Director of Public Prosecutions v Kindred
[2023] VCC 2278
•5 December 2023
*
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-00742
Indictment No. N10590288
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAIN EVERETT KINDRED |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 July 2023, 1 December 2023 | |
DATE OF SENTENCE: | 5 December 2023 | |
CASE MAY BE CITED AS: | DPP v Kindred | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2278 | |
REASONS FOR SENTENCE
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Catchwords: Possession of a firearm contrary to Firearm Prohibition Order x2 - handling stolen goods (retention) - possession of a drug of dependence - Summary offence; possess prohibited weapon - 38 years of age at time of sentence - Extensive criminal history - Some remorse - reasonably early plea - Worboyes v The Queen [2021] VSCA 169.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Fisher (at Plea) Mr J. Makary (at Sentence) | Office of Public Prosecutions |
| For the Accused | Mr T. Fitzpatrick (at Plea) | Slink & Keating |
HIS HONOUR:
1Dain Everett Kindred, on 7 July of this year you were arraigned and pleaded guilty to four charges on the indictment which had been filed in this court. There were two charges of possession of a firearm contrary to a firearms prohibition order, one charge of handling stolen goods (retention) and a single charge of possession of a drug of dependence. You also pleaded guilty to a single related summary offence of possession of a prohibited weapon.
2You admitted a lengthy prior criminal history of obvious relevance to my task.
3
The matter was opened to me on that day (7 July) in accordance with a summary dated 7 June 2023. You were represented at that time by
Mr McCulloch, who had foreshadowed an application to adjourn the plea. He wished to obtain a report and some other materials and the written submissions filed at that point were said to be incomplete with matters potentially in mitigation dependent upon the outcome of further enquires and reports. The plea was not ready to proceed and was adjourned to
9 November and that date had to be vacated owing to a change in your counsel and the unavailability of an expert report. It was administratively adjourned by me to 30 November by which time, new counsel had come into the matter.
4I should say that as of the date of the arraignment, I remanded you back into custody for a variety of reasons, including your failure to report on bail and your failure to reside at the bailed address. The police wished at that stage to interview you in relation to an attempt to pervert the course of justice alleged to have been committed in relation to a man named McPhee, a man who I will say more about shortly.
5A new set of written submissions has been filed by Mr Fitzpatrick, who now acts for you on the plea. They overtake the earlier written submissions. Also a variety of fresh written materials has been filed. I had my associate write to your present counsel, and your legal team generally, stating that unless Mr Fitzpatrick said otherwise, I would have no regard to any prior submission or filed written material. He made it plain that he was not relying on any of that material.
6The history is in fact a bit more convoluted than this in that the dominos have fallen along the way in this case. You are the fourth person I have dealt with. When I first came into the matter in February of this year, I had a triple headed plea, with Mr McPhee, Mr Gardiner and Mr Hornby in the dock. Gardiner and Hornby had committed the Grovedale home invasion and thefts which liberated a number of firearms that were legally held at that address. There was reference in their summary to a person giving information or instructions to them and I believe it was at that stage said to be, or at least, implied to be you who was engaged in that process. I was told at that stage that your matter was outstanding. That it was listed in the Magistrates Court and you were going to conduct a contested committal.
7McPhee had made a very detailed sworn statement when he had been arrested and then gave an undertaking before me to give evidence at your committal and to otherwise assist the prosecution authorities in the case against you and others.
8Your matter very unsurprisingly settled, but on the terms set out in the agreed summary in your case and relating to the charges in your indictment.
9
I sentenced Mr McPhee in February. Along the way, I have had a number of false states with Mr Hornby and Mr Gardiner. Mr Hornby’s plea was virtually completed on the February date, but Mr Gardiner’s could not even start and all counsel thought that as parity considerations would arise as between those two, I ought not finalise Mr Hornby’s matter in advance of Mr Gardiner’s plea being conducted. Mr McPhee was in a quite different position and he was released onto a community corrections order in February of this year. Mr Gardiner and Mr Hornby’s pleas went off to a date in April and regrettably nothing further had been done by then by
Mr Gardiner’s legal team. Hornby was in this way a hostage to
Mr Gardiner’s further successful adjournment application that was made on that day. The matter went off to that date in July that I have mentioned, at which point you eventually turned up at Court and were arraigned and the matter was opened, and you were then remanded in custody.
10Their pleas, to complete the chronology, were finalised on that date (7 July) and I sentenced both of them on 12 July.
11No doubt a more detailed chronology can be found in my two sets of reasons for sentence, the one for Mr McPhee dated 3 February, and the set of reasons for Mr Hornby and Mr Gardiner from 12 July.
12
Though I have referred to those other cases, there are no parity considerations here as was correctly conceded by your counsel,
Mr Fitzpatrick. Plainly all things are not equal. Different charges for different players and different factual settings and different roles alleged. Mr McPhee, who on your revised instructions, was your courier acting on your instructions and had been called to the house by you, was plainly a lesser player, irrespective of the number of guns he was said to be carrying. In any event, he had no criminal history of any relevance at all. It was a single appearance of no note. He gave a sworn undertaking to give evidence. He had no firearm prohibitions order. He was remorseful and had good prospects of rehabilitation.
