Director of Public Prosecutions v Snell
[2024] VCC 474
•17 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00944
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DEAN SNELL |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 April 2024 | |
DATE OF SENTENCE: | 17 April 2024 | |
CASE MAY BE CITED AS: | DPP v Snell | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 474 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE
Catchwords: Theft of a firearm; knowingly dealing with proceeds of crime.
Legislation Cited: Crimes Act 1958 (Vic) ss 74, 74AA(1), 194(2); Sentencing Act 1991 (Vic) ss 6AAA, 48CA.
Cases Cited: R v Doran [2005] VSCA 271; Ryan v The Queen (2001) 206 CLR 267.
Sentence: Community Corrections Order of 30 months with conviction.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Arceri | Office of Public Prosecutions |
| For the Accused | Mr L. Dogger | Daniel Taylor Lawyers |
HER HONOUR:
1Dean Snell, you have pleaded guilty to one charge of theft of a firearm (a rolled-up count encompassing nine firearms),[1] and one charge of knowingly dealing with proceeds of crime[2] (being $13,500 received from the sale of seven of those firearms).
[1]Crimes Act 1958 (Vic) s 74AA(1).
[2]Ibid s 194(2).
2Each charge carries a maximum penalty of 15 years' imprisonment.[3]
[3]Ibid ss 74AA(1), s 194(2).
Procedural history
3Legal argument took place in advance of a circuit trial on 29 November 2023, and on 26 March 2024, a sentence indication hearing was conducted on an agreed version of the facts that essentially resolved the earlier legal or factual dispute in your favour. That is, that you stole boxes from an unlocked delivery truck, then, once you got the boxes to another location you opened them to discover that some of them contained firearms, nine in total, which you then dealt with as your own by selling them or keeping them.
4The legal question previously in issue was: on the charge of theft of a firearm, did the prosecution have to prove actual knowledge the item was a firearm at the time the item was appropriated? A case conference was conducted on this point, but ultimately the case resolved with your pleas of guilty on a factual basis which avoided the ultimate determination of this issue. A practical solution was reached, for which both parties should be commended.
Facts on sentence
5The prosecution provided an amended a summary of the facts which underpins your sentence, and that document is dated 25 March 2024; I will refer to parts of that summary in the reasons for this sentence.
6‘AusCountry Couriers’ operate a freight delivery service in and around Gippsland. One of their truck depots is in Morwell. At that depot, freight was organised according to its final destination and loaded onto trucks for delivery. Sometimes the trucks would be loaded the weekend before the morning of the truck's departure from Morwell on a Monday.
7On Saturday 2 October 2021, one of the AusCourier drivers, Mr Scandrett, prepared his truck's deliveries for the following Monday morning. He loaded some items that he was aware were firearms (by reference to their origin and their destination in his paperwork) and also loaded 40 to 50 loose cartons, as well as some larger freight.
8He parked his truck in its normal position to await his departure early on the Monday. This was all done by about 8:30 am on the Saturday morning.
9Mr Scandrett's truck had fabric curtains on the side. There was no point in locking the rear doors given the easy access via the fabric curtain, so the doors were left unlocked.
10I pause here to note that items were found to be missing from the truck of another driver, Peter Bland, however these items were not ultimately part of the agreed summary forming the basis of sentence.
11On the Monday, at about 5:00 am, Mr Scandrett started his delivery run; at his first stop in Bairnsdale, he opened the rear of the truck and found that all of the small loose freight that he had previously loaded was missing. There was only one long parcel and some of the larger items left. He called the depot. After a search for the missing items the police were notified.
12An examination of the depot's yard showed footprints in the area of Mr Scandrett's truck where it was parked over the weekend, and that a gate, normally padlocked, was open between the depot's yard and a neighbouring business.
