Director of Public Prosecutions v Martin (a pseudonym)
[2022] VCC 1949
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW MARTIN (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 October 2022 | |
DATE OF SENTENCE: | 9 November 2022 | |
CASE MAY BE CITED AS: | DPP v Martin (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1949 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Prohibited person use an imitation firearm – Cultivation of a narcotic plant – Possession of a drug of dependence – Possession of a prohibited weapon – Degree of genuine remorse – Social disadvantage - Chronic history of substance abuse – Delay – Very good prospects of rehabilitation – COVID-19 pandemic.
Legislation Cited: Control of Weapons Act 1990 ss 5AA, 5AB(2); Drugs, Poisons and Controlled Substances Act 1981 ss 72B, 73(1); Sentencing Act1991 ss 6AAA, 48CA.
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Murrah v The Queen [2014] VSCA 119
Sentence: Two community correction orders with conviction, each for a period of 2 years, to run concurrently.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. McCarthy | Office of Public Prosecutions |
| For the Accused | Mr L. Cameron | James Dowsley & Associates |
HIS HONOUR:
Introduction
1Matthew Martin,[1] you have pleaded guilty to the following charges:
[1] A pseudonym.
·
one charge of prohibited person use an imitation firearm contrary to
s 5AB(2) of the Control of Weapons Act 1990, which carries a maximum penalty of 10 years imprisonment (Charge 1);
·
one charge of cultivation of a narcotic plant contrary to s 72B of the
Drugs, Poisons and Controlled Substances Act1981, which in this instance carries a maximum penalty of 15 years imprisonment (Charge 2); and
·one charge of possession of a drug of dependence contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981, which in this instance carries a maximum penalty of 5 years imprisonment (Charge 3).
2
You have also pleaded guilty to one charge of the related summary offence of possession of a prohibited weapon contrary to s 5AA of the Control of Weapons Act 1990, which carries a maximum penalty of 2 years imprisonment
(Summary Charge 7).
3You have also admitted your criminal record.
Circumstances of offending
4A prosecution opening was tendered on the plea and may be summarised as follows:
5You were 43 years old at the time of the offending.
6The victim in relation to Charge 1 in this matter is Rachel Martin,[2] who is your daughter. At the time of the offending, Rachel Martin was 15 years old and she resided with her paternal grandmother, Gloria Ross,[3] in Narre Warren. Also living at the address was her sister, Kelly Martin,[4] and you.
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
7On Wednesday 19 August 2020 at approximately 5:30pm the victim was sitting on the couch in the lounge room with you.
8You were sitting to the left of the victim. The victim saw that you were holding something and she turned to look at you.
9The victim asked you, 'Hey Dad, what’s that?'. The victim realised you were holding a silver coloured firearm in your right hand.
10The victim observed you pick up a silver coloured magazine and insert the magazine into the firearm you were holding which was an AIRSOFT imitation firearm.
11You turned to the victim whilst holding the imitation firearm in your right hand. You showed the imitation firearm to the victim and stated, 'home protection'.
12Upon hearing this the victim flinched in fear, immediately leaving the couch to seek refuge in her bedroom due to her fear of being shot.
13The victim was visibly upset and shaken by the ordeal and you began laughing at her reaction.
14The victim messaged her friend, who lives overseas, and her sister Kelly Martin. The victim told both what had just occurred and that she was scared of you. They both advised her to call 000 and report the matter to police.
15The victim told Kelly Martin that she would call police tomorrow when she is safe in the park away from you.
16On Thursday 20 August 2020 at approximately 1.12 pm police received information from the Police Communication Centre detailing the above incident.
17At approximately 1.45 pm police attended the property in Narre Warren and arrested you.
18At the time of the arrest, police observed cannabis plants growing in your bedroom, along with what appeared to be a silver handgun on the floor of your bedroom.
19You were transported to Dandenong police station.
20Detectives from the Casey Crime Investigation Unit and Dandenong Family Violence Unit, obtained and executed two search warrants at the Narre Warren property on the 20 August 2020. You remained in custody at the Dandenong Police Station at the time of the execution of the search warrants.
21During the search Leading Senior Constable McLacharty seized the following items from the single garage believed to be used in the manufacturing of cannabis oil:
a.1 x box labelled “R-12, R124a” containing a hand pump and tubing;
b.1 x stainless steel tube with plastic caps containing traces of green vegetable matter;
c.2 x stainless steel tripod clamps attached to wooden blocks;
d.Assorted attachments for the tube, clamps and blocks;
e.1x vacuum pump;
f.1x vacuum pressure vessel;
g.1x electric slow cooker labelled “Lumina”; and
h.1x plastic bottle wrapped in tape containing liquid.