13The sentence imposed on him says nothing at all about the sentence required in your case. Nor for that matter the sentences imposed on Hornby or Gardiner who after all were involved in the home invasion, and false imprisonment and theft. I have a different factual setting in your case and different charges on your indictment. I make it clear that I sentence you on the basis of the agreed summary placed before me and marked as Exhibit A on this plea, and not on the basis of your being the person organising the home invasion and firearm thefts or being in any way associated with that in advance, as seemed to have been implied on earlier occasions. That is important. It is critical that I sentence you for the charges on this indictment and only by reference to the agreed summary in your matter.
14The maximum penalties are correctly set out in the opening. The drug matter relates to a small quantity of methamphetamine with an acceptance by the Crown that any purpose related to trafficking is excluded to the requisite degree. I will scarcely mention that charge again.
15Your counsel concedes the seriousness of this offending.
Facts
16
As I have indicated, the prosecutor, Mr Fisher, opened this case to me back in July of this year in accordance with the agreed summary dated
7 June, marked as Exhibit D. Mr McCulloch, who appeared for you at that stage, told me it was an agreed summary. Mr Fitzpatrick, who appeared on the day of the plea most recently conducted, confirmed that fact. It is an agreed summary. There is no point in my setting out the agreed facts in great detail. I will not. My reasons incorporate that agreed summary and I sentence pursuant to it.
17It is a detailed summary and many paragraphs provide only some narrative detail and are obviously not the matters I am sentencing you for. For instance there is a description of Mr Hornby and Gardiner travelling to Mr Wilson’s address in Grovedale, and committing a home invasion and theft and various assaults and other criminal conduct on that day, and descriptions of what they did thereafter with the car and numberplates and the like. None of that has got anything to do with you. That is before me purely to explain the relevant portions of the summary detailing your criminal conduct, the conduct that I have to deal with. For they then went on to an Airbnb property they had rented in Bannockburn.
18
There they unloaded a host of weapons and Mr Hornby called you from that property at 5:36pm. You then called Mr McPhee (see paragraph 15). You drove down to the Bannockburn property and arrived at around
6:30pm and your counsel, in putting your revised instructions to me, made it plain that you went knowing that there was a firearm present.
Mr McPhee arrived a good deal later and he described what took place (see paragraph 19).
19The case against you has resolved on the basis as set out in the opening. That is serious enough in terms of a factual setting in the circumstances, even though it only pertains to a single firearm. You instructed McPhee to transport that firearm up to Essendon and unload it into your storage shed. He did.
20Well, we are dealing with events on 21 and 22 March 2022 and a firearm prohibition order had been made against you and served on 25 February 2022, running for 10 years. Here you were quite deliberately and intentionally in possession of a firearm within a few weeks.
21That next day, 22 March, you and a man named Bourke went to the storage unit and you placed the firearm into your car. You drove away. So it is the same firearm the subject of Charges 1 and 2, and the handling charge (Charge 3) relates to that same firearm as well. You provided that firearm to Bourke the following day on 23 March and that was recovered from a storage unit linked to him, as well as two other firearms that had been stolen from Mr Wilson in Grovedale. I am not dealing with you for those two.
22The police attended your home the next day to search the premises. You arrived home and a small quantity of ice and the flick knife were found in your vehicle, hence Charge 4, as well the related summary offence pertaining to the knife.
23You made only some partial admissions. The interviews are not the strong point on the plea as whilst admitting attendance down at Bannockburn, you denied taking any weapon away from the property. You plainly were not admitting these offences. That is in no way a matter of aggravation, it is just the fact.
24You were bailed on 18 May and had spent at that stage 55 days in custody. That total has of course risen since my remand of you in July of this year.
25So much then for what is only my summary of the summary. That is all it is. As I have said, I will sentence pursuant to the more detailed agreed summary dated 7 June and marked as Exhibit D on the plea.
26
Now in the plea for Mr Hornby and Gardiner, it was appropriate to receive and act on an impact statement from Mr Wilson. He was the direct victim of the home invasion and the theft and assaults and other conduct which took place at his Grovedale home. He was their victim, not yours and even though the weapon you possessed was sourced from their crimes, it is not appropriate that I treat you as having any involvement or knowledge in advance and so I put that impact statement aside as is implied in paragraph 10 of the Crown submission and explicitly conceded by
Mr Fisher in his oral submissions to me the other day.
In mitigation
27Mr Fitzpatrick conducted the plea in mitigation on your behalf. I mentioned he had filed some fresh written submissions. There was also a report from Dr Aaron Cunningham, two character references and a report from ACSO.
28The Court was informed of your personal, educational, drug use history and work background. It was set out in great detail in Dr Cunningham’s report. There was some reference to your family background in your sister’s letter, which was marked as part of Exhibit DK3. If I may say so, it would seem that your sister is a testament or proof of how someone can thrive despite, or not withstanding, their background.
29Mr Fitzpatrick addressed the court on a variety of topics, including the level of objective gravity of the offending and the relevant sentencing purposes in play here. At an early stage in the plea, really when dealing with aspects of remorse from memory, he put to me your then present instructions of going to the Bannockburn house to obtain some drugs with no awareness at all of the presence of any firearm. Of your being surprised, if not shocked, by the presence of any firearms on the premises.
30To that extent he was also relying on your interview account. Well, you were pretty loose with the truth in the interviews. That is not a matter in any way in aggravation. The fact is though that in your interview account you described how you were shocked to see the guns and you told the police and were adamant you did not take anything from the property. Nor did McPhee. Of course it was complete nonsense.
