DPP v Basic
[2017] VSCA 376
•15 December 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0167
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| DENNIS BASIC | Respondent |
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| JUDGES: | WEINBERG, OSBORN and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 20 October 2017 |
| DATE OF JUDGMENT: | 15 December 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 376 |
| JUDGMENT APPEALED FROM: | [2017] VCC 977 (Judge Cohen) |
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CRIMINAL LAW – Sentence – Crown appeal – Multiple offences – Firearms offences – Originally convicted of making explosive substance with intent to endanger life or cause really serious injury to property, knowingly possessing explosive substances for unlawful object, possessing drug of dependence, prohibited person possessing firearm (eight charges), prohibited person possessing silencer, and possessing ammunition without licence and storing insecurely – Provided petrol to Hells Angel motor cycle gang for use in construction of improvised explosive devices and had firearms in place of residence and car some loaded – Prior convictions for violent offences and armed robbery – Fair prospects of rehabilitation – Sentenced to total effective sentence 23 months’ imprisonment in combination with 12 month CCO – Effect of sentence was respondent released from prison immediately following sentence due to time served – Crown appeal against sentence in respect of firearms offending on ground of manifest inadequacy allowed, resentenced by Court of Appeal to increase CCO to 4 years duration.
CRIMINAL LAW – Offender committed further offences including possessing a firearm whilst a prohibited person (four charges) in breach of CCO less than a month after resentence and in breach of CCO – Sentenced to total effective sentence in respect of original firearms offending and further offending to 2 years and 4 months’ imprisonment with a non-parole period of 1 year and 6 months – Further Crown appeal – Whether sentences on original firearms charges and further offending manifestly inadequate – Gravity of offending – Possession of firearms for purpose of criminal activity – Berichon v The Queen (2013) 40 VR 419 considered – Appeal allowed – Resentenced to total effective sentence of five years and six months’ imprisonment with a non-parole period of 3 years and 8 months – Firearms Act 1996, s 5(1).
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| APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S Flynn | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr O P Holdenson QC with Mr R O’Neill | Dean Cole & Associates |
WEINBERG JA
OSBORN JA
PRIEST JA:
Introduction
On 1 October 2013, police executed a search warrant at premises occupied by the respondent and, amongst other things, found two rifles, two revolvers, a semi-automatic handgun, three shotguns, a silencer, and a large quantity of ammunition (‘the 2013 firearms offending’).
The respondent was not licensed to possess firearms or ammunition and was a prohibited person within the meaning of s 3(1) of the Firearms Act 1996, having been sentenced to a term of four years’ imprisonment with a non-parole period of 18 months for armed robbery and related offending in August 2005.
On 14 December 2015, the respondent was convicted and sentenced in the County Court on 10 charges arising out of the 2013 firearms offending, to an aggregate sentence of 18 months’ imprisonment to be followed by a 12 month community correction order (‘CCO’) with a requirement for 100 hours of unpaid community work.
In addition to the charges arising out of the 2013 firearms offending, the respondent was also convicted and sentenced on 14 December 2015, in respect of charges relating to making and possessing explosive substances, and a charge for possession of a drug of dependence, arising out of events associated with the 1 October 2013 search (‘the other 2013 offending’). The sentence imposed in respect of the making explosive substances charge of 18 months’ imprisonment was treated as the head sentence.
The total effective sentence imposed in respect of the 2013 offending as a whole was 23 months’ imprisonment to be followed by a 12 month CCO. Pre-sentence detention was declared to be 700 days.[1] The individual sentences imposed on that date and the cumulation imposed were as follows:
[1]A further period of pre-sentence detention had been taken into account on a Renzella basis, as to which see the observations of the Court of Appeal in DPP v Basic [2016] VSCA 99 [30]–[36] (‘CoA Reasons’).
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation | ||||
| Indictment D1295356A.3 (the other 2013 offending) | ||||||||
| 1 | Making an explosive substance with intent to enable another person to endanger life or to cause serious injury to property contrary to s 317(3)(b) of the Crimes Act 1958 | 10 years’ imprisonment | 18 months | Base | ||||
| 2 | Knowingly possess explosive substances for unlawful object contrary to s 317(4) of the Crimes Act 1958 | 5 years’ imprisonment | 12 months | 2 months | ||||
| 3 | Possessing a drug of dependence (where the purpose of trafficking is not excluded) contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 | 400 penalty units or 5 years’ imprisonment | 4 months | Nil | ||||
| Indictment D1295356B (the 2013 firearms offending) | ||||||||
| 1-7 & 9 | Prohibited person possess firearm contrary to s 5(1) Firearms Act 1996 | 1200 penalty units or 10 years’ imprisonment | Aggregate sentence of 18 months’ imprisonment followed by a 12 month Community Correction Order (‘CCO’) | 3 months of the term of imprisonment cumulative on total effective sentence of 20 months imprisonment for Indictment D1295356A.3 | ||||
| 8 | Prohibited person possess silencer contrary to s 5(2) of the Firearms Act 1996 | 480 penalty units or 8 years’ imprisonment | ||||||
| 10 | Possess ammunition without licence and store insecurely contrary to s 129A of the Firearms Act 1996 | 240 penalty units or 4 years’ imprisonment | ||||||
| Total Effective Sentence: | 23 months’ imprisonment to be followed by a 12 month CCO | |||||||
| Pre-sentence Detention Declared: | 700 days | |||||||
| 6AAA Statement: | Total effective sentence: 4 years, 3 months Non parole period: 3 years, 2 months | |||||||
| Other orders: | Disposal and forfeiture | |||||||
| CCO Conditions: | Supervision; 100 hours unpaid community work; Assessment and treatment for alcohol and drug abuse; Non association with any member or affiliate of the Hells Angels. | |||||||
The net effect of the sentences imposed was that the respondent was released from prison on 14 December 2015 immediately after sentence by reason of time served prior to that date, and on that date the 12 month CCO commenced.
On 10 May 2016, following an appeal by the Director of Public Prosecutions, the Court of Appeal concluded that the sentences imposed with respect to the 2013 firearms offending were manifestly inadequate. Nevertheless, in all the circumstances of the case, it declined to order an increased term of imprisonment but set aside the 12 month CCO and substituted a four year CCO with a requirement for 400 hours of community service.
On 1 June 2016, less than one month after the decision of the Court of Appeal, police executed a search warrant at the respondent’s then place of residence and located three semi-automatic handguns, a pump action shotgun, a large quantity of ammunition, a body armour vest, and a small quantity of illicit drugs (anabolic steroids) (‘the 2016 offending’).
As a result of the 2016 offending, the respondent pleaded guilty on 12 May 2017 in the County Court to four charges of being a prohibited person possessing a firearm, one charge of possessing a drug of dependence and two related summary offences.
He also pleaded guilty to breach of the 4 year CCO imposed by the Court of Appeal upon resentence for the 2013 firearms offending in May 2016, by reason of the 2016 offending.
