Director of Public Prosecutions v Wilson

[2023] VCC 2262

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT BALLARAT

CRIMINAL JURISDICTION

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

BRANDON WILSON

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Ballarat
DATE OF HEARING:
DATE OF SENTENCE:	30 November 2023
CASE MAY BE CITED AS:	DPP v Wilson
MEDIUM NEUTRAL CITATION:	[2023] VCC 2262

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	Ms C. Pezzimenti
For the Accused	Mr N. Sood

HIS HONOUR:

1Brandon Wilson, you have pleaded guilty to one charge of prohibited person possess a firearm.  One charge of possess a firearm contrary to a firearm prohibition order.  One charge of handling stolen goods.  One charge of possession of a drug of dependence and a number of uplifted summary matters.

2On each of those uplifted summary matters you are convicted and discharged.

3Those crimes carry maximum penalties of 10 years, 10 years, 15 years and one year respectively.

4You are now 25 years of age and were 24 years of age at the time of the offending.  You are still a relatively young man with plenty of time to turn your life around if you really want to.

5I accept that your plea of guilty was made at the earliest reasonable opportunity.  I accept that in your situation there is appropriate remorse and you must also get the utilitarian benefit of that plea of guilty.

6In respect of each of the charges of possession of a firearm I note that certainly the first one could have been challenged in a court and you may have had some chance of victory.  Clearly, in my view, you pleading guilty is done in the circumstance where you could have chanced your arm but chose not to and you must get the benefit of that.

7Also with these matters you have pleaded in the time of Worboyes and the courts are well aware of the consequences of doing that.  You must get an obvious benefit from that.

8You do have really concerning prior convictions.  You have been gaoled a number of times.  Never for a really long period of time but consistently ever since your teens.  The prospects of your rehabilitation have to be guarded and the prospects of you reoffending, if you start to use again, have got to be high. 

9However, in these circumstances I am prepared to say that this is a time when it would seem to me that your prospects of rehabilitation are at a turning point.  You have now had over 400 days drug free.  You have shown previously that you can go months without drugs and I am going to, in the overall circumstances of one so young, take the chance on that.

10The offending that I am about to describe has to be regarded as serious.  In the normal course of events it calls for the application of general and specific deterrence.  In your circumstances I give regard to the general aspects of Bugmy to an extent and for reasons of caution I also take account of limbs 1 and 2 of Verdins.  It does call for denunciation and there must be an appropriate punishment.

11A very brief summary of the offending was that in January 2022 police intercepted a vehicle which was apparently in your control.  In the back of the vehicle was a backpack with a loaded sawn-off shotgun.  Numerous items were found and you were placed on a firearm prohibition order on that day.  It was a sawn-off shotgun.  I do not have to go into the details of it.  Your DNA obviously was detected on that among others.  So whether it could have been proved as an actual possession is another matter indeed.  But in any event that is
Charge 1.

12About, well perversely exactly, nine months later in the early hours of the morning you were seen in possession of a sawn-off firearm on CCTV at the front door of some premises in Bungaree.  There was contact between you and the person inside but you ultimately left and that person refused to make a statement.  You are basically charged, as I understand it, partly on a CCTV screenshot.  The summary matters I am not even going to summarise.

13Two days later police received information that you were driving a car in Wendouree.  They saw you arrive at an address in Wendouree and then went there and you were placed under arrest.  That car that you had been driving was searched and a sawn-off shotgun was found in that vehicle which would appear to be the same firearm that you had had in the photograph of some two days earlier.  You were also found with stolen goods.  You were also found with cartridge ammunition which I have already convicted and discharged.  Handling stolen goods is not the highest level.

14There is also some butanediol inside which was possession of a drug of dependence but not of great extent.  That is the nature of the offending.

15Sawn-off shotguns are not on.  Everybody in the criminal fraternity knows there is only one purpose for a sawn-off shotgun.  I know that submissions are based on whatever that decision is about not possessing guns for criminal purpose.  I would like someone to explain to me what a sawn-off is for if it is not.  Anyone who wants to shoot a rabbit with one better not intend eating it.  But anyway we will not go down that path.

16They are a nasty weapon.  They can be concealed and it is well-known they are frequently used in stickups in terms of intimidation.  It has to be a custodial sentence for those and certainly it has to be a custodial sentence for somebody who has got two in the space of eight months having been detected with one the first time.  What you were actually going to do with them I do not know and I will simply leave it at that.

17But in any event it is serious and as I said, has to attract a custodial sentence and a significant custodial sentence.

18You have now been on remand for 402 days.

19I have indicated what I intend to do which is sentence you to time served as an aggregate sentence which I believe I can do or maybe I cannot.  No, the two firearms, they are close enough to be able to aggregate.  Yes. 

20MS PEZZIMENTI:  I think so, yes.

21HIS HONOUR:  I will certainly go through some very helpful submissions that your counsel has provided.  I am going to go through your background.