31I raised my provisional concerns about the notion of your going there to get drugs, given the timing of various phone calls and the distance you travelled, and then what you did. There was also of course the issue of McPhee's account, some of which was included in the agreed summary. Plainly your instructions to counsel were an exercise in offence minimisation and quite deficient and yet were being placed before the court last week.
32I raised my provisional concerns as to them and said it was a matter for your counsel if he wished to persist in that area and a matter for you as to whether you wanted to provide an account closer to a truthful one. In any event, I felt that as a matter of fairness, I was obliged to at least raise my reservations to give your counsel the opportunity to reflect, and also to consider whether he wished to place any evidence before me on the topic and possibly call you as a witness. He plainly did not wish to.
33He spoke briefly to you and you provided fresh or new improved instructions. I was told you went down there to Bannockburn knowing from the phone call with Hornby that there were guns, or a gun, and you were not going to get drugs. So an account totally different to that which the court had first been asked to act on. It was all a bit strange. Mr Fitzpatrick conceded the relevance of your criminal history and submitted that you had at least some prospects of rehabilitation. He could put it no higher than that. He described the work you had done in the past when not in custody and the courses you have been doing in custody. He spoke of your hopes for the future upon your ultimate release.
34In the plea conducted on your behalf, Mr Fitzpatrick relied chiefly upon the following matters in mitigation:
· Your early guilty plea including some form of Worboyes[1] allowance;
· The presence of some remorse;
· The modest application of the fifth limb from the case of Verdins;[2]
· Your disadvantaged background (Bugmy[3])
· Some increased burden arising from your being held up at Hopkins in Ararat and so far removed from your children.
[1] Worboyes v The Queen [2021] VSCA 169 (“Worboyes”)
[2] R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (‘Verdins’)
[3] Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (‘Bugmy’).
35He conceded the seriousness of the offending and the need for weight to be afforded to specific and general deterrence (see paragraph 13). He conceded that prison was unavoidable here, but argued that you could be released at some time in the future onto a suitably conditioned community corrections order. That is to say a combination type order, as it is sometimes described.
36Failing that though, that is to say if the court disagreed with that principal submission, then a head sentence with provision for a decent period on parole to reflect some of the matters relied upon including your Borderline Personality Disorder (see paragraph 15).
Prosecution
37The prosecutor, Mr Fisher, had prepared detailed written sentencing submissions dated 30 November (Exhibit E). They were not at all controversial so I see no need to set them all out in my reasons. Paragraph 4 was completely withdrawn. It was there I was told in error. It was obvious that I could not in any way make a finding about you having prior knowledge of or any involvement in the home invasion or theft of the weapons.
38I mentioned already the Crown stance that the victim impact statement had no role to play in your case. The Crown raised their serious concerns as to the quality of Dr Cunningham’s report, saying that there was no suggestion he had any of the materials, or even any understanding of the nature of the charges you faced. The prosecution did not accept the application of the 5th limb of Verdins here, and whilst not necessarily challenging some Hermann[4] or Bugmy type allowance, it was a matter of what weight was given to it here. They submitted that you had a lengthy prior criminal history, and this offending was inherently serious. There was a clear need to deter you and others and to protect the community from you. The prosecution challenged the availability of a combination sentence and were calling for a head sentence and non-parole period.
[4] DPP v Herrmann [2021] VSCA 160 (‘Herrmann’)
Background
39I will turn now quite briefly to your background. I see no need to set it all out in my reasons, which will be quite long enough as is. I do accept the background placed before me. Very briefly then, you were born in January 1985. You have a younger brother and sister. Indeed jumping ahead, they seem to have succeeded in life to some extent. You have not, though there have been periods where you seem to have achieved.
40I sense it was a pretty unpleasant background for you when growing up. There was some domestic violence targeting your mother and you saw it. You also sustained some violent attention from your father. You were the oldest of the children, so the others might have ducked some of this. The report suggests your father had some issues with drugs and could not hold down employment. Oral submissions to some extent suggested otherwise.
41Either way though, there were many moves of home and accordingly many changes of school. You started using drugs at quite a young age. You left home aged 15 and though you went back from time to time, you would run away again. Of course the criminal history does not include any details as to a Children's Court history for obvious reasons, but I was told there was a history of juvenile Court appearances and then instances of sexual abuse at the hands of a Youth Justice Centre worker. You went to a large variety of schools and left in around Year 11.
42Drugs have been problematic for many years and from an early age. Ice has been the drug of choice in recent years, but there have been periods of abstinence, some of them seemingly quite decent. You did, it would seem, buckle down under a Drug Treatment Order (“DTO”) that was imposed. You relapsed at the end of that and used and as you describe it to Dr Cunningham, ‘the wheels fell off’.
43You have had a couple of major relationships, the first of those lasting from age 21 to 31 and producing two children. You had been engaged to another woman, Danielle Palmer, and she has written a strong reference that is part of Exhibit DK3, together with your sister's letter. Those children of that previous relationship are I think 17 and 12 years of age, and from what I see in the materials placed before me, you took a significant and very positive role in their lives when they were removed from your ex-partner who had drug issues as well and had in fact been imprisoned.
44As you describe it, that new relationship with Ms Palmer was understandably frayed by your entry into prison and you say in a forthright fashion to Dr Cunningham that, ‘she didn’t sign up for that sort of life’, referring to crimes and your going to prison. Ms Palmer is, as I understand it, looking after the children but that is not easy and she refers to that in her letter.