13In total the following nine firearms were found to be missing:
· Beretta Straight Pull M3000 M3K Synthetic 24’’;
· Chiappa Double badger Folding Shotgun 20ga/Rifle;
· T3 Hunter Stainless Fluted .223;
· T3x Hunter 7mm 24.3;
· T3x Lite Stainless 30-06;
· T3x Roughtech Desert Tan 223 Muzzle Brake D18;
· T3x Super Lite Stainless 223;
· T3x Lite Stainless LH 223;
· Beretta Silver Pidgeon Sporting OCHP.
14Police attended the depot that evening and commenced an investigation.
15In the following July, in 2022, Andrew Weeks was arrested by police for unrelated matters. During a search of his property, two of the missing firearms (with matching serial numbers) were found.[4] Mr Weeks' phone also contained photos of other guns, an additional two with serial numbers matching the stolen ones, and some other unidentified firearms. Mr Weeks' partner's phone was also searched later, and photographs of three more of the missing firearms with serial numbers matching the stolen ones were found there.
[4]T3 Hunter Stainless Fluted .223; Beretta Silver Pidgeon Sporting OCHP.
16Mr Weeks' partner told police that Mr Weeks had told her that it was you, Mr Snell, who had stolen those firearms.
17On 15 November 2022, I note over a year after the firearms went missing, you were arrested and interviewed.
18I pause here to note that at this point, the police did not have anything linking you to the theft, other than the second-hand hearsay statements of Mr Weeks' partner.
19It was then that you gave extensive answers to police during their questioning of you at interview.
20You told police, essentially, that you had been out with David Dalrymple walking a dog sometime between 9:00 pm and 3:00 am on 'a Saturday sometime' after using MDMA. You said you had found the unlocked truck that Mr Scandrett had loaded, and took the small freight by throwing it over a fence. You said Mr Dalrymple went to get his car which you then loaded with the boxes, 30 to 40 in all, and that when you got the boxes to another location, it was then that you discovered that some of them contained firearms.
21At this point in the interview, you said that Mr Dalrymple said, upon discovery of the firearms:
'Bingo' and 'Struck gold here'
22You went on to say:
'. . and then I would have found the guns as – I just never forget that, when – when we found ‘em and he just, like – I knew right there and then that – now I look back at it, I knew that I’d be sitting here one day because of it. I knew I’d be losing me firearms licence.”
23You gave the police detailed descriptions of five of the guns, from your memory. You also described the other items that you had found in the boxes: boxes of rivets, filters, hydraulic fittings, a ceiling fan and power points among other things.
24You also said to the police:
'I didn’t even click when we brought ‘em out of the truck, like, when we pulled ‘em out of the truck I should’ve clicked…cause the length, the width, the whole lot.'
25About the decisions you made when you discovered the guns, and whether you should hand them to the police you said this:
'I would’ve looked like a real dingbat rocking up at the Morwell cop shop with a heap of firearms that had just been pinched out of a truck, and off me head and...going “Hey, I’ve just witnessed this bloke do this. I’ve just – I’ve just stolen ‘em off the thief”..I probably should’ve done that, I don’t know what I would’ve got for that'.
26You said Mr Dalrymple wanted to keep two of the guns. You went on to give details about the arrangements you then made for selling them: that you kept two for yourself, that two were later stolen from your house by Mr Dalrymple, and that Andrew Weeks had bought a number of the guns for $13,000 to $14,000 (this is the of Charge 2,) and that you had used the money to pay bills, buy drugs and ‘get back on your feet’.
27Police then used your mobile phone records to corroborate your account by reference to proximity to phone towers.
28It was made clear on the sentence indication hearing that your liability for the charge of theft of the firearm is on the basis that, upon discovering that the boxes contained firearms, you at that point made a decision to deal with those firearms as your own (by selling them or maintaining possession in the case of some of them) and at that time, and in this way, the offence of the theft of firearms was complete.
29The prosecution made it clear that the version given by you in the record of interview, that you stole boxes from Mr Scandrett's truck, which you subsequently found out contained firearms, is accepted as the resolution of this case.