The respondent was then convicted and sentenced in the County Court on 11 July 2017 as follows in respect of the 2016 offending:
Charge on Indictment G11492417 Offence Maximum Sentence Cumulation 1 Prohibited person possess firearm
[Firearms Act 1996 s 5(1)]10 years’ imprisonment 18 months Base 2 Prohibited person possess firearm
[Firearms Act 1996 s 5(1)]10 years’ imprisonment 16 months 2 months 3 Prohibited person possess firearm
[Firearms Act 1996 s 5(1)]10 years’ imprisonment 16 months 2 months 4 Prohibited person possess firearm
[Firearms Act 1996 s 5(1)]10 years’ imprisonment 18 months 2 months 5 Possess drug of dependence
[Drugs Poisons and Controlled Substances Act 1981 s 73]30 penalty units or 1 year imprisonment 7 days — Summary Charge 6 Possess cartridge ammunition without licence/permit
[Firearms Act 1996 s 124]40 penalty units $1,500 fine — Summary Charge 11 Possess body armour without approval
[Control of Weapons Act 1990 s 8A(1)]240 penalty units or 2 years’ imprisonment 2 months — Total Effective Sentence: 2 years’ imprisonment 6AAA Statement: 3 years 6 months’ imprisonment with a non-parole period of 2 years 9 months
The respondent was on the same day further re-sentenced in respect of the 2013 firearms offending in terms which the judge tabulated as follows:
| Charge on Indictment D1295356B | Offence | Maximum | Sentence | Cumulation | |
| 1-7 & 9 | Prohibited person possess firearm [Firearms Act 1996 s 5(1)] | 1200 penalty units or 10 years’ imprisonment | 9 months aggregate sentence (in addition to time served of 18 months and partial completion of the CCO ordered under the original sentence) | 4 months on sentence imposed in relation to Indictment G11492417 | |
| 8 | Prohibited person possess silencer [Firearms Act 1996 s 5(2)] | 480 penalty units or 8 years’ imprisonment | No further order | — | |
| 10 | Possess ammunition without licence and store insecurely [Firearms Act 1996 s 129A] | 240 penalty units or 4 years’ imprisonment | No further order | — | |
| 11 | Contravene Community Correction Order [Sentencing Act 1991 s 83AD(1)] | 3 months’ imprisonment | 2 weeks | — | |
| Total Effective Sentence: | 9 months’ imprisonment | ||||
| Pre-sentence Detention Declared: | 405 days | ||||
| Other orders: Disposal orders, forfeiture orders and forensic sample retention order | |||||
The total effective sentence on the combined indictments for the 2013 firearms offending and the June 2016 offending was thus:
| Overall Total Effective Sentence on Indictments G11492417 and D1295356B : | 2 years 4 months’ imprisonment |
| Non-Parole Period: | 1 year 6 months |
We interpolate that the judge’s description of the sentence imposed in respect of the 2013 charges of possession of a firearm by a prohibited person as ‘nine months aggregate sentence (in addition to time served of 18 months and partial completion of the CCO ordered under the original sentence)’ is puzzling because the respondent had in fact served only three months’ imprisonment for the 2013 firearms offending cumulated upon the 20 months’ imprisonment imposed for the other 2013 offending. Moreover, insofar as he was entitled to credit for pre-sentence detention, that fell to be taken account of in the usual way pursuant to s 18 of the Sentencing Act 1991.
The Director now appeals the sentences imposed by the County Court on 11 July 2017 in respect of the 2016 offending and the 2013 firearms offending, on the grounds of manifest inadequacy.
For the reasons which follow, the appeal must be allowed.
We would re-sentence the respondent in respect of the 2016 offending as follows:
Charge on Indictment G11492417 Offence Maximum Sentence Cumulation 1 Prohibited person possess firearm
[Firearms Act 1996 s 5(1)]10 years’ imprisonment 36 months Base 2 Prohibited person possess firearm
[Firearms Act 1996 s 5(1)]10 years’ imprisonment 30 months 4 months 3 Prohibited person possess firearm
[Firearms Act 1996 s 5(1)]10 years’ imprisonment 30 months 4 months 4 Prohibited person possess firearm
[Firearms Act 1996 s 5(1)]10 years’ imprisonment 36 months 4 months 5 Possess drug of dependence
[Drugs Poisons and Controlled Substances Act 1981 s 73]30 penalty units or 1 year imprisonment 7 days — Summary Charge 6 Possess cartridge ammunition without licence/permit
[Firearms Act 1996 s 124]40 penalty units $1,500 fine — Summary Charge 11 Possess body armour without approval
[Control of Weapons Act 1990 s 8A(1)]240 penalty units or 2 years’ imprisonment 2 months —
With respect to the 2013 firearms offending, we would substitute an aggregate sentence of 36 months’ imprisonment for the sentence imposed in the County Court with respect to the charges of possession of a firearm by a prohibited person (expressed to be nine months in addition to time served of 18 months).
We would cumulate 18 months of that sentence upon the sentence imposed for the 2016 offending.
We would confirm the sentences otherwise imposed on indictment D1295356B for the 2013 firearms offending.
We would fix an overall total effective sentence of five years and six months’ imprisonment with a non-parole period of three years and 8 months.
We would confirm the disposal orders, the forfeiture orders and forensic sample retention order originally made in the County Court.
We would declare in accordance with s 6AAA(2) of the Sentencing Act 1991 that, but for the respondent’s pleas of guilty, we would have sentenced him to an overall total effective sentence of eight years’ imprisonment with a non-parole period of six years.
Background — the 2013 offending
The Court of Appeal in its judgment in the May 2016 appeal helpfully summarised the background to, and circumstances of, the 2013 offending as follows:
In the early hours of 30 September 2013, someone fired several shotgun blasts through the glass windows at the front of the Nitro Gym, which happened at the time to be owned by the Victorian president of the Comanchero motorcycle gang. The gym was located within a factory at Hallam. These shots were fired in apparent retaliation for the theft by members of the Comancheros of two Harley Davidson motorcycles owned by the respondent. In the days preceding this incident, the respondent and fellow members of the Hells Angels had sought to recover the motorcycles, but had been bashed by the rival gang members in the course of doing so.
Whoever it was that fired the shots through the glass window then placed two improvised explosive devices (‘IED’s) onto the floor of the gym through the hole thereby created. A safety fuse was then lit. However, neither IED detonated.
Later that morning, gym staff discovered the IEDs and called police. As a result, the gym and surrounding factories were evacuated. The Bomb Squad attended and the devices were rendered safe.
The IEDs were designed to spread burning fuel through the interior of the gym, and to cause significant blast damage. Each IED consisted of a combination of explosive substances. Each was capable, if detonated, of causing extensive damage to property, but might also cause death or serious injury to anyone who happened to be in the vicinity.
The respondent was, at the relevant time, a prospective member of the Hells Angels motorcycle gang. He was designated as a ‘Prospect’. In time, he may have acquired the status of a full ‘Patched’ member.
On the day before the incident involving the IEDs, the respondent had been told by members of the Hells Angels to purchase a quantity of petrol. He was instructed to deliver the petrol to the Hells Angels Clubhouse in Seaford.
The respondent attended a petrol station located near the caravan park where he was then living. He filled a jerrycan with almost 21 litres of premium unleaded fuel. He then delivered that jerrycan, as directed, to the Hells Angels Clubhouse.
Thereafter, members present utilised the petrol to manufacture one of the two IEDs that were later placed through the hole in the window of the Nitro Gym (Charge 1). It seems that the respondent did not learn of the use that was to be made of the petrol until he had delivered it. The evidence was that he played no part in the manufacture of the IEDs as such, and that his role was confined to supplying the petrol. However, it was clear that once he discovered the intended use of the petrol, he acquiesced in what was planned.
On 1 October 2013, the day after the aborted bombing, police executed a search warrant at a cabin occupied at the time by the respondent. That cabin was located at a caravan park in Langwarrin. The cabin had been arranged for the respondent by associates of the Hells Angels when, some weeks earlier, he had separated from his wife.
Police found, in the corner of a wardrobe in the respondent’s bedroom, a quantity of explosive substances and associated items (Charge 2).
Police also located within the premises a plastic bag within which were two smaller bags containing 27.1 grams of ecstasy tablets and 78.7g of ecstasy powder respectively (Charge 3). It was not in issue that these were drugs which belonged to the Hells Angels.
Circumstances surrounding the charges contained in Indictment D1295356B
When, on 1 October 2013, police executed the search warrant at the respondent’s cabin, they also found a number of firearms and a quantity of ammunition.
In the course of executing the search warrant, police also searched a white Toyota tray utility that was parked outside the cabin (vehicle registration YGM 014). They found within that vehicle some additional firearms and ammunition.
More specifically, police located inside the cabin:
(a)a loaded Ruger Mini 14 semi-automatic rifle (located standing up in the left corner of the bedroom in between the bedside drawers and the wall – within an arm’s reach of the bed) (Charge 3);
(b)a loaded .32 calibre Colt DA revolver (located in the overhead cupboard in the bedroom) (Charge 4);
(c)a fully loaded .22 calibre Smith and Wesson M&P revolver (located in the overhead cupboard in the bedroom) (Charge 5);
(d)a 12 gauge Remington 870 Wingmaster shotgun (located in the overhead cupboard in the bedroom) (Charge 6);
(e)a .223 Howa M1500 bolt action rifle located inside a gun case, which also contained a silencer and quantity of ammunition for the rifle (located in the wardrobe of the bedroom) (Charges 7, 8 & 10); and
(f)a 12 gauge Yildiz under and over shotgun, inside a case (located in the wardrobe of the bedroom) (Charge 9).
