Director of Public Prosecutions v Spiers
[2023] VCC 2137
•20 November 2023
*
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 23-00804
Indictment No. N11369868
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALEZIAH SPIERS |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 November 2023 | |
DATE OF SENTENCE: | 20 November 2023 | |
CASE MAY BE CITED AS: | DPP v Spiers | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2137 | |
REASONS FOR SENTENCE
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Catchwords: Possession of a traffickable quantity of firearms; (16 firearms including 3 machine guns); relevant summary offences: possess ammunition, possess imitation firearms, possess prohibited weapons, possess body armour, store explosives; 30 years of age at time of sentence. No criminal history. Co-operation; Remorse; Early plea. - Worboyes v The Queen [2021] VSCA 169. Limb 5 - R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (‘Verdins’)
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Z. Petric (at Plea) Ms R. Marques (at Sentence) | Office of Public Prosecutions |
| For the Offender | Mr T. Fitzpatrick | Cheralyn Hughes Legal |
HIS HONOUR:
1 Aleziah Tolkien Spiers, you have pleaded guilty to a single indictment charge of possession of a traffickable quantity of firearms. You have also pleaded guilty to a number of related summary matters being charges of possession of ammunition, possession of imitation firearms, possession of prohibited weapons, possession of body armour and also unauthorised storage of explosives.
2 The maximum penalties are correctly set out in the opening.
3 You are now 30 years of age and have no criminal history at all.
Facts
4 The prosecutor Mr Petric opened this case to me last Wednesday (15 November 2023) in accordance with a written amended summary dated 13 November of this year, marked as Exhibit A on the plea. There was a further amendment made in the running and the transcript will reflect those additions which were made by agreement.
5 Your counsel Mr Fitzpatrick told me that this was an agreed factual statement. In the course of the plea, however, that did require some clarification, for Paragraph 15 of the opening said that: 'The accused took possession of the firearms to conceal them and would also use, repair and restore them'. I rather naturally assumed that 'use' referred to 'use to discharge'. That is after all how a firearm would ordinarily be 'used'. However, I learnt that where there was reference to 'use' of firearms in that paragraph, that was not to convey that you had fired them. Rather, you had 'used' them in the other ways described in that and other paragraphs. Anyway, once that issue was clarified, this was an agreed statement before me.
6 It follows then that there is no point in my restating all the facts in these my reasons as I will sentence pursuant to that lengthy agreed document which is marked as Exhibit A.
7 I will provide then only a relatively brief factual summary so that anyone who happens to access these reasons will have some understanding of the nature of the crimes that you have committed and the reasons for my ultimate sentences in this case.
8 In the relevant timeframe, it is abundantly clear that you had a pretty unusual and unhealthy interest in a ‘survivalist’ lifestyle involving acquiring resources and skills in preparation for some apocalyptic or worldwide catastrophic event. Dr Barth speaks of your immature fantasies and the reasons you may have held them. You had developed a network of likeminded people and you hosted survival classes or workshops at the property you lived at with your then partner Madelaine Scott. That was her parents’ large acreage property out in Clarkefield. Through those networks of people with this strange mindset, you formed a relationship with a man by the name of Graeme Mathews. He, I am told, was suffering from motor neurone disease.
9 In 2020, he brought large amounts of firearms and related items to the Clarkefield property and he gave them to you. See Paragraph 13.
10 I should say you had some past military background having been discharged from the army back in 2016. In the relevant timeframe that I am dealing with, you had no firearms licence. Nor did he. You received these items and you stored some of them in a locked shipping container and in the shearing shed on the property. Of course, they were not just stored. They were concealed. You did not merely possess them in the sense of receiving them and leaving them be. You 'used' (not fired), repaired and restored them, and also kept a handgun in your bedroom. You told the police that you purchased a new container or containers to store the weapons in as well. It is an agreed fact that you kept the handgun in your bedroom, though for whatever reason you seemingly denied that in your discussions with the psychologist, Dr Barth. I will come back to Dr Barth’s report a bit later in my reasons.
11 The relationship between you and your partner deteriorated and in early 2022 you moved out of the Clarkefield property.
12 Both you and she pursued new relationships. I should say that by then there were two children of your and Ms Scott’s relationship.
13 Your ex-partner and her new partner attended the local police in Kyneton on 30 June 2022, and that was to obtain an intervention order due to their growing concerns that they held as to your behaviour. They mentioned to the police your access to firearms. Police attended the property and located a large stockpile of firearms. Some of these were serious weapons indeed, including a number of machine guns. The summary sets out the details of the weapons that form the subject matter of the possession of a traffickable quantity charge. They were all capable of discharge. I note that the trafficable quantity threshold for this offence is two firearms. You had 16 firearms with no less than three machine guns. There were a range of other semi-automatic weapons as well as bolt action rifles and shotguns. One shotgun was a shortened one. These weapons were hidden under the floorboards of the shearing shed and in a grey container within the shed. There is no suggestion that they were safely stored as you confirmed in the police interview. They were all unregistered.
14 In the shipping container there was a range of related items including a handgun, knives, potassium nitrate and sulphur powder and smokeless powder and detonators. Those later items all connected up with the explosives summary charge that I am dealing with.