45Your sister cannot step into the breech as she has young twins. I was told in the course of the plea that the relationship with Ms Palmer, in terms of the intimate relationship, is at an end. Dr Cunningham seemed to be of a different view, based on what he had been told in early November, but I suppose that a few weeks have passed since then, but nothing particularly hangs on that at all.
46I have not mentioned your employment history, and you have worked in a variety of jobs as is mentioned in the report and the plea outline filed on the plea. I see no need to set out the employment history in detail, other than to say you obviously have made some efforts over the years to work. Sometimes you have been in fact relatively successful, so you are not without skills. There is reference in the materials to a diagnosis of ADHD. I am not sure if that has been diagnosed or not, but it is not relied upon in any meaningful way here and is not diagnosed by Dr Cunningham in his assessment of you.
47You have a lengthy criminal history. It is plainly relevant to my task. I see no utility in embarking in a detailed audit of those many appearances in these, my reasons. The criminal history is set out in the document, and that document will not alter. You generally have not taken your chances, though to be fair to you, the drug treatment order stands as a pretty decent exception to that. They are very hard orders and your capacity to complete one makes it clear that all is not lost in this case.
48Most recently, you breached a community corrections order which was imposed in combination with a prison sentence back in February 2019. The breach was dealt with in October 2020. The drug treatment order was imposed for a large scale consolidation of charges, including one charge of being a prohibited person in possession of a firearm.
49There are trafficking prior appearances. There are many dishonesty offences over the years, including handling and possession of property suspected of being the proceeds of crime. Also some driving, weapons and some violence offences. There have been four convictions for possession of ammunition as well. There is also an old robbery and armed robbery and false imprisonment and a recklessly causing serious injury. You have received many community corrections orders. You have breached many of them. You have received a number of prison terms, including at least one with a head sentence and non-parole period. I went through your history in greater detail since the plea was conducted, and it is easy to overlook, but there is a decent gap in your history from 2006 to 2016. From that point you have appeared before a Court virtually every year bar 2018.
50I make it plain to you that you do not fall to be sentenced a second time for any of your past crimes. You received those past sentences and served them. Your past criminal history does not aggravate this offending. I must pass proportionate sentences. The criminal history assumes some importance, as I have to make judgements as to your prospects of rehabilitation, the extent of the need to deter you, your risk of reoffence and the weight to be given to protection of the community. Past court orders seemingly have not deterred you, nor even being sent to prison. Nor for that matter the making of that firearms prohibition order. I will try again to deter you from offending in the future.
51I have not mentioned in detail, but I have alluded to it, the obvious support you have from your sister and fiancé or ex-fiancé, as the case may be. They have both written powerful references that are placed before me, and I do not ignore them. I see no need to set them out. It is plain from those letters that you have a number of qualities. It is plain that you have been a very positive influence in your children’s lives and have helped them overcome some pretty sizeable challenges in recent times arising from the other arrangements that had previously existed for them. I note they came into your care in late February 2022. It is regrettable that you would have one in your company as you went to the storage unit on 22 February, and involved yourself in this crime (see paragraph 23).
52Your father, stepmother and your daughter attended court the other day, and Ms Palmer joins the link today, so obviously there are people interested in and supportive of you, and that is a positive.
53You have been doing courses in custody and I am told that you hope to do a pre-apprenticeship course and to gain an apprenticeship as an electrician upon your ultimate release from prison. That does not seem to me to be unachievable if you set your mind to it.
54The written submissions filed before me were silent as to the principles from Bugmy[5] or Herrmann[6] or later case law derived from those decisions, so silent as to those principles being enlivened here, but that altered in the running. Your counsel, Mr Fitzpatrick, told me he did in fact rely on the principles from Herrmann, that is to say in the general fashion described in the case law. I have already said, I do not think yours was a great background. It was pretty unsettled, you saw some things you should not have seen, were exposed as a witness to domestic violence and also to actual physical assaults upon you.
[5] Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (‘Bugmy’).
[6]DPP v Herrmann [2021] VSCA 160.
55There were obviously some problematic influences and then of course you had the calamity of being abused in the Youth Justice Centre when in State care. I believe it was an unenviable background and I give it full weight in the way in which that term is employed in the case law, including Bugmy, Herrmann and Sabatuuci.[7] More recently it has been discussed in Newton[8] and Dhal[9]. I take your background into account as far as I am able to, including as giving rise to a modest reduction in culpability.
[7] Sabbatucci v The Queen [2021] VSCA 340.
[8] Newton (a pseudonym) v The King [2023] VSCA 22.
[9] Dhal v The King [2023] VSCA 289.
56It does explain to some extent the trajectory of your life and the fact that it has faltered at some points. However, I note your siblings have risen beyond their background. You have as well from time to time it would seem, that was the thrust of the plea. (See paragraph 2.1 of the expert report as well). You were not predetermined to commit crimes. You had and have and will have again, choices and you must make different and better decisions.
Guilty plea
57I will turn to the other matters raised on the plea. The first matter to mention is your guilty plea. The case settled on the morning of the committal, though of course there were more serious charges which did not proceed. I will treat your plea therefore as a reasonably early guilty plea. So I accept the submission made in that respect. Though nothing hangs on this, one would think the impetus to plead arose from the ‘troublesome’ Mr McPhee. That is to say ‘troublesome’ for you in that he gave a sworn undertaking to assist the authorities in the case against you. Nonetheless you then pleaded guilty and at an early enough stage. You have taken this early responsibility for your crimes by pleading guilty.