Police also found in the overhead cupboard in the bedroom of the cabin two trail cameras (commonly used for surveillance), both with attached memory cards; a firearm laser sight; a firearm scope; two firearm magazines; and a Europcar contract in relation to the Toyota Hilux utility vehicle with registration YGM 014, showing that it had been rented by the respondent at 2.27pm on that day.
When police searched the Toyota utility they found:
(a)a loaded M27 .40 calibre Smith and Wesson semi-automatic handgun (located in the driver’s door storage space) (Charge 1);
(b)a black wallet containing the respondent’s identification cards and personal items (located in the driver’s door next to the handgun);
(c)a loaded magazine containing further ammunition for the handgun (located with the handgun in the driver’s door) (Charge 10);
(d)a gun case containing a 12 gauge Winchester Defender shotgun (located behind the passenger seat) (Charge 2);
(e)a red case containing 15 shot gun shell cartridges (Charge 10);
(f) two black balaclavas; and
(g) a Hells Angels jacket with a ‘Prospect’ patch attached.
In addition, police located a quantity of ammunition for the above firearms in both the cabin and the utility (Charge 10).
The respondent was not licensed to possess firearms, ammunition, explosive materials or prohibited weapons of any kind. He was also a ‘prohibited person’ within the meaning of that term in s 3(1) of the Firearms Act 1996, having (in August 2005) been sentenced to a term of four years’ imprisonment with a non-parole period of 18 months for armed robbery and related offences.[2]
[2]CoA Reasons [3]–[20].
County Court sentence on 14 December 2015 — the 2015 Reasons
The basis on which the judge below initially sentenced the respondent in respect of the 2013 offending was also summarised by the Court of Appeal as follows:
The judge noted in her reasons for sentence that, viewed objectively, the potential damage intended to be caused by the inclusion of petrol in the IEDs required denunciation and stern punishment. Despite this, her Honour characterised the respondent’s moral culpability as being at the ‘relatively low end of the scale’[3] for offending of this type. She did so on the basis of the respondent’s limited role in respect of the manufacture of the IEDs. Nonetheless, she recognised that general deterrence was an important factor in sentencing for this offence.
In respect of the firearms offences, the judge did not accept that the respondent’s role was merely passive, and rejected his claim that he had merely stored the firearms on behalf of other Hells Angels members. She considered that the quantity of the firearms and ammunition, together with the presence of a silencer, and the fact that some of the firearms were loaded, indicated a readiness (whether by the respondent or another) to use them. Moreover, the two firearms in the utility, one of which was loaded and in the driver’s side door, reflected an immediacy as to their intended use. Accordingly, the judge characterised the firearms charges as being at a ‘level of seriousness well above the lowest end of the potential range for possession of firearms’.[4]
As regards the drug offence, the judge took the view that this was the least serious part of the respondent’s overall offending. That finding was well open, and is not the subject of any challenge in this appeal.
Turning to the respondent’s personal circumstances, the judge noted that the respondent’s life had, shortly before the commission of these offences, taken a ‘major downturn’.[5] He had been forced to leave his home and children following the breakdown of his marriage to his partner of more than 12 years. He was also unable to continue employment with his wife’s family company. The judge noted, however, that the respondent’s association with the Hells Angels appeared to have commenced some months prior to the marriage ending.
The judge noted the respondent’s prior criminal history, including charges for violent offending and one of armed robbery. She noted, in particular, that the respondent had, in 2008, been returned to prison for three months having breached parole. Specific deterrence was, therefore, of particular importance in this case.
The judge also took into account the fact that, at least from the beginning of July 2015 to 20 October 2015, the respondent, whilst on remand, had been subjected to extraordinarily onerous conditions by reason of a prison lockdown following a riot involving other prisoners with whom the respondent had not had any involvement.
Finally, the judge characterised the respondent’s prospects of rehabilitation as ‘fair’.[6] She observed that his fate in that regard was in his own hands, there being no underlying conditions likely to affect those prospects. She also took into account the utilitarian value of the respondent’s guilty pleas, which she considered reflected some degree of remorse.[7]
[3]DPP v Basic [2015] VCC 1863 [20] (Judge Cohen) (‘2015 Reasons’).
[4]2015 Reasons [23].
[5]Ibid [35].
[6]Ibid [49].
[7]CoA Reasons [21]–[27] (citations in original).
The sentences imposed by the County Court in the first instance in respect of the 2013 firearms offending and the other 2013 offending are set out at [5] above.
Reasons for Court of Appeal resentence on 10 May 2016
In its decision of 10 May 2016, after setting out the submissions of the parties (including reference to previous sentences which were submitted by the parties to bear on current sentencing practice), the Court of Appeal concluded that the sentence initially imposed with respect of the 2013 firearms offending was manifestly inadequate.
In her sentencing remarks, the judge made it plain that she considered that the more than two years that the respondent had by then served was sufficient, in all the circumstances, to meet all relevant sentencing requirements.
Her Honour’s reasons for sentence were thorough and detailed. In what was obviously a difficult sentencing exercise, no error has been shown in relation to the sentence imposed for either of the two explosives offences. That is not to say that the sentence imposed could be described as other than extremely lenient, and one which was barely within the available range. It must be recognised that to participate in a joint enterprise to make explosives, even if only with the intent to cause serious damage to property (and which explosives were used with that object in mind) is an offence which should ordinarily attract a sentence of a considerably higher order than that imposed by her Honour.
The position regarding the firearms charges is, however, different. These charges were extremely serious, particularly having regard to the context within which these offences were committed. The inescapable conclusion from the admitted facts was that the respondent and his associates in the Hells Angels were anticipating a violent response to the firing of shots through the windows of the Nitro Gym, and their attempt to blow up those premises in the early hours of the previous morning. Further, by his plea to possession of a drug of dependence and the admitted fact that the drug belonged to the Hells Angels, the respondent admitted that he and his associates were involved in drug trafficking. It could be inferred that the possession of at least some of the firearms was for the purpose of security or enforcement with respect to that unlawful activity. It need hardly be said that the possession of such a large number of weapons, in the context of an on-going war between two rival motorcycle gangs, and the use of weapons in aid of drug trafficking, called for a substantial measure of punishment. It required the imposition of a custodial term significantly beyond the aggregate term fixed in this case.
In our opinion, and with respect, the sentence imposed by the judge for the firearms offences was not merely inadequate, but manifestly so. It did not accord with current sentencing practice for offences of that type in this State which involve the possession of firearms in furtherance of ongoing criminal activity. Had the sentencing principles of general and specific deterrence and denunciation been correctly applied, a far more substantial term of imprisonment should have been imposed.[8]
[8]CoA Reasons [62]–[65].
Nevertheless, the Court of Appeal did not impose a further period of imprisonment but re-sentenced the respondent on an expressly merciful basis having regard to three factors:
The factors militating against now sending the respondent back to prison include his having been at large since being sentenced in December 2015, and having completed almost the whole of his 100 hours of unpaid community work. More importantly, perhaps, is the process of rehabilitation that the respondent is currently undergoing, and the desirability of enabling that to be continued.[9]
[9]Ibid [67].
The Court of Appeal concluded that the public interest was best served by allowing the Director’s appeal, making clear that the aggregate sentence imposed on the 2013 firearms offending was manifestly inadequate, and imposing a significantly more punitive CCO than the judge did below. Accordingly, it substituted a new CCO of four years’ duration with 400 hours of community service to be performed, effective from 14 December 2015, being the date of the original sentence.
In conclusion, the Court of Appeal emphasised that the sentence was not one which would have been appropriate in the first instance:
In allowing the Director’s appeal, but not increasing the actual period of incarceration, we are not imposing the sentence that we would have fixed had we been sentencing the respondent at first instance. However, circumstances have changed, and the resentencing exercise should reflect that fact. At the same time, of course, this case should not be regarded as a precedent for others who might offend in this way to receive such lenient treatment.[10]
[10]Ibid [71].
Background — the 2016 offending
As previously stated, on 1 June 2016, police executed a search warrant at the respondent’s place of residence, a house owned by a friend, who also lived there.
