Director of Public Prosecutions v O'Shea

[2022] VCC 135

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00137

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY JAMES O'SHEA

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JUDGE:	Her Honour Judge Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	3 February 2022
DATE OF SENTENCE:	14 February 2022
CASE MAY BE CITED AS:	DPP v O’Shea
MEDIUM NEUTRAL CITATION:	[2022] VCC 135

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:          Possession of a Traffickable Quantity of Firearms (1 count); Traffick in Drug of Dependence (Methylamphetamine – 1 count); Traffick in a Drug of Dependence (Cannabis L – 1 count); Cultivate a Narcotic Plant (Cannabis L – 1 count) – Deal with Property Suspected of being Proceeds of Crime (1 count)

Legislation Cited:         Sentencing Act 1991 (Vic)

Cases Cited:Worboyes v R [2021] VSCA 169

Sentence:  Combined sentence – term of imprisonment of 34 days – 12-month Community Correction Order with conviction – Fine

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms N Grunwald	Office of Public Prosecutions
For the Accused	Mr W Barker	Balmer & Associates

HER HONOUR:

1Anthony James O’Shea, you have pleaded guilty to one charge each of the following offences: possession of a traffickable quantity of firearms; trafficking in a drug of dependence (Methylamphetamine, 108.9 g mixed); trafficking in a drug of dependence (Cannabis L); and cultivating a narcotic plant (Cannabis L).  The total weight of the Cannabis L was 503.8g. The firearms charge carries a maximum penalty of 1200 Penalty Units or 10 years’ imprisonment. The trafficking and cultivation charges each carry a maximum penalty of 15 years’ imprisonment.

2You also consented to the uplift of summary charge 15, as amended, which charged that at Somerville on 13 November 2019 you did deal with property, namely $1,000 suspected of being the proceeds of crime, and you pleaded guilty to that charge.

3The charges all relate to a single date, 13 November 2019, when a search warrant executed at your semi-rural property in Somerville, which comprised a weatherboard home, several shipping containers and two large garages. You led police to a shipping container which held a gun safe containing registered firearms. You then told police that you had something else to show them and led them to a caravan which contained the Cannabis L in two containers. You also showed police a water purifier in which there was a snap lock bag containing a block of Methylamphetamine. The police search then moved to the garages, one of which contained a large safe, which you said could not be unlocked but had to be drilled open. You were taken to the police station. A locksmith attended the property and opened the safe, which contained smaller safes in which police located $73,400 in cash, an unregistered .22 calibre revolver handgun, capable of discharge, two .22 calibre bullets; and a holster.

4By agreement between the parties, $1,000 of the $73,400 in cash found in your safes was be treated as the proceeds of your sale of small amounts of Methylamphetamine to two friends.

5A further search in the other garage revealed a padlocked toolbox in which police located four, individually wrapped and unregistered handguns. A search of the house located an air rifle (which you told police was not registered), in a cupboard housing the hot water service.

6In your record of interview, you said that you had grown the cannabis (now comprising two plants) yourself for your own occasional use and to give to your friends in exchange for goods. In relation to the unregistered firearms, you said that you were in the process of obtaining registration and licence for the firearms. You said you found the pistols among your deceased father’s belongings, and that you purchased the .22 pistol. In relation to the Methylamphetamine, you said that your friends wanted some for Christmas, and that, in return for loaning a friend $9,000 in cash, he gave you the Methylamphetamine, with the understanding that you could sell some of it and he would repay you for the balance.

7You were remanded in custody on 13 November 2019 and were granted bail on 16 December 2019. There are 34 days declarable as PSD.

8Your personal circumstances may be briefly described as follows. You are 53 years old and were aged 51 at the time of the offending. You have lived in Melbourne your whole life. Your parents are deceased but you have a brother and a sister. You left school after Year 10 and worked in various occupations (roof tiling, pastry chef, plumbing) before settling into the occupation of directional drilling. You started your own excavation company in 2004 and still run it, mainly now as a sole operator.

9You have four children from two relationships, and one step-daughter. You are close to each of them and speak to them daily. Your three children from your last relationship live with you half of each week while their mother works night shift. They live in a house which you own and have provided to them.

