Director of Public Prosecutions v White

[2019] VCC 367

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02111

DIRECTOR OF PUBLIC PROSECUTIONS

v

GRAHAM WHITE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	21 March 2019
DATE OF SENTENCE:	26 March 2019
CASE MAY BE CITED AS:	DPP v White
MEDIUM NEUTRAL CITATION:	[2019] VCC 367

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J Malobabic	Office of Public Prosecutions
For the Accused	Mr I Hill, QC, with	Galbally & O’Bryan
Ms N Kaye

HIS HONOUR:

1Graham Lesley White, you have pleaded guilty on indictment to one charge of possessing a trafficable quantity of unregistered firearms.  That crime carries a maximum penalty of ten years' imprisonment.  You also pleaded guilty to uplifted matters of possess prohibited weapon and possess imitation firearms.  Those two charges carry maximum penalties of two years.

2I will say from the outset that insofar as imitation firearms are concerned, they were of real concern to me as the Crown opened the case.  But now that I have had the opportunity of looking at photographs, they were clearly for display purposes.  That is of much less significance than may have seemed the case initially.  So far as prohibited weapons are concerned, as I said to Mr Hill, there was no need to really concern himself with that charge.

3This comes down to the possess trafficable quantity of unregistered firearms.  There appears to be no real definitions or deeming provisions in regard to all this.  The number of firearms required is two.  As I understand, it used to be more than that, but it has been reduced.   I am not going to try and define it.

4What I will simply say is this:  it seems to me that it would take into account the quantity of firearms that are possessed and also, because of the nature of this legislation, the quality or nature of those firearms.  I do not need to say much more about it than that.

5You are now 58 years of age.  You pleaded guilty at the earliest reasonable opportunity and you must get the benefit of that plea of guilty.  I have now had the opportunity of reading the materials tendered on your behalf, and I will give you the benefit of the doubt insofar as remorse is concerned.  You obviously must get the utilitarian benefit of that plea.

6You have no prior convictions at all, though it would seem that at least some of these firearms had been unlawfully in your possession for a significant period of time.  What does concern me, insofar as remorse is concerned, is the report of Mr Newton where he said:

"Mr White was clear in his understanding that it was illegal to possess these firearms, imitation firearms, knives and ammunition.  He said he rationalised doing so since he was no threat to society.  Mr White had difficulty demonstrating an awareness of the public safety implications of having such weapons in his possession and storing them insecurely.  When asked about such matters, he said that he had rationalised it since he kept the items on a secluded property.  There was little risk of them being stolen, and in any event, anyone who wanted such items could easily obtain them 'from the back of a car at any gun fair.'"

7It seems to me that is an uncertain understanding of what this legislation is about, and the real dangers of weapons such as these being in the community.  However, as I said, so far as remorse is concerned, you do get credit for that and the plea of guilty obviously assists you greatly in that respect.

8The Crown summary is that you, Mr White, were born on 5 July 1961.  At the time of the offending, you were 57 years of age.  At that time, you held Category A and B long-arm licenses and also a handgun license.  You had in your possession at that time a significant number of weapons, about 14 or so as I recall, which were perfectly lawful and registered within your name.

9What has happened is, and I have made the forfeiture order and disposal orders and they are now handed down, is that you have effectively voluntarily forfeited the firearms that you held lawfully.  I accept from what your counsel tells me that that has given a significant financial loss to you, and that is a factor that I take into account in this sentencing process on your behalf.

10On 23 July last year, at approximately 7.35 am, police executed the warrant under the Firearms Act at your address in Wallan.  It is a large semi-rural property.  You presented yourself to the front of the property, was asked if there was any matters you wish to tell the police about, and you said no. 
You remained with the investigators whilst the search was conducted.

11With the assistance of dogs, as I understand it, in the bathroom police located a false hidden wall behind a set of shelves.  On the bottom right shelf, two drink bottles were glued together concealing a latch.  The latch was opened and revealed a purpose-made concealed storage space.  The storage space was lined with carpet and police then located and seized seven firearms.

12It is obvious from the nature of this that you were fully aware of the illegality of these weapons.  You being a licensed person with firearms must have undergone safety courses and the like, and would have received a significant amount of education in regard to the dangers of improperly secured firearms and the like.

13In any event, the firearms that were found were a Category H handgun, loaded, unregistered, semi-automatic Heckler and Koch .40 Smith and Wesson calibre handgun.  The serial number had been removed.  There are two magazines, each with the capacity for ten cartridges, and each of the magazines was charged with ten .40 Smith and Wesson calibre cartridges.  There were partly burnt grains of propellant visible in the bore.