During the search, police located the following firearms in the house:
·a loaded Tokarev 7.62 calibre semi-automatic handgun (described as a Norinco Model M20 semi-automatic pistol), in the hallstand near the front door (Charge 1);
·an unloaded Browning semi-automatic handgun (described as a Browning 1906-Vest Pocket semi-automatic pistol), located in a hidden compartment behind the splashback in the laundry (Charge 2);
·a black Winchester model 1200 Defender 12 gauge pump action shotgun, also in the hidden compartment in the laundry (Charge 3);
·a loaded black Glock 0.40 calibre semi-automatic handgun chambered for Smith and Wesson ammunition, located in a rear unlocked bedroom (Charge 4).[11]
[11]This firearm was mis-described in the indictment which will be amended to particularise the firearm as a ‘0.40 calibre Glock model 27 semi-automatic pistol’.
Police also found the following ammunition (Summary Charge 6):
·a duffle bag containing 12 gauge shotgun cartridges on a shelf in the laundry;
·a full magazine containing 0.762 calibre rounds in the hallstand;
·a full magazine containing 0.40 calibre rounds in the respondent’s bedroom;
·a full magazine containing 0.40 calibre rounds in a cupboard under the stairs;
·a box containing 28 Federal Premium rifle ammunition in the laundry hidden compartment;
·a box of 48 Winchester Super X jacketed hollow point cartridges in the laundry hidden compartment;
·a box of 4 Fiocchi 7.62 calibre jacket ammunition in the laundry hidden compartment;
·a box of 25 Steel Maxx 0.12 gauge ammunition in the laundry hidden compartment;
·a snap-lock bag containing 19 rounds of 7.62 calibre ammunition in the laundry hidden compartment;
·a plastic box containing 50 rounds of 7.62 calibre ammunition in the laundry hidden compartment;
·a snap lock bag containing Winchester 0.40 calibre ammunition; and
·a snap lock bag containing Winchester ‘30 Special’ ammunition.
Police also located a black body armour vest in the respondent’s wardrobe (Summary Charge 11).
In the kitchen refrigerator, police found two vials containing anabolic steroids (Charge 5).
The respondent was arrested and taken to Melbourne West Police Complex. After some initial denials, the respondent made full admissions regarding the possession of the firearms, specifically stating that they did not belong to the owner of the house and that the respondent was storing them.
County Court sentence on 11 July 2017 — the 2017 Reasons[12]
[12]DPP v Basic [2017] VCC 977 (‘2017 Reasons’).
The judge commenced her sentencing reasons of 11 July 2017 by acknowledging the respondent’s pleas of guilty to each of the charges arising out of the 2016 offending. She then set out the maximum penalty applicable to each charge.
She noted that all of the charges arose out of one incident, and originated from the search carried out on 1 June 2016. She summarised the circumstances in which the relevant items were found.
The judge then recorded the fact of the admissions made by the respondent on the day of his arrest and his subsequent pleas of guilty at the earliest opportunity. She stated that the respondent’s co-operation with police and early pleas of guilty had utilitarian value and entitled the respondent to ‘considerable leniency’.[13] She also accepted that the respondent’s acknowledgment of responsibility for the offending reflected some genuine remorse.[14]
[13]2017 Reasons [7].
[14]Ibid [7].
She recorded that at the initial plea hearing the respondent had indicated a willingness to make a statement to police which might provide useful information as to the source of the firearms. The hearing was adjourned in order to facilitate this course but in the event the information the respondent provided to the police was deemed to be of little practical value due to the elapse of time. Nonetheless her Honour accepted that the respondent had demonstrated a genuine willingness to co-operate with police.[15]
[15]Ibid [8].
The sentencing judge recorded that she had been told the offending occurred when the respondent had armed himself for defensive purposes after having heard that he was likely to be targeted both by the Comancheros outlaw motorcycle club (because of his involvement in the events of 2013) and by the Hells Angels outlaw motorcycle club (because he had terminated his association with that club).
Her Honour noted that police had attended the respondent’s residence after a gunshot was fired on vacant land behind the house causing anxious neighbours to contact the police.
The judge evaluated the relative significance of the respondent’s defensive motive for possessing the firearms as follows:
Even accepting that on this occasion there is no evidence that you intended to use any of these weapons for anything other than defending yourself, there are other ways of defending yourself such as by seeking police assistance.
The circumstances are much more serious than were a single unloaded weapon stored where you lived, perhaps under lock and key, and with no intention of it being used for any purpose. The fact that you had acquired four firearms, and multiple types of ammunition for them, and kept two loaded, one in the hall table and one in your bedroom, reflects that even if only to defend yourself you did anticipate using one or more of them. The fact that someone else at the premises may have found and fired one or more of them is an indication of the wider risk to public safety or indeed the prospect of them being taken by some other person to be used in relation to some other criminal activity.[16]
[16]Ibid[16].
In turn, the judge concluded that protection of the public, general deterrence and specific deterrence were significant sentencing considerations.
In the latter respect, her Honour emphasised the short period of time between the Court of Appeal decision delivered on 10 May 2016 and the 2016 offending on 1 June 2016. She also referred to the respondent’s history of offences of violence and the fact that the respondent’s criminal history commenced prior to any involvement with motorcycle clubs and showed that he had used violence well before such involvement.
Turning to matters personal to the respondent, her Honour noted the respondent was then aged 37. He had previously been married but was divorced in 2013. He had been unable to establish access arrangements with his children since that time. However, he had the support of his parents.
His involvement with an outlaw motorcycle gang had commenced in the context of his marriage breakdown.
In her Honour’s view, the respondent did not seem to have learnt from his prior mistakes but on the other hand did not seem to have significant underlying problems such as mental health or drug dependency issues.
He had been remanded in custody for more than 17 months since his arrest on 1 June 2016 and had spent most of that time in protective conditions at the Melbourne Assessment Prison. Her Honour specifically accepted this factor called for some moderation of sentence.
The judge went on to assess the respondent’s prospects of rehabilitation as remaining ‘fair’ when regard was had to his employment history and a history of community work arising out of performance of his obligations pursuant to the CCO. She accepted that the respondent had a genuine motivation to try and reform, namely to try and gain contact with his children in the future.
Her Honour then turned to a consideration of current sentencing practice and said:
For consideration of current sentencing practices for offences of this type, I was provided with sentencing snapshots in relation to the charge of being a prohibited person possessing, carrying or using a registered firearm. For the period from July 2011 to June 2014, when certain types of sentences were available but are no longer, in effect more than 50 per cent received sentences that involved some imprisonment. Further, for the period July 2011 to June 2015, more than 68 per cent the terms of the imprisonment imposed were up to two years imprisonment, and only 11 per cent were for more than three years imprisonment. These statistics provide some guidance as to current sentencing practice, but limited due to lack of information as to whether these were sentences imposed after trial or pleas of guilty, whether they were for possession of single or multiple firearms, whether they involved possession of firearms for furtherance of ongoing criminal activity, and the extent of relevant prior offending. I note that it is likely there was some prior serious offending for the offender to be a prohibited person under those charges.[17]
[17]Ibid [30].
Her Honour further took into account cases referred to by the Court of Appeal in its May 2016 decision.[18]
[18]Ibid [31]. See cases relied upon by the Director in the CoA Reasons at [40]–[43], namely R v Henderson (2009) 22 VR 662, Berichon v The Queen (2013) 40 VR 490 and Powell v The Queen [2015] VSCA 93; and cases relied upon by the respondent at [59] n 19, namely R v Graham (2007) 178 A Crim R 467, Armistead v The Queen [2011] VSCA 84, R v Barca [2007] VSCA 167, Haddara v The Queen [2015] VSCA 158, and R v Afacan [2015] VSC 755.
Her Honour assessed the gravity of the offending as follows:
I am prepared to accept that your possession of these firearms was not in the category of being in furtherance of ongoing criminal activity, so therefore of a lesser seriousness than last time, but with the prior charges so recently reviewed by the Court of Appeal and as there were four firearms, all with available ammunition and two kept loaded, I consider that these offences are nevertheless of considerable seriousness.[19]
[19]2017 Reasons [32].
The judge then determined to impose the sentence we have tabulated at [11] above.
Her Honour then turned to re-sentence the respondent with respect to the 2013 firearms offending.
The judge noted that the respondent had breached the most fundamental of the terms of the CCO imposed by the Court of Appeal, namely that a person on a CCO must not commit any offence punishable by imprisonment during the period of the order.[20]
[20]See Sentencing Act 1991 s 45(1)(a).
Her Honour further noted that the respondent had successfully completed 84 hours of community work pursuant to the CCO. We interpolate that it will be recalled that the Court of Appeal had imposed a total requirement for 400 hours of community work over a period of four years.
