Director of Public Prosecutions v McLean
[2025] VCC 499
•27 March 2025
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-24-01471
CR-24-01471
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NICHOLAS McLEAN & PETER JOHN WEST |
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JUDGE: | HIS HONOUR JUDGE CHETTLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 March 2025 | |
DATE OF SENTENCE: | 27 March 2025 | |
CASE MAY BE CITED AS: | DPP v McLean & Anor. | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 499 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCE
Catchwords: Sentence, possession of traffickable quantity of firearms, disposing of 2 or more firearms within a 12 month period without holding a dealers license, traffick in a drug of dependence, possess a drug of dependence, knowingly deal with proceeds of crime, failing to comply with an order to provide information or assistance, unauthorised possession of a traffickable quantity of firearms; related summary charges- possess silencer without permit, dispose cartridge ammunition to unauthorised/unlicensed person, possess cartridge ammunition whilst unlicensed, possess prohibited weapons-rolled up charge.
Legislation Cited: s6AAA Sentencing Act 1991
Cases Cited:
Sentence:McLean- imprisonment, Total effective sentence – 4 years and 3 months, Non-parole period – 3 years. Fine of $500.00 for related summary offence.
West – imprisonment, Total effective sentence – 2 years, aggregate fine of $250.00 for related summary offences.
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| APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Goetz | Ms G. Mazzone, Office of Public Prosecutions |
| For the Accused McLean For the Accused West | Mr J. Lavery Ms A. Balmer | Ranier Martini & Associates |
HIS HONOUR:
1 Nicholas McLean, you have pleaded guilty to one charge of disposing of two or more firearms in a 12-month period without being a holder of a dealer's licence; eight charges of trafficking in a drug of dependence; one charge of possession of a drug of dependence; one charge of deal with proceeds of crime; one charge of failing to comply with an order to provide information, and one charge of possession of a trafficable quantity of firearms. In addition you have pleaded guilty to two related summary offences, possess a silencer and dispose of cartridge ammunition to an unlicensed person.
2 Peter John West, you have pleaded guilty to one charge of possession of a trafficable quantity of firearms, and one charge of possession of a drug of dependence. You also pleaded guilty to two related summary offences, possession of cartridge ammunition whilst unlicensed, and a rolled up charge of possessing prohibited weapons.
3 The facts of each of your offending are set out in Exhibit A, the summary of prosecution opening. I was informed by each of your counsel that I could treat that document as an agreed statement of fact. I incorporate it into these reasons for sentence, and I sentence you both on the basis of the facts set out therein. I need not therefore deal with the facts extensively.
4
Briefly stated, between 4 July 2023 and 8 December 2023 you, McLean, sold 10 firearms to undercover police officers on six separate occasions. On
4 July 2023 you sold a .222 Remington rifle for $2,500. On 2 September you sold a 12-gauge shotgun and a sawn-off .22 rifle for $13,000. On 17 September you sold a sawn-off 303 rifle and a sawn-off 22 rifle for $12,000. Two days later you agreed to provide the undercover police with an automatic weapon, and sold them a sawn-off 12-gauge shotgun for $5,000.
5 On 24 September you sold the undercover police a .22 assault rifle, two magazines fitted with - the weapon was fitted with a silencer or suppresser for $25,000. On 10 October you sold them a .303 rifle for $6,000, and finally on 8 December you sold them a shotgun, a 410 calibre rifle, and five four 10 cartridge ammunition cartridges for $10,000. The 10 weapons sold are the basis of the rolled up Charge 1.
6 The material discloses that you, McLean, were, on some occasions, in company and assisted by a man called David Scammall and you received the firearms you sold from one Dean Roberts or Reuben Anandam, A-n-a-n-d-a-m. Roberts sourced seven of the weapons he provided you to sell to the undercover police officers from you, Peter West. Four of those seven were cut down and classed as handguns. The .22 assault rifle was one of those seven weapons.