15 The firearms were seized by the police on 1 July as were the explosive substances. The police conducted a more thorough search and inventory on 2 July last year and they seized a large range of other items. See Paragraph 23 of the opening including the additional sub paragraph (r).
16 There was a large range of ammunition hence the summary offence of possession of ammunition. There were various imitation firearms, see j-o in the summary, and various knives and daggers, see sub-paragraphs (p) (q) and the added paragraph (r).
17 You were arrested at 11:00am on that day at the Romsey laundromat and you were found to be in possession of a knife.
18 Your home address was searched and police located a ballistic vest, hence the summary offence pertaining to possession of body armour.
19 You were interviewed by the police and were very cooperative. You made a number of admissions against your own interest. The summary sets out aspects of the interview and I certainly see no need to set out all of that detail in my reasons. I have in fact read the full police interview. It goes into much greater detail. I am certainly not prepared to accept on balance your suggestion that Ms Scott approved of this arrangement to store the firearms. That is, however, not a matter of any great note. Even if I had been satisfied of that on the balance of probabilities, it would not actually mitigate your offending, so that issue is neither aggravating or mitigatory. It is just neutral.
20 I have said already the summary makes it clear it was not a single simple act of storage. You described in the interview, for instance, taking guns out to oil them and to make sure that they were not getting rusty. You said that you would look at them and you would think: 'They’re cool and like oh yeah sick, and then you look in the mirror and like oh yeah that’s awesome'. See Question 81. You described being present when Mathews had come back to look at them and he, Mathews, had test fired them on a handful of times. You said: 'We went down to the back once and he tested a couple, probably did that once or twice and after testing them we’d take them back'. See Question 87 You described hiding them 'a bit better'. Questions 94 and 95.
21 You spent 53 days in custody prior to being bailed.
22 The agreed summary and your counsel’s written outline set out the chronology of the matter before the court. There were a number of committal mentions and some resolution discussions but the matter was booked in for a contested committal, listed for 15 May of this year. It resolved on that day and the matter came up to this court for the plea date on 15 November. That is when I heard the full plea, last week, and I remanded you back into custody on that date.
23 So much then for my brief summary of your offending. I will sentence pursuant to the more detailed agreed amended statement which, as I say, was marked as Exhibit A on the plea. There are a variety of photographs which did not need to be marked. They are in the depositional material and they set out the various items and where they were found.
24 This was serious offending. The possession of a traffickable quantity of firearms charge spans a period of close to two years and it relates to a large number of firearms, some of them serious weapons indeed, as I have said.
25 Given the nature of these offences though, there is no impact material placed before me.
26 I was not sure whether your client understood there is a Webex link in this case, Mr Fitzpatrick, and there have been some issues with it, but I understand that his mother and father are each viewing the sentencing.
27 MR FITZPATRICK: Yes, Your Honour.
28 HIS HONOUR: He understands that, okay, fine.
29 MR FITZPATRICK: He was aware of it.
30 HIS HONOUR: Yes, alright.
In Mitigation
31 I turn then to consider the plea in mitigation conducted on your behalf last week by Mr Fitzpatrick.
32 He had prepared a written outline of submissions. He also relied upon a bundle of character references, an affidavit from Michelle Paterson and a report from a psychologist, Dr Barth.
33 Either in the oral presentation of the plea or by reference to the written materials, including his submissions and the expert report, he placed before me details of your family, educational, work and relationship history.
34 He made some submissions as to the objective gravity of the offending, your reasons for committing the offences and the weight to be given to the sentencing purposes set out within the Sentencing Act. I do not recall him using any particular adjective to describe your prospects of rehabilitation, but I certainly inferred that he was submitting that you had favourable future prospects of rehabilitation. To that end, of course, he highlighted that you had no criminal history at all and he spoke of your efforts when on bail.
35 In the thorough plea conducted on your behalf, he relied chiefly upon the following matters in mitigation:
· Your early guilty plea and your level of co-operation;
· The presence of remorse;
· The delay since the offending and your progress in that period;
· The application of the fifth limb from the case of Verdins.[1]
[1]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (‘Verdins’)
36 He conceded though the seriousness of the offending the subject of the indictment charge owing to the nature of, and the large number of firearms involved, and the duration of the offending. He was conceding the inevitability of a prison term here and one over and above your existing pre-sentence detention, but he argued that it would be open to consider imposing a combination type disposition. That is to say that a sentence could be structured such as to permit your ultimate release from prison onto a suitably conditioned community corrections order. Failing that, a head sentence and a non-parole period but with a decent gap between the two.