58You made some admissions to the police, though they were hardly complete.
59As a result of your guilty plea, the time, cost and also the effort of an actual contested hearing in the Magistrates' Court, or a trial up in this Court has been avoided. As I say, it settled on the morning of the committal, but no witnesses were called. All of the witnesses have been spared the experience of giving evidence.
60You have facilitated the course of justice in these various ways and must be rewarded for doing so.
61I had some discussion with Mr Fitzpatrick in the course of a recent case as to whether the so called Worboyes discount still had any currency. I referred to that in this case. Your counsel in that other case had assumed that the discount had likely lapsed. That was I think understandable given the way in which we have moved beyond the pandemic and we have cut through the backlog of cases at this point but I had my doubts as to whether it entirely lapsed in the setting of that other case.
62This matter settled in May. By that stage the backlog in this court arising from the pandemic was being brought under control. In that other case I had suggested to your counsel that there could still be some reduced weight attaching to the Worboyes line of authority and that same observation it seems to me applies here, I believe, given the settlement date in this case.
63I believe we are close to the point in time now, if not at that point already, where any future decision to plead guilty will not be met by any heightened sentencing benefit at all. That is because not only have we moved beyond the pandemic, but the pandemic backlog in this Court has now actually been cleared. This court is operating at pre-pandemic levels as the Chief Judge recently announced to the profession. That is so, but this case settled at an earlier point, and though to an extent the backlog was then under control, it still seems appropriate to me to give some heightened benefit to the fact of the guilty plea in line with Worboyes. I believe that would have been an expected outcome at the time of the resolution of the matter as well. I will treat your guilty plea as worthy of some extra weight for the many reasons set out in the Court of Appeal decision of Worboyes.
64I take these various matters into account in mitigation.
Remorse
65Your counsel argued that there was some remorse here. He was not suggesting it was fulsome. There is certainly no remorse to be gleaned from the interviews with police, but of course that was early on. I have your early guilty plea and such references to remorse as exist in the references. I had the unusual situation of your obviously absurd instructions as to your reasons for attendance at Bannockburn being placed before the court in the course of this plea. You were, through your counsel, seeking to minimise your offending. That was not greatly encouraging, but at least you saw sense in retreating from that silliness, so I do not want to dwell on that. I am ultimately, having examined all the materials, prepared to find the presence of some remorse in this case and I take that into account in your favour.
Verdins
66Your counsel at one point argued that the 5th limb from the case of Verdins applied here. That is, that there was an increased burden of custody arising from your condition, that condition being your Borderline Personality Disorder. As I said during the plea so that you and others could understand what this was all about, that decision is a case from our Court of Appeal dealing with the impact upon the sentencing process of mental health or psychological conditions existing at the time of offence or sentence or both, and how those sorts of things may be taken into account by a Court. That is obviously a simplification of the case law but suffices for present purposes.
67I asked Mr Fitzpatrick to take me to the evidence in support of that Verdins fifth limb submission. He said he relied upon Dr Cunningham’s report. In the course of discussion, I set out the precise terms of the fifth limb as referred to in Verdins and what had to be established on the balance of probabilities, and I believe that when I did that, Mr Fitzpatrick conceded that the evidence did not rise to that level at all.
68
However, just in case I am mistaken as to that concession having been made, it is plain to me that there is no evidence sufficient to support the 5th limb either in that report or the ACSO report marked as Exhibit DK4. A court is meant to engage in a rigorous examination of the materials and experts are expected to address the key issues with rigour as well.
Dr Cunningham’s report is highly unusual. The lack of rigour betrayed by that report is frankly a bit startling. Not only does it not mention any aspect of any increased burden, he does give any indication that he has any information in relation to these charges at all or your account of them.
69It is not even clear he has any details of your criminal history. In any event he makes no reference to any increased burden posed by your condition. My task is not to guess or speculate or dream it up. There is nothing in the 5th limb argument at all. That is not to say though that I ignore the report. I have still been assisted by it in terms of your condition and what it describes. I have regard to that in a non Verdins fashion.
70The material in that report as to your background is of use and I have regard to that material in making the Herrmann or Bugmy allowance I have mentioned earlier. I have also had regard to your sister’s letter in that respect. The report also spells out to me that you have had capacity in the past to function and to abstain. I say again it is a most unusual report in the failure to address any aspect of the offences before the court. Your counsel in the circumstances did not rely then in any way on the portion of the last paragraph that describes the lack of minimisation of offending or the reference in an earlier paragraph to you being held in protection.
71
There is no material in that report or any of the other materials placed before me raising an increased custodial burden enlivening the 5th limb. However, quite independent of that, I do accept that your time in custody has not been and will not be easy for you. I find an increased burden in your case. Just not a Verdins driven one. At one point before
Mr Fitzpatrick was engaged, there was some consideration being given as to whether a third-party hardship argument might be mounted relating to the impact upon your children of your being imprisoned. There is some reference in the two letters to possible difficulties. There are very high thresholds to be reached before third-party hardship can ever be taken into account by a court. It has to be exceptional.