7 You, McLean, met the undercover operatives you sold the weapons to when you sold them illicit drugs. You regularly sold them drugs. On 19 June 2023 you sold them an ounce of cannabis for $200 and a gram of ketamine for $300. They are Charges 2 and 3. On 2 July you discussed selling pounds of cannabis and larger amounts of ketamine. You also discussed selling firearms. On this day you sold the undercover officers 3.5 grams of ketamine for $600. That is Charge 4.
8 On 8 July you sold the police an ounce of cannabis for $300, Charge 5. On 19 July you sold them an ounce of cannabis for $280, Charge 6. On 3 August you sold undercover police another ounce of cannabis for $280, Charge 7. On 9 August you sold yet another ounce of cannabis for $280, Charge 8. On 30 August you sold the undercover operatives an ounce of ketamine for $3,400, Charge 9. On various occasions you were in the company of Scammall and Jared Canton when the sales of drugs took place.
9 On 30 January 2024 police executed search warrants at your home, McLean, in Boronia, and the homes of your associates and at your home, West. Your home was in Lilydale. At your home, McLean, police located cannabis, Charge 10, possession of a drug of dependence, and $800 cash, Charge 11, dealing with proceeds of crime. Two mobile phones were located. You refused a police direction for you to provide them with the passcodes to these phones. That is Charge 12.
10
Charge 13, a charge of unauthorised possession of a trafficable quantity of firearms, is based on conversations you had between 23 January and
29 January with one of the undercover officers where you indicated that you had 'slam guns and pen pistols' that you agreed to sell to the undercover operative for $9,000. You agreed to carry out the transaction on 30 January, but the execution of the search warrant occurred first.
11 So far as you are concerned, Mr West, seven of the weapons sold by McLean to police came from your possession. You knew Dean Roberts and he would contact you by phone or text. On 2 September you texted Roberts indicating that you had 'one or two if the buyer was keen.' You said you had a long 22 you could shorten and a single short .2, a 12-pump and a .22 long, 'Which would be awesome short'.
12 On 5 September you texted Roberts, '.2 single short, one long but can shorten'. McLean and Roberts subsequently arranged to meet, and on 11 September sold a 12-gauge shotgun and the shortened 22 to the undercover police. On 18 September Roberts delivered the shortened 303 and shortened 22 rifle to McLean after he left your home in Stanton Grove, Lilydale. The so called automatic assault rifle sold to police on 24 September by McLean came from you, as did the sawn-off 12-gauge shotgun McLean sold on 21 September.
13 Your plea of guilty to Charge 1 admits that the 303 Birmingham Shirley rifle sold on 13 October also came from you. The evidence discloses that although McLean knew of you and where you lived, there was no contact between him and you; Roberts was the conduit. There is evidence of phone contact between you and Roberts at relevant times, and the text messages that I previously referred to.
14 Your plea of guilty to Charge 1 relates to your possession of the nominated seven weapons that were subsequently collected from you by Roberts, and passed onto McLean. Your Charge 2 relates to a small quantity of cannabis police located at your home on 30 January 2024. The related summary offences concern ammunition located in a bag at your home and an extendable baton and knife located at the time of the search.
15 The offences to which you both have pleaded guilty are serious criminal offences. The disposal of two or more firearms within a 12-month charge has a maximum penalty of 10 years' imprisonment, as does the charge of possessing a trafficable quantity of firearms. Trafficking in a drug of dependence carries a 15-year maximum sentence, and dealing with proceeds of crime has a 20-year maximum gaol term.
16
Turning to each of your personal circumstances. You, McLean, are now
24 years of age, being born in January 2001. You were 22 years of age at the time of your offending. Your personal history is set out in Exhibit M2, the psychological report of Warren Simmons. You were born in Ferntree Gully and grew up in the far eastern suburbs. You moved around with your mother to avoid your father. Your childhood was therefore unsettled. You commenced using alcohol and drugs at the age of 12. You were a poor student but managed to complete Year 12 at TAFE in 2018. You started a motor mechanics apprenticeship but did not complete it because of your involvement with drugs. You have been mainly unemployed, and surviving on Centrelink payments.
17 Your illicit substance abuse began with alcohol, then cannabis, MDMA, methylamphetamine, ketamine, cocaine, GHB, and heroin. You also abused prescription drugs. To your credit you have completed a drug program whilst on remand, and if you are to have a future you need to rid yourself of your drug and alcohol abuse.