10Your counsel tendered a bundle of references from friends, an employee, a former employer, a fundraising colleague at a charity in which you have been involved for the last 7 years, as well as from your sister. The references indicate knowledge of the charges you are facing, respect for your personal qualities, work ethic and sense of responsibility for your family, how remorseful you are as well as how worried you have been about the impact of these matters on your children and their futures. There was also a bundle of affidavits provided to the prosecution attesting to the type of help you have provided your referees, including giving them a place to live on your land, agisting their horses and so on.

11Your counsel made submissions to the following effect. The firearms offences are not related to the drug offences and related mainly to artifact or relic style pieces, even though some were still operable as firearms. You are a longarm licence holder and were entitled to possess the longarms found at your property. At the time of the search, you were part way through the handgun owners course which would have made you able to lawfully possess each of the firearms the subject of the charge. You intend to complete that course and in the meantime would like the guns stored with a licensed dealer or displayed in a museum. You accept that, while waiting to complete the course, you should have stored the guns with a licence holder. As it was, the guns were locked away. Although charge 1 is a serious charge, as reflected by the maximum sentence, your offending lies at the lowest end of the scale for the charge.

12In relation to Charges 3 and 4, you did not cultivate cannabis for the purpose of selling it commercially, and so both of these offences are at the low end of seriousness for these charges.

13It was conceded the most serious charge you face is that of trafficking Methylamphetamine. Your account of how you came to possess the drug is consistent with: the informant’s concession that there is no evidence of any sale occurring; your leading police directly to the drugs when they arrived; the absence of any trafficking paraphernalia at your address; and your having no prior or pending matters. However, given the quantity involved, it is conceded that this is not a low level example of this offending.

14The related summary charge overlaps with the trafficking charge to an extent and need not affect the ultimate disposition.

15In mitigation, it should be noted that you led police directly to the Methylamphetamine, that the indictable offences were resolved prior to the contested committal, and that your plea is of real utilitarian value to the Court in saving time and resources. You are entitled to the full discount for your plea. In addition, you are entitled to a more pronounced amelioration of sentence because your plea was entered during the currency of the COVID-19 pandemic.

16You are a man otherwise of good character, supportive to your friends, colleagues and family, are remorseful for your actions, led police to the Methylamphetamine, and have been candid to many people in your life about these charges. You have been seriously affected by these charges hanging over you. You have also spent a month on remand in custody. You have strong family support and run your own business. You have been on bail for over two years and have continued to comply with all the conditions, without reoffending. For these reasons, you have achieved ‘established rehabilitation’ which suggests that specific deterrence is not required and militates in favour of a sentencing disposition which allows that rehabilitation to continue. That rehabilitation means that the community does not need to be protected from you, and therefore principles of punishment and general deterrence should play a smaller role in the sentencing exercise.

17Finally, the ongoing impact of the COVID-19 pandemic on correctional services provides a basis for moderation of any sentence imposed, and militates in favour of a non-custodial disposition. If sentenced to a term of imprisonment, you will face two weeks of quarantine in a cell, without visits, be subject to lockdowns, reduction of time out of your cell, suspension of visits and change of conditions. These matters will make imprisonment substantially more onerous for you than for someone remanded or serving sentence prior to the pandemic.

18It was submitted that the appropriate disposition is that of a Community Corrections Order alone, with the sole condition of unpaid community work.  

19The prosecution submitted that the trafficking in this case was typical in that you obtained the entire amount of Methylamphetamine to sell to others in small amounts and to provide to another person in future in exchange for money. Indeed, you admitted that you had already sold some of the drug from the block found by police, that you charged $100 a gram for those sales; and that you had an arrangement to get $9000 for the balance of the drugs from the original seller after you were finished dealing with them.

20It was conceded that you cooperated with police, led them directly to the drugs, and pleaded guilty at an early stage, thus demonstrating remorse. It was agreed that your plea has real utilitarian value, warrants an additional discount for having been made during the pandemic, and that you have positive prospects of rehabilitation in the light of the absence of priors and your compliance with bail conditions over the past two years. It was also agreed that the ongoing impact of COVID-19 on correctional services warrants moderation of custodial sentences and the decision whether to impose one. It was also conceded that specific deterrence does not loom large in this case, given your strong prospects of rehabilitation and the effect of these proceedings in weighing heavily on you for over two years. However, it was submitted that general deterrence and denunciation ought to carry substantial weight, given the large quantity of the drug involved.

