Director of Public Prosecutions v Sheehey

[2022] VCC 971

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT SHEPPARTON

CRIMINAL JURISDICTION

CR 22-00114

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES SHEEHEY

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Shepparton
DATE OF HEARING:	19 May 2022
DATE OF SENTENCE:	24 June 2022
CASE MAY BE CITED AS:	DPP v Sheehey
MEDIUM NEUTRAL CITATION:	[2022] VCC 971

REASONS FOR SENTENCE

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Subject: possessing a trafficable quantity of firearms, handling stolen goods. 

Sentence: 30 month Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. D'Arcy
For the Accused	Mr L. Waugh

HIS HONOUR: 

1James Sheehey, you have pleaded guilty to three charges on Indictment M11972492, and two related summary offences.

Dealing with the Indictable Charges:

2Charge 1 is a charge of possessing a trafficable quantity of firearms.  A trafficable quantity of firearms is two or more firearms.  You possessed four firearms.  The maximum penalty for this offence is imprisonment for 10 years.

3Charge 2 is a charge of handling stolen goods.  The maximum penalty for this offence is imprisonment for 15 years.

4Charge 3 is a charge of carrying on a business of dealing in firearms without a licence.  By definition, a person carries on a business of dealing in firearms by exposing or offering for sale any firearms.  The maximum penalty for this offence is imprisonment for four years.

Dealing with the related summary charges:

5Summary Charge 6 is a charge of committing an indictable offence, namely possessing a trafficable quantity of firearms, whilst on bail.  The maximum penalty for this offence is imprisonment for three months.

6Summary Charge 7 is a charge of carrying on a business of dealing in category A or B longarm firearms without a licence.  The maximum penalty for this offence is imprisonment for two years.

7As you can see from the maximum penalties prescribed by the Parliament of this State, these are very serious offences.  Further, the Court of Appeal has repeatedly stated that in sentencing for offences related to theft for resale of firearms, the guiding sentencing principle to be applied by sentencing courts is general deterrence and denunciation.  Put simply, those who offend as you have must be deterred from doing so by the sentences imposed.  Firearms are routinely employed in crimes of violence either used directly as weapons, or as a threat to use, to place people in fear for their safety.  That is why this kind of offending is regarded as being so serious.

8You are now aged 42 years.  When arraigned you admitted prior convictions for drug offences in 2005 when aged 26.  At that time, you received a community based disposition and you have never before been sentenced to a term of imprisonment.  You have served four days' pre-sentence detention for this offending.

9The circumstances of your offending are contained in a summary of prosecution opening dated 20 March 2022.  That document was read to the court by the learner prosecutor, and your counsel accepted that the prosecution opening is accurate and forms a proper factual basis upon which I can proceed to pass sentence.  In those circumstances, it is not necessary that I here again set out in full that which is contained in the prosecution summary, and I will do so only in an abbreviated way.  These sentencing remarks should however be read in conjunction with what is set out in the amended prosecution summary which was tendered in evidence and marked as Exhibit A.  I heard your plea in mitigation of sentence on the 17 June 2022.

10On the 28 August 2021, two co-offenders, Scott and Bourke, stole a gun safe containing a number of weapons from the house of the complainant.  They brought the gun safe to your house in the early hours of the morning (Charge 1).  You assisted in opening the gun safe and the removal of the weapons, which were then taken from your home by Scott and Bourke, who took the guns from Shepparton to Melbourne.  You assisted in handling the guns (Charge 2).  They took photos of the guns and sent the photos to you via encrypted messaging.  You in turn forwarded the photographs that you had received to another, offering the guns depicted in the photos for sale (Charge 3 and related Summary Charge 7).  The firearms were sold by your co-offenders, but payment was not made.  You later received 7 grams of methamphetamine as payment for the firearms which have not been recovered.

11Importantly, you have pleaded guilty to the charges.  The offending occurred between the 29 and 31 August 2021.  You were arrested and charged on the 16 September 2021.  When formally interviewed, you made full admissions and cooperated fully with the police.

12The charges resolved into a plea at committal mention on the 18 January 2022.  By your pleas of guilty you have saved the time and costs of a trial and a committal.  By your pleas of guilty you have taken responsibility for your crimes, and you have advanced the administration of justice.  For sentencing purposes, I treat you as having indicated that you would plead guilty at the earliest possible opportunity.

13Further, your pleas of guilty come at a time where the courts have a considerable backlog caused by the COVID-19 pandemic.  By pleading guilty you have not added to that backlog, and you are entitled to receive a noticeable reduction in sentence for having pleaded guilty to the charges in the midst of the COVID-19 pandemic.

14Further, when I heard your plea you gave an undertaking on oath that you would give evidence if called upon against your co-offenders in accordance with an amended statement that you in fact gave to investigating police on the
16 September 2021.  For that you are entitled to a large reduction in sentence.  Appellate courts have stressed that offenders who assist the prosecution of co-offenders are to be encouraged to do so by a measurable reduction in sentence. 