22You are 25 now as I understand it.  Your father was a drug abuser who was largely absent from your life and when there was often drug-affected.  He had periods of incarceration.

23You were largely raised by your mother and a maternal uncle, Ben, who was a very strong support for you.  You had unstable schooling as a young person.  You went to the local primary school until Grade 6.  At the age of 11 you were diagnosed with ADHD.  You were prescribed with medication but the negative side effects of that were too much to continue with them.

24You then attended a local high school and were expelled for truancy and misbehaviour at the end of Year 7.  You then went to the
Ballarat Learning Exchange to Year 8, however, you could not handle that either.  By the start of Year 9 you stopped attending school altogether.

25You have had a variety of roles over the time including forestry, bricklaying and restumping.  Each of those ended because of you either using drugs or undergoing the relatively short periods of incarceration which you have had in the past.

26Of significance and I accept this, that some 10 years ago your uncle who had been very important to you passed away suddenly.  This had a very profound impact upon you.  Reading between the lines to lose a man who had become very much in one sense a father figure, I have no doubt that that stills affects you.

27You became aimless during that period.  You were not going to school, gravitated around your social peers and began using drugs and the offending behaviour flowed from that. 

28You observed yourself through work with a psychologist that, 'If Ben was still here I wouldn't be in gaol', and I think that is probably right.

29When you were 17 your parents separated.  That did not help.  You tried to maintain a relationship with your father.  That just led to worse drug use and your father actively encouraged the use of amphetamine.

30You were using amphetamine at 16, GHB at 20 and were using a significant amount of methamphetamine each day at the height of your use.

31You have had several drug and alcohol interventions in the past.  As your counsel pointed out and I notice most laudably, you survived a period of 14 weeks at The Cottage residential facility in Shepparton of which I am well aware.  You maintained abstinence for three months after that program and I accept from the Bar table that you were a model participant in that program.  After that three month period you reintegrated with negative peers and the inevitable happened and you quickly relapsed.  That continued up until the time of this offending.

32As I indicated you have been diagnosed with attention deficit hyperactivity disorder.  You have a specific learning disorder.  Your level of literacy is Grade 2 and you are almost entirely innumerate.  I can understand how difficult that makes it in terms of getting employment and the like and it makes it very difficult for young boys trying to get through school who cannot cope with basically any of it through reasons that are not his own fault.

33I am well aware of the consequences of ADHD.  Stimulant use disorder I have always had grave doubts about that relating to Verdins and other matters.  It seems to me to be self-inflicted but be that as it may.  I accept that without the drug use you are obviously capable of working and just talking to you, you seem intelligent.  Despite the difficulties of learning I think you can do well.

34You have been in a long term relationship and have a two year old daughter.  There is an intervention order in respect to that which I am assuming is to do with drugs.  That relationship has ended because of your drug use and periodic incarcerations. 

35I am told by your mother here in court and by your counsel that upon your release you want to relocate to South Australia.  You have an aunt living there.  Your mother is going through the difficult task at the moment of trying to get accommodation in South Australia to start a new life away from negative peers and drug use.

36You have shown in the past that away from those negative peers you can do well and I accept that this is a situation where it is well worth taking that risk, if in fact it is a risk.

37This is a situation where I treat sawn-off shotguns, as I say, very seriously indeed but at the age of your mid-20s you have now done in excess of a year in custody and I think enough is enough.

38As I pointed out during the course of the plea, were I to give you a head sentence it would be of such a nature that the bureaucracy involved and the processes involved would almost certainly mean that you would not get parole before that head sentence had expired which is not what I would intend.  A community corrections order, you have breached one in any event, will also put you back in contact with those of a criminally minded intent and I think that is to be avoided at all costs.

39Accordingly, whilst I am not going to give you time served, I do not want someone just walking out of here and what do I do next?  Your mother has assured me that upon your release in the very near future you have got a home to go to.  You have got solid accommodation to go to and hopefully you will be able to maintain your abstinence.

40So in all those circumstances and taking into account all the matters I am required to as best I can, on Charges 1 to 3, an aggregate sentence of 410 days.

41Charge 4, convict and discharge.

42I direct that 402 days be reckoned as having been served under this sentence.

43Pursuant to s6AAA I say that but for your plea of guilty I would have sentenced you to be imprisoned for a period of 600 days with a minimum term.

44MR SOOD:  If the court pleases.

45HIS HONOUR:  No other orders I need to make?

46MS PEZZIMENTI:  No, Your Honour.

47HIS HONOUR:  All right.  Yes.  You will need to pop back with him obviously and Mum's going to wait for you.  So if it turns out that Corrections say he is finished Mum will be there.  So you are not just going to get pushed out on the street.  All right?  So you can go back now and we will go from there.  Thanks, fellas.

48HIS HONOUR:  All right then.

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