Prosecution
37 The prosecutor at the time of the plea, Mr Petric, had prepared written sentencing submissions dated 14 November 2023. See Exhibit B. He also made some brief oral submissions last week. The prosecution written and oral sentencing submissions were really quite uncontroversial, so I see no need to set them all out in my reasons. The submissions set out some matters of established principle in relation to this sort of matter and those principles were not seriously challenged. I note that the prosecution were not suggesting that this act of possession of firearms was connected up with some ongoing criminal activity or further crime within your contemplation. Nonetheless, they submitted it was a serious example of the crime and so much had been conceded by your own counsel. The only real dispute, it seemed to me, was the application of the principles from the case of Verdins. The Crown submitted that there was no cogent basis to make any such allowance in relation to either the fifth or sixth limbs. That to do so would involve impermissible speculation. They took a less strong view than had been posed by your counsel as to the mitigatory value of any delay in this case, and they made some submissions as to the resolution of the matter and the date of your first offer. They conceded though that you had been co-operative. Mr Mathews had been charged, though there was at least some evidence touching upon the source of the firearms, though no surname. I should say that Mathews has not been dealt with so there are no parity of sentence considerations in terms of a sentence being imposed upon another individual here. He is unwell and his matter is listed in a summary stream in the Magistrates Court, and I was told is headed for some form of contest mention next year. The contention in Paragraph 2 of the affidavit placed before me (Exhibit 3) as to Mathews being responsible for the storing of the items, is right in the sense that he brought the guns to you. However, I am dealing with you for possession of a traffickable quantity of firearms, the firearms that you were responsible for storing in the manner described.
38 I was referred to a number of cases some involving pure sentencing decisions of another judge of this court, others relating to Court of Appeal decisions which had broader statements of principle within them. If I may say so, the second category was far more useful to my task. No-one suggested that any of the past sentencing decisions were actually comparable, and they were not, with differences ‘all over the shop’. Differences in personal circumstances, differences in offence detail. They really did not greatly assist me. The Director of Public Prosecutions was calling for a head sentence with a non-parole period.
Background
39 I will shortly deal with the various matters raised before me. Let me deal firstly with your background. I see no point setting out your background in any great detail. It is spelt out in the written submissions as well as in the report placed before me from Dr Barth, and to a lesser extent in some of the references. It was supplemented, to a degree, by some oral submissions made by Mr Fitzpatrick as well.
40 You were born in May 1993. It follows you are 30 years of age. You were the only child of your parents and they separated when you were very young. I was told that you were brought up in the Byron Bay region. You remained with your mother until about the age of 16 and then moved to Sydney to live with your father. Jumping ahead, each of your parents is still alive and aware of the offending, and indeed as I made plain a moment ago, they are viewing the Webex of this sentence.
41 You finished up your secondary schooling at high school in Marrickville in Sydney. You tell Dr Barth that you feel that you underachieved at school given your capacities. After finishing Year 12, you then moved down to Melbourne and lived with your aunt and uncle before joining the army in 2014. You were discharged in 2016 and you suggest to Dr Barth that you deliberately brought that about by using cannabis. You were in a relationship with Ms Scott and she was pregnant at that time. You wanted to be present, could not get leave, and so in that way you sabotaged your own career.
42 As I have said, you went on together to have two children. There is a seven-year-old and a four-year-old. Both girls. I interpose that many of the referees speak of your love for your children and your capacities as a father and I have no reason to doubt any of that material.
43 Once you left the army you were living on the Scott property, and you did some work there. You obtained work as a youth justice worker at Malmsbury from 2019 to 2020. You were sacked from that job. You worked in various labouring jobs after you lost that job and once bailed I was told you have worked as a steel worker and then as a professional driver. You have done some amateur stunt work in the past and also some acting.
44 You have not seen your children since your arrest and I was told that proceedings are pending in the Family Court in an endeavour to alter that position. There has been a full intervention order in place, one made without any admission of liability. You agreed to a two-year final order from October of last year.
45 You have had some issues with drugs of dependence along the way but nothing major by the sounds of it.
46 I have mentioned already that you have no prior or subsequent convictions of any kind so plainly you now call in aid your past good character.
47 There are also a large number of references placed before me marked as Exhibit 2, which spell out your various strengths and qualities. All of those were written in support, it would seem of a bail application, so well in advance of the matter resolving, but it seems to me that they were all written by authors with some understanding of the nature of what were then allegations. I have no reason to doubt the actual genuineness of those references from people speaking of your many qualities, from what they could observe. That was not dependent on them having any comprehensive understanding of the allegations, or even your attitude to the allegations and whether they were admitted or not.
48 I see no need then to work my way through those references in my reasons which will be quite long enough as is. I act on them but obviously not on your grandmother’s suggestion that you had been somehow trapped in these offences – you had not been, as was acknowledged by your own counsel.
49 I was told of the bravery award conferred upon you by the Governor- General back in 2015 for an act of considerable bravery that took place the preceding year. In August 2014, you went to the aid of a drowning woman who was in rough seas a long way off the beach down at Frankston. She was being assisted by another civilian who had gone in to effect a rescue. He was battling the currents to no avail. You went in. Your act was one which placed you at considerable risk over a decent duration. In combination with the acts of that other civilian and a police member who were similarly recognised with bravery awards, the life of that young woman was saved by the three of you.
50 As I said on the plea, and this is usually the position actually, you are far more than just the person who committed this serious charge on the indictment – that is obvious.
51 You spent 53 days in prison prior to being bailed and that was an unpleasant period with isolation at that time and with at least some impacts from COVID-19. Lest I fail to mention that aspect again, I make it clear that I have regard to that. As I mentioned a moment ago, you have worked since your release on bail and until my remand of you the other day. You have lived at the bailed address; you have otherwise complied with onerous bail conditions.
52 You were supported the other day in court by a range of people including your housemates and your godfather who is also your employer, and that support continues today. So much then for my relatively short statement as to your background, I act on the greater detail that is set out before me.