Nature and gravity of the offending
30The theft of firearms is a particularly serious species of theft; it allows for the flow of unregistered, illegitimate firearms into the community. The maintenance of a system of registration of firearms and the licencing of people who use them protects the community from the kinds of serious gun violence that can thrive when illegitimate weapons are in circulation. The maximum penalty of 15 years[5] shows how seriously this version of theft is to be regarded, contrasted with the 10-year penalty for other kinds of theft.[6]
[5]Crimes Act 1958 (n 1) s 74AA(1).
[6]Ibid s 74.
31You were licenced to hold firearms, which means that you were aware of the strict rules for storing and owning firearms, and the reasons for those rules. You sold a number of the firearms you had stolen. Your theft of the firearms was unplanned, but opportunistic. The act of possession, and knowledge of the nature of what you had stolen, arose sometime after you had first appropriated the packages. It was your decision to maintain possession of the firearms, and to sell some of them, which constitutes your liability for the theft. I accept that at that point you were in a bind, having then discovered the nature of your crime. It would have been possible, however, and certainly preferable, for you to have arranged for their safe return; you chose to plough on though, cementing your liability for the serious charge of theft of a firearm.
32I find the number of firearms involved, nine in all, lends a particular seriousness to what you did, however, the way the theft evolved allows me to assess your offending as less grave than that of a targeted, and planned theft of firearms.
Victim impact
33Who are the victims in this case? The businesses who owned the firearms, and the freight company who had the responsibility for delivering them were in some way the formal victims of your offending, but more broadly, it is the community at large, which is now exposed to the potential use of firearms in the hands of people who should not have them, and whose activities render them unregulated and dangerous. Stolen firearms have the tendency to end up in the hands of people who use them in particularly dangerous ways. Six of the nine weapons were never recovered and now circulate in unknown hands, and I take this concerning fact into account.
No prior convictions
34You are 29 years old; you have no prior convictions; reference was made to an (irrelevant) speeding charge. You have no cases arising subsequent to your charge in this case.
Personal circumstances
35At the time of the offending, you were 26 and living by yourself in a caravan; you had worked as a mechanic. You lived with your parents on the family farm until about five months prior to your offending.
36You went to school at Gippsland Grammar Primary and then Gippsland Grammar Secondary Schools. You left school after completing Year 11. You report having struggled academically and that you did better in practical, hands-on subjects. You also suffered socially, having spent the bulk of your free time working on the family farm instead of developing friendships. You worked after school, on weekends and during holiday periods.
37After leaving school, you completed an apprenticeship in automotive mechanics and worked in that field for approximately three years. More recently, you started a business cutting and selling firewood.
38You now work full-time on a dairy farm; I will return to your employer's reference about that.
39You are now living on a small farm that you received from your parents as an early inheritance. Your partner, Elisse and her 19-year-old daughter live there with you; her daughter is expecting her first child.
Matters in mitigation
40Your case resolved to pleas of guilty; I will come in a moment to a special feature of that plea but first state plainly that your plea is a very practical and significant matter in the reduction of your sentence. You have facilitated the course of justice and this feature of your case, even without more, and there is more, is an important matter that I take into account on sentence.
41Before your admissions in your interview, which I note were made some 13 months after the events giving rise to the charges, the only evidence against you was the hearsay (and I add second hand hearsay and therefore inadmissible) statement of Mr Weeks' partner about your involvement. After your interview, the police case was complete, but for some broadly corroborative phone-tower evidence. I have no doubt that without your statements, the police could never have charged you.
42I contrast your case for a moment with that of the alleged co-offender Mr Dalrymple, who was also interviewed. He exercised his right to silence and was never charged.
43That your admissions formed the prosecution case against you is a special feature of this case. First, your frank and detailed statements to police about what you did and how are consistent with your previous good character. One police witness at committal gave evidence that, before your admissions, the investigation was essentially classed as 'unsolved' and was not even being actively worked on.[7]
[7]Committal Evidence of Detective Senior Constable Jarred Smith, Magistrates’ Court of Victoria (1 June 2023) 7.