14A Category D centrefire rifle.  Unregistered, semi-automatic M1 carbine rifle, which is a military weapon -  .30 calibre, with no serial number.  Its magazine had a capacity for 30 cartridges and there were partly burnt grains of propellant visible in the bore.  A Category E centrefire rifle, loaded, unregistered semiautomatic ArmaLite AR-10 rifle.  .308 Winchester calibre, serial number -
I do not need to read that.  The magazine was charged to full capacity with 20 .308 Winchester calibre cartridges.  There were partly burnt grains of propellant visible in the bore.

15The rifle had been fitted with a homemade hammer which made it capable of discharging more than one cartridge whilst the trigger was fully depressed. 
A ballistics expert was able to discharge this firearm after it was loaded and cocked in both semi-automatic and full automatic motion.  In his opinion, that rifle met the definition of a machine gun.

16There were five spare magazines associated with that rifle, each one, having looked at the photographs, obviously capable of containing 20 cartridges.  Having a knowledge of firearms, that rifle being fired automatically would probably discharge one of those magazines in about two or three seconds. 
It would take two or three seconds to reload, and that gun is capable of firing high-calibre ammunition - something in the order of 120 shots in less than a minute.  In a crowded space, the damage that could do is almost unthinkable.

17The next was a Category C centrefire rifle, loaded, unregistered, semi-automatic Squires Bingham model, .22 calibre, serial number.  Magazine had a capacity for ten cartridges.  It was fully loaded with ten .22 long rifle calibre cartridges, and there were partly burnt grains of propellant visible in the bore.

18An air rifle, which I am not really concerned about.  A Category B centrefire rifle, loaded, unregistered, semi-automatic Sportco, .22 calibre, serial number removed.  Magazine had capacity for ten cartridges and it was fully charged with ten .22 long rifle calibre cartridge.  Again, partly burnt grains of propellant visible in the bore.

19A Category C shotgun, loaded, unregistered, semi-automatic 12-gauge Yamamoto Pointer A-fire shotgun with the serial number removed.  Tubular magazine at capacity for four cartridges that were removed by the ballistics expert in this situation, and again, there were partly burnt grains of propellant visible in the bore.

20In the main bedroom, under a bed - and to your credit, you did inform police about this - was found a Category H handgun, loaded, unregistered, semi-automatic Heckler and Koch .40 Smith and Wesson calibre, serial number removed, wrapped inside a white cloth material.  A ballistics member was able to unload the gun, which had charged to full capacity, and contained 13 rounds of ammunition.  Again, there were partly burnt grains of propellant visible in the bore.

21You were then - the rest of the house was searched, imitation firearms were found, and a large number of knives were found.  And I do not propose to go through all that.  The Crown opening speaks for itself.

22The situation is that that was a very frightening collection of largely unregistered, loaded firearms.  Serial numbers had been removed from some of them, and it is a very scary collection indeed.  The firepower involved in those half a dozen weapons that I have mentioned is quite extraordinary, and the toll, were such weapons to get into the hands of people with mental illness, could be untold.

23There are aspects of it which are odd.  It was put to me that the guns are just part of you being a collector of sorts.  Why a "collector of sorts" who collected everything would bother to have a loaded handgun under the bed, I have no idea.  Whether you were expecting somebody or not, again, I have got no idea.

24It is put to me that you collect guns because of your love, essentially, of the machine parts of them and the "beauty", I think the word was used.  It surprised me, having, as I say, knowledge of guns, that none of these guns had been cleaned since they were last fired.  Most gun collectors that I know are meticulous in that regard.  And also that the magazines of these guns were loaded to full capacity, which again, is an unusual thing to do.  Because doing so puts strain, as I understand, on the tension in the spring.  Those matters neither assist nor hurt you.  They just make me realise to a certain extent how odd this whole thing is.

25But in any event, you were clearly aware of the illegality of what you had and were hiding, and there has to be in this situation an element of specific deterrence.  I think that is not all that important, but general deterrence has to play a very significant part in this, if not the dominant part.

26Public protection is the purpose of this sort of legislation and in describing the weaponry and what it's capable of, it becomes self-evident.  Denunciation and punishment, in your particular situation, is of real significance.  What it comes down to is that you cannot what you did.  You knew that you cannot do it, and it is a very serious example, in my view, of firearms being within the community in such circumstances.

27It is clear that had someone else other than police become aware of these firearms, you may have been in a very difficult situation yourself in terms of aggravated burglaries and the like, which is what one sees frequently on circuit when one sits in this jurisdiction. 

28Your counsel submitted that the principles involved in all this could be satisfied by a community corrections order plus a fine, plus the 17 days which you have already done in gaol.  The Crown position was that whilst gaol had to be part of it, a combination sentence was open. 

