just referred occurred in the context of being on drugs and not thinking “straight”.
28In his summary and opinion, Dr Cunningham stated, at that time, in part:
'[You] experienced significant childhood instability. [Your] mother abused drugs and alcohol and neglected [your] care. [You] lived in a stable environment with [your] grandparents for two years before living with [your] father. [You] had stability with [your] father for several years until [your] half-sister was killed suddenly in a motor vehicle accident. [Your] father then developed severe mental illness and used drugs. [You] lived with [your] grandparents for a time before returning to [your] father. [You have] since taken on a caring role for [your] father. [You] reported an additional trauma at the age of 17 when [your] father attempted suicide. [You] stated that [you have] abused drugs to numb [your] emotions and thoughts. In [his] opinion, [your] drug abuse is the main contributor to [your] offence behaviour. Drug abuse increases [your] reckless and impulsive behaviour. Underlying this risk factor, [you present] as psychologically emotionally immature. This is consistent with [your] verbal comprehension impairments. In [his] opinion, in the context of [your] background and impairments, [you have] an impaired ability to cope with stress and change. [You have] lacked stable adult role models and mentors and instead had the use of drugs and alcohol modelled as a way of escaping life's problems.
[You present] with protective factors that may reduce [your] risk and improve [your] prospects for rehabilitation. [You have] stable accommodation and the support of [your] partner. [You] cited [your] father as a support. [You are] motivated to engage with employment and rehabilitative supports. [You are] aware of the dangers of relapsing into drug abuse.
Whilst disposition is solely a matter for the courts, from a psychological perspective, [you] would benefit from a disposition that facilitated [your] rehabilitation. [You have] had suicidal thoughts in the context of quarantine isolation. In the context of [your] psychological and emotional immaturity, [you are] at a higher risk of manipulation and abuse in a prison environment. In my opinion, [you] would benefit from maintaining stable accommodation and the support of [your] partner. [You] would benefit from drug and alcohol counselling to support abstinence. [You] would benefit from psychological intervention to improve [your] ability to cope with life stress and trauma. Maintaining stable accommodation and support, ceasing drug abuse and engaging with rehabilitative services would reduce [your] risk and improve [your] prospects for rehabilitation.'
Matters put by your counsel in mitigation of any sentence
29In his submissions, your counsel broke down your offending to two distinct events, first the trespass matter (Uplifted Summary Charge 12) and, secondly, the items which were located at your address upon arrest, giving rise to Charges 1 and 2 on the indictment, together with Uplifted Summary Charges 8, 9 and 11.
30On your instructions, you had a dispute with the complainant, McDonald, in regards to some money. You advised your father of this dispute and you both attended the property. You were unaware that your father would react so aggressively, and were also unaware that your father would make any threats to McDonald.
31You made no threats and when your father began aggressively banging on the door, you returned to your vehicle and waited for your father to return. Your counsel submitted that you made admissions in your record of interview in respect to attending at the address, and you were also remorseful for your behaviour. In respect to the items that were located at the property you were residing at the time of your arrest, they were:
(a) a .22 Lakefield Mark II rifle found in the back seat of a vehicle registered to you;
(b) an air rifle Diana .177 and firearm part bolt and magazine, which were located in the rear locked shed of the property;
(c) Stihl-brand chainsaw and Stihl-brand petrol blower; and
(d) Two snap-lock bags containing small quantities of methylamphetamine.
32With respect to the weapons, your counsel submits that you accept and concede that you had no authorisation to possess any firearm or any ammunition. Furthermore, you conceded that you were a prohibited person at the time of the offending.
33In particular, your counsel highlights that it is unclear whether either of the guns were functioning and, as alleged, one gun was found in a locked vehicle and one in a shed. There are no allegations that the guns were used in any type of an offence.
34Your counsel also highlights that you were residing on a relatively rural property and that the Mark II rifle was something that you had had for a long period of time and had used for hunting. The air rifle was given to you a few months after being released from custody and you had put it in the shed and did not think anything of it. The air rifle, when functional, could only use air pellets.
35It was submitted by your counsel that such offending is “low level” for this type of offence – although he submitted it does attract a period of imprisonment given that you are a prohibited person and have a prior conviction for this type of offending.