Guilty plea
53 Let me turn then to some of the other matters that have been raised on the plea. Firstly, to your guilty plea. In due course I will say a bit more about the chronology as the issue of delay had been flagged, at least in the written outline, as a powerful mitigatory consideration. For present purposes, however, it is sufficient for me to say that I will treat your plea as a very early guilty plea. You have taken this early responsibility for your crimes by pleading guilty, and that is important.
54 Earlier still, of course, you made very detailed admissions to the police in the formal interview and those admissions have been acted on no doubt to support the between dates nature of the indictment charge, though there was other evidence in support of that.
55 You were very cooperative with the police, and I take that into account as well. I pay regard to the additional cooperation referred to by your counsel and the affidavit which was compiled at your direction. See Paragraphs 5 and 6 of the outline. It is relevant in a number of ways, including as evidencing cooperation pure and simple, and also though as supporting the submissions made as to remorse and enhanced prospects of rehabilitation. It is a matter of significance over and above your early guilty plea, and I give it weight.
56 As a result of your guilty plea, the time, the cost and the effort of a hearing in the Magistrates Court, or a trial up in this court for that matter, has been avoided. All of the witnesses have been spared the experience of giving evidence.
57 You have facilitated the course of justice in these various ways and you must be rewarded for doing so.
58 At the tail end of the plea there was some discussion about the status of what has become known as the Worboyes[2] discount. I raised that matter as the submissions were silent on that score to that point, and having raised it, it was apparent that your counsel was proceeding on the footing, or the assumption, that that style of discount had lapsed into history.
[2]Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’)
59 There had been some resolution discussions which obviously did not succeed. The matter was booked in for a contested committal listed on 15 May of this year. It settled prior to the commencement of that hearing by which time I do accept that the global pandemic was behind us. By that stage the backlog in this court arising from the pandemic was well and truly under control. I suggested though to your counsel that there could still be some reduced weight attaching to the Worboyes line of authority in this case given the chronology. I understand his initial position that it had lapsed. If I may observe, it is probably close to the point in time now where any future decision to plead guilty will not be met by any heightened sentencing benefit. That is because we have not only sailed beyond the pandemic, but more critically, the pandemic backlog of work in this court has now been cleared. We are operating, in this court at least, at pre-pandemic levels as the Chief Judge recently announced to the profession. This case, however, settled at an earlier point, and though to a large extent the backlog was then under control, it still seems appropriate to give some heightened benefit to the fact of the guilty plea in line with that decision of Worboyes. That would have been, I think, an expected outcome at the time of the resolution of the matter. I will treat your guilty plea as worthy of some extra weight for the many reasons set out in that decision of Worboyes.
60 I take these various matters into account in mitigation.
Remorse
61 Your counsel argued that you were remorseful. Well, it is true that you have pleaded guilty and at an early stage and a guilty plea is often indicative of some remorse. I have your interview account, which despite your many admissions against interest, does not seem to me to be actually dripping with remorse at all. Nor is there any strong suggestion of remorse in your dealings with the expert or in dealings with the referees. You still, according to the expert – this is Dr Barth - have a lack of insight to a degree. In discussions with Dr Barth you challenged the suggestion that you had a handgun in the bedroom. Well, it is an agreed fact that you did. The fact is you committed this offence of possession of a traffickable quantity of firearms over a significant period of time in relation to a large number of guns and you did so in part owing to your association with Mathews and your quite strange beliefs. Beliefs held by you for a significant period. They obviously had some role to play. You were a survivalist, and it is hard to accept that you have just abandoned that mindset in an instant. However, I do not want to over analyse this; you have pleaded guilty. There have been significant ramifications upon you including, of course, being distanced from your children. You are now in prison. You also have cooperated very fully and I said that would have a role to play in the judgment I made as to the presence of remorse. It does. I am ultimately prepared to find the presence of remorse in this case, and I take that into account in your favour.
Delay
62 Your counsel in his written submission placed great weight on the delay. I believe he retreated to some extent in the course of the oral presentation on the plea. I agree that it is generally an unprofitable exercise conducting an audit of the reasons for a delay in a given case. The nature of the delay, its effect and what has been done in the currency of any delay is what is important. Here it is not a particularly long one and it is not suggested that it was brought about by some unduly and unfairly leisurely approach being adopted by the investigators or the prosecution agency. It was not a delay of the quality requiring the court to voice its disapproval of an unfairness to the accused brought about by such inaction. It was not unfair in that sense and your counsel made plain it was ‘not inordinate’.
63 The reasons for the delay are easy enough to understand in this case. You were charged. There were a number of committal mentions to clarify or obtain evidence or to consider the issue of resolution. There were a number of guns other than the ones that I am dealing with. Mathews had himself lived on this property at one stage and so there was a need to obtain and then consider various forensic testing results, including as I understand it, DNA and fingerprint evidence. It was, of course, your right to negotiate the resolution of the matter. The chronologies placed before me by each side set out the steps that were taken. True it is you had made very detailed admissions, but the fact is the matter did not settle until May of this year. That was on the day of the contested committal. That was your first offer to plead, as I understand it, responding to the crown offer from January of this year. Mr Fitzpatrick cites case law speaking of the potentially powerful mitigatory aspect of delay in some cases. This is not one of those cases.