29I then look to matters personal to yourself so far as making that determination.  I had you assessed for a community corrections order and you have been found to be suitable for such an order.  I have before me a significant number of references from people on your behalf, a report of Mr Patrick Newton, a letter from the prison officers' pistol club, and a letter from the police whereby you rendered them assistance many years ago.

30There seems to me to be a bit of a non-comprehension of just how serious what you did is.  There are aspects of this which do attract a deal of sympathy. 
You, as described in the report of Mr Newton, claim to be, as I say, a collector or aficionado of firearms.  I have made little comment about that.  He said that you, in your situation, had longstanding social anxiety.  He said:

"Mr White is weary and tense around people.  He monitors his environment for indications of danger, and that to discern the presence of threats or challenges in situation where a dispassionate observer would likely see none.  Mr White is always concerned for his safety more broadly.  He is focused on maintaining his privacy, isolates himself from those people, and maintains considerable interpersonal distance."

31He then goes onto say how you are essentially introverted and your pursuits are often pursuits carried out on your own.  He said that there is noted prominent features of obsessive-compulsive and schizoid personality, and an adjustment disorder with mixed anxiety and depressed mood.

32He points out that a custodial sentence for you would cause you greater difficulty it would for a prisoner without those difficulties, and I accept that that is indeed the case.  Indeed, in the period of time that you spent on remand, which was some 17 days, it became clear that other prisoners, even allowing for your perception of threats that may not necessarily be perceived by others, that other prisoners became concerned about who or what you were and that you were placed under threat.  It is your belief that only having an experienced prisoner in the cell with you is what saved you from attack. 

33He points out that you remained distressed as a result of the experiences you had on remand, and he has pointed out that the prospect for you of returning to custody fills you with dread.

34He goes through the difficulties that you have and the difficulties that that would involve with you being in custody.  He points out that there would be a risk of further negative attention from other prisoners, and that again would make undergoing a sentence more onerous.

35I have taken into account everything Mr Newton says and also what the reports say on your behalf.  You are clearly not, as was half suggested in some of these things, an eccentric old duffer with a couple of black powder pistols hanging on the wall.  You are a very experienced and astute, I would have thought, businessman over a long period of time.  You are involved in the recycling industry and have directorships, and I indicated very clearly by your counsel this morning what has been asserted about those matters in other matters has got absolutely nothing to do with me.

36I accept, even though it is in fairly general terms, that incarcerating you for a further period of time would involve hardship to other people including children and your brother, and your partner who is very supportive of you in these circumstances.  It is clear from the references from your children that they have a great love and appreciation of you, and there is nothing to suggest in any way, shape or form that you have not been a good and proper father.

37There is nothing in that material which amounts to the exceptional circumstances before me that has real significant in the sentencing process, but it is certainly something I take into account.

38The prospects of your rehabilitation, certainly insofar as firearms are concerned, should be good.  As I indicated to your counsel, this is a situation where in all the material I have just described, the nature of the guns, the way they were being contained, your own personality and the loaded firearm under the bed, that it would be regarded by the authorities as being as a red alert for dangerous matters regarding firearms.  And I think that is probably sufficient for all these purposes.

39The risk of you reoffending in this way, I suspect, is going to be very small indeed.  What it then comes down to is the situation where can I be justified in not actively incarcerating you for a significant period of time for the nature of the offending.  I take into account all the matters personal that have been put on your behalf, and some of them are powerful indeed.

40The Crown submission or concession is that a combination order is within range, and I think that is a fairly generous concession and I regard myself constrained by it, and I make that very clear. 

41However, in all the circumstances, this offending is of such a nature in my view that it demands that a significant further period of incarceration be imposed.  And that is what I am going to do.

42I have had you assessed for a community corrections order.  In this situation, it seems to me that to have you incarcerated in the circumstances in which you undergo that sentence, and to then force you to have a community corrections order afterwards, would be utterly gratuitous and I would think it would be essentially unfair to you.  But be that as it may, that is the seriousness of the offending and unfortunately, it is just going to have to be the consequences of it.

43Accordingly, on the charge on the indictment, you are sentenced to be imprisoned for a period of six months.

44On the summary matters, unlawful possession of weapons, seven days' concurrent.

45On the imitation firearms, 30 days concurrent.

46I direct that 17 days be reckoned as having been served under this sentence.

47And it is a difficult situation because I do not know what would have happened on a trial, what charges you would have been indicted on.  But for the purposes of s.6AAA, I say that but for your plea of guilty, you would have been sentenced to be imprisoned for a period of nine months.  No other orders I have to make?

48COUNSEL:  No, Your Honour. 

49HIS HONOUR:  No.  Yes, take him.  You can go now, thank you. 

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