36Your counsel also submitted that his instructions were that you were given the stolen tools, that is, the Stihl petrol blower and Stihl chainsaw, by a friend.
37Your counsel also instructs that the methylamphetamine constituting Charge 2 on the indictment was only a small amount and for personal use.
38The charge in relation to possessing cartridge ammunition while not a holder of a licence under the Firearms Act 1996 is a minor offence and can only attract a fine under the legislation.
39In particular, your counsel submitted the following:
(a) It was submitted, correctly in my view, that your plea of guilty was an early plea. Such plea had utilitarian benefit – that is to say it saved the time and cost of a trial and, in particular, avoided the complainant, McDonald, having to give any evidence in relation to the trespass uplifted charge;
(b) Furthermore, your counsel submitted that your plea of guilty was indicative of remorse (reference was made to Phillips v R, [2012] VSCA 140) and also a willingness to facilitate the course of justice.
Furthermore, such a plea was entered into when the ordinary operation of the court had been affected by the COVID-19 pandemic, and such a plea should attract an 'actual and palpable amelioration of sentence'. Reference was made to Worboyes v R ([2021] VSCA 169 at paragraph [35]);
(c) It was also submitted by your counsel that your imprisonment to date has been additionally burdensome upon you due to the onerous conditions in custodial settings that have been present on account of the COVID-19 pandemic. Although those conditions may not be as onerous as those in the past, I do consider your experience in custody has been subject to increased lockdowns, quarantine periods, and restrictions on prisoner access both to family and friends, and also to various programs. I consider that some allowance should be made for such situation, bearing in mind that these conditions will presumably continue for some time, at some level into the future;
(d) Your counsel submitted that the circumstances referred to in Bugmy v R ((2013) 249 CLR 571) have application. In Bugmy, the High Court found that severe deprivations suffered in earlier life do not recede over time and can have a profound effect on an offender's life (see also Marrah v R [2014] VSCA 199 at paragraph [16]) and, in particular, to Director of Public Prosecutions (DPP) v Drake([2019] VSCA 293 (per Maxwell P, Priest J, T Forrest and Emerton JJ) at paragraph [32]) wherein it is stated:
'[T]he the profound dysfunction, disadvantage and abuse experienced by the respondent during his formative years were relevant to an appropriate evaluation of his moral culpability. As recognised by the High Court in Bugmy, those experiences, none of which were of his making, all played a significant role in shaping the respondent's personality and his responses. As a consequence, his subjective culpability, for the offending in which he engaged, could not be equated with that of a person who committed the same offence but had had the advantage of a normal, stable and regular home environment during his or her childhood years….'
It was submitted that the Bugmy principle applied to you, in that there is a role for some moderation of your moral culpability and served to offer some explanation in relation to your offending;
(e) It was also submitted that, bearing in mind you were 24 four years old at the time of your offending, you should be considered as a 'youthful offender' and that the principles enunciated in R v Mills ([1998] 4 VR 235) have application – that is, the principle of rehabilitation is extremely relevant when sentencing a youthful offender and ought to be given a large amount of weight.
Breach of the community correction order
40Your counsel submitted that it is accepted you did breach the Community Correction Order by non-compliance and re-offending. However, your counsel did submit that the Court, in determining how such a breach should be dealt with, was required to take into account the extent to which you have complied with the conditions set out in the order. (See s82AS(2) of the Sentencing Act 1991). In particular, I set out details of your non-compliance with the various orders:
(a) Supervision
Your counsel accepted that you failed to attend seven supervision appointments, however it was noted that you did attend 27 supervision appointments from 3 September 2021 to 21 March 2022 (based on an email from the Department of Corrections dated 27 January 2023) and the author of the breach report themselves note that you “never demonstrated any resistance during supervision and showed some insight into [your'] issues” (See Contravention of Community Correction Report, dated 5 December 2022);
(b) Treatment and rehabilitation for drugs and mental health
Your counsel accepted that you failed to attend two appointments for drug and alcohol rehabilitation and two appointments for mental health treatment. However, she noted that you did attend your initial counselling appointment on 13 October 2021 and did obtain a mental health care plan on 1 December 2021, and were prescribed with medication to address your anxiety and depression. Your counsel notes that you instructed her that you did want to attend a residential rehabilitation facility, but felt that leaving your father for an extended period of time (bearing in mind his mental illness) will cause further issues in the family;
(c) Judicial monitoring
You attended three of your judicial monitoring hearings and there was no failure to comply with this condition.