44At interview, you took full responsibility for what you did. You always maintained your version of events, that is, that you stole boxes and not guns on the night in the truck depot, and only completed the offence when you discovered the boxes' contents. Ultimately this is the version which was accepted, and which forms the spine of the facts on this sentence. You always indicated a willingness to plead guilty on that basis. You always indicated you would accept responsibility for selling the firearms after their discovery by you.
45It is this conduct by you which engages the 'Doran’ discount’[8] principles, and which earns you a very significant discount on your sentence. Your admissions are demonstrative of remorse, your prospects of rehabilitation and indicate a reduced need for specific deterrence. Moreover, on a policy level, the application of the criminal law should encourage others to make similar admissions, and be seen to do so in the act of sentencing. I quote here from Justice Kirby in a case of Ryan v The Queen:
'Unless persons such as the appellant are encouraged to bring unreported cases to notice, the likelihood is that, in the great majority of instances, such crimes will not be reported. They will therefore go unpunished. Accordingly, both from the point of view of society and of the victims of crime, there are strong reasons of policy why the law should encourage offenders to make full confessions. It should certainly not discourage them.'[9]
I pause here to note that the quote is of course dealing with an unreported crime, although I think the principles apply equally in your case.
[8]R v Doran [2005] VSCA 271, [14]-[16] (Buchanan J.A).
[9](2001) 206 CLR 267, 295 [94] (Kirby J).
46You were, at 26, a relatively youthful person when you committed the offence, though at 26 this carries only little weight. You have, in the nearly three years since your offending, established that you can conduct yourself as an adult, in an adult way. You have run your own business selling firewood and worked in the farming industry. Since September 2023 you have been with your present employer as a senior Dairy Farmhand at 'Udder Views Farm' in Gippsland.
47Ms Deena Tharle, your employer, wrote a letter which conveyed her appreciation of you as a worker, her warm regard for you more personally, and for that of your family. You have become a highly valued senior employee and Ms Tharle's husband's 'right hand man'. You’ve also been honest with her about your court proceedings; I note too that you have ongoing employment at the farm as well as a stable living arrangement with your partner who also came to Court for you. You maintain a good relationship with your parents, who also work in the dairy industry.
48Your remorse runs through your police interview, where you made statements such as:
'I'm sorry you guys had to put up with the pain of this’;[10]
[10]Transcript of Record of Interview (15 November 2022) [626].
49And, when referring to having given your account to police you say:
'Pretty happy with what I've … done.'[11]
[11]Ibid [635].
50I also take into account the delay that has taken place between your interview, where you made full admissions on 15 November 2022, and the finalisation of your case today, 17 April 2024. This time has been defined no doubt by great anxiety about the potential consequences of what you did, including the loss of your liberty. You have been on bail throughout and compliant with your bail's conditions.
Comparable cases
51I have looked at the comparable cases that deal with theft of firearms, and I was provided with a helpful table of somewhat similar cases. No case is alike to yours, but I sentence you in that landscape.
52Normally, and the cases reflect this, the theft of firearms in this number, or any number, would conclude unequivocally in a sentence of immediate imprisonment – such is the importance of general deterrence and the need for community protection from the harm caused by the circulation of illegitimate firearms. Your case has some unusual features which distinguish it – I refer in particular to the role and importance of your admissions in this prosecution, the form of the way your liability arose in the first place, and your otherwise good character and prospects for rehabilitation. On that, I find your prospects for rehabilitation are excellent; I note the finding by the community corrections order assessor that you present in the category of 'low risk' of reoffending. If one or more of those features were absent, you would have received the normal form of a sentence, being immediate imprisonment for a theft in this category.
53In the end, in the rather unique circumstances of this case, I find it is one where the purposes of just punishment, general deterrence, specific deterrence and community protection will best be served by the imposition of a community corrections order, which, as I have made clear, will involve considerable inconvenience and disruption to your life. That is the point. It is to be punishing, among other things.