The breach of the CCO was admitted.
The Court’s powers upon breach included the power to re-sentence,[21] and if that course was followed, the Court was required to take into account the extent of compliance with the order to date.[22]
[21]Ibid s 83AS(1)(c).
[22]Ibid s 83AS(2).
The judge considered whether confirmation or variation of the CCO would be appropriate. She noted that neither the original sentence of imprisonment nor the imposition of successive CCOs had proved an adequate deterrent to further offending by the respondent.
After further considering the statutory regime governing the grant of a CCO, her Honour ultimately re-sentenced the applicant to a further term of imprisonment as tabulated at [12] above.
We turn now to the submissions in the present appeal.
The 2016 offending - submissions
The Director submits that the sentence imposed for the 2016 offending fails to reflect the fact that the offending occurred only three weeks after the Court of Appeal had resentenced the respondent for almost identical offending and in circumstances where the respondent was in breach of the conditions of a CCO.
It is further submitted that the combination of weapons and ammunition found again reflected the assembly of ‘an arsenal’. The offending involved four separate weapons. Two of the weapons to hand were loaded semi-automatic weapons which are properly considered to be particularly lethal. The circumstances leading to the discovery of the firearms demonstrated the risk arising from their possession.
In turn, the Director submitted that the sentences imposed with respect to the 2016 offending failed to properly reflect the gravity of the offending and the seriousness of the charges or to provide an adequate deterrent to further offending, either by the respondent or by others.
Insofar as the sentencing judge accepted that the respondent had armed himself for defensive purposes and found that there was nothing to indicate the respondent intended to use the firearms for offensive purposes, the Director further submitted that it was recognised in Berichon v The Queen[23] that the prior criminal history of an offender might nevertheless justify a higher order of sentence in this kind of case. In Berichon,[24] Redlich JA observed:
The conduct of a prohibited person in possession of an unregistered firearm may be placed in one of two broad categories of seriousness. Those categories have been discussed in R v Graham[25] and Armistead v The Queen.[26] The first category of cases are those where the conclusion is not open that the possession of the firearm is associated with some ongoing criminal activity. Sentences of a low order of imprisonment are usually appropriate[27] unless the previous criminal history of the offender warrants a more substantial sentence, proportionate to the gravity of the offence.[28] The second category of cases are those where the evidence enables the conclusion that the possession is for the purpose of criminal activity or a specific criminal purpose, more severe sentences are then usually in order.[29] Such sentences will be appropriate where the firearm is, for example, possessed in the context of a criminal activity to provide security or as a means of enforcement. The prior convictions of the offender in conjunction with circumstantial evidence may also enable the conclusion to be drawn that the possession is for some unlawful activity.[30]
[23](2013) 40 VR 490 (‘Berichon’).
[24](2013) 40 VR 490.
[25](2007) 178 A Crim R 467.
[26][2011] VSCA 84.
[27]Sentences in the range of six to 18 months are ordinarily imposed.
[28]R v DJ [2007] VSCA 148 [7] (Buchanan JA).
[29]Hudson v The Queen (2010) 30 VR 610, 624 [54]; R v Rudd (2009) 23 VR 444, 464 [88]; R v Graham (2007) 178 A Crim R 467, 470 [12] (Vincent JA).
[30]Berichon (2013) 40 VR 490, 496 [26] (citations in original).
The Director submitted that the possession of the firearms was a conscious violation of both the general firearms law and the good behaviour condition of the respondent’s CCO. Insofar as the sentencing judge relied on current sentencing practice, it was further submitted that the statistics relied on did not distinguish between the type of weapon, whether such weapon was loaded, whether it was to hand and the extent of relevant prior offending.
Further, each firearm charge merited a significant term of imprisonment and an appropriate measure of cumulation. Despite the matters personal to the respondent which might be regarded as requiring some moderation of sentence, the Director submitted that both the head sentence of 18 months’ imprisonment and the cumulation of two months’ imprisonment upon three further charges in respect of the 2016 offending were manifestly inadequate.
The respondent emphasised that the sentencing judge accepted the following matters as mitigatory:[31]
[31]Respondent’s written case dated 11 September 2017 [14] (citations in original).
a.the possession of the firearms was not in the category of being in furtherance of ongoing criminal activity, and was therefore of a lesser seriousness than [the 2013 firearms offending];[32]
[32]2017 Reasons [32].
b.the offending was related to fear of reprisals from his previous involvement with motorcycle gangs, and not in pursuance of any offensive purpose such as providing security or enforcement in the context of other criminal activity;[33]
c.the respondent had had no contact with his children since his arrest, and had genuine motivation to try to build a better future in order to gain some contact with them in the future;[34]
d.the respondent had engaged with the therapeutic conditions of his CCO and made rapid progress in completing his community service hours;[35]
e.the respondent had on release obtained full-time employment quite quickly;
f.the respondent had been offered full-time employment at the Western Bulldogs Football Club as a result of his community work there. He had declined that offer due to his existing employment, but had done voluntary work there over and above his allocated community work;[36]
g.the respondent had offered genuine co-operation with the police and been prepared to make a statement disclosing the source of the weapons, albeit that the information was not fresh enough to justify the police pursuing the matter further.[37] This was a significant matter given the respondent’s previous involvement in motorcycle gangs;
h.as a result, her Honour accepted that there was some remorse;[38]
i.the respondent’s prospects of rehabilitation were ‘by no means poor’;[39]
j.the respondent had been kept on remand at the Melbourne Assessment Prison in order to protect him from attacks in the prison system;[40]
[33]Ibid [14].
[34]Ibid [20], [29].
[35]Ibid [12].
[36]See the respondent’s evidence at T 19:10-28 and 2017 Reasons [12].
[37]2017 Reasons [8]. The respondent had been prepared to give the relevant information on oath at the plea: see T 23-24.
[38]2017 Reasons [8].
[39]Ibid [26].
[40]Ibid [25].
The respondent further submitted that the sentencing judge had properly balanced the lesser inherent seriousness of the 2016 offending (compared with the 2013 firearms offending) on the one hand, and the aggravating factors of reoffending so soon after the Court of Appeal decision and the reoffending in breach of the CCO.
Current sentencing practice
The respondent submitted with respect both to the re-sentence imposed for the 2013 firearms offending and the sentence imposed for the 2016 offending that regard should be had to current sentencing practice. We would interpolate that little if any weight can be given to the broad statistical information to which the sentencing judge referred.[41] Nor did such information in fact relate to the specific offence in issue.[42]
[41]Pham v The Queen (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ), 564–5 [46] (Bell and Gageler JJ) (‘Pham’); Hili v The Queen (2010) 242 CLR 520, 535 [48] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) (‘Hili’); Wong v The Queen (2001) 207 CLR 584, 608 [66] (Gaudron, Gummow and Hayne JJ).
[42]The statistics referred to related to ‘Prohibited Person Possess, Carry or Use a Registered Firearm (July 2010 to June 2015)’ (the offence comprised in s 5(1) prior to 16 May 2012, and in any event irrelevant as the firearms in the present case were unregistered) rather than ‘Prohibited Person Possess, Carry or Use Firearm (1 July 2011 to 30 June 2016)’ (the offence comprised in s 5(1) at the time of the relevant offending in this case). See [74] below for explanation of the change to s 5(1) which came into effect on 16 May 2012.
More specifically however, the respondent submitted by reference to a series of decisions[43] that ‘the tariff’[44] in respect of the two categories of offending postulated in Berichon might be:
a. 6-18 months is the range for offences in the lower category, with those in the order of 18 months being reserved for cases associated with some ongoing criminal activity;
b.sentences ‘in the order of two years’ are appropriate for cases where the firearm is in fact used in the commission of an offence or associated with ongoing criminal activity.[45]
Within this range, the respondent submitted that ‘the appellant’s offending falls between these two categories due to his recent prior offending. Individual sentences in the range of 18 months, and a total effective sentence of two years, properly reflect that categorisation.’[46]
[43]Berichon (2013) 40 VR 490; Armistead v The Queen [2011] VSCA 84 [12]; R v Graham (2007) 178 A Crim R 467.
[44]Respondent’s written case dated 11 September 2017 [20].
[45]Ibid.
[46]Ibid [21].