18
You were the victim of sexual abuse at age 11. You only disclosed this abuse recently, and have joined the redress scheme. Mr Simmons is of the view that you may suffer from a cognitive disability and require treatment for
post-traumatic stress disorder. You also require drug and alcohol counselling.
19 You do enjoy strong family support. A bundle of references tendered at your plea demonstrate that support. They indicate your remorse for your offending and you are resolved to be drug-free. You have no prior convictions and, with your family support, if you can rid yourself of drug use your prospects for rehabilitation are reasonable. Your partner of five years is supportive, and your aunt has offered you employment with her company, Super Seals Services Pty Ltd, upon your release from custody. Drug screens tendered as Exhibit M4 show you to be drug free whilst in custody.
20 In sentencing you I take into account your pleas of guilty. You have spared the community the time and expense of a criminal trial. You have accepted responsibility for your actions and expressed remorse for your crimes. You will receive a significant reduction in sentence as a result of your guilty pleas. I take into account your disrupted and unsettled childhood. It is no surprise that you ended up where you are now. I take into account the steps you have taken whilst in custody, and your prospects for rehabilitation.
21
I have had regard to the sentence imposed by Judge Higham on your
co-accused David Scammall. He was sentenced to a 10-month term of imprisonment and a two year community corrections order. His Honour described Scammall's role in the drug and gun sales as unclear. Scammall claimed the role of counting the money. His Honour imposed what, in my view, was a very lenient sentence, and gave weight to Scammall's mental health issues and cognitive impairment.
22 You were, on the evidence, the leader of this joint criminal enterprise. You controlled what occurred and organised the sale of guns and drugs. You sourced the weapons you sold from your suppliers and spoke openly about your trafficking in guns and drugs activities. Your role was, in my view, substantially more important than that of Scammall.
23 Turning to you, West, you are now 43 years of age, being born in February 1982. You are the youngest of three boys. Your eldest brother suffers from bipolar disorder and has been extensively hospitalised. Your parents live in the Yea area and require support from you. You have been in a relationship for over six years and have a daughter two months old. You have worked throughout your adult years, mainly in construction. You purchased your home in Lilydale in 2017, but have an extensive mortgage on the property. You acknowledge the inevitability of imprisonment for you, and have concerns for the welfare of your partner and child, and concerns about losing your home.
24
You are a man of otherwise good character. You have a dated prior court matter when you received a bond for receiving stolen goods in
New South Wales in 2003. I was informed that matter related to a bike, and I am of the view that it is irrelevant to the sentencing process for this offending.
25 Your counsel, Ms Franjic, relied on a number of matters in mitigation of your offending. Firstly, your pleas of guilty. Your early pleas of guilty have saved the community the time and expense of a criminal trial. You have demonstrated remorse and acceptance of responsibility for your crimes. You too will receive a substantial reduction in sentence to reflect those pleas of guilty.
26 Secondly, she relied on the remorse you have expressed to those who provided the numerous references on your behalf. Thirdly, those references attest to your previous good character. You are described as a man of integrity with a strong sense of community. You are said to be a good partner and a proud father. Your offending is said to be out of character. You have been a consistent worker and a fitness enthusiast. I take the contents of the many references into account in sentencing you.
27 Fourthly, I take into account your assistance to authorities, as set out in the references of John Fuchs. Fifthly, your counsel submitted that your time in custody will be more onerous for you because of your concern for your wife and daughter, as well as your inability to assist your elderly parents. You will also be troubled about the outcome of confiscation proceedings relating to your residential property. I accept that all those concerns will make your time in imprisonment weigh more heavily on you than it would for someone without those concerns.
28 Given your good character, strong work history and extensive personal support, I assess your prospects of rehabilitation as good. Your counsel acknowledged the seriousness of your offending and the inevitability of an imposition of imprisonment in your case. General deterrence, denunciation of your conduct are the primary sentencing considerations in your case.
