Director of Public Prosecutions v Warrick

[2023] VCC 1701

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT HORSHAM

CRIMINAL JURISDICTION

CR 19-01190

DIRECTOR OF PUBLIC PROSECUTIONS

v

JADE WARRICK

---

JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Horsham
DATE OF HEARING:	11 September 2023
DATE OF SENTENCE:	12 September 2023
CASE MAY BE CITED AS:	DPP v Warrick
MEDIUM NEUTRAL CITATION:	[2023] VCC 1701

REASONS FOR SENTENCE

---

Subject:  CRIMINAL LAW

Catchwords:             Handling stolen goods – rolled up charge

Legislation Cited:

Cases Cited:

Sentence:                 2 year Community Corrections Order, $25,000 fine

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Grant	Office of Public Prosecutions
For the Offender	Mr N. Howard

HIS HONOUR: 

1Jade Warwick, you have pleaded guilty to one rolled-up charge of handling stolen goods contrary to s88(1) of the Crimes Act. Maximum penalty 15 years' imprisonment.

Circumstances of the offence.

2The circumstances of the offence were set out in the prosecution opening which was read in open court on the plea and which I incorporate by reference. You had faced a number of charges including burglary and theft and handling stolen goods, which were listed for trial last week. After a preliminary argument where your counsel unsuccessfully sought severance of a separate charge of possessing an unregistered long arm, as a result of negotiations between the learned prosecutor and your counsel, a new plea indictment was filed over and you pleaded guilty to the single charge of handling stolen goods. The stolen goods comprised five unregistered defaced handguns which had been stolen in a burglary on the home of a local solicitor who was a collector of pistols and a member of the local pistol club, of which you were also a member.

3The background to your plea to handling the stolen pistols is that you were involved in transferring each of the firearms to three other locals here in Horsham.  The actual burglary occurred in late February 2017.  Your offending spanned the period 1 December 2017 until 31 July 2018.

4In the case of the first firearm, you provided it to Mr Higgins via Mr Turnbull and received $500.

5In relation to the second and third firearms, you sold them to Mr Turnbull for $2,000 each.  In relation to the fourth firearm, you gave it to Mr Turnbull.  There was some suggestion it was in exchange for a set of jumper leads.

6In relation to the fifth firearm, you provided it to Mr Yole who worked in a local firearms and outdoor recreation shop, who sold it to Mr Higgins for $1,000.  You did not receive any funds from that.

7In relation to each of the firearms, by your plea, you have admitted that you knew they were stolen.  Because each of them had defaced serial numbers, you must be taken to have known they were not registered.  It follows you bear high moral culpability for this offence.

Seriousness of the offending.

8The offence of handling stolen goods can occur in a wide variety of circumstances.  In assessing the seriousness of the offence, the subject of the stolen goods is always a very important consideration.  Here there were five pistols in working order.  They were the proceeds of a burglary at the home of the complainant.  It is common ground that you were not involved in that burglary, and you cannot be sentenced for that.

9Further, the prosecution accepted that although you transferred the firearms to three other individuals, the prosecution does not submit that it can be inferred that the firearms were to be used to commit further crimes, and in fact the pistols themselves were recovered and did not enter the criminal milieu.

10This makes your offending significantly out of the ordinary.  Your motivation for the offending remains opaque.  As you received monies for three of the firearms, I infer that it was for a financial motive and to assist others who you were aware were either members of a pistol club or interested as collectors in these types of firearms.  You personally held a number of firearms and were appropriately licensed at the time of the offending.

Victim Impact Statements.

11The complainant in this matter, Mr Graham, has filed this day a very powerful victim impact statement.  The theft of his collection of firearms has had a major impact on him.  As I indicated, a safe was stolen from his property containing 16 of his handguns which he says were worth in excess of $30,000 and were basically irreplaceable. 

12He suspects you of being involved in the theft, but you are not to be dealt with for the theft.  He effectively notes that you continued to see him after the theft and presented as though you knew nothing about it, and as he said, 'It was as if he was playing me for a fool, which in hindsight he did very well.'

13He notes that the sequelae of this offending resulted in him actually being charged by the local police with failing to properly store his firearms and he was humiliated by having his name appear in the law list and requiring to appear in his own home court on a charge, and another magistrate had to be brought in to town to deal with the matter.

14Insurance was denied for the loss of his firearms. 

15He also notes in his victim impact statement that the matter has been before the court for a number of years, and he has been required to clear his diary in order to be prepared to give evidence in court because the matter was always listed for a trial and often your counsel, he said, was unavailable.  He notes that you maintained your plea up until the very day that the trial was expected to commence.

16He notes that because of his need to become available for the trial when it occurred:

'That impacted my business yet again and added to the significant financial loss I have already suffered.  I also felt incredibly emotionally unsettled, which I found difficult to imagine.'