72Mr Fitzpatrick explicitly stated that no such submission was made here. However, I flagged with him towards the end of the plea essentially the tyranny of distance posed by your being held up at Hopkins in Ararat. I learnt you were not being visited by the children. That is understandable, it is a massive drive. I wanted to understand and tease out whether it was being suggested that your separation from the children and concerns that you would hold as to their position was being relied upon before me, not in terms of third party hardship, but in terms of increasing your burden of custody, so that is why I asked those questions.
73It seems to me, having asked them, that it was being relied upon in that way. Though they will obviously be looked after and Mr Fitzpatrick made that clear, and their needs met, and the pessimistic scenario spelt out in the dated references was not being relied upon before me, it is plain that you will not see much of them and I do find that you will worry about their predicament, and I am prepared to find that that will increase your prison burden. It is not a massive matter, I make that plain, but I take it into account in your favour.
74Your counsel placed no submission before me as to any future increased custodial burden arising from COVID-19. This was in recognition of the fact that you returned to custody in July 2023 at a time where the impacts of the pandemic on prisoners had eased. The earlier period was not a significant period, and again there was no claim being made that you had any hardships arising in a COVID setting that should be taken into account by this court for either of the periods you have been in custody.
Rehabilitation
75Let me turn to your prospects of rehabilitation. Your counsel was not using extravagant and optimistic adjectives to describe those future prospects, and nor should he have. There was no point in doing that. There was no cause to. He conceded that the Court could only be guarded but that I should find that you had at least some prospects. He put it no higher than that.
76The Crown submitted those prospects were poor for the reasons advanced in their oral and written submissions. I am not sure they were far apart or that there was much separating those submissions made by your counsel and by the Crown. Ultimately, I think you do have prospects and that is despite your age and the lengthy criminal history that you have. I do not believe that those prospects are entirely exhausted. However, I must be sensible in my assessment. You have been committing crimes for many years. There have been some gaps and I have recognised that already.
77You have not taken most chances offered to you. You continue to offend and I note you have a highly relevant prior appearance, being the prohibited person charge and many ammunition charges as well. You had a recently imposed Firearms Prohibition Order and this offending I am dealing with was not spontaneous or impulsive. It was quite calculated. The gun did not just fall into your lap. You received a phone call from Hornby. You travelled to Bannockburn. You took steps to bring the firearm into your possession. You knew of the existence of the Firearms Prohibition Order. You were plainly involved in the movement of that weapon and not a legal movement. Wrong hands, yours, into other wrong hands, though I cannot conclude there was any imminent crime under contemplation. You knew this was serious criminal conduct and it was not committed by a silly teenager. It was committed by a mature man who could have been under no illusions as to the outcome if caught. Prison. You have seen the inside of a prison and that has not deterred you.
78As against that, I have your early plea and some remorse. You will be deterred to some extent by the sentence I will soon impose. I have the strong references from Ms Palmer and from your sister. I do accept that you wish to effect some change. If you cannot leave drugs behind, you will have virtually no prospects of rehabilitation. I will not write you off. I believe if you can leave drugs in your wake and your past criminal associations, you may well leave crime and the courts behind you.
79You may yet be a contributing member of the community once again. However, will you take that step? I have no real idea. I can only be guarded. It is easy for you to make the right noises in prison. How will it play out upon your ultimate release? That is the test. You will not even know that yourself, though you are doing such courses as are available to you. I am to some extent encouraged by the fact that you have worked in the past. You clearly have some capacities and skills. Importantly, you obviously took good steps along this path when you completed that difficult order, being the Drug Treatment Order. As I have said, they are not easy at all.
80Well, you certainly will have far more realistic prospects of rehabilitation if you can abstain from illegal drugs. Those prospects would then rise very significantly. You have some good reasons to want to rehabilitate. Your two children. You still have support from others and you have not given up on yourself and that is important. I ultimately accept the submission made on your behalf that you do have some prospects of rehabilitation. Those prospects are not particularly favourable, but they will significantly increase if you can abstain from drug use and break all ties with your criminal associations. There is an obvious risk of reoffence here. I should say I put aside altogether, as I must, the outstanding matter related to the allegation of attempting to pervert the course of justice which is said to relate to communications made with Mr McPhee. That is listed for a committal or committal mention and it would be quite wrong for me to have any regard to those allegations. That is all they are at this point, they are allegations, so I put that matter aside altogether in this task.
The Offences
81The agreed summary describes your offending. I have very briefly summarised it in these reasons, including when dealing with your prospects of rehabilitation a short time ago, and so and I will not say much more about it. It is conceded that you have committed serious crimes.
82In the slightly different setting of possession of a traffickable quantity of firearms the Court of Appeal in the case of Djemal[10] considered the purposes of the Firearms Act and said the following:
“The purposes of that Act are to give effect to the principle that the possession of firearms is conditional on the need to ensure public safety and peace by establishing appropriate systems for licensing them, and for the regulation of their possession, carriage and use, for dealing in them and acquiring and disposing of them, and for their registration and secure storage.’
[10] Djemal v The Queen [2020] VSCA 25
83Now I am not dealing with you for possession of a trafficable quantity of weapons. I am dealing with a single weapon possessed in breach of a Firearms Prohibition order, a different provision.
84The Court of Appeal in a case of Kumas[11] said the following:
“The persistence of such offending in the face of successive convictions underlined how important it was that the sentences imposed on MK for the present firearms offences be set at a level which might actually deter him. That point was reinforced emphatically by MK’s wilful disobeying of the firearms prohibition order which was served on him on 14 November 2018. Under that order, he was prohibited from acquiring, possessing or using any firearm or firearm-related items.”