29 I have had regard to the sentence imposed on David Scammall. He had a different role to yours and faced different charges. Exactly how and where you obtained the weapons you possessed is unclear. The evidence does not show where you got them. Your counsel stated that your instructions were that
Dean Roberts owed you money and left the firearms with you as some sort of payment or security for the debt. You then provided these guns back to Roberts, who in turn provided them to McLean.
30 I accept that the evidence does disclose you chasing a financial debt from Roberts. I do not accept your assertion that Roberts provided you with the seven firearms. It simply does not make sense and does not fit with the way some of the firearms were said to be obtained, or would be obtained at a future date. Whatever be the case, you possessed serious firearms that you believed were being on sold obviously for criminal purposes. Of the seven weapons you possessed, four have been shortened to make them legally handguns.
31 You, McLean, sold 10 weapons and trafficked repeatedly in drugs. Your offending is, in my view, too serious for the disposition of a combination of imprisonment and a community corrections order that was submitted by your counsel. The number of weapons; the number of transactions involved on both guns and drugs; the nature of the weapons you sold, and the not insignificant cash involved make your offending extremely serious.
32 The sentences of the court are, and I am dealing with your indictment first, McLean. On all charges you are convicted, and on Charge 1 disposal of two or more firearms within 12 months, you are sentenced to be imprisoned for three years. On Charge 2 trafficking a drug of dependence, six months. On
Charge 3 trafficking ketamine, six months. On Charge 4 trafficking ketamine, six months. On Charge 5 trafficking cannabis, six months. Charge 6 trafficking cannabis, six months' imprisonment, and Charge 7 trafficking cannabis, six months. Charge 8 trafficking cannabis, six months.
33 Charge 9 trafficking ketamine, 12 months. Charge 10 possession of cannabis, you will be fined the sum of $500. On Charge 11 dealing with proceeds of crime, sentenced to imprisonment for six months. On Charge 12 failing to comply with a direction to assist, you are sentenced to imprisonment for six months. On Charge 13 possession of a trafficable quantity of firearms, you are sentenced to be imprisoned for 12 months. On the related summary offences of possessing a silencer, you are sentenced to imprisonment for six months, and the charge of dispose of cartridge ammunition, you are fined the sum of $500.
34 Having regard to principles of totality and cumulation, I order that six months of the sentence imposed on Charge 13, and three months of each of the sentences imposed on Charges 9 and 12, and the summary offence of possess a silencer be served cumulatively upon the sentence imposed on Charge 1, which I declare to be the base sentence. That is an effective term of imprisonment of four years and three months. I order that you serve three years before being eligible for parole. What is the PSD as of today, does anyone know?
35 MR GOETZ: Yes, sir. The pre-sentence detention for Mr McLean is 423 days.
36 HIS HONOUR: Thank you. I declare that 423 days of that sentence have already been served by way of pre-sentence detention. Pursuant to 6AAA of the Sentencing Act[1] I declare that but for your pleas of guilty I would have imposed an effective term of imprisonment of six years and six months, with a non-parole period of four years and six months. Turning to you, West. On Charge 1 possession of a trafficable quantity of firearms, you are sentenced to be imprisoned for two years. On Charge 2 possession of a drug of dependence, you are fined $250. I order that you serve 14 months of the sentence imposed before you are eligible for parole, and in your case the PSD is what, Mr Goetz?
[1]6AAA Sentencing Act 1991
37 MR GOETZ: It is 16 days, Your Honour.
38 HIS HONOUR: I declare that 16 days of the sentence I have just imposed has already been served by way of pre-sentence detention. I indicate that pursuant to 6AAA of the Sentencing Act that but for your pleas of guilty I would have imposed an effective term of imprisonment of four years, with a non-parole period of two years and nine months.
39 I make the forfeiture and disposal orders sought by the prosecution. Are there any other matters required, Mr Goetz?
40 MR GOETZ: No, sir, not from me.
41 VOICE: The summary charges on West.
42 HIS HONOUR: The summary charges on West. I apologise. I have omitted to sentence Mr West in relation to the possession cartridge ammunition and the rolled up charge of prohibited firearms - prohibited weapons, I should say. I will impose an aggregate fine in respect of all those charges of $500.
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