Director of Public Prosecutions v Weatherstone

[2023] VCC 267

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

CR 22-02005

DIRECTOR OF PUBLIC PROSECUTIONS

v

CALLAN WEATHERSTONE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	22 February 2023
DATE OF SENTENCE:	23 February 2023
CASE MAY BE CITED AS:	DPP v Weatherstone
MEDIUM NEUTRAL CITATION:	[2023] VCC 267

REASONS FOR SENTENCE

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Subject:

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Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Mr T. Glass	Slink & Keating

HIS HONOUR: 

1Callan David Weatherstone, you have pleaded guilty to one charge of conduct endangering persons, one charge of possessing unregistered Category A longarm, one charge of handling stolen goods, and one charge of possession of a drug of dependence.  Those crimes carry a maximum penalty of five years, two years, 15 years and in the circumstances, I am satisfied obviously that the drugs were for personal use, one year.

2You are now 33 or 34 years of age.  In this matter, you not only pleaded guilty at the earliest reasonable opportunity but in fact, the Crown case is based entirely upon admissions made by you to police.  It will become clear as I go through the summary of the actual offending.  I have no doubt that your plea of guilty is accompanied by genuine remorse.  You must get the very strong utilitarian benefit of this plea of guilty, particularly as it has been noted many times in relation to the matters outlined in Worboyes.  This is a situation where your, as I have said, confession if you like is the basis of the Crown's case; what is known apparently as a Doran discount and it must be given real significance. In fact, if you had not gone to the police station, I doubt it very much whether any charges would have ever been laid against you. 

3You spent 48 days on remand after you went into the police station.  I can understand why police would have been concerned about what was going on but that was a very significant punishment in any event. 

4There has now been a delay in the matter coming on for hearing and I take that into account.

5You do have significant prior convictions some of them being of antiquity but I note that you have never before until that 48 days as I understand it been sentenced to a term of imprisonment. 

6The situation is that on 14 June 2021 at approximately 8.30 at night you were at home at your address in Moe with your partner, your three children and apparently other people.  During the course of the evening, you were notified that a group of people were on the way to your address and were looking for another unidentified person over a drug debt, as I understand it, from reading through the materials.  You tried to convey a message that the person they were looking for was not at your house. 

7At about 9.45, a group of people arrived at your address, the Crown opening says, in a dark-coloured hatchback.  It appears there were more vehicles than that involved.  But in any event, parked directly opposite your house and a group of people exited that vehicle or vehicles and approached your house.  You were with your son in the loungeroom and your other two children were at home as well.  They all have difficulties, one is in the circumstance of a level of blindness and the other two children would appear to be autistic. 

8In those circumstances, with your partner there as well, you moved your son into a bedroom and put him under a blanket.  You then retrieved a 12-gauge shotgun which you stored in a roof cavity in a soft firearm case.  You ran to the front of the house via side gate and fired two shots in quick succession, the opening says, at the group and I accept on the material before me that you were not endeavouring to hit anybody.  In any event, that is conduct endangering and possessing an unregistered longarm.  That group of people saw you with the firearm and began fleeing to their vehicle or vehicles and drove off out of the area.  You retained the gun, left the premises and the balance was made up of descriptions by witnesses. 

9Several neighbours told police they heard gunshots, observed several vehicles fleeing from your house.  A witness said that she observed a group of men enter several vehicles fleeing the house at a fast rate of speed with tyres screeching straight after the gunshots.  Power Avenue in Moe is an area that is well known to me from having sat down here many years and dealt with the problems arising in that street.  One of the witnesses indeed has sufficient ballistic expertise to say that the shotgun sounded to him like a sawn-off shotgun coming from the backyard of that house.

10In any event, one person observed approximately six people standing in the front yard and it is quite clear from all of that that those people intended to do an aggravated burglary based upon the concept of assault.  And so in the situation where yourself, your partner and your three disabled - and I do not mean that in an unfair way - disabled children would have been in direct line of fire of these people, you were unaware as to whether they were armed and nobody seems to be able to say whether they were or not.  In any event, it is a situation where I accept your explanation that you were simply trying to scare them off and that you were not trying to actually shoot anybody. 