Your counsel, on your instructions, submitted that your failure to comply with the conditions of the community correction order were primarily because of lack of stable accommodation and lack of reliable transport, as well as a great amount of family stress. After being released from custody, you were acting as a de facto carer of your father who, as already recorded, suffers from significant mental health issues.
Ultimately, it was submitted that, in the circumstances of this matter, it was not a matter that you did not want to engage with the order but, rather, the circumstances inhibited you from addressing your own issues as you felt the need to assist your family.
Overall objective gravity of your offending
41It was submitted by your counsel that, in relation to objective gravity of your offending, these matters should be taken into account:
(a) With regards to the trespass, trespass is a summary offence, and its maximum penalty reflects that it is a low-level offence. Furthermore, it was submitted that the subject offending is a low-level example of a trespass, having regard to the fact that the trespass occurred over a confined period of time and did not result in any damage to property;
(b) With regards to the charge of possessing a trafficable quantity of firearms and possession of ammunition charges again, as is recorded, it is conceded that you were a prohibited person at the time of the offending and had no authority to possess any gun or ammunition. However, it was submitted that such offending was a low-level example of the offence of possessing a trafficable quantity of firearms when regard is had to the following:
(i)You only were deemed to be in possession of two guns, which is the threshold number of guns required to establish the charge;
(ii)One of the weapons was an air rifle, which is not capable of shooting live ammunition but, rather, air pellets. While it was conceded that ammunition was found in the shed which was capable of being discharged by the Mark II rifle, the prosecution did not put that the Mark II rifle was capable of being fired. Furthermore, there was only a limited amount of ammunition found;
(iii)It was not put by the prosecution, nor could it be inferred from the evidence presented, that either firearm was used during any other offence, or that you had either weapon for any associated criminal activity;
(c) With regard to the charges of negligently dealing with property suspected to be proceeds of crime and possession of a drug of dependence, it was submitted that these are again low-level examples of these offences.
42Ultimately, it was submitted that an appropriate disposition in relation to the charges on the indictment and the uplifted summary charges, that there be a term of imprisonment of time served (which at that time was 312 days) in combination with a Community Correction Order, putting emphasis on treatment for drug offences and supervision.
43In relation to the breach of the Community Correction Order, it was submitted that the order should be confirmed and, if anything, a limited sentence of imprisonment for a breach of that order.
The position of the prosecution
44In reply, counsel for the prosecution made the following submissions:
(a) although conceding that you were youthful, you were not a young offender;
(b) the principles of Bugmy have some applicability;
(c) the firearms were not tested to see whether they could be fired or not;
(d) in respect to the breach of the community correction order, it was accepted that there had been a degree of compliance with the order, although there should be some penalty imposed for the breach of the order and then there should be a re-sentence on the original offending;
(e) an immediate term of imprisonment is the only option for the firearms offences, whether that be in combination with a community correction order and it is for the defence to satisfy the court that you have the potential, at this stage, to satisfactorily complete a new community correction order, given your difficulties in the past with complying with community-based orders;
(f) the prosecution accept that the trespass is a summary charge and accept that you played a lesser role, as compared to your father, when attending the premises of McDonald.
Your suitability for a community correction order
45The court directed that you be assessed as to your suitability for a community correction order, and such assessment was undertaken on 6 February 2023. I refer to the community correction order Outcome Assessment Report and note that Community Correctional Services assess you as being a 'high risk of re-offending' according to the Level of Service Risk Assessment Tool.
46The author footnoted that you had commenced a Community Correction Order in 2019 that was cancelled due to you re-offending five days after the order was made. Furthermore, the author noted that you commenced a second order in 2021, and this is currently pending breach before the court. The subject offences were committed within the operational period of this order.