17The impact of the burglary, which I have indicated you are not being held responsible for, has had a major personal impact on him, which is set out in his victim impact statement.  He is now hypervigilant; he has had to put in security devices.  He has lost self-confidence in his private life and his self-worth and his professional life.  He has become very emotionally impacted by that, it has affected his social life and his ability to contemplate new friends.

18He says:

'The burglary and subsequent events have impacted my practice due to Horsham being a small town and the case being known by many.  The rumours are still out there.  I have heard some people have found it difficult to separate my guns being stolen and me being in court on a firearm's charge.'

19He notes that Mr Yole, who was dealt with for some of these firearms, he dealt with him subsequently, and again he looked him in the eye and he said:

'Paul must have thought I was the greatest idiot in the world when he looked me straight in the eyes and acted as if he was a friend of me when I had my stolen guns he got from also referred to Mr Higgins having approached him to act for him in relation to possession of the firearms.

21He is of the view that you should be the subject of a substantial sentence for this offending.

22It is clear from the victim impact statement, and even excluding those parts of the victim impact statement that refer to the burglary and the intrusion on his privacy by the burglary, and focusing on the impact of your offending, namely handling five of the pistols that were stolen, it has had a major impact on him and I must take it into account in sentencing you, and I do.

Personal Circumstances.

23You are aged 42 and you were 36 at the time of this offending.  You have an older sister and have good relations with your parents who are on the land west of Horsham.  

24You were brought up in the Horsham area and went to the local secondary college until Year 9.  You then undertook courses at Longrenong and have a certificate in agricultural farming and you work on your parents' farm.

25When you were aged 19 you were involved in a very serious single vehicle accident where you suffered injuries to your shoulder and back and had to spend three months in rehabilitation in Melbourne.  You returned to live with your parents and your ability to work on the farm was, and remains, restricted.

26You recovered sufficiently to establish a separate household and you married in 2011 and your wife had a daughter in 2016.  Your daughter is now eight.  You and your wife were involved in a bitter divorce in 2019 and you have a co-parentin arrangement with her in relation to the child.  You are actively involved in your child’s daily and recreational activities.

27You have been a member of the local CFA and assisting the local cemetery trust.

28As a result of the motor vehicle accident, you have significant back problems.  You have been on the waiting list for significant back surgery, and I was provided with a medication note.  You have been receiving Centrelink incapacity certificates since 2019 from the local doctor and you attend at the local clinic.

29I was provided with references as to your good character from your neighbours on your farm and in Horsham.  The reference from Mr Brennan notes that you are extremely remorseful for your conduct, and he regards it as out of character, and you have seen it as a life-changing event.

30Another neighbour, Mr Maroske, regards you as honest and you have been prepared to assist the local community.

31Similar references were provided by Mr Hateley who has known you for some 20 years and in particular in your role with the CFA.  Mr Harris, another local, speaks of your good character.

32The references, thus, make it clear that you are remorseful for your conduct and that it is out of character and that you have sought to put it in the past.  There is also reference to your being remorseful in the CCO report.

Parity of sentencing.

33Parity is an important consideration where offenders are involved in different roles in criminal offending.  The five pistols the subject of this charge emanate from the burglary on the property of Mr Graham.  The prosecution accepts that you had no role in that event.

34Notwithstanding this, the gist of your offending is that you were involved in the transfer or handling of five of the firearms that you were aware were stolen.

35In relation to Firearm 1, you provided it to Mr Turnbull who in turn transferred it to Mr Higgins who paid $500.

36In relation to Firearms 2, 3, and 4 you transferred them to Mr Turnbull.

37In relation to Firearm 5, you gave it to Mr Yowell who then transferred it to Mr Higgins.  Money was involved in three of the five transfers, although you did not actually receive anything in relation to Firearm 5 and Mr Yowell kept the money that he had received from Mr Higgins.

38Your co-offenders Mr Turnbull, Mr Higgins and Mr Yowell were dealt with in the Magistrates Court.  Both Mr Higgins and Mr Yowell have passed away.  The three of them were all dealt with on 15 February 2019 for different offences under the Firearms Act, whereas you face a single charge under the Crimes Act.

39Mr Turnbull was dealt with for a large number of offences and the factual substratum of these offences bears a significant relationship to your offending. Thus, he pleaded guilty to one charge of receiving stolen goods, being Firearm 1.  He was then dealt with for being in possession of a trafficable quantity of firearms, being Firearms 2, 3 and 4.

40He was also dealt with for possession of firearms without serial numbers being Firearms 2, 3, 4 and 1.  He also faced two charges of acquiring firearms otherwise than from a gun dealer.