22During the search of the premises Senior Constable Damien Brown located and seized the following items:
a.63 x cannabis plants with a combined weight of 1.43 kg (Charge 2);
b.12 x tubs of various sized loose leaf chopped cannabis with a combined weight of 8.18kg (Charge 3);
c.3 x knuckle dusters (Summary Charge 7);
d.1 x imitation firearm;
e.A mixture of cannabis and unidentified plant material with a combined weight of 3.32 kg (Charge 3); and
f.Cannabis L mixed with plant material which could not be identified with a total weight of 1 g. This mixture was pooled from 2 glass vials (Charge 3)
23
You were served with a Family Violence Safety Notice, excluding you from the residence and you were charged and bailed to appear at the
Melbourne Magistrates' Court on Tuesday 25 August 2020.
24You were interviewed at Dandenong police station on 20 August 2020.
25When asked how you came to be arrested, you stated, 'It was stupidity'.
26You told police that you had purchased the BB Gun or Gel Blaster from eBay and that it had arrived today in the post.
27You stated you were sitting on the couch with the BB Gun when the victim sat on the other end of the couch and asked you what you were playing with. You stated that you showed the victim the gun. You stated that the victim got upset, but that you didn’t talk to her about it.
28When asked about the cannabis plants, you stated that you had plants in a tent in the corner of your room and in the cupboard of your room. You stated that you had 20-30 plants in total. You stated that you had grown them from seeds and were just trying to keep them alive.
29When asked about the loose leaf chopped cannabis you stated that you found it two years prior on hard rubbish on Shadow Avenue or Mustang Avenue. You stated you took them from the hard rubbish and didn’t know what to do with it. You told police it was in your room and later stated there was more in the tents in the garage.
30You stated that you purchased the knuckle dusters on eBay for $5.
31When asked about the vials of liquid you stated that it was vape liquid and nicotine.
32You denied knowing anything about the materials or cylinder used for making cannabis oil. You stated that your mate 'Shannon' sometimes uses the garage and you believed it belonged to him. You did not provide any further details for 'Shannon'.
Nature and gravity of the offending
33In relation to Charge 1, the photo of the weapon tendered on the plea depicts a handgun together with a magazine that clearly appears to be a realistic weapon. You produced the firearm in the presence of your daughter, who was aged 15 at the time. When your daughter saw the firearm, she was in fear and retreated to her bedroom, upset and shaken. You laughed at her reaction.
34At the time of the use of the imitation firearm, you were a prohibited person as a result of an intervention order made against you in March 2018. In those circumstances the maximum penalty for the offence is 10 years' imprisonment, reflecting the seriousness of the offence.
35While on one view, your possession and use of the firearm in the circumstances may be considered to be an immature act, it was also an irresponsible act in circumstances where your daughter was in your care. She was in fear following your conduct and in all the circumstances in my view your offending remains serious. Nonetheless I accept the submission made on your behalf that there was no intention to cause your daughter harm and there is no evidence that you used or possessed the weapon for a specific criminal purpose.
36In assessing the seriousness of your offending in relation to the cannabis charges, the central issue of dispute between the parties is whether the offending the subject of Charge 2, was not committed for any purpose related to trafficking. The prosecution contends that given the amount of cannabis plants found together with the surrounding circumstances, the evidence does not support the defence position that the cannabis was only for personal use.
37While the amount of cannabis the subject of Charge 2 falls short of a commercial quantity, sixty three plants were found. Further, while the plants were in their infancy, they were nurtured by you and by your own admission, you were trying to keep them alive, self-evidently to grow them to maturity.
38I accept that at the time of the offending you were using cannabis heavily, however when consideration is given to all the circumstances, I am not satisfied that the offence was not committed for any purpose related to trafficking and thus the larger penalty applies. That said it is not a high-end example of that category of offending.
39As to the possession charge, taking into account the weights of the cannabis found being the loose cannabis in 12 separate tubs with a weight of 8.18 kg and the mixed cannabis being 3.32 kg, I am also satisfied in the circumstances that the larger penalty applies.
Personal Circumstances
40You are 46 years of age, and you were 43 at the time of the offending.
41You have two sisters, an older sister who lives interstate, and a younger sister who you see regularly.
42You had an unhappy and traumatic childhood. Your father had alcohol abuse issues and a violent temperament. From the age of nine your father would beat you at least once a week, until you moved out of home at the age of 15 or 16. You were frequently degraded by your father, and you became estranged once you left the family home.
43You recall your mother would attempt to intervene to protect you, however she ceased as your father would become aggressive with her. Your relationship with your mother is currently described as positive.
44Your parents separated in 2000 and your father now resides in Thailand. Your mother never re-partnered, and was diagnosed with a brain tumour in December 2020. You have become her carer, taking her to appointments and helping her with day-to-day household tasks.