[11] DPP v Kumas [2021] VSCA 215 (‘Kumas’)
85They went onto say:
“As this Court said in Chief Commissioner of Police v Websdale[12], the power to make a firearms prohibition order is conferred for the protection of the public. The Court said:‘[T]he public interest to which these provisions were directed was the public interest in keeping the community safe from firearms-related violence. This is, in other words, a power conferred — and exercisable — for the promotion and maintenance of ‘public safety and peace’.[37]
[12] Chief Commissioner of Police v Colin Websdale [2019] VSCA 305; 280 A Crim R 463
It was, accordingly, a matter of great significance to this sentencing exercise that MK embarked on offences of dealing in, and possession of, firearms within weeks of having been served with the firearms prohibition order. His deliberate defiance of an order put in place for reasons of public safety significantly increased his culpability for these offences and highlighted the need for specific deterrence and community protection.’
86I should say those sentences imposed at first instance were significantly increased on appeal to the Court of Appeal. I refer also to a later case of Bruce[13] from 2022, which spells out the seriousness of an offence of breaching a firearm prohibition order and the reasons why that is so. Far greater sentences were imposed in Bruce.
[13] Bruce v The Queen [2022] VSCA 100 (‘Bruce’)
87I am dealing with you for a single firearm. This firearms prohibition order prohibited you from possessing any firearm. These orders are made for reasons and those reasons are spelt out in the document itself, the document that was served on you. You would have been a prohibited person in any event, given your criminal history and the recency of a prison term for an indictable offence, and for that matter, the recency of a community corrections order that had a supervision condition.
88This was an order served on you explicitly spelling out as it did the prohibition upon you and making clear the expanded powers of search and the like available to the police. Not to mention the penalties for breaching the order. There was a whole page of information for the individual subject of the firearm order, including the actual nature of the maximum penalties.
89That order was served on you on 25 February 2022, and it expired a decade beyond that date in 2032. You then deliberately flouted the order. It just meant nothing to you. This offending was not spontaneous. It involved calculation and steps taken by you, driving, as you did, down to Bannockburn. You were then giving direction to McPhee to transport that firearm to your locked storage unit.
90I have already said that I cannot conclude there was some imminent criminal act in contemplation, but it is unmistakable that you were involving yourself in the movement of what you knew to be an illegal firearm and in a criminal setting. Unmistakably there was some financial motive and I am not satisfied on the balance of probabilities as to the existence of any financial position or predicament such as a debt which would in any way explain your acts or provide any mitigatory setting.
91It is impossible for me to determine the size of any hoped for financial gain. I have got no idea. It was no doubt large enough to cause you to take what you knew was a very sizeable risk. You were taking deliberate steps, involving what you knew was serious criminal conduct in breach of the firearms prohibition order made shortly before and in an underworld/criminal setting in that you knew this gun was stolen by other criminals.
92You possessed it and in the currency of the possession, moved it, stored it, moved it again and then passed it on to another. Unmistakably it was going to end up in wrong hands, criminal hands. Every hand it passed through was a criminal hand. This was serious offending, though of course there is an obvious close relationship between Charges 1-3, dealing as they do with the very same weapon.
93The drug offence is far less serious and obviously so too the related summary offence pertaining to the flick knife. I will say little more about them as they pale virtually into insignificance when measured against Charges 1-3 on the indictment.
Purposes
94I have to consider a number of purposes of sentencing. Rehabilitation is often overlooked, not by judges, but in the media reporting of cases that come before the court, but it is one of the purposes of sentencing. I cannot just ignore it. I am required to have regard to your prospects of rehabilitation, but they are not at all strong. There is an obvious risk of reoffending in the future.
95I must punish you, but I have got to do that justly and proportionately and I must also denounce your conduct.
96Specific deterrence relates to the need to deter you and it is of obvious importance here, when I reflect on your age and criminal history as well as the nature of the offending and the speed with which you offended after the firearms prohibition order was served on you. So too must I give appropriate weight to community protection. Plainly it is important given the policy underpinning the legislation and the nature of this firearm prohibition order.
97Then there is general deterrence, which relates to the need to deter future offenders and that is also important here given the nature of these crimes. The case law spells this out. Firearms offences of any description are difficult to detect. These ones relate to a formal order served upon you prohibiting possession. I am speaking obviously of Charge 1 and Charge 2. Others who are subject to these firearms prohibition orders must understand how serious those orders are and how seriously any breach will be viewed by a Court. What I have to do is send those future likeminded offenders a message in an endeavour to cause them to actually reconsider their position and not offend as you did.
98I must pay regard to the maximum penalties in play. Charge 1 and 2 have a 10 year maximum term of imprisonment, Charge 3 has a 15 year maximum.
99I also have to pay regard to current sentencing practices.
100Current sentencing practices are not a single controlling factor. There are only very limited statistics held by the Sentencing Advisory Council in relation to this offence, with by my research only 27 instances referred to in the period of five years from July 2017 to 30 June 2022. Those figures though disclose 100 percent imprisonment for those 27 charges, but with terms ranging from under a year to between six and less than seven years. Such statistics as are held in relation to handling stolen goods are of no great value to me.