47During the assessment, you reported that, on your release from prison, you can reside with your partner and you have been advised by her that this is your last chance for the relationship to succeed and you must abstain from drug use. The author of the report noted that your partner was very important to you and you stated you wanted to build a future with her. Ultimately, you stated you may move to Western Australia with your partner after the completion of any order, where you anticipated you would be running a fencing business. The author also noted that your father was in prison with you and that he had suffered from depression, and that you had saved your father from ending his life. The author noted that you care very much for your father and have taken on a great deal of responsibility at a young age in supporting your father's mental health. You also reported that you used methylamphetamine daily prior to being incarcerated, but since being in prison, you have completed the Ice and Me Program. You confirmed that this was 'eye opening' for you and stated that you are now on suboxone to curb drug cravings and that this had been going well for you. You acknowledged that your history of offending is in relation to your drug use.
48You informed the author that you had been diagnosed with depression and anxiety, but you manage this well and have some medication.
49In discussing your offending, the author thought you tended to engage in some minimalisation, however, you did say that your long stint in custody had allowed you to “detox from methamphetamine and reflect on how [you need] to move forward in life as an adult”.
50Ultimately, it was considered, based on your attitude expressed during the assessment, that you would be suitable for a community correction order at this time. It was noted that the recommendation has not been taken lightly, and it was a concern that you had re-offended very soon into your prior orders, and it was hoped that, if you are afforded this opportunity, you will make your treatment and rehabilitation a priority in your life.
51Accompanying such report was a further report from the Mental Health Advice and Response Service (“MHARS”). A clinician from MHARS assessed you on 3 February 2023 and concluded that you do not have any mental health concerns and that a mental health condition was not necessary in any proposed Community Correction Order.
Conclusion
52The most serious offence confronted by you is Charge 1 on the indictment, that being you possessing a trafficable quantity of firearms, namely the .22 Lakefield Mark II rifle and the .117 air rifle. Such offence attracts a maximum penalty of 10 years' imprisonment.
53However, I accept the submission of your counsel that, in the circumstances of this matter, it is far from being the most serious example of such an offence. In this respect, it was unclear whether the rifle, at the time of apprehension, was in a functional state, although you do accept, in times gone past, the rifle had been used for hunting in your rural surrounds. Furthermore, the air rifle, which had been given to you shortly after your release from custody, only shot air pellets. Of course, there is no suggestion that either of these firearms was used at any time by you in an offending way.
54However, you do have prior convictions for similar offences and I accept the submission of your counsel that such offence must attract a period of imprisonment, with general deterrence and, in particular, specific deterrence, given your prior convictions being relevant to an appropriate penalty.
55I do accept that Charge 2 on the indictment – that is possessing a drug of dependence, namely methylamphetamine – consisted of a small quantity for personal use. In relation to that offence, I intend to sentence you to an appropriate fine.
56In relation to uplifted Summary Charge 8, dealing with a Stihl chainsaw and uplifted Summary Charge 9, dealing with a Stihl blower, both being property suspected of being the proceeds of crime, I note that you do have a prior conviction for dishonestly receiving stolen goods. In all the circumstances, and bearing in mind not only general deterrence but in your case specific deterrence, I consider that such offences attract a small period of imprisonment.
57In relation to uplifted Charge 11, which involves the offence of possessing cartridge ammunition while not a holder of a licence under the Firearms Act 1996, I consider such an offence relatively minor and intend to sentence you to a fine.
58In relation to uplifted Charge 12, involving entering a private place without express or implied authority from the occupier – that is in relation to you attending the premises of McDonald and Emery – I consider your role is definitely the lesser compared to the actions of your father, who accompanied you on that day. Indeed, although I had some doubts as to your description of the events that occurred there, I am satisfied that your father was essentially the one banging on the door and yelling out to the occupants. Although frightening to the occupants at the time, your role was relatively minor and this will be reflected in the sentence against you.
59I also accept the submissions made by your counsel in relation to mitigation of your sentence. In particular, although not a 'young offender' as defined in the Sentencing Act 1991 (which defines an offender who is under the age of 21 to be a young offender), I do consider that the principles enunciated in Mills promoting rehabilitation of young offenders is applicable to you.