54The content of Charge 2, knowingly dealing with proceeds of crime, being the funds from the sold firearms, is bound up in the essential conduct giving rise to Charge 1, and I will recognise this in the imposition of a single community correction order whose length takes the overlapping nature of the two offences into account.
Disposition
55
On Charges 1 and 2, theft of firearms and knowingly dealing with the proceeds of crime, you are convicted and sentenced to a community correction order of
30 months' duration.
CCO Content
56I am now going to read you the conditions of that community correction order, as I said for a duration of 30 months; two and a half years. Once I have read through these conditions, I am going to allow you an opportunity to speak to your counsel about them and I will be asking you to confirm your consent to undertaking the order.
57You will be first subject to the standard conditions of a community correction order. That means, importantly, that you must not commit any other offence that are punishable by imprisonment during the 30-month period. Let me be clear about this: if you do, you will be brought back to court before me, not before some other Judge or Magistrate, and re-sentenced for these offences; absent very powerful reasons, you should expect that would involve your imprisonment.
58You must report to the Sale Community Corrections Service within two days of today either by phone or in person.
59You are required to advise your supervisor at the Corrections office of any change of address, where you are living or working, and you must do so within two clear working days.
60It is a term of all community correction orders that you must submit to visits as directed, and obey all the instructions and directions of the Community Corrections Officers. You are not able to leave the State of Victoria without their prior permission and that is for the entire 30 months. Those are the core conditions.
Special conditions
61Special conditions that I will attach to the order are as follows. You will be required to complete programs to address your drug use. Again, if that is not current, you will find that those programs are pretty swift.
62You are not required, I note for completeness, to submit to mental health treatment and assessment, given the findings on your assessment on that question.
63I require you to perform 120 hours of unpaid community work over the term of this order, but pursuant to s 48CA of the Sentencing Act 1991,[12] I direct that any time spent in treatment and rehabilitation be credited towards those hours. I am requiring you to do unpaid work, but if you are attending for some sort of treatment or participation in something else, that also clocks up the hours.
[12](Vic).
64To be clear, I am not imposing a supervision condition simply because I find that it is not required in your case.
65In a moment I will stand down so you, Mr Dogger, can have an exchange with Mr Snell about the content of the order.
66Before I do so and before I forget, pursuant to s 6AAA of the Sentencing Act 1991,[13] an exercise that is particularly artificial in this case given your lengthy admissions and the way the case has resolved, I would have imposed, however, a sentence of four years with a minimum non-parole period of two and a half years.
[13]Ibid.
67Are the conditions of the order, Mr Dogger, clear in such that you can advise your client?
68MR DOGGER: Yes, Your Honour.
69HER HONOUR: All right, I will stand down for a couple of minutes and then if everything is clear I will get your client, Mr Snell, to record his consent to undertaking the order by audiovisual link. Thank you counsel.
70(Short adjournment)
71HER HONOUR: Mr Dogger, have you had a chance to explain the community corrections order conditions to your client?
72MR DOGGER: I have Your Honour, and I confirm he does understand.
73HER HONOUR: All right. Mr Snell I will hear from your directly. Have you understood what you need to do on the community corrections order?
74OFFENDER: Yes, Your Honour.
75HER HONOUR: All right, and do you undertake to do those conditions?
76OFFENDER: Yes.
77HER HONOUR: All right. As I said in the reasons, community correction orders are difficult and cumbersome and no doubt annoying and inconvenient, and that is the point. That is why you have got to do it and I think you will do it. If you do not, you will have to come back to court and so I mean this in the nicest possible way, I hope I never see you again. All right.
78OFFENDER: Thank you, Your Honour.
79HER HONOUR: Thank you counsel for your assistance. Is there anything, have I missed any orders, Ms Zammit?
80MS ZAMMIT: No, Your Honour.
81HER HONOUR: All right. Thank you counsel, we will adjourn.
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