Further, it was submitted that a series of other sentencing decisions (discussed at [78] below) demonstrate that:
even for offenders involved in repeated, serious offending, individual sentences of between six and 18 months for possession of firearms, even in aggravating circumstances, are routinely imposed. It is in the nature of the s 5(1) offence that it is generally committed by those with serious prior convictions, as it is applicable only to ‘prohibited persons’.[47]
[47]Ibid [23] referring to R v Afacan [2015] VSC 755; Haddara v The Queen [2015] VSCA 158; R v Barca [2007] VSCA 167; Saracevic v The Queen [2017] VSCA 212; Powell v The Queen [2015] VSCA 93.
Attention was also drawn to the fact that a number of these earlier cases involved sentences which were imposed under a different, harsher statutory provision. The offence now under consideration comprised in s 5(1) of the Firearms Act 1996, namely that ‘A prohibited person must not possess, carry or use a firearm’ (maximum penalty 10 years’ imprisonment), previously included a further provision which drew a distinction between possession of registered and unregistered firearms as follows:
5 Offence for prohibited person to possess, carry or use a firearm
(1)A prohibited person must not possess, carry or use a registered firearm.
1200 penalty units or 10 years imprisonment.
(1A)A prohibited person must not possess, carry or use a firearm that is not registered.
1800 penalty units or 15 years imprisonment.
Section 5(1A) was repealed from 16 May 2012 with the effect that the maximum penalty for possession of an unregistered firearm (as is the case here) was lowered from 15 years to 10 years’ imprisonment.
The relevance of prior sentencing decisions was restated by the High Court in R v Kilic: [48]
[48](2016) 259 CLR 256, 266–7 [21]–[22] (Bell, Gageler, Keane, Nettle and Gordon JJ) (citations in original) (‘Kilic’).
Section 5(2)(b) of the Sentencing Act 1991 (Vic) required [the sentencing judge], and the Court of Appeal, to have regard to ‘current sentencing practices’. The evident purpose of that requirement is to promote consistency of approach in the sentencing of offenders.[49] Consideration of ‘current sentencing practices’ will include, where appropriate, the proper use of information about
sentencing patterns for an offence.[50] The requirement of currency recognises that sentencing practices for a particular offence or type of offence may change over time reflecting changes in community attitudes to some forms of offending. For example, current sentencing practices with respect to sexual offences may be seen to depart from past practices by reason, inter alia, of changes in understanding of the long-term harm done to the victim. So, too, may current sentencing practices for offences involving domestic violence depart from past sentencing practices for this category of offence because of changes in societal attitudes to domestic relations.
Their Honours in the Court of Appeal observed, correctly, that examination of cases of causing serious injury by fire may provide a relevant ‘yardstick’[51] by which a sentencing court can attempt to achieve consistency in sentencing and in the application of relevant sentencing principles but that the requirement to have regard to the sentences imposed in those cases does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences must be passed;[52] rather the range of sentences imposed in the past may inform a ‘broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle’.
[49]Sentencing Act 1991 (Vic) s 1(a).
[50]See and compare Wong (2001) 207 CLR 584, 591–3 [6]–[12] (Gleeson CJ), 605–8 [57]–[66] (Gaudron, Gummow and Hayne JJ); Hili (2010) 242 CLR 520, 536–7 [53]–[54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Pham (2015) 256 CLR 550, 559–60 [28]–[29] (French CJ, Keane and Nettle JJ).
[51]DPP (Cth) v De La Rosa (2010) 79 NSWLR 1, 71 [304] (Simpson J), quoted with approval in Hili (2010) 242 CLR 520, 537 [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). See also Pham (2015) 256 CLR 550, 560 [29] (French CJ, Keane and Nettle JJ). Another ‘yardstick’ is the statutory maximum: R v Hoar (1981) 148 CLR 32, 39 (Gibbs CJ, Mason, Aickin and Brennan JJ). See also Sentencing Act 1991 s 5(2)(a).
[52]DPP (Vic) v OJA (2007) 172 A Crim R 181, 196 [30]–[31] (Nettle JA, Ashley and Redlich JJA agreeing at 206 [71], [72]).
In Director of Public Prosecutions v Dalgliesh (a pseudonym),[53] the High Court made specifically clear that current sentencing practice does not limit the power of this Court upon a Director’s appeal to impose the sentence appropriate in all the circumstances of the case. It is simply a matter to be taken into account.
[53](2017) 91 ALJR 1063. See also DPP v Dalgleish (a pseudonym) [2017] VSCA 360 [55]–[63].
In Kilic, the High Court also made the following further observation in respect of the cases referred to by the parties in that case:
The few cases mentioned by the parties could not properly be regarded as providing a sentencing pattern. There were too few of them, one dealt with a different offence, another was more than twelve years old and, in any event, as will be explained, the circumstances of the offending in each of those cases were too disparate. At best they were representative of particular aspects of the spectrum of seriousness.[54]
[54](2016) 259 CLR 256, 268 [25] (citations omitted).
A similar observation could made in respect of the cases referred to by the respondent in the present appeal. The respondent tabulated five cases in its written submissions by way of ‘survey of comparable cases’ to demonstrate that the sentences imposed in 2017 were within range. This is too few to demonstrate a sentencing pattern. Of these, two involved sentences imposed under the now repealed s 5(1A) in respect of possession of an unregistered firearm, one dealt with an entirely difference offence (possession of an unregistered general category handgun contrary to s 7B(1)), and in any event, as will be briefly explained, the circumstances of the offending and circumstances personal to the offenders in each of those cases severely limit their utility as comparators to the aggregate offending of the respondent in the present appeal.
·In Powell v The Queen,[55] the offender was charged with various drug offences, possession of prohibited weapons and possession of firearms in respect of a sawn-off 12-guage shotgun and a Jennings .22 calibre handgun found in his home. He was sentenced to two years on the firearms charge (which encompassed both firearms), and to a total effective sentence of two years and nine months’ imprisonment with a non-parole period of one year and nine months. As in the present case, the offender kept the shotgun for the purpose of security in the event of a ‘run-through’ by motorcycle gang members who had been known to target those involved in trafficking drugs, such as himself. Unlike the present case in which two of the firearms were kept loaded along with a large quantity of ammunition, both firearms in Powell were found unloaded and the evidence before the court was that the handgun was not functional and could not be fired. The four bullets found at the property were incapable of being used with either firearm. Further, the Court of Appeal noted that the shotgun in Powell had not been acquired by the offender in a context directly related to his trafficking activities but rather had been given to the appellant six months prior by someone who owed him money. The offender had no prior convictions for firearms offences, was a prohibited person by virtue only of an in intervention order and had a very limited history of violence of any kind. He had never been incarcerated. The appeal was allowed and the sentence reduced on the possession of a firearm charge from two years to 15 months’ imprisonment, with a total effective sentence of two years’ imprisonment and a non-parole period of 15 months.
·In R v Afacan,[56] the offender whilst on parole and a prohibited person within the meaning of s 3(1) of the Firearms Act 1996, possessed a sawn-off shot gun which he fired at the victim, causing the victim serious injury. He pleaded guilty to charges of intentionally cause serious injury and possession of a firearm whilst a prohibited person. In sentencing him for the firearm charge, the judge noted that the offending was aggravated by at least two matters, namely the nature of the double barrelled shot-gun, and the fact the offender was on parole at the time of the offence. The aggravating fact the firearm was carried and used in a public place was considered to be embraced in the intentionally cause serious injury charge and the offender fell to be sentenced for possession of the firearm only as otherwise would amount to double punishment. In the event, the judge considered the possessing a firearm change as ‘falling around the lower-to-middle range of seriousness for the offence’.[57] While on the one hand, the offender had an extensive criminal history for dishonesty and violence, the judge noted in mitigation the offender’s guilty pleas (albeit on the second day of preliminary argument), remorse, relative youth (23 at the time of the offending), and good prospects of rehabilitation. He was sentenced to 12 months’ imprisonment on the firearm charge and a total effective sentence of five years’ imprisonment with a non-parole period of three years. However, given the offender was on parole for serious offences including some which involved violence at the time of the offending, the judge noted that the cumulative effect of the sentence was as if the offender had received a combined total effective sentence of six years and seven and a half months’ imprisonment with a non-parole period of four years and one and a half months.