11My personal view:  This could have been dealt with in the Magistrates' Court on a discharge of firearm in a public place but that is not the case.  You are here and that is what has to be dealt with. 

12In any event, police attended the address and found 227 grams of cannabis in Snap lock bags.  You yourself were using that and I accept that as Charge 4 of possession.  They found the empty black gun bag from which you have taken the shotgun and found out in the street and inside your house a couple of shotgun wads.  They were seized.

13On 17 June, a few days later, you contacted police.  You spoke to investigators.  You surrendered yourself.  You then went in, you disclosed to a Detective Smith there was a dismantled shotgun in the boot of your car and you gave him the keys to your Holden Sedan.  That dismantled shotgun was taken from the vehicle and accordingly, had been effectively just simply given to police by yourself. 

14I point out at this stage it is my view that it is almost - do not think I have seen it before where a person just hands in a weapon of that nature in these circumstances where it could never have been proved against you.  You told police that you did not want it going out into the wrong hands and I accept that you could have easily, if you were that criminally minded, have sold that shotgun or buried it to get rid of it and nothing would have ever come of all this.  That, in my view, is an extremely important matter and anyone in your predicament if I can use that expression should know that there is a very significant benefit indeed in making sure that firearm goes out of the public domain. 

15How the handling stolen goods could have been approved, I do not know but you have pleaded guilty to it so that is the end of that. 

16You said that you had received the gun off a person that you had that you swapped for a dirt bike.  You said that you got the gun plus two cartridges and you had never used it for anything else.  The firearm had been stored in the roof.  I notice here that there were clearly two shots fired and I know also from the police search that the shotgun had not been sawn off.  No further ammunition and not further gun paraphernalia was found.  It would seem pretty clear that you had had the gun for a significant time and I accept that there were never more than two cartridges that were discharged on this night in a situation of, I accept, genuine stress. 

17You told police in relation to cannabis that you suffer from post-traumatic stress disorder since you were a child and that you smoked it to relax.  I understand the situation now is that you have been prescribed medicinal cannabis and that obviously takes the risk out of that aspect of that. 

18As I say, this is a situation where there is no victim impact statements.  A half a dozen of what clearly were going to be aggravated burglars have been put off and it did not take place.  Discharge of firearm in a populous area is a dangers thing inherently I suppose but I accept that you were not endeavouring to hit anybody.  The gun not being sawn-off, you could have killed him if you wanted to and it is clear that that was never your intention. 

19Also, it has to be noted very clearly that the maximum penalty for this crime is five years' imprisonment.  In any event, the matter has to be regarded as serious.  I do not think it is as serious as has been painted but be that as it may. 

20Of course, there is application of general and specific deterrence that I have made in my comments already about the handling of the firearm which is highly laudable.  Also calls for the level of denunciation.  And what it really comes down to here is appropriate punishment.  You have already done 48 days on remand and you are currently undergoing a community corrections order from the Magistrates' Court which you apparently are compliant with and doing pretty well with.

21The circumstances surrounding yourself are that containment within the community corrections order - circumstances are contained within the assessment outcome report on the community corrections order which I tender and it is outlined pretty clearly there what your situation is. 

22At the present time, you are taking a lot of responsibility for the three children, that confirms that one of your sons - they are all very little - has an autism disorder; another son has AHUS which has caused him to go blind.  It would appear that the other child has difficulties with autism as well.  You take a large responsibility in terms of looking after them and that is very much to your credit.  It is clear now that you have made real efforts in recent times to rehabilitate yourself.  I am not prepared to do anything which would interfere with that.

23The Morwell Community Corrections has confirmed that you have a lot of responsibility supporting your children and I accept that that is in fact what you do.  They also confirm remorse towards the family and the neighbours. The victims are probably just relieved.  I just simply leave it at that.

24In terms of your background, you were born in Victoria.  Your mother left when you were eight and you were raised by your father.  There were learning difficulties with both reading and writing.  You were diagnosed with ADHD when you were young.  You were diagnosed with a conduct disorder.  You attempted to complete a TAFE course for a certificate but were unable to complete it.  You had a number jobs during your adult life.  You worked at Coles but at one stage there you were struck with a vehicle in a car park and it has been a source of great trauma for you.  You already had PTSD and that has simply confirmed it or exacerbated it I suppose.