64 You were charged in July 2022, pleaded guilty on the day of the contested committal listing in May of this year and here we are now in November. I am not saying any of this is easy for you. I do accept that in the period of the delay you have stayed out of trouble. You have complied with bail. You have worked and you have tried to get on with your life and done that with the dark storm cloud represented by this case hanging over your head. None of that is easy. I do not ignore the delay, I just do not accept that it is such a powerful consideration here as was referred to at least in the written submissions. However, I do give each limb of delay some weight. That is to say you have in the period of the delay continued on the path to rehabilitation and there has been some burden having the matter hanging over your head. Dr Barth after all speaks of the reactive nature of your adjustment disorder and the impact of having this matter over your head, and of course I do not ignore that.
Verdins
65 I turn to the Verdins submissions. The case of Verdins is a case from our Court of Appeal dealing with the impact upon the sentencing process of mental health or psychological conditions existing at the time of offence or sentence or both, and how they may be taken into account by a court. That is, I should say, a gross simplification of that decision and decisions following it, but it suffices for present purposes.
66 A court is actually meant to engage in a rigorous examination of the materials and experts are actually expected to address the key issues with some level of rigour as well.
67 The written submissions placed reliance on the application of two limbs, that is the fifth and the sixth limbs from that case, so an increased prison burden and a serious risk of imprisonment causing significant adverse effect on the condition. In the running Mr Fitzpatrick accepted that the sixth limb was very much problematic – it was. There was actually no evidence in support of it at all in the report which was being relied upon. He did not seriously press the application of the sixth limb in this case.
68 Dr Barth says you have an adjustment disorder with depressed mood. He says the depressive symptoms are primarily reactive to your legal predicament. Dr Barth has seen you three times. All of those attendances predated the settlement of the matter and he says that the test results indicated a noteworthy degree of response distortion. See Paragraph 11. You portrayed yourself in a more negative light by endorsing symptoms of depression and anxiety at a severe level of intensity. It is not clear to him if you were malingering or otherwise, but he says the test results are problematic. I note also, and I mentioned this earlier, that you took issue with the possession of a gun in the bedroom. Well, as I say, it is an agreed fact that the handgun was so possessed by you.
69 You have not had the need to consult a mental health professional over the course of your life. You told him you have not experienced any major mental health issues in the past. You did describe anxiety and emotional reaction upon the breakdown of your relationship with Ms Scott. Also distress at separation from your daughters. These things are hardly surprising. Dr Barth observed some depressive symptoms. He also to some extent acts on your self-report and also the test results.
70 The fact is that your depressive condition is primarily reactive to your predicament. Well, it is hardly surprising that you are deeply worried about these proceedings and what they hold for you. How could you not be? Dr Barth does not in any way directly address any future increased custodial burden. His report is really silent on that score. Your counsel asks me to infer that there is likely to be an increased burden. That is because Dr Barth says at Paragraph 36 that you remain at risk of further deterioration in your moods. At point two in the opinion section, Dr Barth says there is a risk that your mood could deteriorate under circumstances of further stress and there is a need for professional treatment. What does the future actually hold in this regard? What is likely? There is a risk that something could happen but is it likely to eventuate? What will pose further stress? This is all a bit speculative. There are limits to the weight I can give for this type of reactive condition. I do not ignore it. I had reservations about whether limb 5 was even enlivened in this case. The prosecution argue that it is not. I have though since the plea reviewed all the material as I said I would. Having done so, I am prepared to give some modest weight to the fifth limb. It is not a large matter on this plea by any stretch of the imagination.
71 It is plain you will worry about being distanced from your children and I give that some weight as well.
72 There is no material in that report coming close to enlivening the sixth limb of Verdins. I am not satisfied on balance that there is a serious risk of significant adverse deterioration arising here. Your counsel, I believe, recognised the limitations of the evidence in this regard.
Rehabilitation
73 Let me turn now then to your prospects of rehabilitation. I do not believe any particular adjective was employed but I certainly took your counsel to be speaking positively as to your future prospects. Well, a very decent starting point is your age and the complete absence of any prior criminal history. That combined with the complete absence of any matters arising subsequently and your good performance whilst on bail.
74 You had a decent background. You still have obvious support in the community from family and others.
75 You have not had any sizeable issues with drugs or serious diagnosed mental health problems, so there is the absence of those sorts of things that so often impede a person’s future prospects of rehabilitation. They just do not exist in this case. You are evidently a person with many strengths as are spoken of in the references, and the affidavit for that matter. You have been, it would seem, a committed father and you hope to be again. You have a pretty good, if not very good, employment record, and though there have been a variety of jobs, you have typically been employed. I also have the other material touching upon your character, for instance the bravery award that was conferred.
76 You have made full admissions and you have pleaded guilty at an early stage and cooperated, and you are remorseful to a degree.
77 Against all this though I have the long-term duration of this offending and the serious nature of it. You could have been under no illusions about the serious illegality of your conduct. These were illegal weapons. Illegal in your hands, Illegal in Mathews’ hands, and you took them on board and no doubt your survivalist interests had a role to play in your decision. Mathews was a likeminded thinker. So guns aplenty and ammunition all came your way - you concealed them. In the course of your possession of them you maintained them and cared for them, even repackaged them. You treated them as yours. You possessed them. At one point Mathews was off the scene. Though you have pleaded guilty and you are remorseful to a degree, your insight into your behaviour and strange mindset is far from complete, so says Dr Barth. It really is not particularly rational to be preparing for the end of the world. It has been a sizable focus in your life for many years. You have taught courses. You mixed with like-minded people and no doubt you fortify each other’s distorted or strange views of the world. You act in movies based on apocalyptic scenarios. You were clinging on to these fantasies in the real world and that was a product of your personality, says Dr Barth.