101Nor is there much assistance to be derived from the Judicial College of Victoria sentencing site where virtually all of the past sentences relate to a prohibited person possessing a firearm or possession of a traffickable quantity. I am only dealing with one firearm here, not two or more. The sentences imposed for prohibited person charges can provide only limited assistance, as I have the significant factor of the existence of the order prohibiting possession made against you and served on you.
102It is that feature which is emphasized in those cases to which I previously referred of Kumas and Bruce. I am not by the way in mentioning those cases suggesting that those cases dictate the particular sentence required in your case. It is plain I am exercising a sentencing discretion. Each case must be determined on its own facts. I have regard to the matters in mitigation and aggravation in your case. Your personal circumstances.
Totality
103I must ensure that the total effect of my sentences is commensurate with your overall criminality here. I have a taken a last look the effect of my sentences. Your culpability was actually high.
104I must strive to avoid double punishment here. Charge 3 (the charge of handling), that is dishonestly undertaking the retention of stolen goods, and the stolen goods is that the same firearm, the subject of Charges 1 and 2. They are the same subject matter, but of course Charge 3 has different elements and a higher maximum penalty. There is obviously a close connection between the first three offences on the indictment, such that I believe an aggregate sentence is both open and appropriate to the court. I flagged that in the course of discussions with counsel and no one suggested otherwise. The fact is, I would reach the same end destination by way of sentence by passing individual sentences, marking one out as the base sentence and ordering some very modest measure of cumulation.
105Prison is a disposition of last resort. Your counsel concedes prison is warranted here, but he maintained his submission that it might be open to structure a combination type sentence. So a further period in prison with your ultimate release onto a suitably conditioned community corrections order.
106If such a disposition could actually achieve all the purposes of sentencing, I would be required to deal with you in that way, and that is because a Court is never allowed to impose a more severe sentence than is actually required to achieve the various purposes of sentencing.
107You have to this point served only 208 days by way of presentence detention. You have breached a number of community corrections orders, including orders imposed in combination with a prison sentence.
108It is clear to me that in the circumstances of this case a combination type order is simply not open. It would not adequately reflect the need to deter you and others. It would not adequately reflect the need to punish you, to denounce your conduct, and to protect the community from you.
109Given the dimensions of the sentence I will soon impose, I am required as a matter of law to fix a non-parole period, and I will in that way, provide at least for the possibility of your early release on parole. I am not able to consider whether you will actually be released on parole. That is prohibited. I must proceed on the assumption that you will serve every day of the head sentence I will shortly pronounce. Whether you are released on parole is entirely in the hands of the Adult Parole Board.
Forfeiture and Disposal Orders
110There are a couple of ancillary orders. There is an order for forfeiture sought under the provisions of the Confiscations Act, s34. There is no issue taken in relation to this and it pertains to the knife. I am satisfied that the conditions for the making of that order are made out here, and I order pursuant to that provision that the property referred to in the schedule be forfeited to the relevant Minister. I have signed that order.
111Secondly, there is a disposal order under the provisions of s78 of the Confiscation Act pertaining to the drug that was found in your possession. Again there is no opposition to the making of that order. I am satisfied that the relevant criteria are made out under s78 of the Confiscation Act, and I forfeit to the State the property referred to in the schedule, and I direct that it be handled in the matter contemplated by the signed order.
112I will have you remain seated and I am sorry to have taken this long to get to the end point of my sentencing remarks, but I had to explain to you, and to others for that matter, why I am doing what I am doing.
Sentence
113On Charges 1, 2 and 3 on the indictment, you are convicted and sentenced to an aggregate term of three years' imprisonment.
114On Charge 4, possession of a small quantity of methylamphetamine, I am satisfied that any purpose related to trafficking is excluded. I accept then that the lower penalty provision applies, and I do not think in those circumstances that a prison sentence is even warranted. On Charge 4 on the indictment I convict and fine you the sum of $300.
Summary matters.
115On the summary charge, the possession of the flick knife, I convict and sentence you to seven days' imprisonment. That sentence will be served concurrently with the aggregate sentence imposed on Charges 1, 2 and 3.
Total Effective Sentence
116It follows then that the total effective sentence here is the three-year aggregate term imposed on Charges 1, 2 and 3.
Non-parole period
117I fix a period of two years during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
118You have already served 208 days of this sentence by way of pre‑sentence detention and that period is declared pursuant to s18 of the Sentencing Act and entered into the records of the court.
Section 6AAA.
119I have taken into account your guilty pleas and reduced your sentence accordingly. If you had pleaded not guilty and been found guilty of these offences following a trial before a jury, I would have sentenced you to four years and three months' imprisonment. I would have fixed a non‑parole period of three years and three months.
120I will just ask if there is anything else I need to deal with. Any other orders I need to make? No? Mr Keating, I will get these reasons back. VGRS will send me back a version and my practice is to revise them. I will be doing that generally on the day that I get them, and once they are revised they will be made available to the parties.
121I am assuming you will be in contact with your client and organising a conference to discuss what has occurred here today and his rights in relation to the sentence.
122MR KEATING: Yes, Ms Shepherd will be taking the sentence today, but she is representing him. He is being looked after by our firm.
123HIS HONOUR: Yes, good. You have heard that then, Mr Kindred, so no doubt your legal team will be touch with you to discuss what has occurred here today and your rights in relation to the sentence that has been imposed in the court, but there are no further orders I need to make, so at this stage then the matter is at an end and I will disconnect the link.
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