·In Haddara v The Queen,[58] the offender pleaded guilty to seven charges of being a prohibited person in possession of a firearm in addition to a number of drug related charges, driving offences, and summary charges in relation to possession of ammunition, various other weapons, and protected wildlife. He was sentenced to periods of one and two years’ imprisonment on the firearms charges and a total effective sentence of seven years’ imprisonment with a non-parole period of four years and six months, in circumstances where the offender was offering firearms for sale including semi-automatic assault rifles. Three of the charges were in respect of the now repealed s 5(1A). The trial judge’s reasons and record of orders in respect of one of the charges miscategorised both the category of firearm (treating an AK-47 assault rifle as a handgun, possession of which as a first offence would face a maximum of seven years imprisonment under s 7B(1)) and designated unregistered status when in fact no registration status was alleged in the charge. In the circumstances, the Court of Appeal found it likely that the judge did not apply the correct statutory maximum on that charge, and exercised the sentencing discretion afresh to impose periods of nine, 12 and 18 months’ imprisonment taking into account the offender’s early guilty plea, low level of intellectual functioning, major depressive disorder, relatively limited criminal history and the fact he had not been previously imprisoned. He was resentenced to a total effective sentence of six years’ imprisonment with a non-parole period of three years and nine months.
·In R v Barca,[59] the offender, who had a very lengthy criminal record including 10 firearms offences, pleaded guilty to five charges of possession of an unregistered firearm whilst a prohibited person contrary to the now repealed s 5(1A) in addition to charges of threat to kill, common assault, trafficking, obtaining property by deception and theft. In respect of two of the charges, the firearms were used in the context of rolled-up charges of threats to kill. The other charges related to firearms found at the offender’s home and car two years later. While one charge related to possession of an imitation pistol cigarette lighter, the other charges related to a handgun, a sawn-off pump action shotgun and a semi-automatic pistol. The firearms were loaded on all but one occasion where the facts did not make clear whether it was loaded or not. The offender was sentenced in 2007 to periods of 12 months, 12 months, 12 months, four months and three months’ imprisonment on the firearms charges, and a total effective sentence of six years’ imprisonment with a non-parole period of four and a half years, which was upheld on appeal.
·The offender in Saracevic v The Queen[60] was a ringleader within the Comancheros motorcycle club involved in recovering moneys by making threats. Upon arrest he was found with a fully loaded semi-automatic pistol and subsequently charged with various offences including blackmail, recklessly causing injury, possession of ammunition without a licence and, in contradistinction to the present case, for possession of an unregistered general category handgun contrary to s 7B(1) of the Firearms Act 1996 which carries a maximum penalty of seven years’ imprisonment. The judge noted that the offender had no prior convictions, pleaded guilty (albeit not early), complied with strict bail conditions, no longer wished to associate with the Comancheros, had a good work history, supportive family and had prospects of rehabilitation which were reasonably good. He was sentenced to 18 months’ imprisonment on the firearms charge, and a total effective sentence of four years and four months’ imprisonment with a minimum non-parole period of three years,. The Court of Appeal dismissed an appeal on the ground of manifest excess in respect of the firearms charge.
[55][2015] VSCA 93.
[56][2015] VSC 755.
[57]Ibid [46] (Croucher J).
[58][2015] VSCA 158.
[59][2007] VSCA 167.
[60][2017] VSCA 212.
In our view, none of the cases referred to is directly comparable to the aggregate offending in this case. Moreover, the observations of the Court of Appeal in Saracevic v The Queen are apposite:
As the cases relied on by counsel illustrate, firearm possession offences are frequently charged alongside other serious offences. The circumstances and seriousness of offending vary significantly. It is necessary to keep the relevant category of seriousness in mind when considering the sentencing range for the particular offence. It is also not uncommon to have cases where the issue of double punishment arises because the firearm possession offence overlaps with a more serious offence, for example, if the firearm was used in the commission of an armed robbery. Such cases will result in sentences that are, in principle, different from cases where the firearm possession offence is discrete.[61]
[61][2017] VSCA 212 [29] (Hansen and Coghlan JJA).
The gravity of the 2016 offending
A critical element of the respondent’s submission was the proposition that in terms of the principles stated in Berichon (and endorsed by the Court of Appeal when the respondent came before it), the 2016 offending was of a character which justified a lower order of sentence.
There are two difficulties with this submission. First, Berichon should not be understood to have established fixed sub-categories of offending which constrain the response which a sentencing court should make to the particular circumstances of a case. The imposition of a just sentence is not to be approached as if it were a mechanistic or automatic exercise.[62]
[62]DPP v Dalgliesh (a pseudonym) (2017) 91 ALJR 1063 1071–2 [45], 1073 [51]–[52] and the authorities there cited.
Secondly, in Berichon itself, each of the judgments made clear that the prior history of an offender could lead to the conclusion that despite the absence of other aggravating features, a heavy penalty was warranted. In that case, Priest JA observed:[63]
Moreover, in my view, the sentence of three years and six months imprisonment on the firearms charge is within range. True it is that only two sentences reviewed by this Court come close to the sentence passed in the present case,[64] but the applicant had a very serious and disturbing prior history with respect to the use of firearms.[65] Although, of course, he is not to be punished again for the prior offences, the applicant’s prior history is relevant as an indicator of his moral culpability, his prospects of rehabilitation, his dangerous propensities and the community’s need for protection, and the increased importance of specific deterrence as an animating factor in the sentencing process.[66]
[63](2013) 40 VR 490, 499–500 [44] (citations in original).
[64]DPP v Faure (2005) 12 VR 115 (3/2); Yost v The Queen [2012] VSCA 181. It is to be noted that in Faure, a Crown appeal, the Court made clear that a higher sentence would have been appropriate but for the influence of double jeopardy: (2005) 12 VR 115, 116 [1] (Callaway JA), 116 [2] (Batt JA), 121 [28] (Williams AJA).
[65]R v Berichon [1999] VSC 329.
[66]R v O’Brien and Gloster [1997] 2 VR 714, 718.
Redlich JA agreed:[67]
I am not however persuaded that a different sentence should be imposed. There remains a sound basis for placing the applicant’s possession in the more serious category. I agree with Priest JA that because of the applicant’s prior convictions his possession was to be placed in the more serious category. The applicant had very serious prior convictions involving the use of firearms and was in breach of his suspended sentence at the time of this offence. There was other evidence that could also be taken into account that it was not suggested, nor could it be, that the gun had only been acquired for the purpose of the conspiracy.
[67]Berichon (2013) 40 VR 490, 497 [30].
Robson AJA also agreed[68] and referred to the statement of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen (No 2):
… the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell.[69] The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner’s claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community’s understanding of what is relevant to the assessment of criminal penalties.[70]
[68]Ibid 514 [149]–[151].
[69](1970) AC 642, 650.
[70](1988) 164 CLR 465 (citation in original).
In the present case, not only did the respondent have a longstanding history of criminal violence, but the 2013 firearms offending constituted very grave prior offending of the precise kind for which he again fell to be resentenced.
Furthermore, the 2016 offending occurred within weeks of the respondent’s resentence by the Court of Appeal and within weeks of him entering into the conditions of the extended CCO which the Court of Appeal imposed upon him, including the undertaking to be of good behaviour.
Due weight must of course be given to the respondent’s pleas of guilty, his cooperation with police, his demonstration of remorse, his continuing underlying prospects of rehabilitation, and the fact the he has been and will probably continue to be held in custody in circumstances which are more than ordinarily onerous due to the need to isolate him for his own protection.
Nevertheless, the penalties imposed by the sentencing judge were manifestly inadequate. Neither the head sentence nor the cumulative sentences of imprisonment imposed with respect to the three further firearms offences adequately reflected the gravity of the offending, the obvious need for specific and general deterrence, denunciation, punishment and protection of the community. Accordingly, we would substitute the sentences tabulated at [17] above.
The 2013 firearms offending — submissions
The Director further submitted that the penalty imposed in the County Court in 2017 by way of re-sentence with respect to the 2013 firearms offending was manifestly inadequate, in that it did not reflect the seriousness of the offending and the need for general and specific deterrence, denunciation and protection of the community.
It was submitted that the sentence did not reflect the sort of sentence contemplated by the Court of Appeal as originally appropriate and that the respondent fell to be re-sentenced afresh in accordance with the principles identified by the Court of Appeal.