15In passing sentence, I have taken all of this into account as I must.  I accept that you are remorseful for your conduct.  All of these things go to mitigate the sentence you will receive and need to be taken into account in arriving at an appropriate sentence.

16Your counsel, Mr Waugh, filed a helpful written outline of submissions which I marked as Exhibit 1.  He described your offending as being opportunistic, you being hopeful at the time of receiving payment for your role with methamphetamine, in which you were at that time using heavily.

17You are now aged 43 and have a limited criminal history and no relevant prior convictions.

18You have had a good education and good family support.  You also have a good work history in various areas of work.  You were unemployed for about two years between March 2020 and march of this year.  You presently work operating a gantry crane in the pre-cast concrete industry.

19You have had tragedy in your life.  In January 2020 your son Tristan died whilst in your care as a single parent.  He died of acute gastroenteritis, and this had a profound affect upon you.

20You re-partnered in August of 2020 and a child of that relationship was born on in January of this year.  Your partner in turn has three children of a previous relationship.  You live as a family in Shepparton.

21You had used drugs whilst living in Melbourne in your 20s.  After your son's death in January 2020, you again started using methamphetamine using between 0.5 gram and 1.5 grams per day.  You were using methamphetamine heavily at the time of this offending.  That is no excuse but does explain this offending which I think was somewhat out of character.  I was told and accept that you have not used drugs since the birth of your son in January of this year.

22When bailed you were admitted to the CISP program, and you availed yourself successfully of all of the programs that it offered.

23You have been diagnosed as suffering from supraventricular tachycardia, requiring hospital treatment on at least three occasions.  You were the victim of an assault in 2019.

24I admitted into evidence a psychological report from Carla Lechner.  She opines you present with symptoms of PTSD and Stimulant Use Disorder, both in remission, and depression.  She thought your risk of reoffending in this way as being low.  I accept that opinion.  I think your prospects for rehabilitation are good.  You have a limited criminal history.  You have a stable family, employment, and since your arrest and whilst on CISP bail you have done everything right including seeking appropriate counselling.

25The prosecution submitted that because the offending involved trafficking and dealing in firearms, any sentence must incorporate a term of immediate imprisonment.  It is submitted that a combination sentence which included a term of imprisonment would be within the appropriate sentencing range.

26In normal circumstances I would agree with and apply that submission.  Here, however, the fact that you have made a statement to the police and agreed to give evidence in accordance with that statement against others must act as a compelling factor in your favour in arriving at an overall sentence.  Because of this factor and having regard to a number of other mitigating factors which I have endeavoured to set out above, I have come to the view that the purposes of sentencing in this case can be achieved by the making of an appropriately conditioned community corrections order.

27To that end I have had you assessed as to suitability for the making of such an order.  You have been assessed as being suitable and as being of medium risk of reoffending.

28On Charges 1, 2, and 3 of the indictment, and Summary Charge 7, I make a community corrections order with conviction for a period of two and a half years commencing this day with the following conditions:

·that you complete 200 hours of unpaid community work;

·that you undergo supervision by the Department of Corrections;

·that you undergo programs and counselling for the treatment of drugs and alcohol and for your mental health;

·and that any time taken in undergoing such programs be credited against and deducted from your hour of unpaid community work.

29On related Summary Charge 6, committing an indictable offence whilst on bail, you are convicted and sentenced to a term of imprisonment of four days.  I declare that four days pre-sentence detention be reckoned as having been already served, be entered into the records of the court, and be deducted administratively.

30For the purposes of s6AAA of the Sentencing Act 1996, I state that had it not been for your pleas of guilty to the charges, and the fact you have undertaken to give evidence against others if called upon, I would have sentenced you to a term of imprisonment of three and a half years, and I would have fixed a minimum term of two years' and four months' imprisonment.  Mr Sheehey?

31OFFENDER:  Yes, Your Honour?

32HIS HONOUR:  I cannot make the community corrections order unless you agree to enter into it and comply with its conditions; do you do so?

33OFFENDER:  Yes, Your Honour.

34HIS HONOUR:  You understand that if you do not give evidence in accordance with your undertaking against others if called upon, if you do not give evidence in accordance with your statement, you can be brought back and be re-sentenced?

35OFFENDER:  Yes.

36HIS HONOUR:  Very well.  Come out of the dock if you would?  Now,
Mr Sheehey, the first thing you will have to do is, within 48 hours, report to Shepparton Community Correctional Services at 307-331 Wyndham Street, Shepparton; do you understand that?

37OFFENDER:  Yes, Your Honour.

38HIS HONOUR:  And you must comply with all of the conditions of the community correction order.  If you do not and you come back before me to be re-sentenced, you will be re-sentenced; do you understand that?

39OFFENDER:  Yes.  Yes, I do, Your Honour.

40HIS HONOUR:  So, you need to comply with every condition.  Very well, on the rising of the court, you are free to leave.

41OFFENDER:  Thank you very much, Your Honour. 

42HIS HONOUR:  Mr D'Arcy, could I thank you and your instructors for the smooth running of the circuit over the last five weeks?

43MR D'ARCY:  Thank you, Your Honour.

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