45You described attention problems at school, which affected your learning. You were suspended numerous times and were expelled in Year 7 for fighting. You exited the education system during Year 10 and secured work manufacturing truck trailers for 18 months. You then relocated to Queensland for four years, during which time you were employed as a car detailer.
46Upon returning to Melbourne, you were employed as a truck driver for 10-15 years, often long-haul. You have been on the Disability Support Pension for the past four years following two accidents; the first involved a roll-over accident with your truck. You suffered back and neck injuries, and underwent a period on Workcover before you returned to work. As to the second accident, you were changing a tyre on your truck, using a crowbar, when it snapped and hit you in the head, rendering you unconscious and aggravating your pre-existing injuries. You have been unable to return to work since.
47You have undergone surgery for these injuries and expect further surgical intervention in the future. You experience daily pain through your back, hips and upper legs, and you are currently prescribed anti-inflammatory medication to treat this chronic pain. You have also suffered from cardiac issues in recent years, and you are undergoing further testing and monitoring.
48You had a 16 year relationship with your ex-partner with whom you have two daughters, Rachel, 16, and Kelly, 15. You believe there was involvement from Child Protection towards the end of the relationship, when you were incarcerated for previous offending.
49At the time of this offending, you had sole custody of your daughters, with Rachel living with you for four years and Kelly for six months. Your ex-partner was unable to care for your daughters due to mental health issues.
50You married your current wife, Sarah Powell,[5] in December 2021. You have been together for 18 months, and have known each other for 27 years. Sarah is supportive, and does not use substances. Sarah has three children from a previous relationship, and you report a good relationship with them.
[5] A pseudonym.
51A psychological report was prepared by Ms Carla Ferrari dated 7 October 2022. You reported a history of depression and anxiety for most of your life, describing persistent symptoms where you generally feel your mood is flat. You have been medicated in the past on various antidepressants.
52Ms Ferrari noted that whilst you had been assessed by psychologists for court in the past, you have never had any formal treatment.
53You reported to Ms Ferrari that you began using cannabis at age 14 and would consume up to a gram per day. You stated at the time of the offending you were smoking half an ounce per day. You have remained abstinent form drugs for the past two years.
54You also informed Ms Ferrari you had a past heroin addiction for 15 years, stating you would use a gram intravenously a day, with short periods of abstinence. You reported to Ms Ferrari that you ceased use 10 years ago after a close friend fatally overdosed, describing this as a 'wakeup call'. You are prescribed 70 mg of methadone a day.
55In relation to this offending, you reported to Ms Ferrari that you were struggling to manage home-schooling your daughters during the COVID-19 lockdowns, and you were under significant stress as you were coming to terms with your changed circumstances after your second work-related accident had left you unable to work.
56You report being 'devastated by the charges' as you would never harm your children. You report there is now a five year full non-contact Family Violence Intervention Order against you, protecting both of your daughters. Ms Ferrari is of the view that you expressed remorse for your actions and accepted responsibility.
57
Ms Ferrari opines you present with moderately severe symptoms of
Post-Traumatic Stress Disorder ('PTSD'), stemming from a violent upbringing and a background of paternal substance use issues, as well as severe levels of depression and symptoms of anxiety. Ms Ferrari further reports you described Persistent Depressive Disorder ('PDD') with major depressive episodes, with suicidal ideation during your adolescence, and again recently as a result of the current offending. It is inferred by Ms Ferrari that your Cannabis Use Disorder (and your former Opioid Use Disorder) developed in order to self-medicate these untreated conditions.
58Ms Ferrari notes that PTSD and PDD symptoms can, 'alter cognition and behaviour, impairing the ability to rationalise, consider alternative responses, and impact decision-making' which can increase the risk of offending behaviour, 'particularly in an individual such as [yourself] with [your] comorbid conditions.'
59In Ms Ferrari’s view, your premature exit from school in Year 10 would have impacted your behavioural outcomes, limiting your routine and structure that may have discouraged further antisocial behaviours and criminal activity.
60Ms Ferrari opines that 'It is clear that [your] untreated mental health has played a significant underlying role in [your] offending, as well as having perpetuated [your] substance use as a method of coping throughout [your] life.'
61Your prior criminal history is predominantly related to your drug addiction, primarily cannabis and heroin. There are also theft and dishonesty offences, driving-related offending, and breaches of certain conditions and orders. You have no prior history relating to firearms or violence, and a single weapon-related prior. For these reasons, Mr Ferrari concluded that you were considered to be at a low risk of recidivism.
62At present, you have expressed a willingness to engage in psychological treatment, and Ms Ferrari opines you display fair insight and judgement and you are motivated to manage your mental health and reduce your reliance on substances.