21It was submitted that the only appropriate sentencing disposition is that of a term of imprisonment but that a combination sentence was open. In addition, given the delay in finalising the proceeding, your compliance with bail conditions for over two years, and the conditions in prison arising from the COVID-19 pandemic, it was conceded that it was open to the Court, as part of the combination sentence, to impose a sentence of imprisonment equivalent to time served.

22I accept the matters put on your behalf by your counsel, most of which were not in dispute, and which are outlined in some detail above. I accept that the firearms matters are unrelated to the drugs charges. I consider that the cannabis and firearms offences fall towards the lowest end of seriousness for this kind of offending.

23I consider that your early plea is of strong utilitarian value, is evidence of remorse, and that you have expressed your remorse to your family, friends and colleagues. Your plea during the currency of the pandemic warrants an additional amelioration of sentence.[1] I note that you have no prior convictions, have had a solid work career, engaged in voluntary work, and cared for and supported your children and ex-partner with whom you remain close. In addition, you have complied with strict bail conditions for over two years, and it is clear from the references tendered on your behalf that this period has weighed heavily on you.

[1]        Worboyes v R [2021] VSCA 169.

24On the other hand, the quantity of Methylamphetamine involved in charge 2 is such that denunciation, general deterrence and just punishment must be given appropriate weight in the sentencing exercise in respect of that charge. Ordinarily, trafficking in this quantity of Methylamphetamine would attract the imposition of an immediate term of imprisonment. However, I consider that you have learned your lesson from this offending and from the 34 days spent in custody, that you have demonstrated your rehabilitation since that time, and that the community does not require protection from you.

25Further, given the concession by the prosecution, I consider that all of the relevant sentencing purposes can be met by the imposition of a term of imprisonment which does not require you to re-enter the prison system, combined with a Community Corrections Order.

26On charge 1, possession of a traffickable quantity of firearms, you are convicted and ordered to pay a fine in the sum of $1,250. On charge 3, traffick in a drug of dependence, Cannabis L, you are convicted and ordered to pay a fine of $250. On charge 4, cultivate a narcotic plant, Cannabis L, you are convicted and ordered to pay a fine of $150.

27Finally, on charge 2, traffick in a drug of dependence (Methylamphetamine), and summary charge 15, deal with property suspected of being proceeds of crime, for the reasons outlined above and because those offences are related, you are convicted and sentenced to an aggregate sentence of 34 days’ imprisonment, together with a 12-month CCO with the condition that you undertake 150 hours of unpaid community work. I declare 34 days of PSD to be reckoned as already served.

28Regarding your CCO, you will need to report to Frankston Community Correctional Services within 2 working days once the order commences.

29The mandatory conditions of the order include that you must not commit any other offences during the period of the CCO - that is, 12 months from its commencement - for which you could be imprisoned, even if a court would not choose to impose imprisonment in relation to those offences. You must not leave Victoria without first getting permission to do so from a Corrections officer, you must obey all lawful instructions from and the directions of Corrections officers, and you must report to and receive visits from a Corrections officer. Finally, you must notify a Corrections officer of any change of address or employment within 2 clear working days after the change. Do you understand all the conditions I have imposed and the general terms that apply?

30Your counsel will explain the order to you in more detail. You must make sure that you comply with the order because if you breach a condition of the order, aside from a direction of the Secretary, that is an offence punishable by 3 months’ imprisonment. You will then be dealt with for breaching the order, but will also be exposed to the possibility that you will be brought back and re-sentenced for the original offending. If you are re-sentenced, you may be sentenced to a term of imprisonment.

31Do you consent to the making of a CCO?

32I note there was an application by the prosecution for a forfeiture order, but I will grant liberty to apply as that matter is currently under discussion.

33S 6AAA

34I declare pursuant to s 6AAA of the Sentencing Act that, if you had not pleaded guilty to the charges and if you had been found guilty of the charges by a jury, on charge 2, I would have convicted you and imposed a sentence of imprisonment of 12 months together with a 12-month CCO.