25Prior to being in remand, you were working night shift in a factory and since being released on bail, you have been general labouring work and at the present time you are on Jobseeker.  You reside with your partner and as I have indicated, there are three children; two children of your relationship, one five and one three, and care for one of her children from a previous relationship who is 10 years of age.  Again, as I have indicated, both have been - the older one has been diagnosed with that rare condition and the other two are showing signs of autism. 

26There is not much else I need to say insofar as all this is concerned.  It seems to be pretty clear from the report that has been tendered on your behalf that you are right on the borderline of intellectual disability.  Accordingly, the principles outlined in decisions such as Muldrock have to play a part here.  The PTSD is known to all judges, causes difficulty in terms of making rational  choices and decisions.  And I think that the principles involved in Verdins have an application as well.  I have indicated already that the decision apparently known as Doran in fact becoming the Crown case against you.  I am also very mindful of what the Court of Appeal said in the case of Tomguenen when they referred their own decision of DPP v Leach,

'It is particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped.  That, after all, may be a decision which rebounds very much to the benefit of the community.'

27And as former Maxwell P said in DPP v Decava,

'A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in a case of serious offence.  If in the long term the community's interest will be best served by that course this court should seek to promote public understanding of the fact that apart from the interest of the individual, whom it is sought to rehabilitate, an important interest in itself, there is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime.'

28In any event, despite a very difficult background and very difficult circumstances, I accept that you have been doing your best.  Corrections are pretty happy with you at the present time and I see no reason to disturb that status quo.  They have assessed you as a high risk of reoffending.  I am not so sure.  But in any event, that is really going to be up to you and rehabilitation would appear to be hopefully underway particularly at the age you are at now.  And that is to be encouraged if at all possible. 

29I have had you assessed for a community corrections order and you have been found to be suitable.  I do not propose to put any work hours on that.  I think the 48 days that you have undergone in prison is ample punishment for this and indeed - I am tempted to say too much.  But in any event, that is the situation that exists.  So if you agree, you will be placed on a community corrections order.  It will be for 12 months.  The only conditions will be treatment and rehabilitation and programs to reduce reoffending which you were already undergoing as I understand it, and also supervision which gives Corrections a level of control over you.  If I had not tendered that CCO report, I do so now.  It will be Exhibit B.

30#EXHIBIT B -  CCO report.

31Yes, so you follow all that?

32OFFENDER:  Yep.

33HIS HONOUR:  Yes, all right.  Sorry, I meant do this yesterday.  Defence submissions were Exhibit 1 and the psych report Exhibit 2, Mr Glass.

34#EXHIBIT 1 -   Defence submissions.

35#EXHIBIT 2 -   Psych report.

36MR GLASS:  Thank you, Your Honour. 

37HIS HONOUR:  All right.  So the sentence will be on Charges 1, 2 and 3 an aggregate of 48 days.  I direct that 48 days be reckoned as having been served under that sentence.  On Charge 1, the CCO of 12 months which I have already described follows that sentence which has now of course been undergone.  On Charge 4 of possess cannabis, I am simply going to convict you and discharge in these circumstances. 

38All right.  There are no other orders? I need to ‑ ‑ ‑ 

39MR MOORE:  No, Your Honour.  

40HIS HONOUR:  Look, I can indicate in this situation, I think 6AAA is an absolute nonsense and I do not propose to do it.  Clearly, if this man had not made that confessional, if it is a confession, record of interview the matter would never have even been here today.  So suggesting anything else is ridiculous and I am not prepared to do it.

41MR MOORE:  As Your Honour pleases.

42HIS HONOUR:  Forfeiture orders.  I have signed all those I believe.

43MR MOORE:  Yes.

44HIS HONOUR:  Yes.  Nothing you want me to do, Mr Glass?

45MR GLASS:  No, Your Honour.  

46HIS HONOUR:  No.  Do you need to talk to your client or is that all right, he follows everything?  His partner is here.

47MR GLASS:  I can give him a call following the matter, Your Honour.

48HIS HONOUR:  Give him a call later on.  All right.  Yes.

49MR GLASS:  Thank you.

50HIS HONOUR:  All right.  Yes, thanks Mr Weatherstone, you can come out of there now. 

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