78 He says that all of this was to compensate for some of the failure in your life and the uncertainties produced by your failure to establish a fulfilling military career. So something to cope with the lack of trajectory in your life. You wanted admiration from others. You invested in projecting a persona to others of having these specialist skills due to your military background. He says this was underpinned by immature fantasies of your prowess at special operations roles, roles I note you have actually never fulfilled. I note that you wanted to be a member of the Special Forces in the army - you were not. You wanted to join the Australian Federal Police, but you wanted to head into a career in counter terrorism – you did not. Your application to the AFP was rejected. You were sacked from your job as a youth justice worker. Dr Barth says that your survivalist activities and mindset are in part motivated by a dysfunctional need to enhance your self-esteem by placing yourself in a position where you are viewed as a leader, one who is admired by others. The acting is an extension of that. I said earlier, in the interview you described standing in front of the mirror posing with some of the guns and thinking how awesome it looked. This was not as a 14-year-old, but rather as a 28 or 29 year old man.
79 Dr Barth says that your personality and behavioural adjustment has some problematic features and you have limited insight into these issues. You desperately desire approval and the admiration of others arising from what you present as a person with this purported prowess and specialist operational skills. These are dysfunctional personality traits. They inform, and to an extent have driven, your behaviour over the years. Well, I am not so sure it is as simple as being charged and then just snapping out of this very odd mindset. If you maintain those views, well that will have a role in reducing your prospects of rehabilitation, there is no question about that.
80 I do expect though that there will be a deterrent effect arising from my sentence. So the time that you have spent in custody and the time that lies ahead will deter you to a degree. You will wish to engage again with your children, at the very least upon your release from prison, and you will surely understand that continued adherence to these distorted views of the world, well they would hardly recommend you to a Family Court Judge charged with the task of determining whether or not you should have a significant role in the children’s lives. You love your children, and you miss them, so there will be a strong incentive for you to abandon or shrug off your past mindset and hopefully leave the zombie killers and survivalists to their silly games. Or if not that, at least recognise that that survivalist mindset must not be accompanied by the illegal possession of any firearms or explosives.
81 Dr Barth speaks of your treatment needs. When I consider your future prospects and risk of reoffence, I must not lose sight of the fact you are 30 years of age and you have no prior convictions at all. You are an intelligent enough man, and you are not someone who has troubled the courts before. You do not have a track record of disobedience to the law or to court orders for that matter. The only reason I am in any way guarded as to your future prospects is because of the nature and duration of the major charge – that is Charge 1 on the indictment - and the strange mindset which has to a degree driven or informed your behaviour. However, having considered afresh since the plea all the material placed before me in the course of the plea, ultimately I believe that you do have favourable prospects of rehabilitation, and as far as I can determine presently, a relatively low risk of reoffending in this way again.
COVID-19
82 Towards the end of the plea it was made clear that your counsel placed no submission before me as to any future increased custodial burden arising from the COVID-19 pandemic. This was in recognition of the fact that you now enter custody at a time where the impacts of the pandemic on prisoners has dissipated. You had the 53 days from July of last year and even then the harsher COVID-19 restrictions which had been in play had been relaxed to a degree. I do accept though, and I mentioned this earlier, that that 53 days was very tough given your isolation in that timeframe. But there is no future COVID-19 increased burden in play anymore.
The Offences
83 Let me deal with the offending. I have already summarised the offending earlier in these reasons, and of course the agreed summary goes into far greater detail. It sets out the nature of the items possessed, the number and the nature of the firearms capable of discharge, as well as the quantity of ammunition and other weapons and explosives. I also have the photographs. I see no need to descend in detail now to the facts. Your counsel concedes that the charge on the indictment is a serious example owing to the large number of weapons. He added to that the nature of those weapons and the duration of the possession. He was correct to make that concession.
84 There are statements of principle in a number of the Court of Appeal decisions to which I have been referred.
85 In the case of Djemal[3] the Court of Appeal said the following:
'The maximum term of imprisonment for possession of a trafficable quantity of unregistered forearms is 10 years' imprisonment. As explained in DPP v Fleiner,[4] the offence of possession of a trafficable quantity of unregistered firearms is based upon s7C of the Firearms Act 1996. The purposes of that Act are to give effect to the principle that the possession of firearms is conditional on the need to ensure public safety and peace by establishing appropriate systems for licensing them, and for the regulation of their possession, carriage and use, for dealing in them and acquiring and disposing of them, and for their registration and secure storage.'
[3]Djemal v The Queen [2020] VSCA 25
[4] [2010] VSCA 143.
86 The case law in this area makes clear that general deterrence is a significant consideration and the reasons for that. These sorts of crimes are actually hard to detect.