60Please be upstanding:
(a) In relation to Charge 1 on the indictment, you are convicted and sentenced to eight months' imprisonment;
(b) In relation to Charge 2 on the indictment, you are convicted and sentenced to a fine of $400;
(c) In relation to Uplifted Charge 8, you are convicted and sentenced to two months' imprisonment;
(d) In relation to Uplifted Charge 9, you are convicted and sentenced to two months' imprisonment;
(e) In relation to Uplifted Charge 11, you are convicted and sentenced to a fine of $250;
(f) In relation to Uplifted Charge 12, you are convicted and sentenced to a period of imprisonment of two months;
(g) The court directs that one month of the sentence imposed in relation to Uplifted Charge 8, that one month of the sentence imposed in relation to Uplifted Charge 9 and that one month of the sentence imposed in relation to Uplifted Charge 12, be served cumulatively upon each other and the sentence in relation to Charge 1 on the indictment.
The total effective sentence is 11 months imprisonment;
(h) In relation to the breach of the Community Correction Order, I consider that there has been substantial compliance with the order but, of course, the subject offending is in clear breach of the order. Pursuant to s83AD(1) of the Sentencing Act 1991, I convict you of contravening the community correction order imposed by this court on 2 September 2021 and sentence you to one month imprisonment;
(i) Furthermore, in consideration of the substantial compliance in relation to such order, and as a matter of totality, I order, pursuant to s83AS(1) of the Sentencing Act 1991 that such order be confirmed;
(j) The one-month sentence in relation to the penalty pursuant to s83AD(1) of the Sentencing Act 1991 will be cumulated with the various sentences I have announced;
(k) The total effective sentence will be 12 months imprisonment;
(l) Further, I declare that you have been in custody in respect to these offences for 335 days and that such number of days be reckoned as a period of imprisonment already served under this sentence, which is to be deducted administratively;
(m) Further, in relation to Charge 1 on the indictment, you are sentenced to a community correction order for a period of 18 months. You must, within two days of your release from prison, attend the Sale Community Correctional Services situated at 374-378 Raymond Street Sale, Victoria. In addition to the mandatory terms, there will be the following conditions:
(i)Pursuant to s48E of the Sentencing Act 1991, you are to be supervised, monitored and managed as directed by the Secretary for the duration of the order;
(ii)Pursuant to s48D(3)(a) of the Sentencing Act 1991, you are to undergo any assessment and treatment, including testing, for drug use and/or dependency;
(iii)Pursuant to s48D(3)(f) of the Sentencing Act 1991, you are to undergo any program that addresses factors relating to your offending behaviour;
(iv)Pursuant to s48K of the Sentencing Act 1991, you are to undergo judicial monitoring, with the first date of monitoring to be Thursday, 22 June 2023 at 9.30 am in the County Court of Victoria.
(v)Pursuant to s6AAA of the Sentencing Act 1991, I declare that save for your pleas of guilty in relation to Charge 1 on the indictment I would have sentenced you to 15 months' imprisonment.
61HIS HONOUR: Mr Kemp, I'd just like to say this to you. You probably didn't take all that in. I haven't worked it out precisely, but you've probably got only another month or so in prison. You've been sentenced to 12 months' imprisonment, but we have to take account of the period of time that you've been in prison already. And I haven't got the precise figure, but you will not have much longer in prison, but then you have to start this Community Correction Order. And your compliance with those orders in the past, for whatever reason, has not been good and indeed the emphasis - one of the reasons I've ordered a community correction order is to help you overcome this drug habit.
62Now, you seem to be on your way about that, taking the course in prison, being on Suboxone now. That's all good, but it would be silly if I didn't say that once you get out of prison you will have to be so careful at keeping away from drugs. You've got a lot to lose if you get back on them. Maybe your relationship with your partner, which is important to you, and more particularly for your own self you start getting involved in drugs again and the prison sentences will become longer and longer and that's the last thing you want. So this is really a chance for you to get off drugs, but you're going to have to make that commitment. Because I'm having judicial monitoring, which you're familiar with, and if it's not me it will be another judge who will have you back a few months into your order. And I can assure you I'll take a very dull view if you are not complying with the order.
63Because this is a chance for you. I could have sent you to prison for longer, but this has, given your attitude to things which I think I understand - this is the course we're taking. So really it's very important you apply yourself. So you understand all that?
64OFFENDER: Yes, Your Honour.
65HIS HONOUR: We'll adjourn sine die.
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