The Director conceded that the respondent could call in aid a series of matters in mitigation of penalty, namely:
·full admissions regarding the possession of the firearms and ammunition;
·an early plea of guilty;
·the utilitarian value of the guilty plea and the fact that it reflected genuine remorse;
·co-operation with authorities;
·the fact time in custody would be more onerous than would otherwise be the case because of danger from associates of motor cycle gangs; and
·the respondent’s employment history and ongoing potential for future employment.
The respondent submitted that the penalty imposed by re-sentence is unremarkable when account is taken of the fact that at the time of the original sentencing with respect to the 2013 firearms offending in December 2015:
·the respondent had no prior convictions involving firearms or explosives;
·the respondent did not have a history of sustained, entrenched or regular offending;
·the respondent had no ‘underlying problems’ likely to increase the risk of future offending;
·the respondent had the support of his parents and a group of long-standing friends from the Croatian community;
·part of the respondent’s sentence had been served in restrictive conditions due to the lockdown following the riot at the Metropolitan Remand Centre, in which he was not implicated;
·the respondent had demonstrated a number of good and admirable qualities, including working as a regular weekly volunteer for a charity providing care and support for disadvantaged and distressed people in the Frankston community, as well as providing financial donations;
·the respondent’s marriage had broken up shortly before the offending and his moving into the circle of the Hell’s Angels;
·the respondent’s contact with his children was by telephone only;
·the respondent had pleaded guilty at an early stage; and
·the plea of guilty reflected some degree of remorse.
It was further submitted that comparing the sentence imposed by the County Court in 2017 with that imposed by the Court of Appeal in 2016 gave rise to no sense of disproportionality. Further, the sentencing judge should be regarded as in effect constrained by the approach adopted by the Court of Appeal.
The gravity of the 2013 firearms offending
Whilst the 2013 firearms offending involved possession of firearms and ammunition on a single occasion and was open to be treated by way of an aggregate sentence, it was nevertheless remarkable for the number of individual weapons involved, their nature, and the extent of the ammunition stored with them. Taken together, they constituted a substantial private arsenal.
Further, the fact that a semi-automatic rifle, two revolvers and a semi-automatic handgun were all found in a loaded condition, constituted a significant aggravating factor.
In addition, as the Court of Appeal concluded, the inescapable inference was that the respondent and his associates in the Hell’s Angels were holding the firearms and ammunition for the purpose of ongoing criminal conduct, namely anticipated violence involving another outlaw motorcycle gang and the provision of security in relation to illicit drug dealing.
Moreover, as the Court of Appeal observed, current sentencing practice recognises the relative gravity of offending of this type.
Whilst it is true that there were a number of personal factors which might be regarded as calling for some material moderation of sentence at the time of the Court of Appeal decision, these factors were significantly absent when the respondent fell to be re-sentenced. The Court of Appeal identified three factors as justifying a merciful exercise of its sentencing discretion.[71] None of these factors continued to apply when the matter came back to the sentencing judge in 2017.
[71]See [28] above.
First, the respondent was then in custody, rather than a person who had already been at large for a considerable period when he came before the Court of Appeal. Secondly, the respondent had not completed the bulk of the unpaid community work requirement of the CCO last imposed but had completed less than one-quarter of the requirement imposed by the Court of Appeal. Thirdly, and most importantly, it could not be said that the respondent was making continuing progress with his rehabilitation. To the contrary, he had relapsed into offending of the same kind as that for which he fell to be re-sentenced, and had demonstrated a fundamental failure to continue the process of rehabilitation in accordance with his CCO.
The respondent also had a long-standing criminal record for violent offending and had previously offended whilst on parole.
The sentencing judge was correct to have regard to the principles referred to by the Court of Appeal when re-sentencing the respondent, but she was in no way constrained by the penalty imposed by it. That penalty was avowedly merciful and expressly stated to be significantly less than should have been imposed in the first instance.
In all the circumstances, the gravity of the original offending must now be fully recognised. In accordance with s 83AS(1)(c) of the Sentencing Act 1991, the County Court could deal with the offender for the offence in respect of which the CCO was made in any manner in which the Court could deal with the offender as if it had just found him guilty of that offence.[72]
[72]See also Sentencing Act 1991 s 48Q.
The scale and seriousness of the aggregate offending must be reflected in part by a sentence which has regard to the maximum penalty of 10 years’ imprisonment applicable with respect to each of the possession of firearms offences. In Markarian v The Queen the plurality of the High Court said:
[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.[73]
[73](2005) 228 CLR 357, 372 [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ); affirmed by the plurality in DPP v Dalgliesh (a pseudonym) (2017) 91 ALJR 1063, 1067 [10] (Kiefel CJ, Bell and Keane JJ).
The maximum penalty of 10 years’ imprisonment applicable to the possession of firearms charges reflects the gravity of the offence and the purpose of ensuring public safety and peace.[74]
[74]Firearms Act 1996 s 1; Zogheib v The Queen (2015) 257 A Crim R 454, 474 [84] (Kaye JA).
The Court of Appeal observed on the last occasion that this matter came before it, that the imposition of an aggregate sentence under s 9 of the Sentencing Act 1991 was not equivalent to a ‘rolled-up count’. The respondent should have been sentenced, within the framework of an aggregate sentence, to much the same overall term of imprisonment as he would have received had each charge been dealt with separately and orders for cumulation made.[75]
[75]CoA Reasons [49]; R v Grossi (2008) 23 VR 500, 510 [40] (Redlich JA).
It is also necessary to take into account the assessment of the sentencing judge that, in an underlying sense, the respondent’s prospects of rehabilitation remain ‘fair’. His employment history, efforts to reconnect with his children and other positive qualities support this view. Nevertheless, we note that her Honour also concluded that, having regard to the respondent’s history, the appropriate sentence must give significant effect to the principle of specific deterrence. Having regard to his history, this is plainly correct.
The background circumstance of marriage break-up which led to the respondent’s association with a motorcycle gang forms part of the context in which these matters fall to be evaluated.
Due weight must also be given to the respondent’s pleas of guilty and the fact that his imprisonment since he was last arrested has involved, and is likely to involve in the future, greater isolation and hardship than would normally be the case because of the need to provide protection to him.
Recognition should also be given to the hardship suffered by the respondent during his initial period of pre-sentence detention in consequence of a riot at the Metropolitan Remand Centre.
In considering totality, regard must be had first to the head sentence originally imposed in respect of the other 2013 offending (upon which the sentence for the 2013 firearms offending was partially cumulated). It was that cumulation which produced the sentence which must now be reconsidered. Next, regard must be had to the period of the CCO which the respondent successfully completed (84 of 400 hours) including in particular the hours of unpaid community service work he performed. Thirdly, regard must be had to the head sentence now imposed with respect to the 2016 offending.
In all the circumstances, we would re-sentence the respondent in respect of the 2013 firearms offending to an aggregate sentence of 36 months’ imprisonment on the possession of firearms charges and otherwise confirm the individual sentences imposed for such offending. We would cumulate 18 months of the sentence upon the sentence imposed for the 2016 offending.
The residual discretion
The respondent further submits that even if it is accepted that the penalties imposed by the sentencing judge were manifestly inadequate, this Court should exercise its residual discretion not to order an increase in those penalties by way of resentence.
It is submitted that this course should be followed because the respondent had fulfilled 84 hours of community service and complied with other conditions of his CCO, including successfully completing drug testing and taking part in associated programs. He was also successfully employed prior to his arrest and had disengaged from association with a motorcycle gang.
These submissions fail to confront the gross breach of the terms of the CCO which occurred within three weeks of the Court of Appeal decision, the fact that more than three quarters of the community service requirement imposed by the Court of Appeal remained to be fulfilled at the time of reoffending and the deliberate breach of the respondent’s undertaking to the Court to be of good behaviour. They also fail to confront the need for sentences which adequately reflected the overall gravity of the respondent’s offending.
Due weight must also, of course, be given to totality in considering the exercise of the residual discretion and in particular to the sentence imposed in respect of the other 2013 offending which is not before us and the partial fulfilment of the respondent’s obligations under successive CCOs.
Nevertheless, in our view, the Director has established not only that the sentences imposed by the sentencing judge were manifestly inadequate, but also that the public interest requires that the respondent be resentenced.
Conclusion
The respondent should be resentenced in accordance with the orders foreshadowed in the introduction above resulting in a total effective sentence of five years six months’ imprisonment with a non-parole period of three years and 8 months.
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