41All these charges relate to firearms one to four.  He also faced an additional charge of possession of an imitation firearm.

42There was another charge of failing to store a longarm and ammunition.  The learned magistrate imposed an aggregate sentence of a $10,000 fine and a two-year CCO.

43It is inherent in your charges that the firearms were not registered and that you were not entitled to possess them and that they were defaced.

44In considering the sentence imposed upon Mr Turnbull, he was dealt with, on four charges that under the Firearms Act that provide a penalty of imprisonment and a monetary penalty.  Thus, the offence of possessing a firearm with no serial number carries a penalty of four years' imprisonment or 240 penalty units. Acquiring a handgun from a person who is not a licensed dealer carries a penalty of five years' imprisonment or 600 penalty units.  Possession of a trafficable quantity of firearms carries a penalty of 10 years' imprisonment or 1200 penalty units, and possession of an unregistered handgun carries a penalty of seven years' imprisonment or 600 penalty units.

Parity with Mr Turnbull.

45The learned prosecutor submitted that in considering the issue of parity between you and Mr Turnbull there were significant differences that called for a sentence of imprisonment being a component of any sentence.  He relied on the fact that Mr Turnbull was dealt with for only four firearms, whereas you were involved in handling five.

46Next, and significantly, Mr Turnbull was sentenced on the basis that he agreed to give evidence against you, should he be required to do so, and that is recorded in the court order.

47The learned prosecutor submitted that this was a very significant matter.

48The learned prosecutor also referred to the fact that Mr Turnbull pleaded guilty to the offences early.  Thus, he was accorded the benefit of an early plea when he was dealt with by the Learned Magistrate on 15 February 2019.

49Your counsel submitted that there were major difficulties with the proposed evidence of Mr Turnbull and conflicts between his account and that of Mr Higgins in relation to the first firearm.  I do not accept that as being of any significance. The fact is he undertook to give evidence against you and it was subsequent to that that you have decided to plead guilty to the charge you face

Sentencing submissions.

50Your counsel submitted that notwithstanding the matters relating to a discount for co-operation with the prosecution, and the early plea of guilty, other matters were such that sentencing here called for a sentence that was comparable to that imposed on Mr Turnbull, and in particular the sentence ought to be a non‑custodial sentence.  He invited the court to impose a substantially higher monetary penalty than that imposed on Mr Turnbull.

Delay.

51Delay is a very significant factor in this case.  It is referred to in the victim impact statement by Mr Graham.  It is over five years since the index offending.  It is over four years since you were committed for trial.  The matter was first listed for trial in a circuit commencing on 10 March 2020, three and a half years ago.

52The authorities recognise that there is an element of unfairness in sentencing an individual for what is a stale offence. In your case the delay is very considerable, and you have not been responsible for that delay.

53It is notorious that the pandemic has caused significant delays in the criminal justice system.  Those delays have often been more pronounced in circuit matters, particularly in smaller circuit towns such as Horsham, where sex cases and custody cases have been given priority.

54Your legal advisers considered, but then abandoned, an application for the case to be transferred to Melbourne.  It was transferred to Ballarat in November 2021 but was unable to be reached.  The undisputed chronology is set out in the prosecution opening, which I incorporate by reference.

55The delay here is a weighty matter given that you have gone about your life since you were charged.  Some of the vicissitudes of life have befallen you, such as a marriage breakdown, leading to mental health problems, adjustment of custody arrangements of a young child and the breakdown of your health in 2019 such that you have been on Centrelink benefits since that time because you have been unable to work and are awaiting significant back surgery.

56The references before the court indicate that you are well regarded in your local community, you have put into your local community through membership of the CFA and your offending is regarded as very much out of character.

57On the basis of your prior good character and your lack of offending since you were charged, you are well on the way to rehabilitation.  The expressions of remorse reflected in the references from Mr Harris, Mr Brennan and in the CCO report are also relevant to your prospects of rehabilitation.  I regard your prospects as being very good.

58Your counsel asked that the period of delay be taken into account in your favour as you are being dealt with four and a half years after the index offending.  The delay is very significant, and the authorities raised indeed by Mr Grant in his submission indicate that it must be taken into account.  You have had this matter hanging over your head since its resolution this week.  You are entitled to have the delay taken into account in your favour.  You are also entitled to have taken into account the fact that you have not further offended since that delay and thus, as I have indicated, your rehabilitation is well advanced.

59A further matter emphasised by your counsel is the benefit of a plea of guilty.  It has significant utilitarian value.  It has obviated the need for the complainant and others to give evidence in the case.  It was however a late plea and the matter has been the subject of a committal.  Your counsel emphasised, however, that you have always maintained you had no involvement in the burglary and that was the sticking point to a resolution of the matter.