87 All things being equal, the number of firearms and the nature of them will have a real role to play in the assessment of the seriousness of the offence. You had eight times the traffickable quantity. I note that the earlier version of this provision had a threshold for trafficable quantity of 10 firearms. That was reduced to three and then to two. The provision itself and the way in which that threshold for traffickable quantity has lowered conveys Parliament’s growing concern as to the prevalence of firearms in the wrong hands.
88 It will of course be a significant aggravating feature, if there is some underlying criminal purpose attaching to the possession. So if there is some ongoing criminal activity or further crime in contemplation or some link into potential supply into the underworld. Those things that typically would fall into the more serious Berichon[5] type category are features of aggravation equally applicable to this provision. I am not dealing with anything like that here, I make that abundantly clear. However, your offence is a serious enough example owing to the large number of firearms all capable of discharge, firearms possessed by you in the manner described, the presence of some ammunition and the duration of the possession. Then of course there is the actual nature of these firearms. This was a serious arsenal and it was in the wrong hands. Your hands were the wrong hands. You had no licence to possess any weapons. You could never have obtained any licence to possess many of these weapons. Even had you applied to the Chief Commissioner for a firearms licence for a single shot bolt action rifle, you would be required to specify the particular reasons from a very limited category of available reasons as to why you wanted and needed a licence to possess a firearm. If you spelt out your reasons for wanting one, that is, that you were in some way preparing for the end of the world, it is inconceivable that any licence would be issued to someone with that mindset. But it is the person with that strange mindset, who is the person possessing these very weapons, amongst them a number of semi-automatic weapons and three machine guns.
[5]Berichon v The Queen [2013] VSCA 319
89 I am not suggesting they were bound elsewhere or designed to be released to others, there is no evidence in support of that at all, but theft of firearms is not at all unheard of. In fact it is now provided for in a specific provision within the Crimes Act. When stored in the manner that these were stored, there is always a risk that these firearms could have fallen into other and in fact sinister wrong hands.
90 This was a serious example of the offence notwithstanding that it was not connected with any ongoing criminal purpose or activity, and that much was conceded by Mr Fitzpatrick.
91 I have scarcely mentioned the other offences. They are obviously all far less serious than the indictment charge and I will say little more about them. In fact a number of them do not even have a term of imprisonment available.
Purposes
92 I have to consider a number of purposes of sentencing. One of those purposes is your rehabilitation. I must pay regard to your prospects of rehabilitation. I believe those prospects are favourable.
93 I am required to punish you justly and proportionately.
94 I am also required to denounce your conduct, and that of course is of importance.
95 I must give some weight to specific deterrence. Specific deterrence relates to the need to deter you from offending in the future. I cannot just ignore that purpose. It must be adequately reflected in my sentences given the serious nature of the offence on the indictment and the duration of that offending. Also, your unusual personality traits and limited insight spoken of by Dr Barth. However, there can be some moderation owing to my favourable views as to your future prospects and what I judge to be a low risk of reoffence. Obviously, if you had relevant criminal history or you had lesser prospects of rehabilitation, specific deterrence would be given greater, if not far greater weight. But that is not the position here and it can be moderated in this case.
96 There is, however, the need to adequately reflect general deterrence, and that is a very different proposition. There is no basis to significantly moderate that purpose at all. General deterrence relates to the need to deter others. It is an important consideration for these sorts of crimes. Firearms offences are difficult to detect. This court must send a clear message to others in the community who may be thinking of committing the sorts of crimes that you have committed. Likeminded future offenders must be deterred from offending in the manner that you did.
97 Community protection is another purpose of sentencing. These provisions are in large part designed to protect the public. This purpose though can be moderated owing to my favourable views as to your prospects of rehabilitation and the low risk of reoffence that you present. It still has some role to play given the seriousness of the major offence, just a far more limited purpose given my favourable findings.
98 I am required to have regard to the maximum penalties. The major offence has a 10 year maximum term of imprisonment.
99 I also have to pay regard to current sentencing practices.
100 Current sentencing practices are not a single controlling factor.
101 I have looked at the relevant Sentencing Advisory Council online data for past sentences for the indictment matter. There was no formal Sentencing Snapshot for this particular crime. There were very few cases where possession of a trafficable quantity of firearms was the principal charge in the five years to June 2021.
102 I have looked at some instances of sentences for this offence, as set out on the Judicial College of Victoria sentencing site. I have also looked at the various County Court sentences to which I was referred. It was not suggested that any of them were comparable, and having read them, they were not. I said earlier, there are differences in almost every direction, some in your favour, some not. The same can be said for the various Court of Appeal decisions that I have been referred to.
103 The fact is that even comprehensive statistics have inherent limitations. All the details which would explain the reasons for a particular sentence are omitted from statistical data, and of course they do not even exist in this case.
104 Though I have looked at these other cases to which I have been referred, no amount of looking at other cases or the statistics can ever provide the answer to my task. Sentencing is not some statistical or mathematical task. I must sentence you, and in doing that I am required to take into account the matters in aggravation and in mitigation in this case; in your case.
Totality
105 I have taken a last look at the orders that I intend to make and I have done that to guard against a crushing outcome and to ensure that the total effect of my sentence is commensurate with your overall criminality here. I have many charges but plainly the most serious is the charge on the indictment. When I considered the relationship between the charges, I took the provisional view that at the least, very sizable concurrency was warranted here. In fact when I have considered the common thread to the charges, having reviewed the matter since the date of the plea, I have ultimately taken the view that there can be total concurrency here in relation to the one other summary charge for which I will imprison you.