63
You reside with your wife, Sarah Powell, who remains supportive of you and who works full time, and you are in receipt of the Disability Support Pension.
Ms Powell provided a reference as did your mother Gloria Ross, both of which I have taken into account.
Sentencing considerations
64Mr Cameron who appeared on your behalf raised a number of matters in mitigation.
65First is your plea of guilty which was entered at the committal stage. As such your plea has avoided the time and expense of a trial and importantly, no witnesses have been required to give evidence. Your plea has therefore facilitated the course of justice.
66Your plea of guilty carries additional weight which must be reflected in a further amelioration in sentence, as the plea has been entered in circumstances where the pandemic has resulted a substantial backlog of cases in the criminal justice system.[6]
[6] Worboyes v The Queen [2021] VSCA 169 at [39].
67As to remorse, I accept that you have taken responsibility for your conduct acknowledging that the use of the firearm would have been frightening to your daughter. You have also made expressions of remorse to Ms Ferrari and to the community corrections officer who assed you following the plea hearing. As such I accept that you have expressed a degree of genuine remorse.
68Mr Cameron submitted that the regular physical, verbal and psychological abuse you suffered in your formative years from your father should be given weight in the sentencing exercise. Ms Ferrari is of the view that your PTSD symptoms are linked to this abuse. While you suffered at the hands of your abusive father, you also have a chronic history of substance abuse since the age of 14 which Mr Ferrari opines is likely to have had deleterious effects on you resulting in impulsive, unpredictable behaviour. Thus, while both these matters are clearly relevant to the sentencing discretion, it is difficult to isolate any factor that may have impacted your conduct in relation to the charges on the indictment.
69Nonetheless, as was noted in Murrah v The Queen[7] the common experience of the law is that social disadvantage very frequently precedes the commission of crime and often explains and contributes to an offender's criminal behaviour. I accept therefore to a degree that your difficult background is a matter to be taken into account in assessing your moral culpability.
[7] [2014] VSCA 119, [16].
70I take in to account your psychological conditions as identified by Ms Ferrari. While Verdins principles have not been relied on (other than Verdins 5 if you were to serve a period of imprisonment), your Persistent Depressive Disorder, PTSD and Cannabis Use Disorder are matters I take into account as part of your personal circumstances acknowledging the difficulties you have grappled with for many years.
71
Delay is relevant in this instance. The commission of the offending was
August 2020. You entered a plea of guilty in April of 2021 and a plea was originally listed in October 2021. I was told at the plea that the matter was adjourned on a number of occasions due to difficulties in obtaining a psychological report. While the explanations may have caused some delay it is not clear why the delay has been a year since the first plea listing. What is relevant however is that in the intervening period you have not reoffended and you have remained drug free. You have settled into a new relationship with a supportive partner and in the circumstances, the delay has resulted in a sustained period of positive change.
72For similar reasons I assess your prospects of rehabilitation as very good. While in my view you require further treatment and counselling, you have demonstrated that you are open to such services and you now have greater support in the community.
73General deterrence is an important sentencing consideration. Being a prohibited person in possession of an imitation hand gun is a serious offence as is cultivation of cannabis. A message must be sent that stern consequences will follow if others become involved in such crimes. As to specific deterrence, while you have shown you are able to remain drug and crime free, you must be provided with an incentive to not be tempted back into that lifestyle. As such specific deterrence must carry some weight in the sentencing discretion.
74I had you assessed for a community correction order and you have been found suitable. While all corrections orders are punitive, the order I impose will contain punitive and therapeutic conditions. I note also that the prosecution submits that in all the circumstances a community correction order is not opposed.
Sentence
75Mr Martin, would you please stand.
76Matthew Martin, on Charge 1, being a prohibited person using an imitation firearm, you are convicted and will be placed on a community correction order for a period of two years. In addition to the standard conditions, you will be required to complete 75 hours of unpaid community work, and you will be subject to supervision.
77
In relation to Charge 2, cultivate a narcotic plant and Charge 3 possession of a drug of dependence, you are convicted and will be placed on a community correction order for a period of two years. You will be required to complete
75 hours of unpaid community work and you will be required to undertake treatment and rehabilitation for drug use and mental health. You will also be subject to supervision.
78While both orders will run concurrently, I direct that the unpaid community work condition will be cumulative between the two orders resulting in you being required to complete 150 hours of unpaid community work.
79Pursuant to s 48CA of the Sentencing Act 1991, I direct that all of the hours that you satisfactorily complete, pursuant to the treatment and rehabilitation condition, may be credited as hours of unpaid community work.
80In relation to Summary Charge 7, possession of the knuckle dusters, you are convicted and fined $300.
81Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of nine months' imprisonment together with a community correction order.
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