60I accept that the plea of guilty is evidence of your remorse, and as I have indicated, there is evidence of remorse in the references and the CCO report.

61The question is whether the late plea of guilty and the delay and the impact of the pandemic on the criminal justice system is such that in the instinctive synthesis a sentence comparable to that of Mr Turnbull would meet all sentencing purposes.  I regard the sentences imposed on Mr Yowell and Mr Higgins as having little relevance, given they were dealt with for a lesser number of offences. 

62Your counsel submitted that insofar as the plea was late, then a higher monetary penalty would still mean that Mr Turnbull would not have an unjustifiable sense of grievance in relation to any sentence.  Clearly Mr Turnbull’s sentence was discounted by the learned magistrate by his offer to co-operate and the early plea.

63The authority of Worboyes requires that there be a perceptible amelioration of sentence where the plea is entered in the pandemic backlog that the criminal justice system faces.

64In considering whether a non-custodial disposition can meet all sentencing requirements, I must take into account the prosecution submissions that general deterrence is a very important factor in relation to firearms offences, and the seriousness of the offences increases with the number of firearms involved.  I must also take into account the impact on the complainant.

65I have also taken into account your plea of guilty, your remorse and a discount for the plea in the Covid environment.  I have also taken into account the delay, considered the overarching principle of parsimony, and considered the comments often repeated in the case of Bolton, that a community corrections order can, in certain cases, meet all the requirements of sentencing.

66In considering that a combination of a heavy monetary penalty and a community corrections order can meet all the requirements of sentencing, I note in relation to a number of offences under the Firearms Act, including possession of an unlicensed firearm, as I have indicated, the penalty involved can include a sentence of imprisonment and a monetary penalty.  As I have noted, part of the factual matrix of your offending involved breaches of the Firearms Act, offences for which Mr Turnbull was dealt with.  I accept, however, that you were the source of the firearms involved in this case and in his case.

67Courts are always required to consider alternatives to the community’s ultimate sanction, namely imprisonment.  Here, general deterrence and denunciation can be met by a very substantial monetary penalty and a community corrections order.  Despite your physical and psychological difficulties, your counsel did not dispute that you were in a financial position to meet a substantial monetary penalty.

68The learned prosecutor submitted that a combination sentence, however, would not be within range.

69Having considered the competing submissions, I have reached the conclusion that a substantial monetary penalty and a community corrections order can meet all the requirements of sentencing.  The case is a very stale case, and indeed two of the people involved, Mr Higgins and Mr Yowell, have passed away.

70Your conduct in handling these firearms that you knew to be stolen must be utterly condemned.  Those who are licensed to possess firearms are in the privileged position in the community, and there are substantial penalties for failing to comply with the licensing requirements.  When you dealt with these firearms you have admitted that you knew they were stolen, yet you proceeded to transfer them to three other individuals for a monetary gain.  At all times you knew they were stolen and that they were defaced. 

71Your conduct must be utterly denounced, it has had a major impact on the complainant in this matter and you have yet to apologise to him.  For reasons for which you are not responsible, there have been substantial delays in this matter and in those circumstances, it would be unjust for you to be deprived of your liberty. You have moved on with your life and the sentence of the court, to some extent, must recognise that.

72You have indicated that you are prepared to consent to a community corrections order.  I am proposing to sentence you to a fine of $25,000 and to a two-year community corrections order, provided you consent to it. 

73I will hand a copy of the draft order to counsel and ask that they explain it to you, and if you are prepared to consent to it, to sign it and then I will reconvene the court in a moment.  So I will stand down temporarily.

74(short adjournment.)

75MR HOWARD:  Thank you, sir, that document has been signed by Mr Warrick.

76HIS HONOUR:  And I have made the disposal order that you sought, Mr Grant.

77MR GRANT:  Thank you, Your Honour. 

78HIS HONOUR:  Mr Warrick, you have heard the reasons why I reached the conclusion I did.  I have placed you on a two-year community corrections order, commencing today.  As part of the sentence, I referred to the decision of Bolton, which the Court of Appeal said some years ago that a community corrections order is a punitive order, it requires you to be under supervision for the next two years and receive visits from the Community Corrections officer, if required, and to undergo any mental health assessment that they may require. 

79I have not imposed any community work given your physical condition and I have not imposed any other orders.  But it does mean that you have to get their permission to leave the state and be under their supervision and undergo whatever health requirements they impose.  And I have imposed a substantial monetary penalty on you and taken the view that given the delay it would be inappropriate to send you to imprisonment, but you can regard yourself as very lucky.

80I want to thank counsel for their assistance in this matter, a long-running matter, and in particular both counsel for negotiating the matter to resolve it to a plea.

81MR GRANT:  If Your Honour pleases.

82MR HOWARD:  As the court pleases.

‑ ‑ ‑