106 Prison is a disposition of last resort. Mr Fitzpatrick conceded there was no other option here.
107 However, he argued that it might be open to deal with you by way of a combination-type sentence with your ultimate release onto a suitably conditioned community corrections order. If I thought such a disposition could actually achieve all the purposes of sentencing, then I would be bound to proceed in that way. That statement that I have made simply recognises the statutory position within the Sentencing Act that a court must never impose a more severe sentence than is required to achieve the various purposes of sentencing. You have, however, only served 58 days by way of pre-sentence detention. I have only a period of an additional 12 months to work with.
108 In any event, I do not believe that a combination-type sentence is appropriate in this case. I do not believe it would achieve the various purposes of sentencing. It would pay, in my judgment, inadequate weight to general deterrence and denunciation. I believe a sentence of a dimension requiring the fixing of a non-parole period is required in this case.
109 I will be required as a matter of law to fix a non-parole period and I will provide a decent gap between the head sentence and the non-parole period. Whether you are released on parole is not a matter that I am permitted to consider. That will be exclusively in the hands of the Adult Parole Board. Really it is between you and them and I am not to have any regard to that. I will provide my reasons to the Adult Parole Board in due course.
Ancillary Orders
110 There are some ancillary orders in this case. Firstly, there is a forfeiture order sought under the provisions of s151 of the Firearms Act for the forfeiture of the various items set out in the lengthy schedule. There is no opposition to the making of that order. It is consented to. I am satisfied that the pre-conditions to the making of that order are made out.
111 I order pursuant to the relevant provision of the Firearms Act, s151, that the property referred to in the schedule is forfeited to the Minister.
112 Secondly, there is a disposal order that is sought in relation to various other items that are not firearm related, and again there is a lengthy schedule. Again, there is no opposition to the making of the order and again I am satisfied that the relevant provisions of s9(1) of the Control of Weapons Act are made out.
113 Pursuant to that provision, I direct that the items referred to in the schedule be forfeited to the State and be dealt with and handled in the manner contemplated by the signed order.
114 I am sorry to have taken so long. I will get you to stand up now Mr Spiers.
Sentence
115 On Charge 1 on the indictment, that is the charge of possession of a trafficable quantity of firearms, you are convicted and sentenced to two years four months' (28 months) imprisonment. That is the only charge on that indictment, hence the only sentence. I will still describe it as the base sentence.
116 Let me deal with the five summary matters.
Summary matters.
117 On Charge 4 which is the possession of the ammunition, under that relevant provision, that offence is not even punishable by a term of imprisonment. I convict and fine you the sum of $1,000 on that charge.
118 On Charge 5, possession of various imitation firearms, that is a rolled-up charge, you are convicted and sentenced to two months' imprisonment.
119 On Charge 6, that is the possession of the various prohibited weapons, again it is a rolled-up charge. I am not satisfied that a prison term is actually warranted for that matter. On that charge you are convicted and fined the sum of $500.
120 On Charge 7, possession of the body armour, again, I am not satisfied that a prison term is warranted for that matter. On that charge you are convicted and fined $300.
121 On Charge 8, that is the charge of possession of explosives, as with Charge 4, that charge is not actually punishable by a prison term. On that charge, you are convicted and fined the sum of $1,000.
Cumulation or concurrency
122 The prison sentence imposed on Summary Offence 5 will be served concurrently with the two year and four month term imposed on the indictment charge.
Total Effective Sentence
123 The total effective sentence therefore is two years and four months, or 28 months' imprisonment.
Non-parole period
124 I fix a period of 15 months during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
125 You have already served 58 days of this sentence by way of the pre-sentence detention and that s18 declaration is entered into the records of the court.
Section 6AAA.
126 Finally, I have told you I have taken into account your guilty pleas and reduced your sentence accordingly. If you had pleaded not guilty and been found guilty of these offences following a trial before a jury, I would have convicted and sentenced you to four and a half years' imprisonment. I would have fixed a non‑parole period of three years and two months.
127 Just grab a seat then for a moment, I will see if there is anything else. Anything else from your perspective, Ms Marcs?
128 MS MARCS: No, Your Honour.
129 HIS HONOUR: Mr Fitzpatrick?
130 MR FITZPATRICK: No, Your Honour.
131 HIS HONOUR: I will get these reasons back from VGRS in due course. I am starting a trial, I believe, on Wednesday but my practice is to revise them on the day that I get them back so once that is done I will make them available to the parties.
132 Is there any need for custody management directions or anything like that?
133 MR FITZPATRICK: No, Your Honour.
134 HIS HONOUR: And I am not sure if you have anything else on today, will you go down and see - - -
135 MR FITZPATRICK: I'm going down to see him, Your Honour.
136 HIS HONOUR: You'll go and see him, alright, thank you. That completes the matter then, Mr Spiers, so I will sign those formal orders when they're presented to me but Mr Fitzpatrick will come down and have a chat to you about what has occurred here today and your rights in relation to the sentence that I have imposed. So he will take a bit of time to get down to see you but he'll see you before you move on, okay? So that completes the matter so if Mr Spiers could be removed now, thank you. Nine-thirty Wednesday then please.
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